Opinion
Civil Action No. 04-4075.
November 2, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the State Correctional Institution at Graterford, Pennsylvania. For the reasons stated below, this court recommends that the petition be denied.
I. BACKGROUND
On May 23, 1991, a jury sitting in the Court of Common Pleas for Philadelphia County, convicted petitioner of three counts of second-degree murder, two counts of aggravated assault, one count of burglary, and one count of arson. (July Term, 1990, Nos. 2261, 2263-64, 2267-68, 2271-73.) The evidence proved that on May 10, 1990, petitioner set fire to the home of his ex-girlfriend killing three children and injuring two adults. See Commonwealth v. Terry, No. 00780 Phila. 1992, slip op. at 2 (Pa.Super.Ct. Dec. 1, 1992). Petitioner was sentenced to three consecutive terms of life imprisonment for the murder convictions, followed by ten to twenty years imprisonment for the aggravated assault convictions. See Commonwealth v. Terry, No. 438 EDA 1999, slip op. at 1 (Pa.Super.Ct. Dec. 1, 1999.) In a memorandum opinion dated December 1, 1992, the Superior Court of Pennsylvania affirmed the judgment of sentence. Commonwealth v. Terry, No. 00780 Phila. 1992 (Pa.Super.Ct. Dec. 1, 1992). On direct appeal, petitioner raised the following seven issues:
The arson and burglary convictions merged for sentencing purposes.
1. Did the trial court err by denying Appellant the right to call Detectives Duffy and Hughes to testify as to statements made by Henry Medina?
2. Did the trial court err by overruling the objection of Appellant to testimony by the Medical Examiner of the last moments of the life of Rashee Johnson?
3. Did the trial court err in permitting Detective Koscinski to testify as to hearsay statements by an unknown woman of Puerto Rican heritage?
4. Did the prosecutor improperly comment upon the failure of Appellant Terry to testify by stating that Terry "sits there — quietly — calmly?"
5. Did the trial court err by refusing a defense request for a mistrial or a cautionary instruction concerning the remark about Appellant's silence?
6. Did the prosecutor improperly inflame the passions of the jury by entreating them to imagine the terror in the hearts of the victims during the last moments of their lives?
7. Did the trial court err in denying a defense request for a mistrial or a cautionary instruction to the remarks of the prosecutor?Id., slip op. at 1-2. Petitioner did not seek allocatur.
On January 1, 1997, petitioner filed a petition for collateral review under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Counsel was appointed and filed an amended petition on behalf of petitioner. The PCRA court denied relief on January 20, 1999, and the Superior Court of Pennsylvania affirmed the denial in a memorandum opinion dated December 1, 1999. Commonwealth v. Terry, No. 438 EDA 1999, slip op. at 1 (Pa.Super.Ct. Dec. 1, 1999.) Petitioner's sole argument was that "trial counsel was ineffective for failing to object to or request a modification of the jury instructions in that the instructions `effectively removed' third degree murder as an alternative verdict." Id. at 2. On April 27, 2000, the Supreme Court of Pennsylvania denied petitioner's request for review. Commonwealth v. Terry, 758 A.2d 661 (Pa. 2000).
On October 10, 2000, petitioner filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The court dismissed the petition on January 31, 2001 because petitioner neither filed an in forma pauperis form nor paid the $5.00 filing fee. (Civil Action No. 00-5099.) On August 15, 2002, petitioner filed a second PCRA petition which the PCRA court dismissed as untimely. The Superior Court affirmed the dismissal in an order dated December 9, 2003. Commonwealth v. Terry, 844 A.2d 1289 (Pa.Super.Ct. 2003). On July 27, 2004, the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Terry, 857 A.2d 678 (Pa. 2004).
It appears that petitioner filed two habeas corpus petitions on October 10, 2000. See Civil Action No. 00-5097. This second petition was dismissed without prejudice for failure to prosecute by order dated April 4, 2002.
On August 27, 2004, petitioner filed the instant pro se petition for a writ of habeas corpus raising the following three claims:
1. Lower courts committed reversible error in determining petitioner's PCRA petition was untimely filed;
2. Whether "legislature `time limits' violate petitioner's constitutional rights;" and
3. Whether "legislature time limits violate First Amendment principles."
(Petition ¶ 12.)
On October 6, 2004, the District Attorney for Philadelphia County responded to the petition. She argues that the petition is time-barred and should be dismissed. II. DISCUSSION
Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A habeas petition must be filed in a timely manner. The provision of the AEDPA relevant to the instant matter provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.),cert. denied, 534 U.S. 944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998).
Petitioner's conviction became final on December 30, 1992. This date represents thirty days after the Superior Court affirmed petitioner's sentence on December 1, 1992. See Pa. R.A.P. 1113(a) (petition for allowance of appeal shall be filed within thirty days of entry of order of Superior Court sought to be reviewed). See also Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir. 2000) ("[T]he period of limitation tolls during the time a prisoner has to seek review of the Pennsylvania Superior Court's decision[,] whether or not review is actually sought.").
The limitations provision of 28 U.S.C. § 2244(d) has been construed to give all prisoners a one-year grace period following its effective date on April 24, 1996, in which to initiate habeas actions when a conviction became final prior to April 24, 1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Accordingly, petitioner had until April 23, 1997, to file a timely habeas petition. Id.
The one-year statute of limitations is tolled during the time petitioner has pending in the state courts a properly filed PCRA petition. See 28 U.S.C. § 2244(d)(2). Petitioner's first PCRA petition, filed January 1, 1997, tolled the one-year grace period, but only while it was pending. At the time the first PCRA petition was filed, 252 days had expired on the limitations period, leaving 113 days remaining. On April 27, 2000, the Supreme Court of Pennsylvania denied allocatur from the Superior Court's affirmance of the denial of the PCRA petition. Thus, the limitations period resumed running on April 27, 2000, with 113 days for remaining allowing petitioner until August 18, 2000 to file a timely habeas petition.
Petitioner's prior habeas petition(s) and his second PCRA petition do not toll the statute of limitations. These petitions were filed after the statute of limitations already had expired. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir.), cert. denied, 125 S.Ct. 317 (2003).
Petitioner did not file the instant petition until August 27, 2004, more than four years after expiration of the statute of limitations. Accordingly, the petition is time-barred and should be dismissed.
The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling only in extraordinary circumstances. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In Miller, the court stated the following:
[E]quitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair. Generally, this will occur when the petitioner has in some extraordinary way . . . been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing the claims. Mere excusable neglect is not sufficient.Id. at 618-19 (interior quotations and citations omitted). Equitable tolling may be found only when: (1) the state has actively misled the petitioner; (2) the petitioner has in some extraordinary way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights but in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). See also Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir. 2002) (reaffirming the principles of equitable tolling enunciated inJones v. Morton). In non-capital cases, "attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy, 240 F.3d at 244. A "statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice." Jones, 195 F.3d at 159.
Petitioner has not demonstrated that the Commonwealth of Pennsylvania misled him regarding the required date to file his habeas corpus petition. Moreover, petitioner has neither alleged nor proven that he has "in some extraordinary way" been prevented from asserting his rights. Finally, this is not a case where petitioner timely asserted his rights in the wrong forum.
Petitioner does claim that he is actually innocent of the crimes of which he was convicted. As the Commonwealth points out, the Third Circuit has not recognized an "actual innocence" exception to the statute of limitations. See Hussman v. Vaughn, 67 Fed. Appx. 667, 669 (3d Cir. 2003) (finding that the petitioner had no basis to assert a claim of actual innocence and declining to address the issue of whether there is an actual innocence exception to the habeas statute of limitations) (not precedential); Chhoeum v. Shannon, 219 F. Supp. 2d 649, 654 n. 2 (E.D. Pa. 2002) (noting that the Third Circuit has not yet decided the issue). One Court of Appeals that has addressed the question rejected such an exception. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.) (a claim of actual innocence would not constitute a "rare and exceptional" circumstance which would justify the equitable tolling of the limitations period, "given that many prisoners maintain they are innocent"), cert. denied, 531 U.S. 1035 (2000). But see Garcia v. Portuondo, 334 F. Supp. 2d 446, 456, 461 (S.D.N.Y. 2004) (The district court noted that "[w]hether the United States Constitution requires an `actual innocence' exception to the AEDPA one-year statute of limitations on federal habeas petitions is a novel question of constitutional law," but concluded that "the running of the AEDPA statute of limitations is equitably tolled in the exceedingly rare case in which the petitioner makes out a credible claim of actual innocence.").
This court need not predict whether the Supreme Court or the Third Circuit Court of Appeals would agree with the Fifth Circuit's rejection of the actual innocence exception to the statute of limitations. InSchlup v. Delo, 513 U.S. 298, 324, 327 (1995), the Supreme Court explained that in order to establish "actual innocence" to be entitled to relief that otherwise would be barred, a petitioner must present "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial" showing that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. Petitioner presents no "new reliable evidence" but reargues evidence presented at trial. Petitioner is not entitled to equitable tolling of the statute of limitations.
Moreover, even if there were an "actual innocence" exception to the limitations period contained in § 2244(d), petitioner must have exercised reasonable diligence in raising his claim of actual innocence before the statute of limitations expired. See Workman v. Bell, 227 F.3d 331, 342 (6th Cir. 2000) ("Thus, if a prisoner purposefully or by inadvertence lets the time run under which he could have filed his petition, he cannot file a petition beyond the statutory time, even if he claims `actual innocence'."), cert. denied, 531 U.S. 1193 (2001). It appears that petitioner's claim of actual innocence is based upon the testimony of prosecution witnesses at the trial and the proffered testimony of two witnesses whom the trial judge refused to allow to testify. (Mem. Supp. Pet. at 5-16.) Petitioner offers no excuse for failing to raise these arguments in a timely fashion.
III. CONCLUSION
Accordingly, for all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 2nd day of November, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).