Opinion
CIVIL ACTION NO. 10-1237.
June 29, 2010
ORDER
AND NOW, this day of, 2010, upon careful and independent consideration of the Petition for Writ of Habeas Corpus (Docket No. 1), the Response thereto (Docket No. 6), and after review of the Report and Recommendation ("R R") of United States Magistrate Judge Henry S. Perkin dated May 19, 2010, IT IS HEREBY ORDERED that:
1. the R R is APPROVED and ADOPTED;
2. the Petition for Writ of Habeas Corpus is DENIED with prejudice and DISMISSED without an evidentiary hearing; and
3. there is no probable cause to issue a certificate of appealability.
REPORT AND RECOMMENDATION
Presently before the Court is a Petition for Writ of Habeas Corpus filed by the Petitioner, Sonny L. Thomas ("Petitioner"), pursuant to 28 U.S.C. section 2254. Petitioner is currently incarcerated in the State Correctional Institution in Frackville, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
I. PROCEDURAL HISTORY.
This information is taken from the Petition for Writ of Habeas Corpus, the Response thereto, and the attachments to those pleadings.
On January 11, 2006, following a jury trial before the Honorable F.P. Kimberly McFadden in the Court of Common Pleas of Northampton County, Petitioner was found guilty of murder in the first degree. On February 13, 2006, Judge McFadden sentenced Petitioner to life imprisonment without parole for the first degree murder conviction.
The state courts set forth the following relevant facts:
On January 21, 2005, Officer Mark Diluzio of the Bethlehem Police Department received a call to respond to 540 Broadway Street, Bethlehem, for a possible homicide.
Officer Diluzio was directed to the second floor where he encountered flames emanating from [Petitioner]'s apartment.
The landlord of the building gave Officer Diluzio keys to [Petitioner]'s apartment.
Officer Diluzio banged on the door and was told to go away by the occupant of the apartment.
Officer Diluzio and the other police officers then forced their way into [Petitioner]'s apartment by breaching the door.
An officer ordered [Petitioner] to get down; [Petitioner] did not.
[Petitioner] went into a "fighting stance" and began fighting with the officers.
Without any questions being directed to him, [Petitioner] told the officers that the deceased was a drug dealer and [Petitioner] did them a favor by killing him.
Officer Diluzio observed a body and papers around the body in flames.
Upon extinguishing the fire, Officer Diluzio observed the deceased individual face-down on the floor with a sword protruding from his back.
[Petitioner] was taken into custody, handcuffed and escorted from the apartment.
Petitioner filed a direct appeal from the judgment of sentence in the Superior Court of Pennsylvania. On December 27, 2006, the Superior Court denied Petitioner's direct appeal and affirmed the judgment of sentence.Commonwealth v. Thomas, 918 A. 2d 792 (Pa. Super. 2006) (table). Petitioner did not file a petition for allowance of appeal to the Supreme Court of Pennsylvania.
On March 28, 2008, Petitioner filed a pro se petition for collateral review under the Pennsylvania Post Conviction Relief Act ("PCRA"). The trial court appointed counsel for Petitioner, held an evidentiary hearing on July 3, 2008, and denied relief by order and opinion dated July 28, 2008. More specifically, the trial court dismissed Petitioner's PCRA petition on the basis that the court lacked jurisdiction due to the untimeliness of the filing of the PCRA petition.
Based on our review of the state court record in this matter, we note that Judge McFadden explicitly stated in her July 28, 2008 Order that the "Petition currently before the Court was not filed until March 28, 2008, well outside the timing requirements set forth in the PCRA statute. See 42 Pa.C.S.A. § 9545."
Petitioner appealed to the Pennsylvania Superior Court. The Superior Court determined that the issues contained in the PCRA petition were untimely and meritless, and affirmed the PCRA court's denial on June 15, 2009. Commonwealth v. Thomas, 981 A.2d 323 (Pa. Super. 2009) (table); Response, Ex. 2. In particular, the Superior Court noted the following:
The PCRA court held an evidentiary hearing on Thomas' petition. The PCRA court summarized its findings as follows:
At the time of the PCRA hearing, [Thomas'] trial and appellate counsel, Attorney Bohdan Zelechiwsky, testified that he received the decision of the Superior Court affirming judgment of sentence and immediately forwarded that decision to [Thomas]. Attorney Zelechiwsky further testified that at no time did [Thomas] make any request for further discretionary appeal to the Supreme Court of Pennsylvania.
PCRA Court Order, 7/28/08 at 1-2.
Here, the PCRA court believed Attorney Zelechiwsky's testimony wherein he stated he told Thomas about the outcome of the appeal. The PCRA court also believed Attorney Zelechiwsky when he said Thomas did not express any interest in filing a further appeal. "A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts." Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009). As counsel cannot be faulted for failing to perform an action Thomas never requested, we conclude Thomas failed to prove his counsel was ineffective.Commonwealth v. Thomas, 981 A.2d 323 (Pa. Super. 2009) (table); Response, Ex. 2, at 7-8. Petitioner filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied December 22, 2009. Commonwealth v. Thomas, 986 A.2d 150 (Pa. 2009) (table).
Petitioner signed the instant habeas Petition on March 12, 2010, and it was docketed by the Clerk of Court on March 16, 2010. Pursuant to the prison mailbox rule, this Court will consider the date of filing as March 12, 2010. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1997) (motion is deemed timely filed on date petitioner gave petition to prison officials to mail).
The case was assigned to the Honorable John P. Fullam, who referred it for preparation of a Report and Recommendation on March 30, 2010. On April 7, 2010, the undersigned entered an Order directing that the Clerk of Courts of Northampton County forward copies of all records, including transcripts of notes of testimony at arraignment, pre-trial and suppression hearings, trial, sentencing, and post-conviction hearings and appeals; all trial and appellate briefs and petitions, all pleadings, and all court opinions of proceedings in connection with this matter. The state court record pertaining to Commonwealth v. Sonny Thomas, Court of Common Pleas of Northampton County, CP-48-CR-0000622-2005, was received in chambers of the undersigned on May 4, 2010.
On April 30, 2010, Respondents filed a Response to the Petition for Writ of Habeas Corpus. Respondents contend that the Petition is time-barred, and that the case should be dismissed with prejudice and without an evidentiary hearing. Having reviewed the documents of record in this case, as well as the entire state court record, we offer this Report and Recommendation.
II. DISCUSSION.
A. The Federal Habeas Corpus Petition at Issue is Statutorily Time-Barred.
Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Pub.L. 104-132, 110 Stat. 1214. Section 104(2) of the AEDPA amended 42 U.S.C. section 2254, the statute under which this Petition was filed, requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. section 2244, to require that a strict one-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. However, if direct review of a criminal conviction ended prior to the AEDPA's effective date, a prisoner has one year subsequent to the April 24, 1996 effective date to properly file a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). In this case, the applicable starting point to examine the limitation period is the latest date on which the judgment of sentence became final, either by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1).
28 U.S.C. section 2244 requires that:
(d)(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.28 U.S.C. § 2244(d)(1).
Petitioner's judgment of sentence became final on January 26, 2007, when his time for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired. See 28 U.S.C. § 2244(d)(1)(A); 42 Pa. C.S.A. § 9545(b)(3); Pa. R.A.P. 1113(a) (stating notice of appeal must be filed within 30 days of order sought to be appealed). As a result, the one-year time limit for Petitioner to timely file a federal Petition for Writ of Habeas Corpus began on January 26, 2007. Accordingly, Petitioner had until January 26, 2008 to timely file the instant Petition. Petitioner executed his federal habeas corpus Petition on March 12, 2010. Because the Petition in this case was filed more than two years after the limitation period expired, it is statutorily time-barred.
As indicated above, we consider that date to be the date of filing in accordance with the prison mailbox rule. Burns, 134 F.3d at 113.
B. The Federal Habeas Corpus Petition at Issue is Not Eligible for Statutory or Equitable Tolling.
The AEDPA's one-year statute of limitations is subject to both statutory and equitable tolling. 28 U.S.C. § 2244(d) (enumerating statutory tolling provisions); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.), cert. denied, 540 U.S. 921 (2003) (holding AEDPA's time limit is subject to the doctrine of equitable tolling, a judicially crafted exception).
1. Statutory Tolling
We note initially that Petitioner is not entitled to a new, extended deadline for the AEDPA's limitation period pursuant to 28 U.S.C. § 2244(d)(1). Petitioner does not allege, nor is there evidence to demonstrate that state action prevented the timely filing of his habeas action. 28 U.S.C. § 2244(d)(1)(B). Although Petitioner makes a claim in his Petition with respect to attorney abandonment in connection with the filing of a petition for allowance of appeal with the Pennsylvania Supreme Court, this claim is made within the context of his PCRA filing, not his federal habeas corpus filing. Second, the claims alleged in the Petition do not rely on a new rule of federal constitutional law of retroactive application. 28 U.S.C. § 2244(d)(1)(C). Finally, Petitioner has not made a showing that the factual predicate of his claims was not discoverable through the exercise of due diligence long ago. 28 U.S.C. § 2244(d)(1)(D).
This allegation of attorney abandonment is more fully addressed below in the equitable tolling section.
With respect to Petitioner's PCRA filing, we note that the limitation period will be statutorily tolled for the time during which a "properly filed" application for state post-conviction or other collateral review is pending. See 28 U.S.C. § 2244(d)(2). However, if a PCRA petition is untimely, it is not considered properly filed in order to toll the AEDPA one-year statutory time period. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
Petitioner's PCRA petition, filed March 28, 2008, did not toll the statute of limitations because it was not timely filed. Commonwealth v. Thomas, 981 A.2d 323 (Pa. Super. 2009) (table); Response, Ex. 2. Untimely PCRA petitions do not toll the one-year statute of limitations pursuant to AEDPA. Pace, 544 U.S. at 417.
2. Equitable Tolling
This Court must next examine whether the AEDPA statute of limitations should be equitably tolled to consider the Petition timely filed.Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003) (citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998) (citation omitted). The limitation period will be equitably tolled when the principles of equity would make the rigid application of a limitation period unfair. Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Courts must be sparing in their use of equitable tolling. Seitzinger v. Reading Hosp. Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). In fact, the United States Court of Appeals for the Third Circuit has held that equitable tolling is proper "only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice." United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (citation omitted). "The two general requirements for equitable tolling: (1) that `the Petitioner has in some extraordinary way been prevented from asserting his or her rights;' and (2) that the petitioner has shown that `he or she exercised reasonable diligence in investigating and bringing [the] claims.'" Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003), citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). Mere excusable neglect is not sufficient. Miller, 145 F.3d at 618 (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)).
The Third Circuit has set forth the following three circumstances in which equitable tolling is permitted: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001), cert. denied, 534 U.S. 944 (2001) (citing Jones, 195 F.3d at 159 (citations omitted)). "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. The habeas petitioner bears the burden of demonstrating both his entitlement to equitable tolling and his due diligence. Pace, 544 U.S. at 418; Cooper v. Price, 82 Fed.Appx. 258, 260 (3d Cir. 2003); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982); United States v. Soto, 159 F.Supp.2d 39, 45 (E.D. Pa. 2001) (Van Antwerpen, J.).
In this case, we note at the outset, that Petitioner has failed to allege that some extraordinary circumstance prevented him from asserting his rights in a timely habeas corpus petition and has failed to demonstrate that he exercised reasonable diligence in investigating and bringing his claims. Merritt, 326 F.3d at 168. Petitioner filed his first federal habeas corpus petition more than four years after he was convicted. Nonetheless, it appears that Petitioner seeks the benefit of equitable tolling based on his allegation of attorney abandonment.
With respect to his alleged claim of attorney abandonment, Petitioner contends that he was not made aware of the December 27, 2006 resolution of his direct appeal by the Pennsylvania Superior Court, and that this notification failure prevented him from timely filing a PCRA petition.See Petition, p. 10. Petitioner's allegation of attorney abandonment, however, is unaccompanied by any explanation or support. As noted above, a habeas petitioner bears the burden of demonstrating his entitlement to equitable tolling. Pace, 544 U.S. at 418. Because Petitioner has failed to provide any support for this allegation, we conclude that it is not a proper basis to permit equitable tolling.
On PCRA review of his petition, the court analyzed this claim as follows:
[Petitioner] was unable to offer proof that his claim would satisfy any of the enumerated exceptions to the PCRA time limitations as set forth in section 9545 of the PCRA statute. [Petitioner] asserts that he never knew that his appeal was denied by the Superior Court. However, at the time of the PCRA hearing,
[Petitioner]'s trial and appellate counsel, Attorney Bohdan Zelechiwsky, testified that he received the decision of the Superior Court affirming judgment of sentence and immediately forwarded that decision to [Petitioner]. Attorney Zelechiwsky further testified that at no time did [Petitioner] make any request for further discretionary appeal to the Supreme Court of Pennsylvania. On the facts before this Court, none of the three exceptions to the jurisdictional one-year time bar apply and [Petitioner]'s Petition is untimely as having been filed more than one year outside the time [Petitioner]'s judgment of sentence became final.See July 28, 2008 Order of the Honorable F.P. Kimberly McFadden. Petitioner appealed to the Pennsylvania Superior Court and they affirmed the PCRA court's denial of his PCRA petition on June 15, 2009.Commonwealth v. Thomas, 981 A.2d 323 (Pa. Super. 2009) (table); Response, Ex. 2.
See Bacon v. Carroll, No. 06-cv-519, 2007 WL 2727168, at *3 (D.Del. Sept. 17, 2007) (petitioner's "conclusory and unsupported statement regarding counsel's alleged failure to help him obtain the trial transcripts" insufficient to permit equitable tolling); Molina v. Hendricks, No. 04-cv-4191, 2006 WL 1286215, at *5 (D.N.J. May 5, 2006) (equitable tolling unavailable where petitioner "has asserted no more than a bare allegation" in support of demand therefore); Collingwood v. Snyder, No. 00-cv-783, 2002 WL 1446702, at *4 (D.Del. June 28, 2002) (no equitable tolling based on prisoner's claim that his "legal stuff" was stolen absent explanation why documents were needed to prepare applications for either state or federal habeas relief).
Moreover, we note that in determining whether extraordinary circumstances exist to warrant the application of equitable tolling, this Court must also examine Petitioner's due diligence in pursuing the matter under the specific circumstances he faced. Traub v. Folio, No. 04-386, 2004 WL 2252115, at *2 (E.D. Pa. Oct. 5, 2004) (citing Schleuter v. Varner, 384 F.3d 69 (3d Cir. 2004)) (affirming dismissal of habeas petition as time barred and not entitled to equitable tolling because lengthy periods of time had elapsed following his conviction before he sought relief). It is Petitioner's burden to show that he acted with reasonable diligence and that extraordinary circumstances caused his petition to be untimely. Id.
Under the circumstances of this case, Petitioner did not act in a reasonably diligent fashion because a reasonably diligent petitioner would have acted promptly to preserve his rights not only in the state court, but also in this Court. Petitioner fails to allege any steps that he took to timely file the instant federal habeas petition. None of the circumstances which warrant equitable tolling apply in this case to render the instant Petition timely. Fahy, 240 F.3d at 244. Accordingly, the Petition is statutorily time-barred.
C. Certificate of Appealability.
When a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability should issue only if (1) the petition states a valid claim for the denial of a constitutional right, and (2) reasonable jurists would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, reasonable jurists could not disagree that the instant Petition is time-barred. It is statutorily barred, and neither statutory nor equitable tolling apply to this Petition.
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this 19th ay of May, 2010, IT IS RESPECTFULLY RECOMMENDED that the instant Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.The Petitioner may file objections to this Report and Recommendation.See Local Civ. Rule 72.1. Failure to timely file objections may constitute a waiver of any appellate rights.