Opinion
No. 2:04-cv-01794-GP.
September 30, 2004
REPORT AND RECOMMENDATION
Now pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated at the State Correctional Institution at Dallas, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.
I. PROCEDURAL HISTORY
Following a jury trial before the Honorable James J. Fitzgerald, III of the Philadelphia County Court of Common Pleas, petitioner was convicted, on November 7, 1994, of first-degree murder, possessing instruments of crime and violating the Uniform Firearms Act. The conviction arose out of petitioner's shooting of victim Jerome Skeeters. Judge Fitzgerald sentenced petitioner to a life sentence on the murder conviction and concurrent terms of two-and-a-half to five years imprisonment on the remaining charges. Petitioner filed a timely appeal to the Pennsylvania Superior Court, who affirmed the judgment of sentence on May 16, 1996. Commonwealth v. Williams, 679 A.2d 852 (Pa.Super. 1996). No request for allowance of appeal was made to the Pennsylvania Supreme Court.
Petitioner filed a pro se petition, on July 1, 1996, under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Upon appointment of counsel and submission of an amended petition, the PCRA court denied the petition on its merits on June 9, 1999. The Pennsylvania Superior Court affirmed this decision on April 12, 2000. Commonwealth v. Williams, 758 A.2d 727 (Pa.Super. 2000). Subsequently, on August 15, 2000, the Pennsylvania Supreme Court denied allowance of appeal.Commonwealth v. Williams, 764 A.2d 1069 (Pa. 2003).
During the pendency of petitioner's appeal of his PCRA petition to the Pennsylvania Superior Court, petitioner filed a second PCRA petition, dated November 16, 1999. Although the court appointed counsel, it thereafter dismissed the petition as premature on October 28, 2000. No appeal ensued.
Over two years later, on February 12, 2003, petitioner submitted a pro se "Petition for Writ of Habeas Corpus to the Philadelphia Court of Common Pleas. Treating it as a PCRA petition, the Court dismissed it as untimely on July 8, 2003. The Superior Court affirmed the dismissal on July 23, 2004.
Petitioner filed the instant petition for writ of habeas corpus on April 20, 2004. Respondent, in turn, argues that the entire petition is untimely and must be dismissed.
Petitioner did not actually file his habeas petition in this Court until April 26, 2004. Under pertinent jurisprudence, however, a pro se habeas petition is deemed filed at the moment the prisoner delivers it to prison officials for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Giving petitioner the benefit of the doubt, the Court will deem the petition filed on April 20, 2004, the date petitioner signed it.
II. TIMELINESS
Notwithstanding petitioner's allegation of substantive grounds for relief, federal review of his case is prohibited on grounds of 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 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). As the petition does not allege any facts which indicate that any of these other starting points should be used, the Court does 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. § 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). 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 (3d Cir.), cert. denied, 124 S. Ct. 317 (2003). 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),cert. denied, 529 U.S. 1104, 120 S. Ct. 1846 (2000) ("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."); Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998) ("Under the plain language of the statute, any time that passed between the time that [petitioner's] conviction became final and the time that his state application for habeas corpus was properly filed must be counted against the one year period of limitation.").
In the case at bar, petitioner's conviction became final on June 16, 1996, thirty days after the Pennsylvania Supreme Court denied allowance of appeal. 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). Subsequently, he had one year — until June 15, 1997 — to file his federal habeas petition. On July 1, 1996, only fifteen days into his one-year limitations period, petitioner filed a PCRA petition, tolling the statute of limitations. That petition remained pending until August 15, 2000, when the Pennsylvania Supreme Court denied review of this claim. Thereafter, petitioner's second PCRA petition remained pending until November 27, 2000, thirty days after its October 28, 2000 dismissal. Accordingly, the federal statute of limitations resumed running on November 27, 2000, leaving petitioner 11 months and fifteen days to seek habeas relief in this Court. He failed to do so, however, until April 20, 2004, almost two and a half years too late.
See Pa. R. App. P. 1113 (granting thirty days to appeal to the Pennsylvania Superior Court).
"[T]he time during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d)(2)" Stokes v. District Attorney of County of Philadelphia, 247 F.3d 539, 542 (3d Cir.), cert. denied, 534 U.S. 959, 122 S. Ct. 354 (2001).
This Court is unclear as to whether a premature petition is "properly filed" for purposes of statutory tolling. However, as respondent concedes that the second PCRA petition may have, in fact, tolled the statute, we construe it to be "properly filed."
Nor does petitioner's third, self-styled state "Petition for Writ of Habeas Corpus" overcome the timeliness obstacle. As a primary matter, the state court treated this filing as a PCRA petition, since the PCRA is the sole means for obtaining post-conviction relief, and dismissed it as untimely. This ruling effectively branded the petition not properly filed and precluded it from having any tolling effect on the federal statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 165 (3d Cir. 2003) ("when applying AEDPA, `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.'") (quoting Fahy v. Horn, 240 F.3d 239, 243-244 (3d Cir.), cert. denied, 534 U.S. 944, 1225 S. Ct. 323 (2001).
See Commonwealth v. Bronshtein, 752 A.2d 868, 869-860 n. 3 (Pa. 2000) (citing the PCRA statute, 42 Pa.C.S.A. § 9542, which states that "[t]he action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.").
Moreover, and perhaps more importantly, petitioner's federal statute of limitations expired in November of 2001. Petitioner did not file his third state petition until February 12, 2003. As this was over a year after the expiration of his federal statute of limitations, statutory tolling could not save petitioner's habeas action.
One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling, which is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (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 (3d Cir. 1999) (internal quotations omitted); see also Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.), cert. denied, 539 U.S. 948, 123 S. Ct. 2617 (2003). "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 (3d Cir.), cert. denied, 534 U.S. 944, 122 S. Ct. 323 (2001) (citing cases).
Petitioner has not put forth any reason, let alone one that rises to the level of extraordinary circumstances, to justify the delay in filing his petition. Although he alleges numerous instances of ineffective assistance of PCRA counsel, such claims are of no moment. As a primary matter, a petitioner has no federal constitutional right to appointed counsel in state collateral post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S. Ct. 1990, 1994 (1987); see also Tillet v. Freeman, 868 F.2d 106, 108 (3d Cir. 1989) (a claim of ineffective assistance of collateral post-conviction counsel is not a cognizable basis for federal habeas corpus relief). Moreover, petitioner's allegations completely fail to explain the over two year absence of any action on his part following time his second PCRA was dismissed as premature, and the over three year delay prior to filing his current federal petition for writ of habeas corpus. Certainly, he cannot prove that he exercised reasonable diligence in bringing his claims here. Consequently, we decline to exercise our equitable tolling powers and, instead, dismiss this matter with prejudice.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 30th day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.