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Whittington v. Superintendent Folino

United States District Court, E.D. Pennsylvania
Jun 2, 2004
Civil Action No. 04-933 (E.D. Pa. Jun. 2, 2004)

Opinion

Civil Action No. 04-933.

June 2, 2004


REPORT AND RECOMMENDATION


Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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 April 23, 1985, petitioner entered a guilty plea to the charge of second-degree murder (Phila. C.P. No. 1016, January Term, 1985). On that same day, the Honorable Joseph T. Murphy of the Philadelphia Court of Common Pleas sentenced petitioner to the mandatory sentence of life imprisonment. Petitioner did not file a direct appeal.

On January 23, 1989, petitioner filed a petition for collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. On August 19, 1992, the PCRA court dismissed the petition. Petitioner did not appeal. On or about October 24, 1990, petitioner filed a federal habeas corpus petition. See Whittington v. Ryan, et al., No. 90-CV-6673. On November 20, 1990, the Honorable Marvin Katz dismissed the petition without prejudice for failure to exhaust state court remedies. On January 15, 1997, petitioner filed his second PCRA petition. The PCRA court dismissed the petition as time barred on December 1, 1997. No appeal was filed. On June 11, 2003, petitioner filed his third PCRA petition. The PCRA court dismissed it as untimely on January 26, 2004. On or about February 12, 2004, petitioner appealed the denial of PCRA relief to the Superior Court of Pennsylvania. See Commonwealth v. Whittington, Docket No. 629 EDA 2004 (Pa.Super. 2004). As of May 12, 2004, petitioner's brief had not yet been filed with the state appellate court. See Commonwealth's Response, Ex. B (docket entries).

On March 3, 2004, petitioner filed his petition for a writ of habeas corpus in this court. He raised four grounds for relief, which essentially challenge the voluntariness of his guilty plea and the effectiveness of his trial counsel.

On May 26, 2004, the District Attorney for Philadelphia County filed a response to dismiss 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. DISCUSSION

Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, creates a one-year time limit for filing a habeas corpus petition and 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 postconviction 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 in 1985 when the thirty day period to file a direct appeal expired. See Pa. R. App. P. 903. Because the conviction became final before the effective date of the AEDPA, petitioner was granted a one-year grace period, or until April 24, 1997 to seek federal habeas review.See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).

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). The first PCRA proceeding terminated in 1992 prior to commencement of the grace period provided for in the AEDPA. Thus, there is no tolling of the applicable limitations period. The second and third PCRA petitions were found to be time barred by the state courts. Therefore, they also cannot toll the statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 165 (3d Cir. 2003) (An untimely PCRA petition does not statutory toll the one-year limitations period for filing of a habeas corpus petition.), cert. denied, 124 S.Ct. 317 (2003). The present habeas petition was filed on March 3, 2004, almost seven years after the expiration of the one-year limitations period. Thus, the instant petition 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 be found only 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).

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 2nd day of June, 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.


Summaries of

Whittington v. Superintendent Folino

United States District Court, E.D. Pennsylvania
Jun 2, 2004
Civil Action No. 04-933 (E.D. Pa. Jun. 2, 2004)
Case details for

Whittington v. Superintendent Folino

Case Details

Full title:FELIX DEAN WHITTINGTON v. SUPERINTENDENT FOLINO, et al

Court:United States District Court, E.D. Pennsylvania

Date published: Jun 2, 2004

Citations

Civil Action No. 04-933 (E.D. Pa. Jun. 2, 2004)