Opinion
Civil Action No. 03-CV-04692.
June 21, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Alfred E. Williams ("Petitioner") currently is incarcerated at the State Correctional Institution at Somerset, Pennsylvania. Petitioner seeks habeas corpus relief based on alleged trial counsel and trial court errors. The Honorable Timothy J. Savage referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, Petitioner's time-barred claims should be dismissed without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts contained in this section were gleaned from the Petition for Habeas Corpus, the Commonwealth's responses, inclusive of all exhibits thereto, and the state court record.
On December 2, 1999, Petitioner pled guilty to second degree murder in the Delaware County Court of Common Pleas before the Honorable Patricia H. Jenkins, who imposed a negotiated sentence of life imprisonment. See Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus ("Resp.") at 2. The murder charges stemmed from the bludgeoning death of Henry James at Petitioner's ex-girlfriend's residence on November 18, 1998. Id. After committing the murder, accompanied by a Reverend, Petitioner turned himself in to the police and admitted that, upon finding the victim in bed with his girlfriend, he used two knives and a baseball bat to beat, stab, and slit the victim's throat several times. See N.T., 1/6/99, Preliminary Hearing; Statement of Alfred Williams, C.I.D., N.T.,11/24/98, 29-38, 46; Pretrial Conference, N.T., 7/16/99, Def. Ex. Appx. 1, 23-26.
Petitioner did not file a direct appeal, thus his conviction became final on January 3, 2000. On July 19, 2000, Petitioner filed a pro se petition for collateral relief pursuant to the Post Conviction Relief Act, ("PCRA") 42 Pa.C.S.A. § 9541, et seq. See Petitioner's Motion for Post Conviction Collateral Relief, July 19, 2000. Petitioner argued that he was "so mentally impaired, [he] could not participate in [his] defense;" that ineffective assistance of his trial counsel denied him the opportunity to present "mitigating circumstances" to show "reasonable probability that the result of the sentencing phase would have been different;" that his conviction violated the "150 [year] old-McNaughten [sic] Rule;" that his "Constitutional Rights" were violated;" that he was "[n]ot permitted trial by jury;" and that the "Courts . . . refus[ed] to permit psychiatrists [sic] testimony." Id. In his supporting brief, Petitioner argued that the court "erred when it did not take the testimony of psychiatrist and psycholosists [ sic]," and that his lawyers were "negligent in not presenting mitigating circumstances and that the court hadn't been permitted to consider mitigating evidence was prejudice [ sic]." Id. Stating that he "[is] not a criminal" and conceding that he "committed a serious anti-social act," Petitioner argued that he is a "very sick person, [and that his] counsel [who] had [his] medical records . . . chose not to present them." Id.
Court-appointed counsel, on November 9, 2000, filed a "no-merit" letter, pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987) and Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). See Resp. at Exhibit A. On November 13, 2000, Judge Jenkins gave Notice of Intent to Dismiss Petition Without a Hearing; Petitioner filed no response. Id. at 3. Therefore, Judge Jenkins, on December 7, 2000, dismissed the PCRA action and granted Petitioner's counsel permission to withdraw. See Commonwealth v. Williams, No. 4573-98, Order (Ct. C.P. Pa. Dec. 7, 2000). Petitioner did not file an appeal from this order.
Next, on November 21, 2002, Petitioner filed a pro se "Habeas Corpus Nunc Pro Tunc" in the Pennsylvania Supreme Court arguing: (1) evidence obtained in violation of the Fourth Amendment of the United States Constitution should have been suppressed; (2) his pre-trial detention violated Rule 600 of the Pennsylvania Rules of Criminal Procedure ("Rule 600"); and (3) his trial counsel was ineffective. See Resp. at Exhibit B. Petitioner did not present his mental competency claims to the state Supreme Court. On May 27, 2003, the Pennsylvania Supreme Court entered a per curiam order denying Petitioner's writ.
On August 14, 2003, Petitioner filed the instant petition for writ of habeas corpus alleging: (1) his conviction was obtained by use of an involuntary and unlawfully induced guilty plea; (2) counsel rendered ineffective assistance; (3) his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure; and (4) his pre-trial detention violated Rule 600. See Petition for Habeas Corpus, Sept. 3, 2002 ("Pet.") at 9-11. Petitioner asserts that the above grounds "were all presented in the Supreme Court of PA, [whereas] the ground not fully presented by defendant is that of competency, which [Petitioner] just became aware of." Id. at 11.
On November 26, 2003, Respondents, in a motion to dismiss, urged this court to dismiss Petitioner's untimely petition and to defer the requirement of a substantive answer. See Respondents' Motion to Dismiss, Nov. 26, 2003. Petitioner filed a supplemental brief in support of his petition on December 16, 2003. See Petitioner's Brief in Support (Amended), Dec. 16, 2003. Respondents informed this court that Petitioner did not serve upon them a copy of his amended brief; however, on January 27, 2004, a copy of this brief was sent to Respondents, who also were ordered to file a substantive response. See Williams v. Sobina, No. 03-CV-04692, Order, Jan. 27, 2004. On February 26, 2004, Respondents filed a substantive response. See Respondent's Response to Petition for Writ of Habeas Corpus "Resp. No. 2," February 26, 2004. On March 5, 2004, Petitioner requested that this court "give [him] about 90 days . . . [to] show . . . why [this court] should give [him] a second chance."
This court afforded Petitioner leave until May 24, 2004 to file a Traverse to Respondent's substantive response. See Williams v. Sobina, No. 03-CV-04692, Order, March 24, 2004. However, as of the date of this Report and Recommendation, Petitioner has not done so. Hence, this case is ripe for decision.
II. DISCUSSION
A. AEDPA Statute of Limitations
The Anti terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, generally requires that all habeas corpus petitions be filed within one year of the date on which a state court judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). A state judgment of conviction is final once direct review is concluded or the time for seeking such review has expired. See id. Any time which elapses between the issuance of a final judgment and institution of a "properly filed" petition for state collateral review is subtracted from the allotted year. See Swartz v. Meyers, 204 F.3d 417, 419 n. 2 (3d Cir. 2000).
While the date on which the petitioner's conviction becomes final is typically the "run" date for the limitations period, see 28 U.S.C. § 2244(d)(1), the statute also permits the limitation period to run from the latest of several events:
(d)(1)(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 State 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)(B)-(D). Petitioner does not allege facts that entitle him to any of these alternative run dates. The state did not prevent timely filing; no new constitutional right has been recognized; and, the facts pled, inter alia, were known to Petitioner within the statutorily mandated filing deadline. Moreover, the statute of limitations for federal habeas corpus petitions is tolled during the pendency of a properly filed petition for collateral relief. See 28 U.S.C. § 2244(d)(2); Jones v. Morton, 195 F.3d 153, 158 (3rd Cir. 1999).
A "properly filed application" for collateral review is "one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). See also Artuz v. Bennett, 531 U.S. 4, 9 (2000) (citing Lovasz and holding an application for collateral review is "properly filed" if its "delivery and acceptance are in compliance with the applicable laws and rules governing filings," i.e. the form of the document). The Third Circuit specifically has held that a state collateral petition that is found to be untimely by the state courts is not "properly filed" for purposes of tolling the AEDPA clock. See Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *1 (3rd Cir. Mar. 17, 2003) (to be deemed `properly filed,' an application for collateral review in state court must satisfy the state's timeliness requirements).
Petitioner did not file a direct appeal from the judgment of sentence, therefore, his conviction became final on January 3, 2001, one year after expiration of the thirty-day period in which he could have appealled to the Pennsylvania Superior Court. See 42 Pa. Cons. Stat. Ann. § 9545(B)(3); Commonwealth v. Brown, 767 A.2d 576 (Pa.Super. 2001). Petitioner's properly filed July 19, 2000 PCRA petition, denied on December 7, 2001, was pending for 171 days until the time for filing a notice of appeal from the denial of PCRA relief expired on January 8, 2001. See Miller v. Dragovich, 311 F.3d 574 (3rd Cir. 2002), cert. denied, 124 S.Ct. 164 (2003). Thus, this collateral attack on his conviction effectively tolled Petitioner's AEDPA year.
By contrast, Petitioner's "Habeas Corpus Nunc Pro Tunc," filed with the Pennsylvania Supreme Court, did not further extend Petitioner's AEDPA clock, inasmuch as it was neither properly filed, nor considered on the merits by Pennsylvania state courts. See Castille v. Peoples, 489 U.S. 346, 349 (1989) (holding that a petitioner's claim to the Pennsylvania Supreme Court for the first and only time in a procedural context in which its merits will not be considered absent "special and important reasons," does not satisfy the exhaustion requirements of 28 U.S.C. § 2254(c)). Under Pennsylvania law, all pleadings filed after the conclusion of direct appeal are considered to be requests for relief under the PCRA. See Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718, 721 (1997). Such petitions must be presented within one year of the date a judgment became final. See 42 Pa.C.S. § 9545(b)(1). Petitioner's November 21, 2002 filing, thus, was deemed a second petition for collateral relief. In order to be reviewed, such "second or subsequent petitions" must be filed within one year of the date the judgment becomes final. See Commonwealth v. Peterkin, 422 A.2d 638 (Pa. 1998); Commonwealth v. Banks, 726 A.2d 374, 375-76 (Pa. 1999). The State Court dismissed this untimely petition, therefore, Petitioner's remaining time (171 days) expired on or about June 25, 2001.
Equitable tolling, nevertheless, potentially could excuse Petitioner's delay. The Third Circuit has held that the one-year period of limitation in § 2254(d)(1) is a statute of limitations, not a jurisdictional bar. See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3rd Cir. 1998). District courts may equitably toll the one-year period of limitation:
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 (alterations in original) (citations omitted). In determining the applicability of the above guidelines, it is appropriate to examine factors such as ignorance of the rules of procedure, Petitioner's credibility as to the reason for the delay, any lack of diligence, efforts toward compliance and an understanding of the consequences of dilatory behavior. See U.S. v. Diaz, Civ.A. 95-5616, 1999 WL 391384 at *2 (E.D. Pa. May 27, 1999); see also U.S. v. Ramsey, No. 92-590-2, 1999 WL 718079 (E.D. Pa. Aug. 26, 1999). More specifically, equitable relief will be permitted:
if (1) 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 mistakenly in the wrong forum.Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted) (emphasis supplied).
Application of Miller criteria to the facts of this case does not entitle Petitioner to equitable relief. While Petitioner does not expressly raise an "equitable tolling" argument in his petition, he does contend that he was "incompetent to stand trial or to waive available legal remedies." See Pet.'s Brief in Support, at 2. He further posits that "[n]ew and material evidence that not-withstanding [sic] the exercise of reasonable diligence by the defendant was not discovered before, or during the trial . . . [and] would probably have changed the verdict or judgment of guilty [sic]." Id. at 3.
The record does not support Petitioner's assertion that he "just became aware" of his competency claim. Equally evident is the lack of merit to a mental diminution defense. As early as December 28, 1998, approximately one month after he murdered Henry James, Petitioner was examined by Stephen Mechanick, M.D., a psychiatrist at the Delaware County Prison. See Resp. No. 2, Appx. at 492-497. Dr. Mechanick opined that Petitioner
does not have marked disorganization of thought, delusions, or hallucinations, such as is seen in Schizophrenia or other major psychotic disorders. At the time of my examination he did not appear to be suffering from a major depression. [Petitioner] does not have an antisocial personality disorder.
[Petitioner] has a history of arrests and convictions for drug offenses and burglary. He does not have a history of violent crimes. He describes himself as a generally non-violent person. [Petitioner] has repeatedly described his actions that resulted in the death of Mr. James as being out of character for him.
* * *
[Petitioner] violently attached Mr. James and caused his death. Whatever his intent was at the time, it is clear that [Petitioner] entered Ms. Hunts' home without consent and armed himself with two knives prior to going upstairs.
Based on my examination of [Petitioner] and my review of the materials available to me, it is my opinion that [Petitioner's] actions that resulted in Mr. James' death were not typical of his usual behavior.
* * *
It is my opinion that [Petitioner] is capable of engaging in positive social behavior and that he is capable of refraining from future violent or other antisocial behavior while in prison.Id. at 496-497.
On August 30, 1999, Petitioner's trial counsel appropriately filed a Notice of Possible Mental Infirmity Defense. See Resp. No. 2, Appx. at 167-68. Defense counsel explicitly averred that a mental infirmity defense was still being investigated and that, if such defense were available, Anthony M. Pisa, Ph.D. would be called to testify. Id. at 167. On February 12, 1999, Dr. Pisa, a licensed psychologist, examined Petitioner at the Delaware County Prison "to assess [Petitioner's] psychological functioning and to render opinions related to [his] state of mind at the time of the offense as well as identify mitigating factors related to a possible death penalty hearing in this case." Id. at 471. Finding that Petitioner's IQ of 62 placed his intelligence in the "mild range of mental retardation," Dr. Pisa referred Petitioner to Gerald Cooke, Ph.D., a licensed psychologist, for a neurological evaluation. Id. at 478. Dr. Pisa confirmed Dr. Cooke's diagnosis of mild mental retardation, cognitive disorder, not otherwise specified, and history of alcohol and substance abuse, id. at 479, and Pisa concluded that Petitioner's diagnoses, including his cognitive disorder and "chaotic, abusive, unpredictable and neglectful developmental environment" in which he was raised, created "strong factors that would mitigate against the death penalty." Id. at 481. See also Dr. Cooke's neuropsychological evaluation dated September 28, 1999. Id. at 483-88.
On December 2, 1999, Petitioner entered a plea of guilty to second degree murder upon advice of both trial and death penalty counsel. Id. at 233-335. The Commonwealth agreed to withdraw its notice of aggravating circumstances in exchange for Petitioner's plea to second degree murder; a sentence of life imprisonment and restitution would be imposed. Id. at 238-39. Petitioner also would plead guilty to unrelated open charges of Delivery of Controlled Substance, sentences for these charges served concurrently with the life sentence. Id. at 241-42. The exchange between Petitioner and his counsel during the plea colloquy demonstrates that Petitioner was fully apprized of his competency issues:
Petitioner alleges that his guilty plea was unconstitutional because trial counsel failed to discuss and develop reduced levels of sentencing based on his mental challenges. See Pet. at 9. In order to prevail on this claim, Petitioner must demonstrate that his guilty plea was made unknowingly or involuntarily. See Meyers v. Gillis, 93 F.3d 1147, 1150 (3rd Cir. 1996). Federal law establishes that "a plea of guilty will not be found to be unknowing and involuntary in the absence of proof that the [Petitioner] was not advised of, or did not understand, the direct consequences of his plea." Parry v. Rosemeyer, 64 F.3d 110, 114 (1995) (citing Brady v. U.S., 397 U.S. 742, 755, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970) (a direct consequence is a consequence that has a "definite, immediate, and largely automatic" effect on the range of the defendant's punishment). The Third Circuit Court of Appeals has held, for purposes of entering a knowing and voluntary guilty plea, that a defendant enters a valid plea if he understands the consequences of that plea and has been questioned on all required and relevant issues related to the offense while demonstrating full "comprehension and competence" over the proceedings. U.S. v. Frazier, 41 Fed.Appx. 579, 580 (3rd Cir. 2002). Petitioner's colloquy before Judge Jenkins was extensive and demonstrates that Plaintiff's plea was knowing and voluntary.
Mr. Zarrilli: Now [the guilty plea statement] says, I do not have any physical, emotional or mental problems which affect my ability to understand what I am dong today. And I explained to you, after I reviewed the reports with you of Dr. Anthony Pisa, who is a psychologist, and Dr. Gerald Cook, Ph.D., who is a neuropsychologist, and the verbal information that Dr. [Mechanick] had given me, that you, in fact, are mildly mentally retarded, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: Your IQ, according to these gentlemen, was 62, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: But prior to that you didn't know the difference before they said any of that, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: But you were — and we did get your school records and we did review them. You were involved in special ed classes from about fourth grade on, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: But you still understand what you're doing, is that correct?
[Petitioner]: Yes
Mr. Zarrilli: Okay, and you still understood when I talked to you all those times what we were discussing?
[Petitioner]: Yes.
Mr. Zarrilli: And if you didn't understand it, you always came back with questions later, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: Okay, so when it says I do not have any physical, emotional or mental problems which affect my ability to understand what I'm doing today, you do understand what we are doing today, is that correct?
[Petitioner]: Yes, I did it. I'm very sorry for what I've done.
Mr. Zarrilli: And you understand the rights which are in this form, which I've gone over with you, and as well as the rights in the second form, we've gone over those rights?
[Petitioner]: Yes.
Mr. Zarrilli: Okay, and by pleading guilty, you're saying that during this process today you're not under the influence of alcohol. You haven't had anything to drink, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: Today or . . .
[Petitioner]: I haven't had nothing to drink, no.
Mr. Zarrilli: . . . yesterday or the day before, and you're not under the influence of drugs or any other controlled substances, is that correct?
[Petitioner]: Yes — I take medication, that's it.
Mr. Zarrilli: And what medications are you on?
[Petitioner]: For my nerves.
Mr. Zarrilli: Cold you tell the Judge if you know what the medication is?
[Petitioner]: I don't really exactly know the name of it.
Mr. Zarrilli: But it's not affecting you ability to communicate with me or understand what we're doing today, is that correct?
[Petitioner]: No.
Mr. Zarrilli: Now it goes on further to say that you fully discussed this case with your lawyer — actually it's your lawyers, with both Kevin and myself, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: And you've had the opportunity also to consult with other counsel, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: And we discussed the possible defenses to these cases?
[Petitioner]: Yes.
Mr. Zarrilli: Basically the defense would be I didn't commit the crime charged, that being First Degree Murder, Second Degree Murder, Third Degree Murder, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: All right, and we went over the elements of those crimes. We went over the possibilities of various defenses, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: We also gave you those reports to review of Dr. Pisa and Dr. Cook and orally I told you what Dr. [Mechanick] said, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: None of those doctors could support us at the time of trial, not in the sentencing phase, as far as presenting a defense of diminished capacity — diminished capacity saying that you were incapable of rationally forming a thought at the time that the murder occurred, correct, we discussed that?
[Petitioner]: Yes.
Mr. Zarrilli: And as a matter of fact, I showed you where that was in Dr. Pisa's report, is that correct?
[Petitioner]: Yes.
Mr. Zarrilli: If the Court will give me a second please?
The Court: Mr. Zarrilli, I think you just mentioned to [Petitioner] that you discussed a defense of diminished capacity relative to the sentencing phase. Would you clarify that?
Mr. Zarrilli: No, I'm sorry, let me correct that; it's relative to the guilt or innocence phase, not the sentencing phase. What I meant to say was the only way these doctors could support you is in the sentencing phase, or as well call it, culpability
* * *
Mr. Zarrilli: What Dr. Pisa said, in the summary, in the first sentence, is that the information reviewed by this examiner, that being Dr. Pisa, does not present information that would mitigate — that means lessen or make go away, against the degree of [Petitioner's] criminal responsibility. That means that your ability to form a specific intent to kill or your ability to have malice when you did the killing, do you understand that?
[Petitioner]: Yes, sir, I understand
Id. at 247-54. Clearly, Petitioner was informed of the conclusions of mental evaluators that his mental condition did not lessen his culpability, but should militate against the imposition of the death penalty.
Assuming, ad arguendo, that Petitioner could show that he recently became aware of his competency claims, in this circuit, mental incompetence alone, is not per se a reason to toll a statute of limitations. See Lake v. Arnold, 232 F.3d 360, 371 (3rd Cir. 2000). Rather, the alleged incompetence must to some extent have thwarted Petitioner's efforts to file a timely habeas petition. See Nara v. Frank, 264 F.3d 310 (3rd Cir. 2001). Recently, this court, interpreting the Nara decision, stated that
Although the third circuit has not set forth specific criteria for determining when equitable tolling is justified on the basis of mental deficiency affecting ability to make a timely filing, other circuit courts have held that "the general federal rule is that a statute of limitations is tolled by reason of mental illness `if the illness in fact prevents the suffer from managing his affairs and thus from understanding his legal rights and acting upon them.'"Graham v. Kyler, 2002 U.S. Dist. LEXIS 26639, *8 (E.D. Pa. 2002) (Giles, J.) (internal citations omitted). The Graham court also found agreement with other circuit courts that have concluded that "a determination of mental incompetence which has affected the ability to make a timely filing under AEDPA must be premised on the totality of Petitioner's circumstances. Psychiatric diagnoses have no significance independent of their effects and effects cannot be assessed in vacuum." Id. at * 10. Similarly, in U.S. v. Harris, 268 F. Supp.2d 500, 506 (E.D. Pa. 2003) (Dalzell, J.), this court would consider application of equitable tolling "in cases of mental incompetence . . . provided there is a nexus between the petitioner's mental condition and her ability to file a timely petition." The Harris court further determined that "a mental condition that burdens but does not prevent a prisoner from filing a timely petition does not constitute "extraordinary circumstances" justifying equitable tolling." Id. at 506-07.
Petitioner has failed to demonstrate the required nexus between his mental condition and his failure to file a timely petition. Medical evaluations of Petitioner's mental state over five years ago do not support a finding that he was incompetent to timely pursue his appeals or habeas claims, particularly in view of the fact that he successfully prepared and/or filed timely petitions in state courts. This district court's decision in Clapsadl v. Shannon, No. 02-CV-4621, 2003 U.S. Dist. LEXIS 22252 (E.D. Pa. 2003) (Surrick, J.), is instructive. In Clapsadl, the petitioner urged acceptance of an untimely petition on grounds that a medical intern found "it highly likely that [petitioner would] have difficulty understanding court proceedings." Id. at *5-*6. The Clapsadl court determined that the petitioner did not
demonstrat[e] any relationship between the observations of the psychology intern . . . and his failure to file his petition within the time guidelines of 28 U.S.C. § 2244(d) . . . Moreover, Petitioner's numerous filings in this case belie his claim of mental incompetence. Since the time of his conviction, Petitioner has been actively and aggressively seeking state and federal review through direct appeals process, the PCRA process, and now through this Petition. There is simply nothing in this record to support a claim of mental incompetence.Id. at *7-*8.
Likewise, herein, Petitioner has failed to allege or demonstrate that any "extraordinary circumstance" external to himself unfairly prohibited compliance with AEDPA's time limitation. He has not indicated any new mental condition or period of total or partial psychological disability since his guilty plea. No government agent misled Petitioner as to filing requirements or prevented him from asserting his rights. Moreover, he did not timely file this petition in an incorrect forum. Furthermore, Petitioner has failed to evince recently discovered facts or otherwise allege or show that he exercised "reasonable diligence" in investigating and bringing his federal claims. Finally, no change in federal law necessitates late review of this petition. The record, thus devoid of factual justification for equitable tolling, warrants dismissal on procedural grounds, without a hearing. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 21st day of June 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that Petitioner's time-barred Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED without an evidentiary hearing. Petitioner has not met the procedural requirements to have his petition reviewed; therefore, he has not shown a denial of a constitutional right. Consequently, a certificate of appealability should not be issued.