Opinion
Civil Action No. 04-667.
August 2, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254. The Petitioner, Matthew Zimmerman, is currently incarcerated at the McKean Federal Correctional Institution at Bradford, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, and all attachments to those pleadings.
Petitioner entered a negotiated guilty plea on October 23, 1998, for aggravated assault, and was sentenced to three years' probation for the aggravated assault. Petitioner did not file a direct appeal.
While still on probation, Petitioner was charged in federal court with conspiracy to distribute cocaine and related charges. As a result of the federal narcotics charges, a violation of probation hearing was held in state court on December 12, 2000. The Honorable Anthony J. DeFino of the Court of Common Pleas of Philadelphia County revoked Petitioner's probation and sentenced him to two to three years imprisonment for violating the terms of his probation. Petitioner was later convicted and sentenced in federal court on the narcotics charges.
On December 20, 2000, Petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA").See 42 Pa. C.S.A. § 9541. The PCRA court dismissed this petition as untimely on April 22, 2002, and the Superior Court affirmed the dismissal in a memorandum opinion on September 22, 2003. Resp., Ex. A; Commonwealth v. Zimmerman, 835 A.2d 839 (Pa.Super. 2003). Petitioner did not seek allocatur relief from the Pennsylvania Supreme Court.
On February 17, 2004, Petitioner filed a petition for writ of habeas corpus in this Court. The case was assigned to the Honorable R. Barclay Surrick, who referred this case for preparation of a Report and Recommendation on April 2, 2004. The Petition contains the following claims: (1) ineffective assistance of counsel for failing to investigate the facts of the case and opting for expedience in urging Petitioner to plead guilty despite Petitioner's insistence of his innocence; (2) Petitioner's guilty plea was coerced; and (3) the trial court failed to properly determine a factual basis for the guilty plea. (Pet. at 9-10.) Respondents deny that Petitioner is entitled to relief, and contend that the Petition is time-barred and equitable tolling is inapplicable.
II. DISCUSSION.
Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Pub.L. 104-132, 110 Stat. 1214. Section 104(2) of the AEDPA amended 42 U.S.C. section 2254, and requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C. section 2244 to require that:
(d)(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.28 U.S.C. § 2244(d)(1). If direct review of a criminal conviction ended after the AEDPA's effective date, the one-year limitations period begins to run on 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)(A). In this case, Petitioner's convictions became final on November 22, 1998, when the time for appealing his judgments of conviction to the Pennsylvania Superior Court expired. Thus, his deadline for timely filing a federal habeas petition was November 21, 1999. The instant Petition was filed on February 17, 2004, over four years late.
There is an exception in the habeas statute for "[t]he 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)(2). Because Petitioner's December 20, 2000 PCRA petition was time-barred, it was not properly filed under Pennsylvania law, and therefore the time during which that petition was pending cannot be included in the tolling period. Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir.), cert. denied, 124 S.Ct. 317 (2003). As Respondents note, the PCRA petition was filed after the one-year AEDPA limitation period had expired. Thus, even if the PCRA petition could have tolled the habeas statute of limitations, it was filed too late to have any effect. Thus, the Petition is time-barred.
This Court must examine whether the doctrine of equitable tolling is applicable in this case. "[E]quitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.'" Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (quoting Shendock v. Dir., Ofc. of Workers' Comp. Programs, 893 F.2d 1458, 1462-1464 (3d Cir.), cert. denied, 498 U.S. 826 (1990)). The Petitioner "must show that he . . . `exercised reasonable diligence in investigating and bringing [his] claims.' Mere excusable neglect is not sufficient." Id. at 618-619 (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The United States Court of Appeals for the Third Circuit has set forth the following three circumstances in which equitable tolling is permitted: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001) (citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted)). Petitioner does not acknowledge that the instant Petition was filed more than four years late. Further, none of the factors for equitable tolling are met.
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED and DISMISSED with prejudice. There is no probable cause to issue a certificate of appealability.