Opinion
CIVIL ACTION NO. 3:17cv02015
10-30-2018
WILLIAM VON SMITH, Petitioner, v. LAUREL HARRY, Respondent.
(MUNLEY, J.)
() REPORT AND RECOMMENDATION
On November 3, 2017, the Court received and filed a petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2254, together with a memorandum of law and several exhibits in support. (Doc. 1). At the time of filing, Smith was incarcerated at SCI Camp Hill, which is located in Cumberland County, Pennsylvania.
I. STATEMENT OF THE CASE
On or about March 17, 1980, the petitioner was sentenced to serve a term of life imprisonment for murder and aggravated robbery. See Commonwealth v. Smith, 450 A.2d 55 (Pa. Super. Ct. 1982) (direct appeal after second trial). His conviction and sentence were affirmed on direct appeal by the Superior Court of Pennsylvania on August 27, 1982. Id. He did not file a petition for allocatur with the Supreme Court of Pennsylvania. See Commonwealth v. Smith, No. 1667 MDA 2015, 2016 WL 6124105, at *1 (Pa. Super. Ct. Oct. 20, 2016) (describing procedural history on PCRA appeal).
Smith's first trial had been vacated under the Post Conviction Hearing Act and remanded for a new trial on the ground that he had been denied the effective assistance of counsel at trial. See Commonwealth v. Smith, 406 A.2d 1034 (Pa. 1979) (granting PCHA relief and ordering a new trial); see also Commonwealth v. Smith, 326 A.2d 60 (Pa. 1974) (affirming original conviction on direct appeal).
The petitioner subsequently filed multiple PCRA petitions in the state trial court, the most recent of which was filed on or about October 9, 2014, and dismissed by the PCRA court as untimely filed on August 27, 2015. Id. This PCRA order was affirmed on appeal by the Superior Court of Pennsylvania on October 20, 2016. Id. at 3; see also Commonwealth v. Smith, 159 A.3d 50 (Pa. Super. Ct. 2016) (table decision). The petitioner timely filed a petition for allocatur with the Supreme Court of Pennsylvania, which was denied on June 6, 2017. Commonwealth v. Smith, 169 A.3d 567 (Pa. 2017) (per curiam table decision).
Smith filed the instant pro se federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 29, 2017. (Doc. 1). On December 18, 2017, we reviewed the petition and supporting materials and ordered the petitioner to show cause why his petition should not be summarily dismissed as untimely. (Doc. 4). On January 4, 2018, Smith filed his response to the order to show cause. (Doc. 5). On June 25, 2018, Smith filed a supplemental response. (Doc. 6).
The instant petition was received and docketed by the Court on November 3, 2017, but, based upon a cover letter that accompanied the petition (Doc. 1, at 40), it appears to have been deposited in the prison mail system on October 29, 2017, and thus effectively filed that day. See R. 3(d), 28 U.S.C. foll. § 2254. We note that the petition itself is dated July 9, 2017, but, as the cover letter explains, the instant petition is a photocopy of an earlier petition submitted in July 2017. That petition was dismissed without prejudice on October 26, 2017. See Smith v. Harry, Case No. 3:17-cv-01250-WJN (M.D. Pa. Oct. 26, 2017) (dismissal order).
Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. Rule 4 provides, in pertinent part: "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."
II. JURISDICTION
We pause to note our proper jurisdiction in this matter. In the absence of pre-authorization by the United States Court of Appeals for the Third Circuit, this Court lacks subject matter jurisdiction over a "second or successive" habeas petition. See 28 U.S.C. § 2244(b); Benchoff v. Colleran, 404 F.3d 812, 815-17 (3d Cir. 2005). But even though Smith has filed two prior habeas petitions concerning this same state court judgment, the instant petition is not a "second or successive" petition under § 2244. Smith's first petition, Smith v. Warden, Case No. 3:15-cv-01067, was still pending at the time when the instant petition was filed. See Peterson v. Brennan, 196 Fed. App'x 135, 139 (3d Cir. 2006) (holding that § 2244 does not apply where the district court had not yet rendered judgment on the merits of the prior habeas petition when the numerically second petition was filed). Although the instant petition was constructively filed a few days after entry of final judgment with respect to Smith's numerically second petition, Smith v. Harry, Case No. 3:17-cv-1250, that prior petition had been dismissed without prejudice as untimely filed. See Pavlovsky v. Vannatta, 431 F.3d 1063, 1064-65 (7th Cir. 2005) (holding that petition was not "second or successive" where prior habeas petition was dismissed as untimely, but without prejudice).
III. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations for the filing of federal habeas corpus petitions pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d). The statute also prescribes how the one-year limitation period is calculated, including the date on which the limitation period begins, id. § 2244(d)(1), and the circumstances under which the limitation period may be tolled, id. § 2244(d)(2).
A. Calculation of the Applicable Limitation Period
Under the AEDPA, a state prisoner generally must file any federal habeas corpus petition within one year of the date that his conviction "became final by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A). Where a prisoner does not pursue direct review of his conviction all the way to the Supreme Court of the United States, his conviction becomes final when the time for pursuing direct review in that Court, or at any level of state court, expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Here, the Superior Court of Pennsylvania affirmed Smith's conviction and sentence on August 27, 1982. Because Smith did not file a petition for allocatur in the Supreme Court of Pennsylvania, his conviction became final thirty-one days later on Monday, September 27, 1982. See Pa. R. App. P. 1113(a)(1) (permitting 30 days after entry of Superior Court order to file petition for allocatur); 1 Pa. Cons. Stat. § 1908 (providing that, whenever the last day of a time period falls on a Sunday, it shall be omitted from the computation); Pa. R. App. P. 107 (incorporating § 1908 by reference). Because his convictions became final before the AEDPA was enacted, however, the limitation period did not begin to run until the AEDPA's effective date: April 24, 1996. Wood v. Milyard, 566 U.S. 463, 468 (2012).
In his petition, Smith appears to calculate commencement of the limitations period on the date when denial of his most recent PCRA petition became final. But "[t]he tolling provisions of 28 U.S.C. § 2244(d)(2) do not re-start or revive the one year limitations period anew after there is a final decision on a state post-conviction motion. Instead, this section merely excludes the time a collateral attack is under submission to the state courts from the calculation of the one year statute of limitations period." Smith v. Stegall, 141 F. Supp. 2d 779, 783 (E.D. Mich. 2001). Smith's state judgment of conviction became final in 1982, more than thirty years before he filed his most recent PCRA petition.
In his petition, Smith also appears to suggest that his habeas claims are based on "newly discovered evidence," and thus the limitation period for this petition should instead be calculated under an alternative provision providing for a oneyear limitation period running from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of ordinary diligence." 28 U.S.C. § 2244(d)(1)(D). The "newly discovered evidence" referenced in the petition is an affidavit by a cellmate of Smith's codefendant attesting that the codefendant had offered Smith $6,000 to "take the rap" for the codefendant, and told the cellmate that he would "jam" Smith for refusing the offer. (Doc. 1, at 39). The affidavit is dated September 9, 1976. (Id.). In his response to our order to show cause, Smith contends that he only learned of the affidavit in September 2014. (Doc. 5, at 7). But "[e]vidence becomes 'known' on 'the date which the factual predicate of the claim or claims presented could have been discovered through the exercise of reasonable diligence. Sistrunk v. Rozum, 674 F.3d 181, 18889 (3d Cir. 2012) (quoting 28 U.S.C. § 2244(d)(1)(D)) (emphasis added); see also McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007) (distinguishing between "the factual predicate of a claim" and evidence that might support the claim). Here the record clearly establishes that Smith knew the facts underlying this affidavit at the time of his criminal trial. In his memorandum of law in support of his petition, Smith acknowledges that he informed his trial counsel at the time that he was not involved in the murder and robbery for which he was charged, that his codefendant had offered him $6,000 to take the blame for the crime, and that the codefendant and his wife had perjured themselves in testifying against Smith after he had refused the $6,000 "bribe." (Doc. 1, at 6, 23, 28). "[E]vidence that is 'previously known, but only newly available' does not constitute 'newly discovered evidence'" under § 2244(d)(1)(D). Sistrunk, 674 F.3d at 189. See generally Frazier v. Rogerson, 248 F. Supp. 2d 825, 832 (N.D. Iowa 2003) ("The burden is on [the petitioner] to persuade the court that he timely filed his federal habeas petition within the oneyear period of limitations or that there is a triable issue as to whether his petition was timely.").
Thus, absent any applicable tolling period, Smith had until April 24, 1997, to file a timely federal petition for a writ of habeas corpus. The instant petition was filed more than 20 years later on October 29, 2017.
B. Statutory Tolling
A person in state custody may toll the running of the AEDPA's limitation period during the time in "which a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2). In this case, however, Smith does not appear to have filed a timely PCRA petition within the one-year period following the AEDPA's effective date. He filed a recent state PCRA petition in October 2014, more than 17 years after the AEDPA limitations period had expired. Thus, the limitation period was not tolled, as "a state court petition . . . that is filed following the expiration of the federal [AEDPA] limitations period cannot toll that period because there is no period remaining to be tolled." Danner v. Cameron, 955 F. Supp. 2d 410, 416 (M.D. Pa. 2013) (brackets in original) (quoting Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001)); see also Cordle v. Guarino, 428 F.3d 46, 48 n.4 (1st Cir. 2005); Sorce v. Artuz, 73 F. Supp. 2d 292, 294 (E.D.N.Y. 1999).
Accordingly, the instant federal habeas petition is time-barred unless there are grounds for equitable tolling of the AEDPA statute of limitations.
C. Equitable Tolling
In addition to a period of statutory tolling, a habeas petitioner may be entitled to equitable tolling of the statute of limitations. See Holland v. Florida, 560 U.S. 631, 645 (2010). "[A] 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears the burden of establishing that he is entitled to the benefit of the doctrine of equitable tolling. Pace, 544 U.S. at 418.
On this point, Smith appears to contend that he is entitled to equitable tolling because the prosecution failed to disclose or produce the 1976 affidavit by a cellmate of Smith's co-defendant, and that this failure somehow prevented him from timely filing the instant federal habeas petition. In light of the petitioner's personal knowledge of the underlying factual predicate of the affidavit at the time of his criminal proceedings, and his contemporaneous conversations with his trial counsel regarding the same, we do not find the purported withholding of the affidavit to be an extraordinary circumstance for equitable tolling purposes.
But even assuming that it did constitute an extraordinary circumstance, Smith has clearly failed to demonstrate that he has pursued his rights diligently. See Holland, 560 U.S. at 645; Pace, 544 U.S. at 418. The record before this Court shows that, after learning the factual predicate for the affidavit, including the identity of the co-defendant's cellmate, Smith failed to do anything at all to pursue his rights with respect to this claim over the next four decades. Even without the 1976 affidavit in hand, he or his counsel had all the information necessary to seek to obtain a substantially similar one from the affiant, and he had all the information necessary to initiate state PCRA or federal habeas relief as well. See Cheatham v. Coleman, 2009 WL 3719400, at *4-*5 (E.D. Pa. Nov. 4, 2009) (petitioner who waited 5 years from the time he admittedly learned the factual predicate of his claims to file federal habeas petition failed to show diligent pursuit of his rights); White v. Shannon, No. CIV.A. 01-4298, 2003 WL 21771723, at *4 (E.D. Pa. July 24, 2003) (no equitable tolling where petitioner could have filed without waiting 13 years for a missing transcript to be found). Indeed, the petitioner had all he needed to present this evidence at his retrial in 1980, where the cellmate could have been compelled by subpoena to appear and testify.
Smith has failed to allege any facts or circumstances to establish that some extraordinary circumstance stood in the way of his timely filing of the instant petition, or that he has been pursuing his rights diligently. Accordingly, Smith has failed to demonstrate that he is entitled to any period of equitable tolling.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the petition (Doc. 1) be DISMISSED WITH PREJUDICE as untimely filed. It is further recommended that the Court decline to issue a certificate of appealability, as the petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Buck v. Davis, 137 S. Ct. 759, 773-75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Dated: October 30, 2018
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 30, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: October 30, 2018
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge