Opinion
NO. 05-cv-2233-HB.
October 25, 2005
MEMORANDUM AND ORDER
Currently pending before the Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner who is currently incarcerated at the State Correctional Institution at Waynesburg, Pennsylvania. For the reasons which follow, the Court rejects respondents' timeliness and exhaustion/procedural default arguments and orders a new answer.
I. PROCEDURAL HISTORY
Following a bench trial before the Honorable Michael J. Perezous of the Lancaster County Court of Common Pleas, petitioner, Rodney Lee Walton, was convicted of second degree murder on January 16, 1997. Petitioner subsequently appealed his conviction to the Superior Court of Pennsylvania, which affirmed on September 9, 1999. On February 23, 2000, the Pennsylvania Supreme Court denied petitioner's request for allowance of appeal.
Petitioner timely filed a petition for relief, under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq., on February 21, 2001. The petition was dismissed, without an evidentiary hearing, because the grounds were either previously litigated, waived or lacking in genuine issues of material fact. Petitioner timely appealed to the Superior Court of Pennsylvania, raising two issues: 1) abuse of discretion in dismissing the petition without providing access to case related documentation; and 2) abuse of discretion in dismissing the petition on grounds that petitioner's claims were without merit, but not providing any support for the denial of relief. On October 11, 2001, the Superior Court remanded the case and directed the trial court to provide Mr. Walton with the entire record and an opportunity to amend his petition. Mr. Walton's second claim was never addressed by the appellate court. The trial court failed to comply and returned the case file eleven days later. In turn, the Superior Court remanded a second time, on June 20, 2002, ordering the entire record to be provided to petitioner and permitting petitioner to file an amended/supplemented PCRA petition, if desired, upon receipt of the records. This time, the Superior Court also relinquished jurisdiction.
By February 12, 2003, petitioner had still not received the entire record and filed a new Notice of Appeal from the denial of his original PCRA petition. After discovering that this appeal was not docketed by the Prothonotary, petitioner filed a request for intervention with the Superior Court on May 28, 2003. This request was denied on July 10, 2003, due to the Superior Court's relinquishing of jurisdiction. In a further effort to pursue his claims, petitioner, filed a Petition for Writ of Mandamus, in July 2003, with the Supreme Court of Pennsylvania requesting that it compel the trial court to transmit petitioner's February 12, 2003 Notice of Appeal to the Superior Court. The Pennsylvania Supreme Court denied the request on February 5, 2004, and petitioner was notified of the denial on February 26, 2005. Finally, in April 2004, after a personal appeal to the President Judge of Lancaster County, petitioner's February 2003 Notice of Appeal was docketed. This appeal has yet to be heard by the Pennsylvania Superior Court. To date, petitioner has also filed a Request for Leave to File Notice of Appeal Direct in June of 2004, and an Application for Extraordinary Relief in August of 2004, both of which were denied. Additionally, in November 2004, petitioner filed Motion for Leave to Appeal Nunc Pro Tunc, for which he has received no response.
The instant petition for Writ Habeas Corpus was filed on June 27, 2005. Petitioner raises fourteen grounds upon which relief should be granted. Six of the grounds relating to alleged trial court errors in evidentiary rulings were raised on direct appeal. The remaining grounds were raised in Mr. Walton's PCRA petition. The respondent argues that petitioner's claims are barred due to timeliness, exhaustion and procedural default.
II. DISCUSSION
A. Timeliness
Respondents' first defense contends that petitioner's request for habeas relief is barred by the statute of limitations. Upon consideration of the record, this court disagrees.
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 prisoner has a one-year grace period subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
The statute 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 the 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).
The statute, however, also 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. § 2244 (d)(2). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Accordingly, "[w]hen a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of 28 U.S.C. § 2244(d)(2)."Pace v. DiGuglielmo, ___ U.S. ___ 125 S. Ct. 1807, 1812, reh'g denied, 125 S. Ct. 2931 (2005) (quotations omitted); see also Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003) (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). To determine whether or not a state PCRA petition is properly filed, "'we must look to state law governing when a petition for collateral relief is properly filed' and 'defer to a state's highest court when it rules on an issue.'" Merritt, 326 F.3d at 165 (quoting Fahy v. Horn, 240 F.3d 239, 243-244 (3d Cir. 2001)). Notably, § 2244(d)(2) of the AEDPA excludes from the one-year period only the time that a properly filed collateral attack is actually under submission. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) ("AEDPA's statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case 'pending' during that interval."); Shaird v. Wolf, Civ. A. No. 03-18, 2004 WL 555413, * 3 (E.D. Pa. Feb. 26, 2004) (time that lapses between final judgment of petitioner's criminal case and petitioner's filing of first PCRA counts toward petitioner's one-year time limit).
In the case at bar, petitioner's conviction became final on May 23, 2000, ninety days after the Pennsylvania Supreme Court denied allocatur. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). As this occurred after the effective date of the AEDPA, petitioner had until May 23, 2001 to submit his habeas petition. With approximately three months remaining in that one-year period, petitioner filed a PCRA petition, thereby tolling the statute of limitations.
United States Supreme Court Rule 13(1) provides that a petition for Writ of Certiori shall be deemed timely when filed within ninety days from the date of judgment by the United States Court of Appeals. Sup. Ct. R. 13(1).
The question now remains as to when that PCRA petition ceased to be "pending" for purposes of statutory tolling under 28 U.S.C. § 2244(d)(2). Respondents argue, without further explanation, that the PCRA petition was no longer pending as of July 10, 2003, when the Pennsylvania Superior Court denied petitioner's request for intervention. As such, they claim that the federal statute of limitations resumed running on that date and, thus, expired well before he filed his habeas petition.
Based on this court's review of the record herein, however, we find that the statute of limitations has never resumed running. The Court of Common Pleas dismissed petitioner's first PCRA filing on May 29, 2001. Mr. Walton then filed a timely appeal to the Superior Court of Pennsylvania alleging two claims: 1) that the trial court erred and/or abused its discretion in not providing Walton with access to his case-related documents and transcripts; and 2) that the trial court abused its discretion in dismissing Walton's PCRA petition without providing any corroborating record to support its denial. Finding that petitioner was improperly denied access to his documents, the Superior Court remanded the case, ordering only that the trial court provide the entire record. When the trial court failed to comply, the Superior Court, on October 11, 2001, remanded the case a second time, while simultaneously relinquishing jurisdiction. In doing so, however, it failed to ever address petitioner's second claim challenging the trial court's dismissal on the merits — an oversight which petitioner has repeatedly attempted to remedy through subsequent appeals of his PCRA petition. Indeed, petitioner's latest appeal, docketed in April 2004, still remains on the Superior Court's docket.
The tangled procedural history of this case now compels the Court to reject respondents' timeliness argument. The Pennsylvania Superior Court's refusal to ever address the whole of petitioner's timely filed appeal suggests that his PCRA petition remains pending in state court. As this appeal continues to toll the statute of limitations, we deem the current petition for writ of habeas corpus to be timely filed.
B. Exhaustion/Procedural Default
In a corollary affirmative defense, respondents allege that petitioner has failed to exhaust many of his claims in the state courts. They go on to assert that since state-imposed time restraints bar petitioner from returning to the state courts to exhaust his claims, the claims are now procedurally defaulted for purposes of federal habeas review. On consideration of the convoluted record before us, however, the Court excuses exhaustion and, in turn, rejects respondents' procedural default argument.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his available remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). In other words, a petitioner must invoke "one complete round of the State's established review process" before he may assert the claim on federal habeas review. Id. at 845. A petitioner is not deemed to have exhausted the remedies available to him if he has a right, under state law, to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). In the case of an unexhausted petition, federal courts should dismiss unexhausted claims without prejudice, so as not to deprive the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993).
Notably, exhaustion is not a jurisdictional requirement, but rather a rule of comity, which a federal court, in certain circumstances, may excuse. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992), cert. dismissed, 506 U.S. 1089, 113 S. Ct. 1071 (1993). As such, "[i]f it appears that the prisoner's rights have become an 'empty shell' or that the state process is a 'procedural morass' offering no hope of relief," the federal court may consider petitioner's claims on the merits, notwithstanding non-exhaustion. Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir. 1991). Indeed, "exhaustion is not required if there is inordinate delay in state procedures, . . . if state officials have obstructed the petitioner's attempts to obtain state remedies," or because "the state court would refuse on procedural grounds to hear the merits of the claims." Lines v. Larkins, 208 F.3d 153, 163 (3d Cir. 2000), cert. denied, 531 U.S. 1082, 121 S. Ct. 785 (2001) (internal citations omitted). In cases of claimed inordinate delay, the Third Circuit has reasoned that "[i]t is the legal issues that are to be exhausted, not the petitioner." Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987) (citations omitted). Although no bright-line rule exists, it remains well-established that "when a state court fails to act in spite of 'ample opportunity' to decide a prisoner's claims, considerations of comity do not necessarily require dismissal for lack of exhaustion." Hankins, 941 F.2d at 250. Inordinate delay has generally been found when the state courts have delayed over multiple years in considering a state petition. See, e.g., Cristin v. Brennan, 281 F.3d 404, 411 (3d Cir. 2002) (delay of thirty-three months sufficient to excuse exhaustion); Story v. Kindt, 26 F.3d 402, 406 (3d Cir.), cert. denied, 513 U.S. 1024 (1994) (delays of eleven, five, twelve and three years sufficient to excuse exhaustion).
In the instant case, petitioner's diligent pursuit of available state remedies has proven to be an unequivocally futile exercise of his rights as evidenced not simply by the inordinate delay, but by the state court's blatant refusal to acknowledge the existence of his pending action. Petitioner has followed the appropriate state procedures in an effort to exhaust his claims, yet his efforts have repeatedly been thwarted. By never reviewing petitioner's merits-based claim and then relinquishing jurisdiction, the Superior Court created an initial obstacle to state review. The state system fortified that obstacle by ignoring his subsequent notices of appeal and denying both his requests for intervention and for extraordinary relief, without ever supplying petitioner with the required documents or fully addressing his appellate claims. Although the trial court has since docketed his February 2003 Notice of Appeal, no further action appears to be forthcoming. Hence, petitioner, through no fault of his own, cannot complete one full round of Pennsylvania's appellate procedure in order to exhaust his habeas claims here.
Having thus excused exhaustion on the basis of futility, we must now address the remaining defense of procedural default. The procedural default barrier, in the context of habeas corpus, precludes federal courts from reviewing a state petitioner's habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27 (1991). "In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. Although the issue of procedural default is best addressed by the state courts in the first instance, a federal court may dismiss a petition as procedurally barred if state law would unambiguously deem it defaulted.Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995).
Although respondents have provided this Court with a recitation of the general law of procedural default, they have failed to set forth the factual basis for their claim. Based on a reading of their brief, however, we presume they rely on the well-established rule that "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas. . . ." Coleman, 501 U.S. at 735 n. 1; McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). The purpose of this principle is to prevent habeas petitioners from being able to avoid the exhaustion doctrine by defaulting their federal claims in state court. Coleman, 501 U.S. at 732.
We reject this argument. It is true that a finding of futility merely eliminates the procedural pretense of requiring a federal habeas petitioner to return to an unavailable state forum for nonexistent relief, but does not dispose of potential procedural default. Lines, F.3d at 166. Nonetheless, the Third Circuit has recognized that in cases where the futility results from failures by the state, the federal court may proceed to the merits of a petitioner's claim. Id. at 166, n. 19. In the case before the Court, the futility does not arise from an adequate and independent state procedural bar, as required by Coleman, but rather from the state's own inordinate delay and refusal to process and hear petitioner's properly filed appeal. Accordingly, we reject respondents' procedural default claim.
In light of petitioner's diligence in pursuing his state remedies and the state's lack of willingness to provide the appropriate channels or relief, this Court now dismisses all of the affirmative arguments raised in respondents' brief. Unfortunately, respondents have neglected to offer any substantive answer to the issues presented by petitioner or, alternatively, any other procedural basis which precludes our consideration of the merits of this petition. To that end, the Court will order that respondents provide a specific and detailed answer to the substantive claims in the currently pending Petition for Writ of Habeas Corpus.
The Court recognizes that some of petitioner's claims may be procedurally defaulted on other grounds such as waiver and/or previous litigation. To the extent such grounds exist, this Court's order does not preclude respondents from raising them in their supplemental brief, but cautions that they should do so with specificity.
An appropriate order follows:
ORDER
AND NOW, this 25th day of October, 2005, it is hereby ORDERED that respondents shall submit, within twenty (20) days from the date of this order, a new Answer to petitioner's Petition for Writ of Habeas Corpus, addressing the merits of petitioner's claims and/or setting forth, in detail, alternative procedural grounds which may bar this court's consideration of petitioner's claims.It is so ORDERED.