Opinion
CIVIL ACTION NO. 03-3418
March 24, 2004
Memorandum and Order
Marcus M. Walton, the petitioner, filed a pro se petition for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254. After conducting a de novo review of Magistrate Judge Peter B. Scuderi's findings and recommendations and upon consideration of petitioner's reply to the government's response and petitioner's objections to the Report and Recommendation, Walton's petition will be dismissed.
Petitioner argues that although he missed the deadline for filing his habeas petition, he filed a notice in compliance with the 90-day procedural requirements to file a writ of habeas corpus. Reply at 6, Exhibit F2. Petitioner claims that he filed a letter with the Clerk of this Court on or about December 20, 2001, in which he stated that he would not be able to meet the December 25, 2001 deadline for filing his habeas petition because of library closings and declared his intention to "file the intended petition for Writ of Habeas Corpus immediately upon completion of the current Holiday Season." Reply ¶ 14, Exhibit F2. The docket does not reflect any such filing or any prior federal habeas corpus petition filed prior to this petition filed May 16, 2003. Moreover, I am not aware of any authority that permits what petitioner has claimed is a "protective filing." In addition, even if I somehow allowed this claimed "protective filing," it could not remain effective for nearly 17 months until the date of actual filing on May 16, 2003.
When such letters are received, as a matter of procedure, the Clerk's office dockets the letter and sends the proposed petitioner a copy of the required forms under 28 U.S.C. § 2254.1 have checked with the Clerk's Office, and that office has found no record that such copies were sent or that the letter was in fact was received. The docket also does not reflect the filing of such a letter.
Both the petitioner and the respondent state that the petitioner's original PCRA petition was filed on January 2, 1997 rather than January 21, 1997 as stated in the Report and Recommendation. Report and Recommendation at 6. Apparently, this was a typographical error in the Report and Recommendation, because it earlier referred to the date of January 2, 1997. See id. at 2. The error resulted in 272 days of the one-year statute of limitations having expired rather than 253 days, which as corrected would give the petitioner an additional 19 days to file a timely petition. Id. at 2, 6. The difference of 19 days, however, is inconsequential to the result. In either case, the petition was untimely.
Petitioner also asserts that the Commonwealth never disclosed to him, his trial counsel or subsequent counsel that David Munlyn had entered into a plea agreement, and therefore argues that this evidence is newly discovered. A writ of habeas corpus may be filed within one year from the "date on which the factual predicate of the claims or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1). Petitioner states that it was not until February 20, 2000 that he learned of the "concealment of a plea agreement" with Munlyn. Reply ¶ 4. Yet, Munlyn was sentenced on March 13, 1990 in a public proceeding. Therefore, petitioner obviously could have learned of this agreement almost ten years earlier through the exercise of due diligence such that this information cannot be considered "newly discovered evidence." Even if the February 20, 2000 date is accepted, petitioner did not file within one year of that date.
The AEDPA's one-year statute of limitations may be statutorily tolled during "the time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001). Petitioner contends that his first PCRA petition was pending until September 25, 2001. Even if the court were to consider the petitioner's first PCRA petition to be "pending" until September 25, 2001, when the Pennsylvania Supreme Court denied his nunc pro tunc appeal, which I do not, his petition is still untimely. After September 25, 2001, petitioner would have had only 112 days to file a timely habeas petition, but he did not file until one year and almost eight months later. Therefore, I will dismiss his petition as untimely.
According to the Report and Recommendation, the petition was pending until October 19, 2000. Report and Recommendation at 6-7. This is the correct date.
Petitioner argues that his PCRA petition was pending for purposes of tolling the AEDPA statute of limitations until September 25, 2001, the date that the Pennsylvania Supreme Court actually denied his nunc pro tunc request for allowance of appeal. Yet, a properly filed PCRA petition is no longer pending after the time for seeking allowance of appeal in the Pennsylvania Supreme Court expires. Swartz v. Meyers, 204 F.3d 417, 420 (3d Cir. 2002). Walt on had until October 19, 2000 to seek an allowance of appeal in the Pennsylvania Supreme Court, thirty days after the Pennsylvania Superior Court affirmed the denial of his first PCRA petition on September 19, 2000. Thus, Walton's PCRA petition was no longer pending after October 19, 2000.
Petitioner had 112 days remaining to file a timely petition (93 days as calculated in the Report and Recommendation in addition to the 19 to account for the typographical error). Petitioner's first PCRA petition wasn't filed until January 2, 1997, 253 days into the one year grace period (April 24, 1996-April 23, 1997), which was afforded to petitioner because his judgment became final prior to the enactment of the AEDPA. See Report and Recommendation at 5-6.
Petitioner's second PCRA petition does not toll the limitations period because it was dismissed by the state court as untimely and was not, therefore, a properly filed application for post-conviction relief. The Third Circuit has held that "an untimely application for state post-conviction relief by a petitioner . . . is not properly filed under 28 U.S.C. § 2244(d)(2)." Merritt v. Blaine, 326 F.3d 157, 159 (3d Cir. 2003). Once the highest Pennsylvania court to have ruled on the matter has decided that a PCRA petition is not timely, "it would be undue interference for a federal district court to decide otherwise." Id. Thus, bound by the state court's findings, I conclude that petitioner's second PCRA petition was untimely, and therefore Walton did not "properly file" a PCRA petition. Consequently, the tolling provision of the AEDPA for a properly filed state habeas petition does not assist the petitioner.
I have conducted a de novo review of the magistrate's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and I find that Walton is barred from bringing this federal habeas petition because he failed to timely file his habeas petition pursuant to 28 U.S.C. § 2244(d)(1)(A).
Order
And now on this ___ day of March 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. #1), and after review of the Report and Recommendation of the United States Magistrate Judge Peter B. Scuderi (Doc. #12), and consideration of petitioner's reply (Doc. #13) and petitioner's objections to the Report and Recommendation (Doc. #14), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:1. Petitioner's objections are OVERRULED;
2. The Report and Recommendation of Magistrate Judge Peter B. Scuderi is APPROVED and ADOPTED as supplemented herein.
3. The petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED;
4. The petitioner having failed to make a substantial showing of the denial of a constitutional right, there is no ground to issue a certificate of appealability, see 28 U.S.C. § 2253(c); and
5. The Clerk shall CLOSE this case statistically.