Opinion
Civil Action No. 02-9537.
August 10, 2004
ORDER
AND NOW, this 10th day of August, 2004, upon careful and independent consideration of Kevin Everett's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the memorandum accompanying his petition (collectively, docket entry # 3), his addition to habeas petition (docket entry # 4), his amendment to memorandum and habeas (docket entry # 7), the Commonwealth's response to his petition, the Report and Recommendation of the Honorable Linda K. Caracappa (docket entry # 14), Everett's objections to the Report and Recommendation (docket entries # 15 and 16), and the Commonwealth's response thereto, and the Court finding that:
(a) Judge Caracappa explained that Everett's state conviction became final on May 11, 1993 and that the one-year statute of limitations in which he should have filed his habeas petition therefore began to run on April 24, 1996, see Report and Rec. at 5; see also Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (holding that the statute of limitations for filing a § 2254 petition begins to run on April 24, 1996 if the challenged conviction became final before that date);
(b) Thus, Everett should have filed his petition by April 23, 1997;
(c) Because Everett mailed his petition to this Court on December 27, 2002, more than five years after the statute of limitations expired, and because he failed to make a case for equitable tolling of the statute of limitations, Judge Caracappa concluded that the petition should be dismissed as untimely,see Report and Rec. at 5-6;
(d) Everett now objects to Judge Caracappa's refusal to equitably toll the statute of limitations, see Objs. ¶ 1;
(e) The doctrine of equitable tolling applies only when "the petitioner has in some extraordinary way been prevented from asserting his or her rights," and even then only when he can "show that he . . . exercised reasonable diligence in investigating and bringing the claims," Miller v. New Jersey Dep't of Corrections, 145 F.3d 616, 618-619 (3d Cir. 1998) (quotations and citations omitted);
(f) Everett suggests that the Commonwealth's courts prevented him from seeking federal habeas relief sooner because a clerk in the Prison Liaison Unit of the Philadelphia County Court of Common Pleas informed him, on March 21, 1995, that his "petition/motion" had been "forwarded" to the Honorable Alex Bonavitacola of that court;
(g) At that time, a PCRA petition that Everett had filed on July 13, 1994 was pending in the Court of Common Pleas, so we infer that the "petition/motion" to which the clerk referred was somehow connected with that PCRA petition;
(h) Although Everett claims that he was "never notified or received a response or decision" from Judge Bonavitacola, see Objs. ¶ 1 (emphasis added), he eventually must have learned that the Court of Common Pleas dismissed the PCRA petition on March 22, 1995 because he filed a brief in the Superior Court that challenged the dismissal, see Defs.' Resp. to Pet. Ex. C;
(i) Even accepting Everett's claim that the state court failed to notify him that it had dismissed his PCRA petition in 1995, such a defect would not provide any basis for tolling the statute of limitations between 1997 and 2002, long after he must have learned of the dismissal, as his brief in the Superior Court demonstrates;
(j) Moreover, even if Everett never learned that the Court of Common Pleas dismissed his PCRA petition or even if it never resolved some unrelated "petition/motion," the doctrine of equitable tolling would still not apply because Everett failed to exercise reasonable diligence in investigating what had happened to his "petition/motion" between March of 1995 and April of 1997;
(k) Thus, Judge Caracappa correctly determined that Everett's petition is time-barred, and we shall overrule his objections and approve and adopt the Report and Recommendation;
(l) Finally, Everett has not made a substantial showing of the denial of a constitutional right, so we shall not issue a certificate of appealability, see 28 U.S.C. § 2253(c)(3);
It is hereby ORDERED that:
1. Everett's objections are OVERRULED;
2. The Report and Recommendation is APPROVED and ADOPTED;
3. The petition for writ of habeas corpus is DENIED;
4. We DECLINE to issue a certificate of appealability; and
5. The Clerk shall CLOSE this civil action statistically.