Opinion
CIVIL ACTION NO. 04-386
April 13, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus. Petitioner is presently incarcerated at the State Correctional Institution at Greene, Waynesburg, Pennsylvania. For the reasons stated below, this court recommends that the petition be dismissed because it is barred by the one-year statute of limitations for the filing of a habeas corpus petition.
I. BACKGROUND
On March 4, 1994, a jury sitting before the Honorable James A. Lineberger of the Court of Common Pleas for Philadelphia County, convicted petitioner of murder, robbery and related offenses (C.P. Nos. 9208-2377). Judge Lineberger sentenced petitioner to a mandatory life sentence.
Petitioner did not appeal to the Pennsylvania Superior Court. However, on July 29, 1996, petitioner filed a pro se motion under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq., seeking to have his direct appeal rights reinstated nunc pro tunc. (Petition ¶ 11.) On August 27, 1998, the court reinstated petitioner's direct appeal rights, nunc pro tunc. On December 7, 1999, the Pennsylvania Superior Court affirmed petitioner's conviction. Commonwealth v. Traub, 750 A.2d 377 (Pa.Super. 1999). Petitioner did not make a timely request for review by the Pennsylvania Supreme Court. Indeed, after the deadline had passed, he filed a motion to file a petition for allowance of appeal nunc pro tunc, which was denied on August 10, 2000.
On March 27, 2001, petitioner filed a second PCRA, which was dismissed on September 26, 2002. Petitioner did not attempt to appeal the decision to the Superior Court.
On January 28, 2004, petitioner filed the present habeas petition and a memorandum of law. He raises five claims for relief:
1. Counsel was generally "ineffective;"
2. Ineffective assistance of trial counsel by allegedly conceding petitioner's guilt in closing argument;
3. Prosecutorial misconduct for allegedly disclosing prior criminal activity of petitioner;
4. Trial court abused its discretion for failing to declare a mistrial; and
5. Trial court erred in failing to preclude an in-court identification.
(Petition ¶ 12.)
On March 31, 2004, the District Attorney for Philadelphia County filed a response to the petition in which she argued that the petition should be dismissed as untimely because it was not filed within the one-year statute of limitations as required by 28 U.S.C. § 2244.
II. DISCUSSIONl
Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, in relevant part provides:
(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 January 6, 2000. This date represents thirty days after the Pennsylvania Superior Court affirmed petitioner's sentence on December 7, 1999. Pa. R. App. P. 1113. See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (stating that "a judgment becomes final after the time for seeking discretionary review expires"). Petitioner's nunc pro tunc request for allocator does not toll the statute of limitations. See Douglas v. Horn, 359 F.3d 257, 262 (3d Cir. 2004) (filing of a late notice of appeal, together with an application to proceed nunc pro tune is "improperly filed as a matter of state law" and therefore does "not toll the clock"). Thus, in accordance with 28 U.S.C. § 2244(d)(1), petitioner had until January 6, 2001 to file a timely habeas petition.
28 U.S.C. § 2244(d)(1)(A) provides that the statute of limitations runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." None of the other possible "start dates" listed in § 2244(d)(1)(B)(C) and (D) apply here.
The one-year statute of limitations is tolled during the time petitioner had pending in the state courts a properly filed PCRA petition. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a "properly filed" petition for collateral relief is pending is not counted toward the one-year statute of limitations). Petitioner's second PCRA petition, filed March 27, 2001, did not toll the statute of limitations because it was filed almost three months after the habeas statute of limitations expired. Thus, this habeas petition, filed January 28, 2004, is barred under 28 U.S.C. § 2244(d).
Petitioner has not alleged any facts to suggest that the statute of limitations should be equitably tolled. The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling in only 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 only be found 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 a wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). Therefore, in a non-capital case, such as the one now before the court, "attorney error, miscalculation, inadequate research, or other mistakes," do not constitute extraordinary circumstances required for equitable tolling. Fahy, 240 F.3d at 244. See also Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002) ("an attorney's mistake in determining the date a habeas petition is due" does not constitute an extraordinary circumstance for purposes of equitable tolling), cert. denied, 123 S.Ct. 1950 (2003).
Petitioner has not alleged that the Commonwealth of Pennsylvania misled him regarding the required date to file his federal habeas corpus petition. Moreover, petitioner has not alleged 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. Thus, the one-year statute of limitations cannot be equitably tolled.
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 13th day of April, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED as time-barred by the statute of limitations, and that no certificate of appealability be granted.
BY THE COURT: