Opinion
CIVIL ACTION NO. 01-2565
November 25, 2003
REPORT AND RECOMMENDATION
Petitioner, Kenneth Holmes, filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. He is currently incarcerated at the State Correctional Institution in Graterford, Pennsylvania ("SCI-Graterford").
By Report and Recommendation ("RR") filed September 20, 2001, it was recommended that the habeas petition be summarily dismissed as untimely filed. On October 1, 2001, petitioner filed objections to the RR alleging for the first time certain circumstances which he claimed warranted equitable tolling of the applicable period of limitation. By order dated October 3, 2001, the Honorable Robert F. Kelly approved and adopted the September 20, 2001 RR and summarily dismissed the habeas petition as untimely filed.
On that same date, petitioner also filed a document styled "Revised Petition for Writ of Habeas Corpus and Consolidated Preliminary Memorandum of Law."
Thereafter, on January 15, 2002, the Court of Appeals for the Third Circuit granted petitioner's request for a certificate of appealability, and directed respondent to show cause why this matter should not be summarily remanded for consideration of petitioner's equitable tolling argument. On April 30, 2003, in light of respondent's lack of opposition to a remand, the Court of Appeals ordered that this matter be "summarily remanded to [this Court] for consideration of Petitioner's equitable tolling argument."
On July 21, 2003, Judge Kelly referred this matter for an RR "in accordance with the reasons for the remand." The District Attorney of Philadelphia was thereafter ordered to file a Response to the habeas petition consistent with the Order of the Court of Appeals. In its Response, respondent argues that petitioner has failed to allege reasonable diligence and, in any event, has failed to allege an exceptional circumstance that warrants equitable tolling. See Resp. to Hab. Pet. at 8-19. Respondent also argues that the allegations underlying petitioner's equitable tolling argument are not credible.Id. at 19-22. For the reasons which follow, the petition should be summarily dismissed as time-barred.
In the interest of clarity, the relevant procedural background and applicable law which is set forth in the Sept. 20, 2001 RR is reiterated herein.
BACKGROUND
The following facts were compiled upon review of the habeas petition, the Response thereto of the District Attorney of Philadelphia, and the state court record forwarded by the Clerk of Quarter Sessions of the Philadelphia Court of Common Pleas.
Following the denial of post-trial motions, petitioner filed a direct appeal in the Superior Court of Pennsylvania on October 25, 1993.Id. at 1-2. On April 28, 1994, the Superior Court affirmed the judgment of sentence, and the Supreme Court of Pennsylvania denied the Petition for Allowance of Appeal on September 20, 1994. Id. at 2; see Commonwealth v. Holmes, 645 A.2d 889 (Pa.Super. 1994) (table), allocatur denied, 649 A.2d 668 (Pa. 1994) (table); Hab. Pet. ¶ 9.
On December 26, 1996, petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541-46. Counsel was thereafter appointed, and counsel filed an amended PCRA petition. The PCRA Court subsequently dismissed the PCRA petition, and petitioner appealed the PCRA Court's order to the Pennsylvania Superior Court. See Pa. Super. Ct. Op. filed 6/30/00, at 2. By Memorandum and Order filed June 30, 2000, the Superior Court affirmed the PCRA Court's dismissal of the PCRA petition.Id. at 8. Petitioner did not file a petition for allowance of appeal in the Supreme Court of Pennsylvania from the Superior Court's June 30, 2000 Order.
By telephone conversation with the Office of the Prothonotary of Pennsylvania's Supreme Court on Aug. 30, 2001, this Court confirmed that the state court's docket reflected no such petition was filed. Indeed, petitioner does not allege that he filed such a petition. See Hab. Pet. ¶ 11.
Petitioner subsequently filed an "Application for Leave to file Original Process" and a "Petition for Writ of Mandamus and/or Extraordinary Relief" (hereinafter referred to as "petition for mandamus") in the Supreme Court of Pennsylvania. On June 13, 2001, Pennsylvania's Supreme Court granted the request for leave to file original process and denied the petition for mandamus. See Holmes v. Court of Common Pleas of Phila. County, No. 25 EM 2001, Order (Pa. June 13, 2001).
DISCUSSION
Section 101 of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), amended 28 U.S.C. § 2244 to impose a one-year period of limitation on applications for writs of habeas corpus by persons in state custody.See 28 U.S.C. § 2244(d)(1). Under § 2244, the one-year limitation period during which a habeas petition must be filed begins to run, with certain exceptions which do not apply here, after the completion of direct review of the judgment of the state courts.Id. Furthermore, § 2244(d)(2) provides in relevant part that "[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 shall not be counted toward any period of limitation under this subsection." See 28 U.S.C. § 2244(d)(2).
In the present case, the judgment of conviction became final prior to April 24, 1996, the effective date of the AEDPA. Therefore, petitioner had one year after the AEDPA's effective date, plus any time during which the period of limitation was tolled, to file a § 2254 petition.See Swartz v. Meyers, 204 F.3d 417, 419-20 (3d Cir. 2000);Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998): Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Petitioner filed a PCRA petition on December 26, 1996, see Pa. Super. Ct. Op. filed 6/30/00, at 2, and that petition was "pending," see 28 U.S.C. § 2244(d)(2), until July 31, 2000, when the time for filing a petition for allowance of appeal in the Supreme Court of Pennsylvania expired. See Pa. R. App. P. 1113(a) (petition for allowance of appeal in Pennsylvania Supreme Court must be filed within 30 days of the Superior Court's order); Swartz, 204 F.3d at 424-25. Therefore, the PCRA petition statutorily tolled the AEDPA's period of limitation from December 26, 1996, when the PCRA petition was filed, until July 31, 2000. See 28 U.S.C. § 2244(d)(2).
The Pennsylvania Superior Court affirmed the dismissal of the PCRA petition on June 30, 2000. See Pa. Super. Ct. Op. filed 6/30/00, at 8.
However, since the AEDPA's period of limitation began to run on April 24, 1996, see Swartz, 204 F.3d at 419-20; Miller, 145 F.3d at 617-18, more than eight months of the period of limitation had already elapsed by the time petitioner filed his PCRA petition on December 26, 1996. See Burns, 134 F.3d at 111. Consequently, when the time for filing a petition for allowance of appeal in the Supreme Court of Pennsylvania expired on July 31, 2000 and the period of limitation began running again, petitioner had less than four months to file his § 2254 petition.
Petitioner did not file the present petition until, at the earliest, May 7, 2001, more than nine months after the time for filing a petition for allowance of appeal in the Supreme Court of Pennsylvania expired, and more than five months after the AEDPA's period of limitation expired. Therefore, unless equitable tolling of the one-year period of limitation is warranted in this case, the habeas petition was not timely filed. See Miller, 145 F.3d at 617-18; Burns, 134 F.3d at 111.
In Burns, 134 F.3d at 113, the Court of Appeals for the Third Circuit held that a pro se prisoner's federal habeas petition is deemed "filed" at the moment he delivers it to prison officials for mailing to the district court. Here, petitioner signed his habeas petition on May 7, 2001. See Hab. Pet. at 12. Therefore, he could not have delivered the petition any earlier than that date.
Although petitioner also filed a petition for mandamus in Pennsylvania's Supreme Court and he alleges that he filed a "petition for writ of habeas corpus" in the state court (hereinafter referred to as "state habeas petition"), see Hab. Pet. ¶ 13; Pet. for Mandamus at 1 ¶ 2, those petitions had no tolling effect on the AEDPA's period of limitation. Initially, it is noted that the AEDPA's period of limitation is tolled, under § 2244(d)(2), during the time when "a properly filed application for State post-conviction or other collateral review" is pending. See 28 U.S.C. § 2244(d)(2). Under Pennsylvania law, a PCRA petition is "the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when [the PCRA] takes effect, including habeas corpus and coram nobis." 42 Pa. C.S.A. § 9542 (emphasis added): see Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) ("By its own language, and by judicial decisions interpreting such language, the PCRA provides the sole means for obtaining state collateral relief." (emphasis added)). Therefore, here, it is not clear that the petition for mandamus and state habeas petition constituted "properly filed application [s] for . . . collateral review" tolling the period of limitation under 28 U.S.C. § 2244(d)(2). See 42 Pa. C.S. § 9542;Hall, 771 A.2d at 1235.
In any event, since the petition for mandamus was signed by petitioner on Feb. 9, 2001, see Pet. for Mandamus at 3, it could not have been filed in the Pennsylvania Supreme Court any earlier than that date. In addition, petitioner alleged in his petition for mandamus filed in the Pennsylvania Supreme Court that his state habeas petition was filed on Jan. 18, 2001. See Pet. for Mandamus at 1 ¶ 2. Therefore, even assuming petitioner's allegations are correct, and even assumingarguendo that these state petitions were properly filed applications for collateral review under § 2244(d)(2), both the petition for mandamus and the state habeas petition were filed afterthe expiration of the AEDPA's period of limitation and thus had no tolling effect. See, e.g., Lomazoff v. Walters, 1999 WL 744331, at *3 (E.D. Pa. Sep. 23, 1999) ("no petition filed after August 1, 1998 could have had tolling effect since the one-year limitation would in any event have already expired").
In his objections to the Sept. 20, 2001 RR, petitioner does not dispute the reasoning and determination in the RR that his federal habeas petition was untimely filed, without consideration of his equitable tolling argument.
The Court of Appeals for the Third Circuit has determined that the AEDPA's one-year filing requirement is a statute of limitations and thus is subject to equitable tolling in extraordinary circumstances.Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999);Miller, 145 F.3d at 618. In Miller, the Court observed that "equitable tolling is proper only when the `principles of equity would make the rigid application of a limitation period unfair.'" Jones, 195 F.3d at 159 (quotingMiller, 145 F.3d at 618). Generally, this will occur when the petitioner has in some "extraordinary way . . . beenprevented from asserting his or her rights." Jones, 195 F.3d at 159 (quoting Miller, 145 F.3d at 618) (emphasis added). The Miller Court further noted that "the petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims" and that "[m]ere excusable neglect is not sufficient." Jones, 195 F.3d at 159 (quoting Miller, 145 F.3d at 618).
As the Court in Jones stated: "In the final analysis,. . . `a statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice." Jones, 195 F.3d at 159 (quotingUnited States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Thus, "[t]he law is clear that courts must be sparing in their use of equitable tolling." See Jones, 195 F.3d at 159 (quotingSeitzinger v. Reading Hosp. Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999)). Indeed, the Third Circuit "ha[s] held that a statute of limitations may be equitably tolled in three circumstances: (1) if the defendant has actively misled the plaintiff, (2) if the plaintiff has, in some extraordinary way, been kept from asserting his rights, or (3) if the plaintiff has timely asserted his rights unwittingly and incorrectly in the wrong forum." Phillips v. Vaughn, 2003 WL 202472, at *2 (3d Cir. Jan. 29, 2003) (citing Jones, 195 F.3d at 159).cert. denied, 123 S.Ct. 1761 (2003).
In his objections to the September 20, 2001 RR, petitioner alleges that "[o]n or about August 13, 2000," the "trial transcripts" belonging to petitioner "were improperly and mistakenly shipped by [Department of Corrections] Graterford officials to another correctional institution and not returned to [petitioner] until April 16, 2001." See Petitioner's Objections filed 10/1/01, at 1. Subsequent to the filing of the Response to the habeas petition, petitioner filed a "Traverse Brief" stating that his "trial records" and "related legal papers" were also "mistakenly shipped" along with his trial transcripts. See Petitioner's Traverse Br. at 5. Thus, petitioner argues that the AEDPA's period of limitation should be equitably tolled since he did not have access to his "legal papers" from August 13, 2000 until April 16, 2001. See Petitioner's Objections filed 10/1/01, at 1-4; see also Petitioner's Traverse Br. at 5 (stating that petitioner's legal papers were "mistakenly shipped and missing for 8 months").
Although the purported affidavit attached as an exhibit to petitioner's objections refers to "legal materials consisting of trial transcripts and a loose assortment of legal briefs" belonging to three inmates, respectively, the exhibit does not specifically indicate thatpetitioner's missing property contained anything other than "trial transcripts." Moreover, in his actual objections to the Sept. 20, 2001 RR, petitioner appears to have complained of his lack of access to his "trial transcripts" as a grounds for equitable tolling.See Petitioner's Objections filed 10/1/01, at 1-4. In any event, petitioner's recently filed "Traverse Brief" alleges lack of access to "trial records" and "related legal papers." See Petitioner's Traverse Br. at 5.
In support of his equitable tolling argument, petitioner has submitted the purported affidavit of Frank H. Kepp dated September 24, 2001. The affidavit states that Mr. Kepp is a correctional officer at SCI-Graterford and that petitioner's "legal materials being stored in the SCI-Graterford Property Room was [sic] mistakenly shipped" to the state correctional institution in Huntingdon, Pennsylvania in August 2000.See Kepp Aff. dated 9/24/01, at 1-2 (attached to Petitioner's Objections filed 10/1/01). The affidavit further states that "the boxes containing the trial transcripts of [another inmate and petitioner]" were not returned to petitioner until April 16, 2001. Id.
In the Response to the habeas petition, respondent argues that: (1) Officer Kepp denies knowingly executing the document purporting to be his affidavit; (2) petitioner has a record of using affidavits in misrepresentations to courts; and, (3) Department of Corrections records contradict petitioner's allegations.See Resp. to Hab. Pet. at 19-22. In support of the Response, respondent has submitted, among other things, the affidavit of Officer Frank H. Kepp dated November 6, 2003.
In the November 6th affidavit, Officer Kepp states that "[o]ne of the signatures at the conclusion of the three-page purported Affidavit [submitted by petitioner] appears to be mine." See Kepp Aff. dated 11/6/03, ¶ 3 (attached to Resp. to Hab. Pet. as Ex. "F"). However, Officer Kepp further states that "I had never seen the three-page Affidavit, purportedly executed in September 2001, until it was presented to me in September 2003 by the Philadelphia District Attorney's Office." Id. ¶ 4. According to Officer Kepp: "I do recall signing a document presented to me by inmate Kenneth Holmes in or around September 2001; however the document I signed was not the three-page purported Affidavit." Id. ¶ 5.
With regard to the substance of the purported affidavit submitted by petitioner, Officer Kepp denies knowledge regarding the averments of the purported affidavit submitted by petitioner. Id. ¶¶ 1-16. For example, Officer Kepp states that he "do[es] not know, nor did [he] know in 2001, whether `legal materials consisting of trial transcripts' and `legal briefs'" belonging to petitioner "were mistakenly shipped to S.C.I. Huntingdon." Id. ¶ 10. Moreover, he states that "[t]he shipping of such materials was and remains outside the scope of [his] daily duties." Id.
The officer further states that he has no knowledge regarding the purported "return" of "boxes" from the state correctional institution in Huntingdon containing trial transcripts or the forwarding of such boxes to petitioner on April 16, 2001. Id. ¶ 11. Officer Kepp concludes that: "Given my lack of information, knowledge or recollection regarding the substance of the averments of the three-page purported Affidavit, I would not have knowingly signed a document containing such averments. Also, as set forth above, some of the averments of the three-page purported Affidavit are, to my knowledge and belief, false."Id. ¶ 16.
In Brown v. Shannon, 322 F.3d 768 (3d Cir.), cert. denied, 123 S.Ct. 2617 (2003), where petitioner's attorney was unable to obtain trial transcripts despite "diligent efforts" and notified the petitioner he would therefore not be filing a federal habeas petition, the Third Circuit found that equitable tolling was not warranted because the petitioner was notified that the petition was not filed, and, importantly, that the notification came in time for the petitioner, "to prepare and file at least a basic pro se habeas petition." Id. at 774. Thus, in Brown, although it is noted that the petitioner claimed ineffective assistance of counsel as grounds for equitable tolling, despite the fact that the petitioner's attorney was unable to obtain the trial transcript for petitioner, the Third Circuit held that equitable tolling was not warranted since these circumstances did not prevent the petitioner from filing "a basicpro se habeas petition." See id.
In White v. Shannon, 2003 WL 21771723 (E.D. Pa. July 24, 2003), the petitioner argued that equitable tolling was warranted "because the state court discarded and failed to transcribe the stenographic trial notes from the final day of his trial." Id. at *4. The Court held that because the petitioner's state PCRA and federal habeas claims could have been timely filed, without waiting for the missing transcript, the circumstances were not extraordinary and did not warrant equitable tolling. Id. Thus, the Court found that the fact that the petitioner was unable to obtain the trial transcript "did not prevent him from filing a habeas petition."Id. at *5 (emphasis added).
Similarly, here, petitioner alleges that his "legal papers," including trial transcripts, were "mistakenly shipped" to another correctional institution and were not returned until approximately eight months later. See Petitioner's Objections filed 10/1/01, at 1. "In 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." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 122 S.Ct. 323 (2001); see White, 2003 WL 21771723, at *4. Furthermore, "ignorance of the law, even for an incarcerated pro se petitioner generally does not excuse prompt filing." Pfeil v. Everett, 2001 WL 618209, at *5 (10th Cir. June 6, 2001); see United States v. Bruce, 2002 WL 31757938, at *1 (D. Del. Nov. 26, 2002).
It is further noted that, by the time petitioner claims his legal papers were mistakenly shipped to another prison, he had already filed his PCRA petition and his appeals related thereto. In addition, petitioner was able to file his petition for mandamus, and he alleges he filed a state habeas petition, during the time period he alleges his legal papers were missing. See supra note 7. Significantly, in his recently filed "Traverse Brief," petitioner states that, during the time period his "legal papers" were allegedly missing, he "presented the claims raised in his present petition to the State Courts in a State Petition for Writ of Habeas Corpus," see Petitioner's Traverse Br. at 9. See, e.g., Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002) ("While he ultimately received a copy of his old habeas petition, he filed his petition without the benefit of his removed legal papers, suggesting, if not demonstrating, that they were not necessary to his federal filing." (emphasis added)), cert. denied, 124 S.Ct. 48 (2003).
Even assuming that petitioner did not have access to his "legal papers" for the period of time he alleges, he has failed to allege circumstances wherein he has "in some extraordinary way" been "prevented" from filing a timely "basic pro se habeas petition," see Jones, 195 F.3d at 159 (quoting Miller, 145 F.3d at 618): Brown, 322 F.3d at 774. See, e.g., White, 2003 WL 21771723, at *4-5;see also Robinson, 313 F.3d at 142-43 (finding that petitioner's claim of deprivation of legal materials did not warrant equitable tolling); Lloyd v. Van Natta, 296 F.3d 630, 634 (7th Cir. 2002) ("equitable tolling does not excuse [the petitioner's] late filing simply because he was unable to obtain a complete trial transcript before he filed his § 2254 petition"), cert. denied, 537 U.S. 1121 (2003); Donovan v. Maine, 276 F.3d 87, 93 (1st Cir. 2002) (delay in obtaining transcript not a basis for equitable tolling of one-year limitation period); Jihad v. Hvass, 267 F.3d 803, 806 (8th cir. 2001) ("lack of access to trial transcript does not preclude a petitioner from commencing post-conviction proceedings and therefore does not warrant equitable tolling").
Nor does petitioner show that he "exercised reasonable diligence in investigating and bringing [the] claims." See Jones, 195 F.3d at 159 (quoting Miller, 145 F.3d at 618); see also Brown, 322 F.3d at 773; Pfeil, 2001 WL 618209, at *3 (AEDPA's statute of limitations may be equitably tolled, but only "when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control"); White, 2003 WL 21771723, at *4. For example, petitioner fails to allege any steps that he took to attempt to obtain from the state court or his previous counsel portions of the state proceedings which he felt he needed to file a federal habeas petition, and he does not allege that he sought to file a timely habeas petition and then clarify it once he had access to his materials. See, e.g., Robinson, 313 F.3d at 143 (where petitioner claimed deprivation of his legal materials as grounds for equitable tolling, Court of Appeals noted, among other things, that petitioner "did not seek to file a timely petition and then clarify it once he had access to his materials").
Since petitioner has failed to allege circumstances wherein he has "in some extraordinary way" been prevented from asserting his rights, and he has failed to allege circumstances showing that he "exercised reasonable diligence" in pursuing his claims, equitable tolling is not warranted in this case. See Jones, 195 F.3d at 159: Miller, 145 F.3d at 618-19: see also Pfeil, 2001 WL 618209, at *3;United States v. Ramsey, 1999 WL 718079, at *2 (E.D. Pa. Aug. 26, 1999); Ego-Aguirre v. White, 1999 WL 155694, at *2 (N.D. Cal. Mar. 12, 1999). Petitioner has not alleged facts sufficient to show that "`sound legal principles as well as the interests of justice' demand pursuit of the `sparing' doctrine of equitable tolling."Robinson, 313 F.3d at 143 (quoting Jones, 195 F.3d at 159). Accordingly, since petitioner failed to file his § 2254 petition within the one-year limitation period, the petition should be denied and dismissed as untimely filed. See Miller, 145 F.3d at 617-18; Burns, 134 F.3d at 111.
Petitioner has filed a Motion for Appointment of Counsel (Doc. No. 13), and he requests an evidentiary hearing, see Petitioner's Travers Br. at 10. However, since, among other things, the record does not reflect an inability on the part of petitioner to understand the issues in the case and present them in a coherent manner, and this matter may be resolved based on the record before the Court without an evidentiary hearing, neither an evidentiary hearing nor appointment of counsel is warranted in this case. See Reese v. Fulcomer, 946 F.2d 247, 263-64 (3d Cir. 1991) (affirming district court's discretion in denying appointment of counsel in habeas proceedings), cert. denied, 503 U.S. 988 (1992); Lambert v. Frank, 2000 WL 1022977, at *2-3 (E.D. Pa. July 18, 2000) (same);Watson v. United States, 1997 WL 667152, at *4-5 (E.D. Pa. Oct. 3, 1997) (denying request for counsel by prisoner seeking relief under 28 U.S.C. § 2255); see, e.g., Robinson, 313 F.3d at 143 ("But Robinson still has not demonstrated the diligence necessary to warrant an evidentiary hearing on his claim."). In addition, since the habeas petition is untimely, petitioner's "Revised" habeas petition, see supra note 1, is also untimely and should similarly be dismissed.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. Under the AEDPA, "a COA may not issue unless `the applicant has made a substantial showing of the denial of a constitutional right.'" Slack v. McDaniel, 529 U.S. 473, 483 (2000) (quoting 28 U.S.C. § 2253(c)); see Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
Under the controlling standard, a petitioner "must sho[w] that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Id. at 1039 (quoting Slack, 529 U.S. at 484): see Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003) (per curiam). When a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; see Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); Walker, 2003 WL 115951, at *2; Woods v. Kearney, 215 F. Supp.2d 458, 464 (D. Del. 2002).
"Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."Slack, 529 U.S. at 484; see Woods, 215 F. Supp.2d at 464. Here, for the reasons set forth above and in light of the aforementioned decisions invoking the AEDPA's period of limitation as a procedural bar, a reasonable jurist could not conclude that the Court would be incorrect in dismissing the present petition as time-barred. See Slack, 529 U.S. at 484; see, e.g., Woods, 215 F. Supp.2d at 464 (finding that COA should not issue where habeas petition was barred by the one-year period of limitation under § 2244(d)(1)); Thomas v. Carroll, 2002 WL 1858778, at *4 (D. Del. July 30, 2002) (same). Accordingly, the habeas petition should be denied and dismissed as untimely filed, and a COA should not issue.
My Recommendation follows.