Opinion
Civil Action No. 03-6093.
August 16, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Pittsburgh, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On June 9, 1990, following a bench trial presided over by the Honorable Michael J. Stiles of the Philadelphia County Court of Common Pleas, petitioner was convicted of murder in the third degree, criminal conspiracy, and reckless endangerment. Specifically, petitioner was convicted of acting with another man in shooting and killing Gregory Jackson after Jackson asked that man why he had slammed his fist down on the hood of Jackson's car. The trial court sentenced petitioner to sixteen to thirty-two years imprisonment.
Petitioner appealed to the Superior Court, which affirmed his sentence in a memorandum opinion. Commonwealth v. Thornton, 633 A.2d 1225 (Pa.Super. 1993). Petitioner then filed a request for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied on February 23, 1994. Commonwealth v. Thornton, 641 A.2d 585 (Pa. 1994).
Petitioner filed a pro se petition for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541, et seq., on June 16, 2000, alleging the following claims:
1. Newly discovered evidence;
2. Due process violation;
3. Confrontation clause violation;
4. Brady violation;
5. Prosecutorial misconduct;
6. Ineffective assistance of counsel;
7. Insufficient evidence to obtain a conviction; and
8. Actual innocence.
The court appointed counsel, who withdrew from the case after filing a "no merit" letter under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). The petition was dismissed without a hearing on May 15, 2001.
Petitioner appealed to the Superior Court, which affirmed the PCRA court's decision on March 12, 2002. Commonwealth v. Thornton, 799 A.2d 176 (Pa.Super. 2002). Petitioner then appealed to the Pennsylvania Supreme Court, which denied allocatur on October 29, 2002. Commonwealth v. Thornton, 812 A.2d 1229 (Pa. 2002).
Petitioner contends that the Superior Court's ruling came down on March 11, 2002, but the difference in date is of no matter here.
Petitioner contends that the Pennsylvania Supreme Court denied allocatur on October 31, 2002, but the difference in date is of no matter here.
Petitioner filed the instant petition for Writ of Habeas Corpus on November 5, 2003, alleging the following claims:
1. Petitioner's right to due process was violated when his PCRA petition was found not to fall within the "60-day Rule," even though the petition was filed upon the discovery of new evidence;
2. Petitioner has discovered new evidence that the government's alleged informant was not at the scene of the crime, and therefore could not have been a material witness;
3. Petitioner's 6th Amendment rights were violated — there was a Brady violation — when the government failed to disclose to him the name, whereabouts, and statements of the alleged informant;
4. Petitioner's 6th Amendment rights were violated — there was a Confrontation clause violation — when he was denied the opportunity to confront the alleged informant;
5. The government did not have probable cause to arrest petitioner, as there is no evidence to prove that the alleged informant exists;
6. The prosecution withheld information from petitioner about the alleged informant, resulting in prosecutorial misconduct; and
7. Petitioner is actually innocent of the crimes of which he has been convicted.
Petitioner filed a "Petition for Traverse Motion" on May 19, 2004, alleging virtually the same claims he has put forth in his petition for Writ of Habeas Corpus.
Respondent retorts that the petition is time-barred, and thus petitioner is not entitled to habeas review or relief.
II. TIMELINESS
Notwithstanding petitioner's allegations of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
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;28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective date, then under Third Circuit precedent, a petitioner has a one-year grace period subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998).
The AEDPA also sets forth three other potential starting points for the running of the statute of limitations, as follows:
(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 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) (1996). As petitioner has not alleged and the court cannot glean any facts indicating that any of these other starting points should be used, we do not consider them.
The statute, however, creates a tolling exception, which notes that "[t]he 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. § 2254(d)(2). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3rd Cir. 2003).
In the case at bar, petitioner's conviction became final in May of 1994, when the ninety-day time period for seeking certiorari from the Pennsylvania Supreme Court expired. As a result, petitioner had until April 23, 1997 to file a petition for Writ of Habeas Corpus. However, petitioner did not file the instant petition until November 5, 2003, more than six years after the statute of limitations had run.
Petitioner contends that his petition was filed on October 29, 2003, the date on which he purportedly signed and mailed it. Even if this were the case, his petition still would have been submitted well after the expiration of the statute of limitations.
Petitioner contends that the newly discovered evidence exception to the AEDPA time-bar applies in this case. However, the information that petitioner claims to be newly discovered evidence of a Brady violation is harmful, rather than helpful to his case. Petitioner's alleged Brady violation was summarized by the Superior Court as follows:
According to [petitioner], the Commonwealth failed to disclose the identity of a confidential informant, who was an eyewitness, and the statements of a police officer, which were based on his conversation with the confidential informant. The police officer's statement, according to [petitioner] reveals the confidential informant witnessed the murder and identified [petitioner] and co-defendant Watkins as those involved in the shooting. The informant then told the officer of this information. The police officer did not testify at the trial nor was the statement admitted into evidence. The Commonwealth, instead, presented testimony from the victim's wife and friend, both of whom were eyewitnesses to the shooting. Superior Court Slip Op. at 8.
In Hollman v. Wilson, 158 F.3d 177, 180 (3rd Cir. 1998), the court held that "a new trial will be granted for a Brady violation only if the defendant can demonstrate both that the prosecution withheld exculpatory evidence, and that the evidence was material, in that the defendant did not receive a fair trial because of its absence." See also United States v. Pelullo, 105 F.3d 117, 122 (3rd Cir. 1997). Not only is the evidence in the case at bar inculpatory, rather than exculpatory, but also it is not material to petitioner's guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Thus, there is no Brady violation, and therefore, the newly discovered evidence does not toll the statute of limitations. As petitioner failed to comply with the statute, this court has no choice but to dismiss the request for habeas relief without consideration on the merits.
One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling. Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3rd Cir. 1998). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (quotation omitted). 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 (internal quotation omitted). The Third Circuit has set forth three circumstances permitting equitable tolling: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3rd Cir. 1999) (internal quotations 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 v. Horn, 240 F.3d 239, 244 (3rd Cir. 2001), cert. denied, 122 S. Ct. 323 (2001) (citing cases). To otherwise apply equity would "lose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
Though the District court has the ability to review the substantive issues raised in a habeas corpus petition when applying the statute of limitations would unfairly prejudice the petitioner, the petitioner must show more than excusable neglect in order for the court to do so. Rather, the petitioner must prove that he exercised reasonable diligence but that for some extraordinary reason, he was prevented from asserting his rights.See Miller, 145 F.3d at 618-19. Petitioner has failed to meet this burden. Consequently, we decline to exercise our equitable tolling powers, and we dismiss his entire petition.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.