Opinion
Civil Action No. 04-3666.
December 29, 2004
AMENDED REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus filed by Edward J. Leidy ("Petitioner"), pro se, pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner serving a sentence at the State Correctional Institution at Coal Township, Pennsylvania. Petitioner seeks habeas relief, alleging he was convicted in violation of the Ex Post Facto Clause of the United States Constitution, state habeas corpus relief was appropriate, and he was not a "person responsible for care of a minor" under the state criminal statute used to convict him. On September 3, 2004, the Honorable John P. Fullam referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons that follow, it is recommended that this petition be denied and dismissed without an evidentiary hearing.
I. FACTUAL AND PROCEDURAL HISTORY
The background and procedural history were gleaned from the Petition for Writ of Habeas Corpus, the Commonwealth's Answer, Petitioner's Response in Opposition thereto, and the State Court record.
Petitioner was charged with six sex offenses by Bill of Information dated July 29, 1996. On January 21, 1997, upon advice of counsel and after a full and complete colloquy before the court, Petitioner entered a plea of Nolo Contendere to one count of Rape, 18 Pa. C.S.A. § 3121(a)(1). Commonwealth v. Leidy, No. 2244-96, Mem. Op., 1 (Ct. Com. Pl. Berks County, Jan. 13, 2003) Ludgate, J. He was sentenced immediately, according to the negotiated plea, to serve not less than ten (10) nor more than twenty (20) years in a state correctional facility. Id. On March 14, 2002, Petitioner filed a pro se Petition for a Writ of Habeas Corpus, which the state court deemed to be a first petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. 9541, et seq., Id.
Next, on July 19, 2004, Petitioner filed the within petition seeking a federal writ of habeas corpus alleging that: 1) his arrest and conviction resulted from an ex post facto law 2) his pleading filed in state court should have been treated as a habeas corpus petition, rather than a PCRA action subject to a time-bar, and 3) he was not a "person responsible for care of minor," as defined by statute. See Pet. at 9-10.
The Commonwealth contends, and this court finds, that Petitioner is not entitled to federal habeas review or relief, because his claims are procedurally defaulted and all issues raised herein lack merit.
II. DISCUSSION
A. AEDPA Statute of Limitations
1. General Provisions
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, requires that a habeas corpus petition be filed within one year of the date on which a state court judgment of conviction became final. See 28 U.S.C. § 2244(d)(1)(A). A state judgment of conviction becomes final once direct review is concluded or the time for seeking such review has expired. Id. Any time which elapses after the conclusion of direct appellate review and before a habeas petition is filed is subtracted from the one year allotted under the AEDPA statute of limitations. Occasionally, however, statutory or equitable tolling exceptions extend the AEDPA deadline. See 28 U.S.C. § 2244(d)(1)(A); Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001).
While the date on which the petitioner's conviction beco mes final is typically the "run" date for the limitations period, the statute permits the limitation period to run from the latest of three other events as well:
(d)(1)(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 C ourt 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) (B-D). These alternative dates are not herein applicable.
Petitioner's conviction became final on November 10, 1999, when his ninety (90) day deadline for filing a petition for writ of certiorari in the United States Supreme Court expired. See Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999); Kapral v. U.S., 166 F.3d 565, 575 (3d Cir. 1999). Petitioner filed the within Petition on August 4, 2004, more than four years after his AEDPA deadline had expired. Petitioner had one year, or until November 9, 2000, to file his federal habeas petition. Therefore, unless a tolling exception applies, Petitioner's federal habeas filing is timebarred.
2. Statutory Tolling
Petitioner may be entitled to statutory tolling if, prior to expiration of the full AEDPA year, a petitioner timely seeks collateral review "[t]he time during which [that] 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." 28 U.S.C. § 2244(d)(2); See generally Artuz v. Bennett, 531 U.S. 4, 9 (2000).
A "properly filed" application for collateral review is "one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). See also Artuz v. Bennett, 531 U.S. 4, 9 (2000) (noting that an application for collateral review is "properly filed" if its "delivery and acceptance are in compliance with the applicable laws and rules governing filings," i.e. the form of the document) ( citing Lovasz); Fahy, 240 F.3d at 243. Furthermore, pendency "includes the time for seeking discretionary review, whether or not discretionary review is sought." Nara, 264 F.3d at 317 (3d Cir. 2001), quoting Swartz v. Meyers, 204 F.3d 417, 421-422 (3d Cir. 2000) (reasoning that any petition to obtain federal habeas review filed while time remained to seek appeal with the Pennsylvania Supreme Court would be dismissed for failure to exhaust state remedies). See also Lovasz, 134 F.3d at 149 (holding a second PCRA petition to be "`pending' until the Pennsylvania Supreme Court denied his petition for allowance of appeal.") Petitioner herein is not entitled to statutory tolling. His AEDPA year expired before he sought PCRA relief.
3. Equitable Tolling
Petitioner, nevertheless, may be eligible for equitable tolling. The Third Circuit has held that the one-year period of limitation in § 2244(d)(1) does not impose a jurisdictional bar. Thus, district courts may equitably toll the one-year period of limitation when the "principles of equity would make [the] rigid application [of a limitation period] unfair." See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). Such relief is appropriate
when the petitioner has "in some extraordinary way . . . been prevented from asserting his or her rights." The petitioner must show that he or she "exercised reasonable diligence in investigating and bringing [the] claims." Mere excusable neglect is not sufficient.Id. at 618-19 (alterations in original) (citations omitted). Specifically, equitable tolling is warranted
(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.Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted) (emphasis added). In this case, Petitioner is not entitled to equitable relief.
Application of Miller criteria to the facts of this case does not entitle Petitioner to equitable relief. Petitioner has failed to allege or demonstrate that any "extraordinary circumstance" external to himself unfairly prohibited compliance with AEDPA's time limitation. Petitioner has not asserted that any government agent actively mislead him as to habeas corpus filing requirements or prevented him from asserting his rights. Moreover, he did not timely file his petition in an incorrect forum. Furthermore, Petitioner has failed to evince recently discovered facts or otherwise allege that he exercised "reasonable diligence" in investigating and pursuing his federal claims. This was a guilty plea, so an actually innocent person has not remained incarcerated. Rather, Petitioner, dissatisfied with his sentence is attempting to attack a valid conviction. No injustice will occur if this Petition is not reviewed on the merits. Petitioner has not explained his dilatory behavior. Finally, no change in constitutional law necessitates late review of this petition. The record, devoid of factual justification for equitable tolling, warrants dismissal on procedural grounds, without a hearing.
CONCLUSION
For the foregoing reasons, this Court finds that Petitioner is ineligible for equitable tolling of the AEDPA deadline. Thus, he is not entitled to federal habeas review. Accordingly, I make the following:RECOMMENDATION
AND NOW, this 29th day of December 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED and DISMISSED without an evidentiary hearing. Petitioner has not met statutory requirements to have his time-barred case heard. Moreover, Petitioner has not shown that any reasonable jurist could find it debatable that this petition is procedurally barred. Therefore, there is no probable cause to issue a certificate of appealability.
See Slack v. McDaniel, 529 U.S. 473, 478 (2000).