Opinion
CIVIL ACTION NO. 99-CV-3001
December 4, 2003
MEMORANDUM AND ORDER
Presently before the Court is Petitioner Kevin Brinkley's Petition for Writ of Habeas Corpus (Docket No. 1), the response thereto (Docket No. 10), the Report and Recommendation by Magistrate Judge Diane M. Welsh (Docket No. 31), and Petitioner's and Respondent's Statement of Objections to the Report as well as the subsequent filings. (Docket Nos. 35, 39, 40, 41, 42.) For the reasons that follow the Petition For Writ Of Habeas Corpus will be dismissed as time barred under 28 U.S.C. § 2244(d)(2).
Magistrate Judge Welsh in a well-reasoned, well-written Report and Recommendation concluded that the petition was not time barred under the AEDPA. Unfortunately, Judge Welsh did not have the benefit of Stokes v. District Attorney for the County of Phila., 247 F.3d 539 (3d Cir. 2001) which established Third Circuit law on this issue.
Procedural History
On July 14, 1978, Petitioner was convicted in the Court of Common Pleas for Philadelphia County, of felony murder, robbery, and criminal conspiracy. His conviction was affirmed by the Supreme Court of Pennsylvania. Commonwealth v. Brinkley, 480 A.2d 980 (Pa. 1984). Brinkley then filed a petition under the Pennsylvania Post-Conviction Relief Act (PCRA), 42 PA. CONS. STAT. § 9541. This petition was denied. Petitioner filed an appeal in the Superior Court of Pennsylvania. On September 8, 1997, the denial of the petition was affirmed by the Superior Court. Commonwealth v. Brinkley, 704 A.2d 160 (Pa.Super. 1997). On March 16, 1998, the Pennsylvania Supreme Court denied the allowance of appeal. Commonwealth v. Brinkley, 773 A.2d 669 (Pa. 1998) (table). Brinkley did not seek certiorari in the Supreme Court of the United States. Instead, on June 14, 1999, he filed the instant Petition for Writ of Habeas Corpus.
Statute of Limitations
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the AEDPA, the statute of limitations for habeas corpus petitions requires that a petition for relief from a state court must be filed within one year of a final judgment in the state court. Specifically, the AEDPA provides in pertinent part as follows:
(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 of 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 relief with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section.28 U.S.C. § 2244(d).
Brinkley's conviction became final in 1984, well before the enactment of the AEDPA. Therefore, the statute of limitations for the filing of a petition for habeas corpus began to run on the date of enactment, April 24, 1996. See Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999) (citingBurns v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998)). However, on April 24, 1996, Brinkley's PCRA petition was still pending. It is not disputed that the statute of limitations was tolled while the PCRA petition was pending. See Morris, 187 F.3d at 337. The Pennsylvania Supreme Court denied petitioners appeal of the PCRA petition on March 16, 1999. Petitioner then had ninety days to seek certiorari in the Supreme Court of the United States. This period expired on June 15, 1999. Petitioner argues that the statute of limitations continued to be tolled until the period to apply for certiorari had expired. Respondents contend that the PCRA petition ceased to be pending on March 16, 1998, when the Pennsylvania Supreme Court denied the allowance of appeal. Since Brinkley filed this Petition on June 14, 1999, more than one year after the Pennsylvania Supreme Court denied his appeal, a determination of whether the PCRA is considered "pending" during this ninety-day period will determine whether this Petition was timely filed.
In April of 2001, the Third Circuit resolved this issue in the case of Stokes v. District Attorney of the County of Phila., 247 F.3d 539, 543 (3d Cir. 2001), a case factually similar to the instant case. It is now clear that in this Circuit, "the ninety-day period 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 post-conviction petition does not toll the one year limitation period set forth at 28 U.S.C. § 2244(d)(2)." Id. (emphasis added). In reaching this conclusion the Third Circuit was following the lead of all of the other appeals courts that had previously decided the issue. Id. at 541. Subsequently, this limitation on 2244(d) was upheld and extended in the case of Miller v. Draeovich, 311 F.3d 574, 580 (3d Cir. 2002). In Miller the petitioner actually filed for certiorari in the Supreme Court of the United States. Nevertheless, the Third Circuit concluded that the statute of limitations under 2244(d)(1) still was not tolled during the ninety day period for seeking certiorari. Id. Under the circumstances, we are compelled to conclude that Brinkley's petition was not timely filed.
Equitable Tolling
The one year filing deadline contained in § 2244(d)(1) can be subject to equitable tolling. Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001). Equitable tolling applies "only where the principle of equity would make the rigid application of a limitation period unfair." See id. (citing Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618 (3d Cir. 1998). In the case of Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999), the Third Circuit enumerated three circumstances under which equitable tolling will be permitted. Those circumstances are: (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 mistakenly in the wrong forum.Id. In addition, a petitioner seeking the application of equitable tolling has the burden of establishing the facts necessary to justify equitable tolling.Byers v. Follmer Trucking Co., 763 F.2d 599, 600-01 (3d Cir. 1985).
The reason Petitioner gives for the untimely filing of his petition is that "counsel deliberately filed the petition within the time limits they believed applicable in light of the statutory language and Third Circuit precedent." (Pet'r's Mem. of Law Demonstrating Compliance with Statute of Limitations at 22.) Petitioner suggests that "[t]he circumstances do not present a case of `mere excusable neglect,' but, rather, of a good faith error by experienced, diligently working counsel in interpreting the very complex, difficult, and poorly-drafted AEDPA." (Id.) Petitioner argues that this Court should find that an attorney's good faith efforts to comply with the statute of limitations should justify equitable tolling in those circumstances where counsel's efforts are not sufficient through no fault of the petitioner.
In dealing with the issue of equitable tolling in the context of the AEDPA limitations period the Third Circuit in Fahy, 240 F.3d at 245, concluded that in capital cases "[b]ecause the consequences are so grave and the applicable law so confounding and unsettled we must allow less than `extraordinary' circumstances to trigger equitable tolling of the AEDPA's statute of limitations when the petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair." The Court reached this conclusion in recognition of the fact that "death is a different kind of punishment from any other" and because the "consequences of error are terminal" in a capital case. Id. On the other hand, these considerations do not apply when "[i]n 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." Id. at 244; see also Freeman v. Page, 208 F.3d 572 (7th Cir. 2000) (finding no basis for equitable tolling where the statute of limitations was changed to shorten the time for filing a PCRA only four months prior to the filing of the petition); Taliani v. Chrans, 189 F.3d 597 (9th Cir. 1999) (finding lawyer's inadequate research, which led to miscalculating the deadline, did not warrant equitable tolling). Moreover, these cases can be distinguished from the cases where the attorney either does not act in good faith or experiences severe physical obstacles in bringing the case. See Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236 (3d Cir. 1997) (finding that an attorney's deception, which caused a prisoner to miss the habeas filing deadline, merits equitable tolling); Doherty v. Teamsters Pension Trust Fund of Phila. Vicinity, 16 F.3d 1386 (3d Cir. 1994) (allowing time to toll because of the death of petitioner's attorney); see also Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (hearing granted to determine if equitable tolling should be applied where petitioner claims that lawyer prevented him from moving case forward by leading him to believe she would file the habeas petition on his behalf, telling him there were no time constraints for filing a petition, and failing to inform him that the Pennsylvania Supreme Court had denied review of his motion to remove his guilty plea). The Third Circuit recently reiterated the fact that attorney error does not trigger equitable tolling in the case of Johnson v. Hendricks 314 F.3d 159, 162 (3d Cir. 2002) indicating that "other courts of appeals have considered this issue and have consistently rejected the argument that an attorney's mistake in determining the date a habeas is due constitutes extraordinary circumstances for purposes of equitable tolling."
In the instant case Petitioner has failed to provide any "extraordinary circumstances" which explain why counsel waited until the last day possible (assuming he was correct regarding the tolling of the ninety day period) to file the habeas petition given the fact that the law in the Third Circuit was unsettled, and contrary authority existed in many of the other circuits. See, e.g. Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999) (decided Oct. 21, 1999); Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999) (decided July 7, 1999), cert. denied 528 U.S. 1084 (2000). Clearly, counsel should have considered the possibility that the statute of limitations would not be tolled during that ninety-day period. The failure to do so does not constitute a circumstance which is so extraordinary so as to justify equitable tolling. Accordingly, the Petition for Writ of Habeas Corpus will be denied.
Certificate of Appealability
Since this Court has disposed of the habeas petition based on a procedural ground, in order for the Petitioner to obtain a certificate of appealability ("COA"), he must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). There is no room for debate among reasonable jurists concerning the two procedural issues before us.Stokes unequivocally stated that the statute of limitations under 2244(d)(2) is not tolled during the ninety-day period in which petitioner may apply for certiorari with the United States Supreme Court; Johnson held that an attorney's mistake in determining the date a habeas petition is due does not constitute extraordinary circumstances for purposes of equitable tolling. This Court's procedural ruling is based upon well established Third Circuit law, and a certificate of appealability should therefore not issue.
An appropriate Order follows.
ORDER
AND NOW, this 4th day of December, 2003, upon consideration of Petitioner's Petition For Writ Of Habeas Corpus (Docket No. 1) and all papers filed in support thereof and in opposition thereto, it is ORDERED that the Petition is DENIED. No probable cause exists for the issuance of a certificate of appealability.IT IS SO ORDERED.