Opinion
CIVIL ACTION NO. 03-5059
March 22, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Frackville, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On December 13, 1994, following a jury trial presided over by the Honorable John J. Poserina, Jr. of the Philadelphia County Court of Common Pleas, petitioner was convicted of two counts of aggravated assault and one count each of possession of an instrument of crime, recklessly endangering another person, and criminal conspiracy. The jury failed to reach a verdict with respect to the charge of murder. After being sentenced to ten to twenty years imprisonment for the above convictions, petitioner was retried on the murder charge before Judge Poserina. On July 21, 1995, the jury found petitioner guilty of first degree murder. Specifically, petitioner was found guilty of the drive-by killing of Gerald Smith. Three days later, on July 24, 1995, petitioner was sentenced to life imprisonment.
Petitioner appealed to the Pennsylvania Superior Court, which affirmed his sentence on February 6, 1997. Commonwealth v. Richardson, 694 A.2d 1121 (Pa.Super. 1998). The Pennsylvania Supreme Court subsequently denied allocatur on August 8, 1997. Commonwealth v. Richardson, 549 Pa. 699, 700 A.2d 440 (1997).
On January 11, 2000, petitioner filed a state court collateral petition under the Post Conviction Relief Act (PCRA). This petition was dismissed by the Court of Common Pleas on January 12, 2001, and petitioner did not appeal.
Petitioner contends that his petition was dismissed on January 11, 2001, but the difference in date is of no matter for the purposes of this Report and Recommendation.
On September 4, 2001, petitioner filed a second PCRA petition. The petition was dismissed as untimely on March 1, 2002, and petitioner did not appeal.
On May 14, 2003, petitioner filed a third PCRA petition. As a result of its untimeliness, it was dismissed on January 6, 2004, and petitioner did not appeal.
Petitioner filed his Petition for Writ of Habeas Corpus on September 9, 2003, alleging that his conviction was in violation of the Double Jeopardy Clause of the United States Constitution.
Respondent retorts that petitioner's Petition for Writ of Habeas Corpus is time-barred, and thus petitioner is not entitled to habeas review or relief.
II. TIMELINESS
Notwithstanding petitioner's allegation of a substantive ground for relief, one procedural obstacle precludes federal review of his claim — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
A 1-year limitation period 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.28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective dates, then under Third Circuit precedent, a prisoner has a one-year grace period subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998).
The AEDPA also sets forth three other potential starting points for the running of the statute of limitations, as follows:
(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.28 U.S.C. § 2244(d)(1). As petitioner has not alleged and the court cannot glean any facts indicating that any of these other starting points should be used, we do not consider them.
The statute, however, creates a tolling exception, which notes that "[t]he time during which a properly filed application for statute 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). A "properly filed application" 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 (3rd Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3rd Cir. 2003).
Under the AEDPA, a petitioner's conviction becomes final ninety days after the conclusion of his direct appeal. See Kapral v. United States, 166 F.3d 565, 575 (3rd Cir. 1999); Johnson v. Hendricks, 314 F.3d 159 (3rd Cir. 2002). In the case at bar, petitioner was denied allocatur by the Pennsylvania Supreme Court on August 8, 1997. Thus, his conviction became final ninety days later, on November 6, 1997. As directed by AEDPA, petitioner had until November 6, 1998 to initiate his federal habeas action.
Petitioner did not file his current habeas petition, however, until September 9, 2003, almost five years after the statute of limitations expired. Having thus failed to comply with the statute, this court has no choice but to dismiss the request for habeas relief without consideration on the merits.
One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling. Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3rd Cir. 1998). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (quotation omitted). 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 (internal quotation omitted). The Third Circuit has set forth three circumstances permitting equitable tolling: (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, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3rd Cir. 1999) (internal quotations omitted). "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 (3rd Cir. 2001), cert. denied, 122 S.Ct. 323 (2001) (citing cases). To otherwise apply equity would "lose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
Petitioner's first PCRA petition failed to toll the statute of limitations, as it was not filed until January 11, 2000, more than one year after the statute had run. Likewise, petitioner's second and third PCRA petitions were filed after the expiration of the statute. Since these latter petitions were expressly deemed untimely by the state court, they were improperly filed and did not toll the statute. See Merritt, 326 F.3d at 167-68; Fahv, 240 F.3d at 243-44. Even if the state court had tolled the statute of limitations, the one-year period would still have run well before petitioner filed his Petition for Writ of Habeas Corpus in September of 2003.
Though the District court has the ability to review the substantive issues raised in a habeas corpus petition when applying the statute of limitations would unfairly prejudice the petitioner, the petitioner must show more than excusable neglect in order for the court to do so. Rather, the petitioner must prove that he exercised reasonable diligence but that for some extraordinary reason, he was prevented from asserting his rights. See Miller, 145 F.3d at 618-19. Petitioner has failed to meet this burden. Consequently, we decline to exercise our equitable tolling powers, and we dismiss his entire petition.
Therefore, I make the following recommendation:
RECOMMENDATION
AND NOW, this ___ day of March, 2004, IT IS RESPECTFUEEY RECOMMENDED that the petition for a Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.