Opinion
Civil Action 20-cv-02883-EGS
03-31-2021
KEVIN WILSON, Petitioner, v. BARRY R. SMITH, et al., Respondents.
REPORT AND RECOMMENDATION
RICHARD A. LLORET U.S. MAGISTRATE JUDGE.
Before me is Kevin Wilson's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Doc. No. 1. Mr. Wilson was convicted by a jury of attempted murder, aggravated assault, robbery, possessing an instrument of crime, carrying a firearm without a license, and carrying a firearm as a prohibited person. The trial court sentenced Mr. Wilson to an aggregate term of twenty to forty years' imprisonment and a consecutive fifteen years of probation.
All references to the electronically docketed record will be cited as “Doc. No. __, at __.”
Mr. Wilson raises five claims in his petition: one based on the sufficiency of evidence as to his conviction, one based on judicial error in denying a particular motion at trial, one based on judicial error in allowing certain evidence to be presented, and two based on ineffective assistance of trial counsel. See Doc. No. 1.
I cannot, however, reach the merits of Mr. Wilson's petition without first determining whether the petition was timely filed. After careful review, I find that Mr. Wilson's petition is untimely and that his untimeliness cannot be remedied by statutory or equitable tolling. For the reasons set forth below, I respectfully recommend that Mr. Wilson's petition be dismissed with prejudice.
PROCEDURAL BACKGROUND
After a jury trial in the Philadelphia County Court of Common Pleas, Mr. Wilson was convicted of attempted murder, aggravated assault, robbery, possessing an instrument of crime, carrying a firearm without a license, and carrying a firearm as a prohibited person. He was sentenced to an aggregate term of twenty to forty years' imprisonment and a consecutive fifteen years of probation. On September 22, 2014, the Pennsylvania Superior Court affirmed Mr. Wilson's judgment of sentence.
Mr. Wilson timely filed a pro se Pennsylvania Post-Conviction Relief Act (“PCRA”) petition on January 15, 2015 in the Philadelphia County Court of Common Pleas. The PCRA court subsequently appointed counsel. Counsel filed an amended PCRA petition and memorandum of law on August 3, 2016. On May 5, 2017, the PCRA court issued notice of its intent to dismiss Mr. Wilson's petition. Mr. Wilson did not respond to this notice. On June 22, 2017, the PCRA court dismissed Mr. Wilson's petition by order without a hearing. Mr. Wilson timely appealed the dismissal and filed a statement of errors complaint of on appeal under Pennsylvania Rule of Appellate Procedure 1925(b).
On May 29, 2019, the Superior Court affirmed the decision of the PCRA court, rejecting each of Mr. Wilson's claims on the merits. Commonwealth v. Wilson, 2197 EDA 2017, 2019 WL 2305762, at *1 (Pa. Super. May 29, 2019). Mr. Wilson did not timely seek allowance of appeal to the Pennsylvania Supreme Court.
Mr. Wilson filed a second PCRA petition on July 2, 2019, alleging the discovery of new facts sufficient to challenge his conviction. See Doc. No. 10, at 2. The PCRA court summarily dismissed Mr. Wilson's petition on September 4, 2020 without indicating the basis for its ruling. See Doc. No. 11. Mr. Wilson did not appeal the PCRA court's dismissal.
On May 21, 2020, Mr. Wilson filed the present pro se habeas petition.
Here, Mr. Wilson signed a declaration that he placed his petition in the prison mail system on May 21, 2020, and it appears that he sent the petition via prepaid first-class postage. See Doc. No. 1, at 19, 38-39. Accordingly, the prisoner mailbox rule applies, and I will consider May 21, 2020 to be the date Mr. Wilson's petition was filed. “Pursuant to the federal prisoner mailbox rule, ‘a document is deemed filed on the date it is given to prison officials for mailing.'” Jenkins, 705 F.3d at 84 n.2 (quoting Pabon v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011)). To benefit from this rule, “the inmate is required to make a declaration that sets forth the date of deposit and that first-class postage has been prepaid.” Id. (quoting Nara v. Frank, 264 F.3d 310, 315 n.3 (3d Cir. 2001), overruled on other grounds by Carey v. Saffold, 536 U.S. 214 (2002)).
DISCUSSION
Mr. Wilson's petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). 28 U.S.C. § 2241 et seq. The AEDPA imposes a one-year time limit for filing a habeas corpus petition that 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 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)(1).
A. Mr. Wilson's petition is untimely.
The AEDPA's one-year habeas clock generally begins ticking when a petitioner's judgment becomes final. See 28 U.S.C. § 2244(d)(1). For Mr. Wilson, this was on October 22, 2014, when he did not appeal his judgment to the Pennsylvania Supreme Court within the 30-day filing period allowed under Pa. R. A. P. 903(a). In the absence of any tolling, Mr. Wilson's one-year AEDPA limitations period would expire on October 22, 2015.
While Mr. Wilson engaged in PCRA proceedings that activated statutory tolling, the statutory tolling mechanism does not render his habeas petition timely. Further, Mr. Wilson has not claimed extraordinary circumstances to warrant equitable tolling. Therefore, I respectfully recommend that Mr. Wilson's petition be dismissed as time-barred under the AEDPA.
1. Statutory tolling does not render Mr. Wilson's petition timely.
The one-year habeas limitation period does not dictate “an inflexible rule requiring dismissal whenever AEDPA's one-year clock has run.” Day v. McDonough, 547 U.S. 198, 208 (2006). “Instead, the limitation period is subject to both statutory and equitable tolling.” Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 (3d Cir. 2013). Statutory tolling effectively freezes the clock for “[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.” 28 U.S.C. § 2244(d)(2). An untimely PCRA petition is not considered properly filed and, therefore, does not toll the limitation period. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court rejected petitioner's PCRA petition as untimely, it was not ‘properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2).”); see also Jenkins, 705 F.3d at 85.
Here, Mr. Wilson's sentence became final on October 22, 2014, and the AEDPA's one-year habeas clock began to run. On January 21, 2015, Mr. Wilson timely filed his first PCRA petition, at which time the habeas clock had run 91 days. The PCRA proceedings tolled the habeas clock until June 28, 2019-thirty days after the PCRA court dismissed Mr. Wilson's petition and he was no longer entitled to appeal to the Pennsylvania Supreme Court. See Pa. R. App. P. 903(a). The habeas clock resumed on that day and expired on March 30, 2020. Mr. Wilson's second PCRA petition was untimely and therefore did not toll the AEDPA's statute of limitations. Therefore, absent equitable tolling, Mr. Wilson's habeas petition-filed on May 21, 2020-is untimely.
Because the last day of the AEDPA limitations period was a Saturday (March 28, 2020), the period continued to run until the end of the following Monday. See Fed. R. Civ. P. 6(a)(1)(C).
Further, Mr. Wilson did not properly invoke any of the PCRA's time-bar exceptions. See § 9545(b)(1)(i)- (iii). Mr. Wilson's allegation of newly discovered evidence did not fit the exception under Section 9545(b)(1)(ii); the Pennsylvania Supreme Court has explained that a petitioner's burden in proving that an exception applies “necessarily entails . . . acknowledg[ing] . . . that the PCRA petition under review is untimely . . . .” Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Mr. Wilson did not concede his second petition's untimeliness, and the PCRA court's summary dismissal of his second petition supports a finding that Mr. Wilson did not adequately plead a time bar exception. The fact that Mr. Wilson was litigating his first, timely PCRA petition when he filed his second, untimely petition does not change my analysis. See Commonwealth v. Wharton, 886 A.2d 1120, 1125 (Pa. 2005) (finding that petitioner's “second PCRA petition, filed nearly five years later is untimely, notwithstanding the continued litigation of [petitioner's] first timely PCRA petition”). Therefore, because Mr. Wilson filed his second petition almost five years after his judgment became final, failed to properly invoke a PCRA time bar exception, and the PCRA court summarily dismissed his second petition, I conclude that Mr. Wilson's second PCRA petition was untimely. Consequently, the petition was not “properly filed” for purposes of the AEDPA, and it did not toll the AEDPA's one-year limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). The PCRA court dismissed Mr. Wilson's second petition without stating a reason, and Mr. Wilson did not appeal this dismissal to the Superior Court. See Doc. No. 11. Where a state court has not clearly ruled on the PCRA petition's timeliness, “a federal court ‘must . . . determine what the state courts would have held in respect to timeliness.'” Rowe v. Giroux, 3:13-CV-02444, 2016 WL 3513401, at *5 (M.D. Pa. June 1, 2016) (quoting Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 86 (3d Cir. 2013)) (internal quotation marks omitted), report and recommendation adopted, 2016 WL 3511544 (M.D. Pa. June 27, 2016). Mr. Wilson had one year from the date his judgment became final to file any PCRA petitions. See 42 Pa. C.S. § 9545(b)(1). Because Mr. Wilson's judgment of sentence became final on September 22, 2014, a PCRA petition filed nearly five years later is facially untimely.
2. Equitable tolling is inapplicable to Mr. Wilson's petition.
Equitable tolling stops the one-year habeas clock when extraordinary circumstances prevent a petitioner from timely filing, rendering strict enforcement of the one-year limitations period unfair. Wood v. Milyard, 566 U.S. 463, 469 n.3 (2012); see also Holland v. Florida, 560 U.S. 631, 649-51 (2010); Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). The flexibility inherent in the concept of equitable tolling serves to “relieve hardships which, from time to time, arise from a hard and fast adherence to more absolute legal rules, which, if strictly applied, threaten the evils of archaic rigidity.” Holland, 560 U.S. at 650 (internal quotation marks omitted)
Here, Mr. Wilson does not argue that any extraordinary circumstances activate the equitable tolling mechanism. Likewise, my review of the record does not demonstrate that any equitable tolling is merited. Therefore, Mr. Wilson is not entitled to equitable tolling, and I recommend that his habeas petition be dismissed.
Mr. Wilson has not alleged, nor does the record reflect, that he is actually innocent and has discovered new evidence such that I should set aside the AEDPA's limitations period. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
RECOMMENDATION
Based upon the discussion above, I respectfully recommend that Mr. Wilson's petition be dismissed with prejudice. I recommend that no certificate of appealability issue because Mr. Wilson “has [not] made a substantial showing of the denial of a constitutional right[, ]” under 28 U.S.C. § 2253(c)(2), since he has not demonstrated that “reasonable jurists” would find my “assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see United States v. Cepero, 224 F.3d 256, 262-63 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012).
The parties may object to this report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 72.1 within fourteen (14) days after being served with this document. An objecting party shall file and serve written objections that specifically identify the portions of the report or recommendation to which objection is made and shall provide an explanation of the basis for the objection. Failure to file timely objections may constitute waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007). A party wishing to respond to objections shall file a response within fourteen (14) days of the date the objections were served.