Opinion
CIVIL ACTION NO. 03-6154
February 23, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. The Commonwealth of Pennsylvania ("Respondent") filed a Response to the petition and Edward Sleigh, ("Petitioner"), filed a Traverse thereto. Petitioner currently is serving a life sentence at the State Correctional Institute at Huntingdon, Pennsylvania. He challenges his confinement on numerous constitutional grounds. See Petitioner's Federal Habeas Petition ("Pet.") at 9-10C. The Honorable Clarence C. Newcomer referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, Petitioner's time-barred petition should be dismissed.
I. BACKGROUND AND PROCEDURAL HISTORY
The background and procedural history were gleaned from the Petition for Writ of Habeas Corpus ("Pet."), the Commonwealth's Response thereto ("Resp."), inclusive of all exhibits thereto, Petitioner's Traverse ("Trav."), and the available record.
Petitioner was arrested on March 12, 1985 and charged with the stabbing death of Joseph Sztukowski. See Appellate Brief, 1999 WL 33721903 at *4 (Pa.Super. 1999). The Honorable Edwin S. Maimed presided over a jury trial from November 19-22, 1985; Petitioner was convicted of first degree murder and possession of an instrument of crime and sentenced to a term of life in state confinement on the murder charge (Bill No. 3205) and a concurrent sentence of two and one-half (2 1/2) to five (5) years on the possession of an instrument of crime count (Bill No. 3208). See id. Judgment of Sentence was affirmed by the state's intermediate court on December 30, 1986. See Commonwealth v. Schleigh, 520 A.2d 1217 (Pa.Super. 1986). No further appeal was taken.
On September 19, 1988, Petitioner, acting pro se, sought collateral relief pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq. Petitioner raised claims of ineffective assistance of trial and appeal counsel along with assertions of trial errors. On July 27, 1999, the PCRA court, after appointing counsel and holding an evidentiary hearing on February 11, 1997, denied Petitioner relief. This dismissal was affirmed by the state Superior Court on December 13, 2000. See Commonwealth v. Schleigh, 769 A.2d 1209 ( Pa. Super. 2000). Petitioner's first collateral action ended on June 19, 2001 when the Pennsylvania Supreme Court refused allocatur. See Commonwealth v. Schleigh, 781 A.2d 143 (Pa. 2001).
Either on July 17, 2001, or August 14, 2001, Petitioner filed a second petition for collateral relief. Petitioner, again, alleged ineffective assistance of counsel (for failing to appeal to the state's highest court), abuse of discretion, and other errors at trial and during his initial PCRA review. Pet. at 7-8. The PCRA court dismissed the petition as untimely, on May 29, 2002, refusing to rule on its merits. The state's intermediate court affirmed dismissal on June 30, 2003 and the state's highest court denied allocatur on October 21, 2003. See Commonwealth v. Schleigh, 832 A.2d 543 (Pa.Super. 2003); Commonwealth v. Schleigh, 835 A.2d 710 (Pa. 2003).
Petitioner states that he handed his second PCRA Petition to prison officials for filing on July 17, 2000, such that, pursuant to the "prisoner mailbox rule" it should be deemed filed as of that time. See Pet. at 7; Trav. at 2. The courts, in fact, logged in his Petition almost a month later. This minor discrepancy is insignificant. Under state law, Petitioner's second PCRA was due in January 1997, unless he proved exceptions to the PCRA time limits. See 42 Pa. C.S. § 9545; see also Commonwealth v. Sleigh, No. 1961 EDA 2002 (Pa.Super.) (mem. op. June 30, 2003); Resp., Ex. A. Petitioner, under 42 Pa. C.S. § 9545(b)(1) and Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2001), must both satisfy one of three exception and file the second PCRA within sixty (60) days of resolution of the first. As indicated, infra at 7, the state courts found that Petitioner did not meet any exceptions under § 9545, therefore, his filing within sixty (60) days is inconsequential. Moreover, Petitioner presents no clear and convincing evidence to warrant overturning this state court factual determination. See 28 U.S.C. § 2254(e) (1996).
Finally, on November 10, 2003, Petitioner filed the within federal habeas corpus petition. Petitioner asserts that ten distinct constitutional errors mandate relief. Pet. at 9-10C. Respondent denied that Petitioner was entitled to relief and urged that this court dismiss the Petition, without a hearing, as it is untimely. See Resp. 2-4. Petitioner then filed a Traverse alleging, 1) Respondent's answer was late, and 2) his second PCRA petition was timely filed, according to state law and, therefore, tolled the AEDPA clock.
Alleged violations, with explanations, were as follows:
Ground One: Violation of the 5th and 14th Amendments of the United States Constitution; State courts abused discretion and violated due process/equal protection of law by summarily/cursorily dismissing/holding that the Petitioner's second PCRA petition was untimely.
Ground Two: Violation of the 5th, 6th, and 14th Amendments of the United States Constitution. PCRA counsel ineffective for failure to pursue trial counsels' constitutionally ineffective assistance; both counsel combined failure to investigate and present relevant/material witnesses, who, individually, would have revealed exculpatory evidence.
Ground Three: Violation of the 5th, 6th, and 14th Amendments of the United States Constitution. PCRA counsel ineffective where counsel withdrew the issue pertaining to the suggestive photographic identification of petition, by Commonwealth witness Denise Quirk.
Ground Four: Violation of the 5th, 6th, and 14th Amendments of the United States Constitution. PCRA counsel ineffective where counsel lied to the PCRA court, thereby committing perjury, when counsel stated that witness Arthur Madison was "deceased," solely in effort of not having to investigate and present this crucial witness at the February 11, 1997 evidentiary hearing.
Ground Five: Violation of the 5th, 6th, and 14th Amendments of the United States Constitution. PCRA court abused its discretion and committed reversible error where it ruled that "affidavits" were required in relation to the presentation of witnesses; and PCRA counsel was ineffective for his failure to argue same.
Ground Six: Violation of the 4th, 5th, 6th, and 14th Amendments to the United States Constitution. PCRA counsel was ineffective for failure to present trial/appellate counsel's ineffectiveness where he abandoned the petitioner when he failed to pursue discretionary review, on direct appeal, to the state's Supreme Court.
Ground Seven: Violation of the 4th, 5th, 6th, 8th, and 14th Amendments of the United States Constitution. Trial counsel was ineffective for his failure to object to the death — qualification of the jury by the respondents.
Ground Eight: Violation of the 5th, 6th, and 14th Amendments of the United States Constitution. Trial counsel was ineffective for his failure to present relevant witnesses; Petitioner's mother and brother, to contest Commonwealth witness contention that Petitioner had tattoo at time crime occurred.
Ground Nine: Violation of the 5th, 6th, and 14th Amendments of the United States Constitution. Trial counsel was ineffective for failing to permit Petitioner to testify, at trial, on his own behalf.
Ground Ten: Violation of the 4th, 5th, 6th, 8th, and 14th Amendments of the United States Constitution. The verdict of guilty for first-degree murder and possession of instrument of crime was contrary to the weight of the evidence.
Pet. at 9-10C.
According to the federal docket, Respondent's answer was late. This court ordered that a response be filed twenty (20) days from the January 7, 2004 date of the order. This order, however, was not entered and mailed to Respondent until January 13, 2004. It would have been delivered to the parties then, approximately twenty (20) days from actual receipt of the order. Although Respondent did not formally seek an enlargement of time to file its response, this court will forgive the insignificant delay, nunc pro tunc, and determine the more germane issue, reviewability of the instant habeas Petition.
II. DISCUSSION
A. AEDPA Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, generally requires that all habeas corpus petitions be filed within one year of the date on which a state court judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). A state judgment of conviction is final once direct review is concluded or the time for seeking such review has expired. See id. Any time which elapses between the issuance of a final judgment and institution of a petition for state collateral review is subtracted from the allotted year. See Swartz v. Meyers, 204 F.3d 417, 419 n. 2 (3d Cir. 2000).
While the date on which the petitioner's convict ion becomes final is typically the "run" date for the limitations period., see 28 U.S.C. § 2244(d)(1), the statute also permits the limitation period to run from the latest of several events:
(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 State 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)(B)-(D). Petitioner does not allege facts that entitle him to any of these alternative run dates. The state in no way prevented timely filing of the within Petition; no new constitutional right has been recognized; and, the facts pled, inter alia, were known to Petitioner within the statutorily mandated filing deadline.
Petitioner's direct appeal ended on December 30, 1986 when the state's intermediate court affirmed the conviction and judgment of sentence. His conviction became final thirty days later, on or about January 29, 1987, when his opportunity to seek review in the Supreme Court of Pennsylvania expired. Since Petitioner's conviction became final long before AEDPA was enacted, he was granted one year, or until April 23, 1997, to seek federal habeas relief. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). But see Douglas v. Horn, 2004 WL 231207 (3rd Cir. Pa.) at *2 n5, suggesting April 24, 1997 to be the appropriate cut-off. The instant Petition was filed four and one-half (4 1/2) years after that deadline, on November 10, 2003. Thus, unless statutory or equitable tolling provisions give relief in Petitioner's situation, his claims cannot be reviewed. See Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001).
1. Statutory Tolling
When a petitioner seeks collateral relief prior to expiration of the full AEDPA year, "[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 [was] pending [will] not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). A "properly filed application" for collateral review is one that has been "submitted according to the state's procedural requirements." Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001). See also Artuz v. Bennett, 531 U.S. 4, 9 (2000) (citing Lovasz [v. Vaughn, 134 F.3d 146 (3d Cir. 1998)] and holding 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). The Third Circuit specifically has held that a state collateral petition that is found to be untimely by the state courts is not "properly filed" for purposes of tolling the AEDPA clock. See Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153, L. Ed.2d 260 (2002); Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *1 (3d Cir. Mar. 17, 2003) (to be deemed `properly filed,' an application for collateral review in state court must satisfy the state's timeliness requirements).
Petitioner qualifies for statutory tolling from April 24, 1997 until June 19, 2001, when the Pennsylvania Supreme Court denied allocatur, causing him to no longer have a "pending" collateral action. Thus, Petitioner needed to file his federal habeas petition by June 19, 2002, to have been timely. Petitioner did not do so, but rather, filed a second PCRA action on July 17, 2001. This second PCRA petition was deemed not "properly filed" by the state courts. Pennsylvania Superior Court expressly addressed the timeliness of Petitioner's second collateral action and concluded that it was late. Moreover, that court declined to find Petitioner eligible for any exception to the PCRA time bar. The court summarized its findings as follows:
Schleigh's second PCRA petition is obviously, facially, untimely because far more than one year has passed since his judgment of sentence became final and the January 1997 grace period of tohe PCRA amendments has long lapsed. See 42 Pa.C.S. § 9545. There are three exceptions to the jurisdictional time limits set under the PCRA. The failure to raise the claim previously was the result of governmental interference; the facts underlying the claim could not have been previously discovered with the exercise of due diligence; and/or the right asserted is a constitutional right held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1). Schleigh's claims of governmental interference are solely based upon claims of ineffective assistance of counsel. This claim does not embrace governmental interference. See Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (untimely petition will not be addressed simply because it is couched in terms of ineffectiveness); Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000) (concerning timeliness, claims related to ineffectiveness of counsel, term "government officials" does not include defense counsel.) (Emphasis in original.)See Resp. Ex. A, Commonwealth v. Schleigh, No. 1961 EDA 2002 (Pa.Super.) (mem. op. June 30, 2003). The state's highest court affirmed this determination that Petitioner's second PCRA was untimely. See Commonwealth v. Schleigh, 835 A.2d 710. Hence, inasmuch as Petitioner did not have a "properly filed" petition for relief "pending" at any time after June 19, 2001, statutory tolling does not extend his AEDPA year. See Fahy, 240 F.3d at 243-44 (holding that when the state courts determine filings to be untimely, the AEDPA statute of limitations is not tolled).
See 42 Pa.C.S.A. § 9545(b) (holding any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final); see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000) (stating that the trial court has no power to address the substantive merits of a PCRA claim when the petition is not filed within one year of the expiration of direct review, or eligible for one of the three limited exceptions and filed within 60 days of the date that the claim could have been first brought); see also Rambert v. Varner, 2002 WL 1609225 (E.D.Pa. 2002) (habeas corpus petitioner's state petitions for post-conviction relief did not toll the statute of limitations for filing habeas petition under AEDPA, where petitioner's first petition for collateral review concluded well before the enactment of the limitations period, and his second petition was filed well after the expiration of the grace period).
2. Equitable Tolling
Nevertheless, equitable tolling potentially could excuse Petitioner's delay. The Third Circuit has held that the one-year period of limitation in § 2254(d)(1) is a statute of limitations, not a jurisdictional bar. See Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998). 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." Generally, this will occur 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). In determining the applicability of the above guidelines, it is appropriate to examine factors such as ignorance of the rules of procedure, Petitioner's credibility as to the reason for the delay, any lack of diligence, efforts toward compliance and an understanding of the consequences of dilatory behavior. See U.S. v. Diaz, Civ. A. 95-5616, 1999 WL 391384 at *2 (E.D.Pa. May 27, 1999); see also U.S. v. Ramsey, No. 92-590-2, 1999 WL 718079 (E.D.Pa. Aug. 26, 1999). More specifically, equitable relief will be permitted:
if (1) 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 supplied).
Application of Miller criteria to the facts of this case does not entitle Petitioner to equitable relief. He has failed to allege or demonstrate that any "extraordinary circumstance" external to himself unfairly prohibited compliance with AEDPA's time limitation. No government agent misled Petitioner as to filing requirements or prevented him from asserting his federal rights. Moreover, he did not timely file this petition in an incorrect forum. Furthermore, Petitioner has failed to evince recently discovered facts or otherwise alleged that he exercised "reasonable diligence" in investigating and preserving his federal claims. Finally, no change in federal 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. Accordingly, I make the following:
RECOMMENDATION
1. The Report and recommendation be APPROVED and ADOPTED;
2. This time-barred Petition for Writ of Habeas Corpus be DISMISSED; and
3. Petitioner has failed to make a showing of a denial of a constitutional right, in that he is ineligible for habeas review or relief. Thus, a certificate of appealability should be DENIED.