Opinion
1:20-cv-326
07-11-2022
ADAM LEE GREENLEE, Petitioner v. MARK CAPOZZA, THE ATTORNEY GENERAL OF THE STATE OF PENSYLVANIA, and DISTRICT ATTORNEY OF CRAWFORD COUNTY, Respondents
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 3)
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the petition for habeas corpus, ECF No. 3, be denied and that no certificate of appealability issue.
II. Report
A. Procedural history
Before the Court is a pro se petition for a writ of habeas corpus filed by Petitioner Adam Lee Greenlee pursuant to 28 U.S.C. § 2254. ECF No. 3. Petitioner is incarcerated at the State Correctional Institution at Fayette, serving a sentence of imprisonment imposed by the Court of Common Pleas of Crawford County, Pennsylvania.
A review of the record and the criminal docket sheet for Petitioner's underlying convictions in Commonwealth v. Greenlee, No. CP-20-CR-0000065-2018 (Crawford Cnty. Com. Pl.), reveals the following relevant facts. On April 12, 2018, Petitioner entered a guilty plea to one count of murder of the first degree. On the same date, he was sentenced to life imprisonment. He did not file a direct appeal from the judgment of sentence.
The criminal docket is available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-20-CR-0000065-2018&dnh'sqA42fNYxG5RV645r2Pchw%3D%3D (last visited April 6, 2022).
On February 25, 2019, Petitioner filed a pro se petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. Counsel was appointed; counsel filed an amended petition. This petition was dismissed on September 4, 2019. Petitioner filed an appeal from the dismissal. On May 27, 2020, the Pennsylvania Superior Court affirmed the order dismissing the petition. Commonwealth v. Greenlee, 237 A.3d 488 (Pa. Super. 2020) (unpublished memorandum). Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
The instant petition was lodged on November 17, 2020. ECF No. 1. After the filing fee was paid, the petition was filed on December 1, 2020. ECF No. 3. Respondents filed a response on February 9, 2021. ECF No. 8. Petitioner filed a traverse on March 5, 2021. ECF No. 12. He also filed a supplement to his brief in support of the petition on January 6, 2022. ECF 15.
Upon review, the undersigned found that the petition appeared to be untimely. Because the Court may raise the issue of timeliness sua sponte as long as the petitioner is given fair notice and an opportunity to respond and is not prejudiced, Day v. McDonough, 547 U.S. 198, 205-10 (2006); United States v. Bendolph, 409 F.3d 155,161-70 (3d Cir. 2005) (enbanc), the undersigned issued a Show Cause Order as to why the identified claims should not be dismissed for failure to file them without the applicable limitations period, thus providing Petitioner with the required notice and opportunity to respond. ECF No. 17. Respondents were also invited to submit a response setting forth their position. Id. Petitioner filed a Response to the Show Cause Order. ECF No. 19. Respondents also filed a Response. ECF No. 18.
The petition is now ripe for review.
B. Analysis
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDP A”) imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and 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 that 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 facts supporting 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 section.28 U.S.C. § 2244(d).
In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1). Caldwell v. Mahally, et al., 2019 WL 5741706, *5 (W.D. Pa. Nov. 5, 2019). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Id. at *6. Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. Id. at *8.
Petitioner asserts three grounds for relief in his petition, all of which are related to the entry of his guilty plea. These claims do not implicate newly enunciated constitutional rights or facts that were discovered later. Furthermore, it does not appear that there were any state-created impediments that prevented Petitioner from raising these claims sooner. Consequently, the “trigger date” for these claims is the date on which Petitioner's judgment of sentence became final.
Petitioner's judgment of sentence became final on or about May 14, 2018, at the expiration of the time for filing a direct appeal from the judgment of sentence. Pa.R.A.P. 903(a); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review). The one-year limitations period for filing a habeas corpus petition began to run on that date. 28 U.S.C. § 2244(d)(1)(A). Accordingly, Petitioner had to file any federal habeas petition concerning these trial-related claims by May 14, 2019. Based on the prisoner mailbox rule, the instant habeas petition was filed on November 6, 2020, the date he signed it. Because this date falls after the expiration of the one-year limitations period, these claims are statutorily time-barred. Given this deficiency, the Court must determine whether Petitioner can take advantage of the statutory tolling provision set out in Section 2244(d)(2).
Although the 30-day appeal period expired on May 12,2018, that date was a Saturday, so the appeal period extended until Monday, May 14,2018. See 1 Pa.C.S.A. § 1908 (computation of the last day of a time period excludes Saturday, Sunday, and federal and state holidays); Pa.R.A.P. 107 (the Pennsylvania Rules of Appellate Procedure are to be construed in accordance with the rules of statutory construction).
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. Petitioner filed his PCRA petition on February 25, 2019, by which time 287 days of his one-year limitations period had expired. Those proceedings were “properly filed,” and, thus, tolled the statute of limitations until they were concluded on June 26, 2020, at the expiration of the time for filing with the Pennsylvania Supreme Court a petition for allowance of appeal from the Pennsylvania Superior Court's order affirming the dismissal of the PCRA petition. Pa.R.A.P. 1113(a), Swartz, 204 F.3d at 420-21. At that time, Petitioner had 78 days remaining in the limitations period. The instant petition was filed on November 6, 2020, approximately 133 days later and thus outside of the limitations period.
In his Response to the Show Cause Order, Petitioner argues that he is entitled to equitable tolling. The one-year statute of limitations mandated by Section 2244(d)(1) is subject to equitable tolling. Martin v. Adm'r N.J. State Prison, 23 F.4th 261, 272 (3d Cir. 2022) (citing Holland v. Florida, 560 U.S. 631, 645-49 (2010)). Federal courts are to use equitable tolling sparingly and do so “only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice.” Id. (quoting LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005)). Further, the decision to equitably toll AEDPA's statute of limitations period must be made on a case-by-case basis. Id.
In their Response to the Show Cause Order, Respondents agree with the Court's initial analysis of the limitations calculation and assert that no equitable tolling applies in this case. ECF No. 18 at 3. Their Response was filed before Petitioner's Response and thus does respond to his specific assertion of equitable tolling.
Generally, federal courts employ a two-factor test in determining whether to utilize equitable tolling. That is, a petitioner bears the burden of establishing that he (1) has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way and prevented a timely filing of the habeas petition. Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). This inquiry is conjunctive. Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (“This conjunctive standard requires showing both elements before we will permit tolling.”) (emphasis in original). As the United States Court of Appeals for the Third Circuit recently explained:
To satisfy the diligence prong, a petitioner must demonstrate that he has been pursuing his rights with “reasonable diligence in the circumstances.” Wilson v. Beard, 426 F.3d 653, 660 (3d Cir. 2005) (quoting Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)); accord Holland, 560 U.S. at 653. Determining whether a petitioner has exercised “reasonable diligence” is a “fact-specific” inquiry and, again, “depends on the circumstances faced by the particular petitioner.” Munchinski [v. Wilson}, 694 F.3d [308] at 331 [(3d Cir. 2012)]; see also Wilson, 426 F.3d at 661 (“The fact that we require a petitioner in one situation to undertake certain actions does not necessitate that we impose the same burden on all petitioners” because “whether a habeas petitioner has exercised due diligence is context-specific.”). A petitioner need not have acted with “maximum feasible diligence,” Munchinski, 694 F.3d at 331 (quoting Holland, 560 U.S. at 653), but he also cannot have been “sleeping on his rights,” id. (quoting Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010)). This “reasonable diligence” requirement applies not only to a petitioner's filing for federal habeas relief, but it also extends to the steps that the petitioner takes to exhaust available state court remedies. See LaCava, 398 F.3d at 277. Although we do not “expect Herculean efforts on the part of' a petitioner in exercising “reasonable diligence,” a “lack of legal knowledge or legal training does not alone justify equitable tolling.” Ross v. Varano, 712 F.3d 784, 799-800, 802 (3d Cir. 2013); see Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 21 (3d Cir. 1981) (“[I]gnorance of the law is not enough to invoke equitable tolling.”); see also Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (“[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.”) (internal quotations omitted).Martin, 23 F.4th at 273.
Here, Petitioner bases his equitable tolling argument on his attorney's alleged “unresponsiveness and neglect of [his] case,” averring that he relied on counsel to inform him as to the conclusion of his PCRA proceeding but that counsel failed to do so. ECF No. 19 at 5. In support of this assertion, Petitioner attaches a letter from his counsel dated February 11, 2021, wherein counsel informed Petitioner that he had just learned of the Superior Court's decision and that he had not received a copy of the decision when it was issued. Id. Due to counsel's failure to monitor his appeal, Petitioner maintains that he was “not only . . . confused, [but] actively misled by his counsel's abandonment.” Id.
For several reasons, Petitioner has failed to establish that he is entitled to equitable tolling. First, Petitioner has failed to submit any evidence to support his claim that he acted with reasonable diligence. Although Petitioner does not provide the exact date on which he learned from the prison law library that his appeal had been denied, it necessarily occurred between May 27, 2020, the date on which the PCRA decision was issued, and November 6, 2020, when he filed his federal habeas petition. The record contains no evidence - such as letters to counsel or inquiries to the state courts - that Petitioner actively sought to monitor the status of his PCRA appeal prior to that unidentified date. See Pennington v. Tice, 365 F.Supp.3d 579, 586 (E.D. Pa. Mar. 18, 2019) (“Although he knew he would have only a couple of weeks remaining to file a timely federal petition once his appeal was denied, there is nothing in the record to suggest that Petitioner contacted anyone for more than four months to inquire about its status.”). Rather, it appears that at least fourteen months, and possibly as many as nineteen months, elapsed before Petitioner attempted to ascertain the status of his PCRA petition. Under these circumstances, the Court is unable to conclude that Petitioner diligently pursued his rights. See, e.g., LaCava v. Kyler, 398 F.3d 271, 278 (3d Cir. 2005) (holding that equitable tolling was not warranted where Petitioner “did not attempt to ascertain from his attorney” whether a timely petition had been filed and noting the obligation “to make an occasional status inquiry”); Pennington, 365 F.Supp.3d at 586 (finding a lack of reasonable diligence where Petitioner “had the ability to either contact his attorney or to send an inmate request to the prison, and yet to his detriment, he did not take advantage of those opportunities until it was too late”). Cf. Ross v. Varano, 712 F.3d 784, (3d Cir. 2013) (finding reasonable diligence where the petitioner “regularly and repeatedly ... attempted to pursue his appeal through letters and phone calls to his attorney and to the courts” but was misled as to the status of his appeal by his attorney and by the trial court).
To the extent that the precise date on which Petitioner learned of the adverse PCRA decision might be critical to the diligence analysis, the Court reiterates that it is Petitioner's burden to establish reasonable diligence (and the underlying facts which support it).
Again, to the extent that such evidence exists, Petitioner bore the burden of producing it in response to the Court's show cause order. See ECF No. 17. This is particularly true given that the Court explicitly flagged the issue of equitable tolling. Id. at 5.
Even if Petitioner could establish that he acted with reasonable diligence, he has failed to demonstrate that exceptional circumstances barred him from filing a timely petition. Although he contends that his attorney behaved unprofessionally by failing to inform him of the unsuccessful PCRA appeal until February 11, 2021, it is well-settled that, “in a non-capital case such as [Petitioner's], attorney error is not a sufficient basis for equitable tolling of AEDPA's one-year statute of limitations.” Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004). See also LaCava, 398 F.3d at 278 (noting that “attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the ‘extraordinary' circumstances required for equitable tolling” in non-capital cases). While courts have acknowledged that “an attorney's affirmative misrepresentation to his client” might create “a situation appropriate for tolling,” there is no evidence that this type of malfeasance occurred here. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). The only potential allegation of affirmative misconduct presented in Petitioner's brief is his contention that counsel misled him by promising to “look into” what could be done to reinstate his appellate rights after the adverse PCRA decision. ECF No. 19 at 5. This statement, even if characterized as a misrepresentation, does not fall within the scope of “exceptional” attorney misconduct identified by the Court of Appeals. See Schlueter, 384 F.3d at 76 (noting that exceptional circumstances are presented only when a plaintiff “is misled by what the attorney said he had done, not by what he said he would do.”) (emphasis added); Seitzinger, 165 F.3d at 236 (applying equitable tolling where counsel affirmatively lied to the plaintiff by stating that he had filed an appeal that he had not actually filed). More critically, Petitioner concedes that he received that letter “well after [he] leam[ed] via law library at SCI-Fayette that his appeal had been dismissed ....” ECF No. 19 at 5. Indeed, Petitioner filed his habeas petition in this Court several months prior to receiving counsel's letter, identifying the unsuccessful PCRA appeal and attaching a copy of the Superior Court's decision. ECF No. 3 at 3; ECF No. 3-1 at 1416. Needless to say, Petitioner was not actively dissuaded from filing a timely federal habeas petition by a statement that his attorney made three months after he had already filed that petition.
In short, Petitioner has failed to establish that this case presents the rare situation where equitable tolling is demanded by sound legal principles and the interests of justice. Accordingly, equitable tolling should not be applied. Thus, the petition is untimely and should be denied on that basis.
C. Certificate of Appealability
The Antiterrorism and Effective Death Penalty Act of 1996 codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, 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). Applying that standard here, jurists of reason would not find it debatable whether Petitioner's claims should be denied as untimely. Accordingly, no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).