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finding that a lockdown and limited library access alone did not warrant equitable tolling
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CIVIL ACTION NO. 02-839
October 17, 2003
REPORT AND RECOMMENDATION
Presently before the Court is an Amended Petition for Writ of Habeas Corpus filed by Curtis Perry under 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution in Graterford, Pennsylvania. For the reasons which follow, the amended habeas petition should be denied and dismissed as untimely filed.
Subsequent to the filing of petitioner's original pro se habeas petition (hereinafter cited as "Hab. Pet."), counsel was appointed to represent petitioner, and counsel thereafter filed an amended habeas petition (hereinafter cited as "Am. Hab. Pet.").
BACKGROUND
On December 13, 1991, following a jury trial in the Philadelphia Court of Common Pleas, petitioner was convicted of first degree murder, two counts of aggravated assault, criminal conspiracy and possession of an instrument of crime. See Commonwealth v. Perry, No. 672 EDA 2001, Mem. Op. at 1-2 (Pa. Super, filed Dec. 31, 2001). Petitioner was sentenced to life in prison for the murder conviction, with the following additional sentences, consecutive to each other but concurrent with the sentence for murder: ten to twenty (10-20) years in prison for each of the aggravated assault convictions; five to ten (5-10) years in prison for the conspiracy conviction; and two and a half (2 1/2) to five (5) years in prison for the weapon offense. See Pa. Super. Ct. Op. filed 12/31/01, at 2; Resp. to Hab. Pet. ¶ 10; Am. Hab. Pet. ¶ 3.
Petitioner filed a direct appeal in the Superior Court of Pennsylvania, and on May 9, 1994, the Superior Court affirmed the judgment of sentence. See Commonwealth v. Perry, 647 A.2d 266 (Pa.Super. 1994) (table). On December 2, 1994, the Supreme Court of Pennsylvania denied petitioner's request for allowance of appeal. See Commonwealth v. Perry, 653 A.2d 1229 (Pa. 1994) (table).
On May 9, 1997, petitioner filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-46. See Pa. Super. Ct. Op. filed 12/31/01, at 2; Am. Hab. Pet. ¶ 11(a). Following the appointment of counsel, the PCRA Court dismissed that petition as untimely on October 20, 1997, and petitioner appealed to the Pennsylvania Superior Court. See Pa. Super. Ct. Op. filed 12/31/01, at 2; see also Am. Hab. Pet. ¶ 11(a). The Superior Court remanded the case to the PCRA Court finding that the PCRA Court gave petitioner "improper notice of the intent to dismiss the petition." See Pa. Super. Ct. Op. filed 12/31/01, at 2. On remand, petitioner's counsel filed an amended PCRA petition, and on January 22, 2001, the PCRA Court dismissed petitioner's amended petition as untimely filed. Id. at 3; Am. Hab. Petf ¶ 11(b).
Petitioner again appealed to the Superior Court, and the Superior Court found that petitioner filed his petition "well beyond the grace period provided by the [PCRA] amendments." See Pa. Super. Ct. Op. filed 12/31/01, at 6 (emphasis added). The Superior Court further found that, even assuming arguendo that one of the recognized exceptions to the filing requirement under the PCRA applied, petitioner failed to file his petition "within 60 days of the date the claim could have been presented," as required by the PCRA,see id. at 6 (citing 42 PA. C.S.A. § 9545(b)(2)). Accordingly, on December 31, 2001, the Superior Court affirmed the dismissal of petitioner's amended PCRA petition as untimely filed. See Pa. Super. Ct. Op. filed 12/31/01, at 7; Am. Hab. Pet. ¶ 11(d)(2). Petitioner did not file a request for allowance of appeal in the Supreme Court of Pennsylvania. See Am. Hab. Pet. ¶ 11(d)(2) ("Allowance of appeal not sought.").
Under the Nov. 17, 1995 amendments to the PCRA, a petition "shall be filed within one year of the date the judgment becomes final." See Pa. Super. Ct. Op. filed 12/31/01, at 5 (quoting 42 Pa. C.S.A. § 9545(b)(1)). In the present case, since petitioner's "sentence became final before the effective date of the [PCRA] amendments," petitioner "was required, barring the application of any of the exceptions enumerated under § 9545(b), to file his petition by January 16, 1997 (which was one year from the effective date of the amendments)." See Pa. Super. Ct. Op. filed 12/31/01, at 5.
The PCRA provides that "[a]ny petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented." See Pa. Super. Ct. Op. filed 12/31/01, at 4 (quoting 42 Pa. C.S.A. § 9545(b)(2) (emphasis added)).
Petitioner thereafter filed in this Court a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. By Report and Recommendation ("R R") dated April 4, 2002, 1 recommended that the pro se petition be summarily dismissed as untimely filed.
The April 4, 2002 R R noted that although the Court of Appeals for the Third Circuit had recently held in Robinson v. Johnson, 2002 WL 377928 (3d Cir. Mar. 11, 2002), rev'd on reh'g, 313 F.3d 128 (3d Cir. Nov. 18, 2002), cert denied, 2003 WL 553518 (U.S. Oct. 6, 2003), that the statute of limitations provided in the habeas statute was an affirmative defense, the Third Circuit had not addressed the issue of whether a district court may raise the statute of limitations issue sua sponte,See R R dated 4/4/02, at 12 n. 5. In addition, the R R cited cases from a number of other circuits that have addressed such an issue and which held that a court may properly raise the timeliness issue sua sponte, See id. Furthermore, the R R pointed to cases from the Third Circuit which held, in the analogous situation regarding the affirmative defense of procedural default, that a court may properly raise an affirmative defense sua sponte in a habeas case. See id.,
In a Memorandum and Order ("M O") dated June 17, 2002, the Honorable John Fullam stated that "[w]hile [the April 4, 2002 R R] is indeed understandable," in view of the Third Circuit decision in Robinson, and "[a]t least until we have the benefit of further clarification from the Court of Appeals, I prefer not to initiate the limitations issue," but rather "allow the petition to proceed in the normal course." See Mem. and Order dated 6/17/02, at 1. Accordingly, Judge Fullam re-referred this case for further proceedings. Id. at 2.
On April 8, 2002, subsequent to the filing of the April 4, 2002 R R and prior to Judge Fullam's June 17, 2002 M O, the Court of Appeals for the Third Circuit entered an Order granting rehearing en banc in Robinson and vacating the opinion and judgment filed March 11, 2002.See Robinson v. Johnson, 283 F.3d 582 (3d Cir. Apr. 8, 2002). Thereafter, on May 8, 2002, upon further consideration, the Court of Appeals vacated the April 8, 2002 Order granting rehearing en banc and remanded the case to the original three-judge panel for a panel rehearing. See Robinson v. Johnson, 283 F.3d 582 (3d Cir. May 8, 2002). On November 18, 2002, although the Court reversed the March 11, 2002 opinion and found that the Commonwealth had not waived the statute of limitations defense, see Robinson. 313 F.3d at 141, the Court did not change its original determination that timeliness of a habeas petition is an affirmative defense, see id. at 131. Notably, the Court of Appeals has still not addressed the issue of whether a district court may raise the statute of limitations issue sua sponte, In any event, in the present case, the District Attorney of Philadelphia has raised the timeliness issue in her Response.
Petitioner was subsequently appointed counsel, and following two extensions of time for counsel to file an amended habeas petition, an amended petition was filed on December 6, 2002. On February 19, 2003, the District Attorney of Philadelphia filed a Response urging the Court to dismiss the amended petition as time-barred.
On February 26, 2003, petitioner was ordered to file a reply brief addressing the timeliness issue raised in the District Attorney's Response. Despite the passing of more than seven and a half months since petitioner was originally ordered to file a Reply to the District Attorney's Response to the amended habeas petition, and more than two months after the last deadline, petitioner has failed to file a Reply.
Petitioner filed a Motion for Extension of Time to file a Reply to the Response, and that motion was granted by Order filed March 28, 2003. Pursuant to the March 28, 2003 Order, petitioner's Reply was due April 28, 2003. Twenty-five days after the date on which the Reply was due, petitioner filed a Motion, Out Of Time, for a Second Extension of Time to File a Reply. By Order filed June 3, 2003, petitioner's nunc pro tune motion for a second extension of time was granted, and petitioner was given until June 27, 2003 to file a Reply. Noting that petitioner had been given 115 days (almost 4 months) to file a Reply, including granted extensions of at least 95 days from the original deadline for filing a Reply, the Order further stated that no further extensions would be granted without a showing of good cause.
On June 30, 2003, petitioner filed a Motion, Out Of Time, for a Third Extension of Time to File a Reply. In his third motion for extension of time, petitioner alleged, among other things, that, "[n]o copy of [the June 3, 2003 Order granting the previous motion for extension of time] appears in counsel's file, and the June 27 date was on counsel's calendar as requested, but with no indication it had been granted." Petitioner's motion further alleged that "counsel unfortunately continues to be behind in several of his obligations, despite working long hours." Therefore, petitioner's motion requested an extension of time until Aug. 6, 2003 to file a Reply. Although the June 3, 2003 Order had warned that no further extensions would be granted without a showing of good cause, in light of counsel's representation that he never received that June 3, 2003 Order, petitioner's nunc pro tunc motion for a third extension of time to file a Reply was granted, and petitioner was given until Aug. 6, 2003 to file a Reply. The Orders granting petitioner's last two extension requests, respectively, were faxed to petitioner's counsel prior to the Aug. 6, 2003 deadline.
Sometime after Aug. 6, 2003, petitioner's counsel's office was reminded per telephone call from chambers that the deadline by which a Reply was due had passed. Indeed, counsel's assistant assured me personally that a Reply would be filed as soon as possible. However, by Sept. 8, 2003, a Reply had still not been filed, and petitioner's counsel was again contacted by my chambers per telephone. Among other things, counsel represented that he was "embarrassed" and that a Reply would be filed "next week." Presently, more than a month after counsel's assurance, neither a Reply (nor a motion for extension of time to file a Reply) has been filed.
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). Pursuant to Section 101 of the AEDPA, the limitation period begins to 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 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.Id. Thus, under § 2244, the one-year limitation period during which a habeas petition must be filed begins to run, with certain statutory exceptions, see 28 U.S.C. § 2244(d)(1)(B)-(D), upon completion of direct review of the judgment of the state courts.
Petitioner's judgment of conviction became final prior to April 24, 1996, the effective date of the AEDPA. Consequently, petitioner had one year after the AEDPA's effective date, plus any time during which the period of limitation was statutorily or equitably 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).
Section 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." 28 U.S.C. § 2244(d)(2). However, as petitioner acknowledges, see Am. Hab. Pet. ¶ 11(a)(2), petitioner did not file his PCRA petition until May 9, 1997, see Pa. Super. Ct. Op. filed 12/31/01, at 2, more than one year after the effective date of the AEDPA, see Swartz, 204 F.3d at 419-20; Miller, 145 F.3d at 617-18. Hence, the PCRA petition did not toll the AEDPA's period of limitation under § 2244(d)(2), since it was filed after the expiration of the one-year limitation period. See, e.g., Lomazoff v. Walters, 63 F. Supp.2d 663, 666 (E.D. Pa. 1999) (observing that any state petition filed after the expiration of the AEDPA's period of limitation would have no "tolling effect").
It is noted that the PCRA petition would not have tolled the period of limitation even if it had been filed prior to the expiration of the AEDPA's limitation period because the PCRA petition was not "properly filed," under 28 U.S.C. § 2244(d)(2). In Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003), cert. denied, 2003 WL 21804962 (U.S. Oct. 6, 2003), the Court of Appeals for the Third Circuit reconfirmed that "an untimely PCRA petition does not toll the statute of limitations for a federal habeas corpus petition." Id. at 165; see also id. (citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001)) ("we are bound by our prior holding in Fahy . . . that an untimely PCRA petition does not toll the statute of limitations for a federal habeas corpus petition"); Brown v. Shannon, 322 F.3d 768, 775 n. 5 (3d Cir. 2003) (observing that a PCRA petition which was found by the Pennsylvania courts to be untimely filed may not be deemed "properly filed" within the meaning of § 2244(d)(2)), cert. denied. 123 S.Ct. 2617 (2003); Walker v. Frank, 2003 WL 115951, at *3 (3d Cir. Jan. 14, 2003) (where the Superior Court of Pennsylvania had held that the petitioner's second PCRA petition was not timely filed, Court of Appeals found federal habeas petition "was therefore not properly filed, and consequently it did not trigger 28 U.S.C. § 2244(d)(2)'s tolling provision"), cert. denied. 2003 WL 21310289 (U.S. Oct. 6, 2003). Therefore, here, where the Pennsylvania courts found petitioner's PCRA petition untimely filed, that petition was not "properly filed" for purposes of § 2244(d)(2) and did not toll the AEDPA's period of limitation. See Merritt, 326 F.3d at 165 (citing Fahy, 240 F.3d at 244); Brown, 322 F.3d at 775 n. 5; Walker, 2003 WL 115951, at *3.
Therefore, petitioner had one year after April 24, 1996 to file his § 2254 petition. However, he did not file the present petition until, at the earliest, February 12, 2002, more than five years and nine months after the AEDPA's limitation period began to run and more than four years and nine months after the period of limitation expired. Since petitioner failed to file his § 2254 petition within the one-year period of limitation of the AEDPA, his habeas petition was not timely filed. See Miller, 145 F.3d at 617-18; Burns, 134 F.3d at 111.
In Burns v. Morton, 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 the petition is delivered to prison officials for mailing to the district court. Here, although petitioner is currently represented by appointed counsel who filed the amended habeas petition on Dec. 6, 2002, petitioner originally filed his petition pro se, See supra note 1. Since petitioner signed his pro se petition on Feb. 12, 2002,see Hab. Pet. at 12, he could not have delivered the petition to prison officials for mailing any earlier than that date.
Petitioner does not allege in his amended habeas petition that the AEDPA's period of limitation should be equitably tolled. However, in hispro se objections (hereinafter referred to as "petitioner's objections") to the April 4, 2002 Report and Recommendation, petitioner argued that equitable tolling is appropriate in this case.
The Court of Appeals for the Third Circuit has held that equitable tolling "may be appropriate" in four narrow circumstances: (1) the defendant has "actively misled" the plaintiff; (2) the plaintiff has "in some extraordinary way" been prevented from asserting his rights; (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum; (4) the plaintiff "received inadequate notice of her right to file suit, where a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that she had done everything required of her." Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations and internal quotation marks omitted). Thus, equitable tolling is appropriate when the petitioner has in some "extraordinary way . . . been prevented from asserting his or her rights." Id. (quoting Miller, 145 F.3d at 618) (emphasis added). Moreover, equitable tolling is to be invoked "only sparingly," see United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998), and can be invoked only when the petitioner establishes that he exercised "reasonable diligence" in pursuing his claims. Miller, 145 F.3d at 618-19; see also Jones, 195 F.3d at 159 (quoting Seitzinger v. Reading Hosp. Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999)) ("[t]he law is clear that courts must be sparing in their use of equitable tolling").
In the present case, petitioner's objections and the exhibits submitted in support thereof indicate that there may have been a temporary "lockdown" following a prison riot on or about August 14, 1995. Petitioner alleges that as a result of this prison riot and a 30-day lockdown his personal property, including "legal materials," were destroyed. He further alleges that over-crowded conditions at the prison "create[d] a scheduling problem" regarding access to the prison law library.
Even assuming petitioner was deprived of access to his "legal papers" after mid-August 1995, as he alleges, petitioner fails to even assert, let alone demonstrate, that he exercised adequate diligence in attempting to file a timely petition. See, e.g., Robinson, 313 F.3d at 142. Similar to the habeas petitioner in Robinson, although petitioner appears to suggest that without his legal papers he could not submit a timely petition, he filed his PCRA petition "without the benefit of his removed legal papers, suggesting if not demonstrating that they were not necessary to his federal (or his state) filing." See id. (parenthetical added). However, petitioner fails to allege that he even attempted to file a state or federal collateral petition within the AEDPA's one-year period of limitation which began running April 24, 1996. See, e.g.,Jones, 195 F.3d at 160 ("Jones has made no showing that he `exercised reasonable diligence' in satisfying the exhaustion requirement in order to present his claims in a timely federal habeas petition.").
It is noted that although petitioner alleges that his PCRA counsel received the "trial notes" in April of 2000, as petitioner acknowledges, he filed his PCRA petition on May 9, 1997, see Pa. Super. Ct. Op. filed 12/31/01, at 2; Am. Hab. Pet. ¶ 11(a).
Of course, if petitioner had timely filed his PCRA petition by January 16, 1997, his PCRA petition would have been timely filed, see Pa. Super. Ct. Op. filed 12/31/01, at 5 ("[petitioner] was required . . . to file his [PCRA] petition by January 16, 1997"), and would have tolled the AEDPA's period of limitation as a "properly filed" petition under § 2244(d)(2), assuming that the petition was "properly filed" in all other respects, see 28 U.S.C. § 2244(d)(2).
Furthermore, a "lockdown and limited library access alone do not support a finding that the statute must be equitably tolled. Rather, petitioner must show that these circumstances actually impeded his ability to file a timely petition." See Ego-Aguirre v. White, 1999 WL 155694, at *2 (N.D. Cal. Mar. 12, 1999). For example, petitioner does not allege circumstances that would prevent him from writing his motion prior, and he does not state that he was prevented from utilizing the mail. See United States v. Ramsey, 1999 WL 718079, at *2 (E.D. Pa. Aug. 26, 1999):see also Davis v. Artuz, 2001 WL 199454, at *3 (S.D. N.Y. Feb. 28, 2001) ("the petitioner must show that circumstances actually impeded the ability to file a timely petition"); Giraldes v. Ramirez-Palmer, 1998 WL 775085, at *2 (N.D. Cal Nov. 3, 1998) (tolling inappropriate based on "lockdown" status of prison where "there [was] no showing that the lockdown actually impeded [petitioner's] efforts" to complete petition). Moreover, petitioner's lack of understanding or knowledge of the law is not an appropriate basis to invoke equitable tolling. See Jones, 195 F.3d at 160 (finding that equitable tolling is not applicable to time-barred petition due to petitioner's misunderstanding of AEDPA's exhaustion requirements); School 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").
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.See Jones, 195 F.3d at 159: Miller, 145 F.3d at 618-19: see also Pfeil v. Everett, 2001 WL 618209, at *3 (10th Cir. June 6, 2001) (AEDPA's statute of limitations may be equitably tolled only "when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control"),cert. denied, 534 U.S. 1032 (2001);Ramsey, 1999 WL 718079. at *2:Ego-Aguirre. 1999 WL 155694, at *2. 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, neither equitable nor statutory tolling of the AEDPA's period of limitation is warranted in this case, and petitioner "had until April 23, 1997," one year after the effective date of the AEDPA, to file his habeas petition. See Miller, 145 F.3d at 617-18; Burns, 134 F.3d at 111. Since petitioner did not file the present petition until, at the earliest, February 12, 2002, see supra note 8, the petition should be denied and dismissed as time-barred. See Miller, 145 F.3d at 617-18;Burns, 134 F.3d at 111.
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)). When a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, 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 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 Third Circuit 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)). Accordingly, a COA should not issue.
My Recommendation follows.
RECOMMENDATION
AND NOW, this ___ day of October, 2003, upon consideration of the Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 and the Response thereto of the District Attorney of Philadelphia, for the reasons given in the accompanying Report, it is hereby RECOMMENDED that the amended habeas petition be DENIED and DISMISSED as untimely filed and that a certificate of appealability not issue.