Opinion
Civil Action No. 04-583.
April 30, 2004
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution at Graterford, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
Petitioner was arrested on September 4, 1997, in connection with the shooting death of a fifteen-year old boy. By way of pre-trial motions, he moved to suppress his confession to police, but was denied after a full suppression hearing. Subsequently, following a non-jury trial before the Honorable Steven R. Geroff of the Philadelphia County Court of Common Pleas, petitioner was convicted, on January 21, 1999, of first-degree murder, criminal conspiracy, violations of the Uniform Firearms Act, reckless endangerment and possessing instruments of crime. Judge Geroff then sentenced petitioner to life imprisonment on the murder conviction, together with concurrent sentences of ten to twenty years total on the remaining convictions.
The underlying facts, as summarized by the state courts, are as follows:
On February 28, 1996 a approximately 5:30 p.m., the defendant and Junius Claiborne went to the 1300 block of South Mole Street to exact vengeance on two people know[n] as Jermaine and Edmund, who had been involved in shooting their friend Marcus earlier in the day. The intention of both defendants was to kill Jermaine and Edmund. The defendant was armed with a .22 caliber handgun, and Junius Claiborne was armed with a nine millimeter handgun. When they arrived at 1300 South Mole Street, Jermaine and Edmund were there. Defendant, Danny DeVine, shot first; Jermaine and Edmund returned fire. Both defendants were shooting. Unfortunately, Shafeeq Murrell, age fifteen, who was standing on the sidewalk on South Mole Street, was caught in the line of fire and was shot with a small caliber bullet just above the left eyebrow. The bullet penetrated his skull and caused death. Commonwealth v. Devine, 750 A.2d 899, 901 ( Pa. Super. 2000) (citing Trial Court Opinion, filed 7/7/99, at 6-7).
Petitioner appealed to the Pennsylvania Superior Court alleging that: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient to sustain the verdict of guilt to murder in the first degree; and (3) the first degree murder conviction was against the weight of the evidence. On April 13, 2000, the Superior Court affirmed the trial court's decision. Commonwealth v. Devine, 750 A.2d 899 ( Pa. Super. 2000). The Pennsylvania Supreme Court denied petitioner's request for allowance of appeal on October 18, 2000. Commonwealth v. Devine, 764 A.2d 1065 (Pa. 2000).
Petitioner submitted the instant Petition for Writ of Habeas Corpus on February 11, 2004, raising the following claims:
1. The trial court erred in not suppressing petitioner's statement to the police;
2. The evidence was insufficient to sustain the guilty verdict to murder in the first degree; and
3. The District Attorney's Office, along with Homicide Detectives, perpetrated a fraud on the court by using, as evidence, statements extracted from petitioner through the interrogation of a film crew.
The Commonwealth responds that the entire petition is time-barred and must therefore be dismissed.
II. TIMELINESS
Notwithstanding petitioner's allegation of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
A 1-year period of limitation 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 date, then under Third Circuit precedent, a prisoner has a one-year grace period subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
The statute 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 the 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 the petition does not allege any facts which indicate that any of these other starting points should be used, the Court does not consider them.
The statute, however, creates a tolling exception, which notes 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). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d 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 (3d Cir.), cert. denied, 124 S.Ct. 317 (2003).
In the case at bar, petitioner's conviction became final on January 18, 2001, ninety days after the Pennsylvania Supreme Court denied allocatur on direct appeal. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). Subsequently, he had one year — until January 18, 2002 — to file his federal habeas petition. He failed to do so, however, until February 11, 2004, over two years too late. Nor did he submit a PCRA petition, in the interim, which could have had a tolling effect on the statute of limitations. As petitioner failed to seek habeas relief in an expedient manner, we must deem the instant petition untimely.
United States Supreme Court Rule 13(1) states that a petition for writ of certiorari to review the judgment of sentence is deemed timely when it is filed within 90 days after the entry of judgment of sentence.
One avenue of relief, however, remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling, which is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quoting Shendock v. Director, Office of Worker's Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990)). 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 (3d 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 (3d Cir.), cert. denied, 534 U.S. 944, 122 S.Ct. 323 (2001); see also Brown v. Shannon, 322 F.3d 768, 774 (3d Cir.), cert. denied, 123 S.Ct. 2617 (2003).
Petitioner sets forth two grounds for equitable tolling. First, he alleges that a French film crew, while making a documentary, was permitted by Philadelphia detectives to speak with him after his arrest, but prior to his confession to police. During that interview, he admitted, among other things, that he fired the first shot. Thereafter, some of those incriminating statements were used against him at trial. Such actions by the police, he claims, perpetrated "a falsehood and fraud upon the Court." Memorandum of Law in Support of Habeas Corpus, at 3.
Even assuming arguendo that this entire claim has merit, petitioner still fails to prove equitable tolling grounds, as nothing in his allegations demonstrates that he was, in some extraordinary fashion, prevented from timely asserting his federal rights. Petitioner fully litigated this claim before the state courts on direct appeal, meaning that he was well aware of the factual basis for this claim in February of 1999. Yet, he fails to explain why he could not present the claim to this Court prior to the expiration of his federal statute of limitations. As the procedural history of this matter evidences that petitioner failed to exercise reasonable diligence in pursuing his rights, we decline to equitably toll petitioner's one year limitations period.
In his second alleged ground for equitable tolling, petitioner claims that he is actually innocent of first-degree murder since the Commonwealth failed to prove that he intended to kill the fifteen-year old victim. Neither the Supreme Court of the United States, nor the Third Circuit Court of Appeals has yet considered whether there is an "actual innocence" exception to the AEDPA statute of limitations. As we find that petitioner has failed to persuade this court of his actual innocence, however, we need not address the question of whether or not such an exception actually exists.
The several circuit courts that have addressed this issue have found that a claim of actual innocence, in and of itself, cannot constitute grounds for equitable tolling. See, e.g., Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.), cert. denied, 531 U.S. 1035, 121 S.Ct. 622 (2000) (petitioner's actual innocence claim does not constitute a "rare and exceptional" circumstance, given that many prisoners maintain they are innocent); Workman v. Bell, 227 F.3d 331, 342 (6th Cir. 2000), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194 (2001) ("if a prisoner purposefully or by inadvertence lets the time run under which he could have filed his petition, he cannot file a petition beyond the statutory time, even if he claims `actual innocence.'"); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1361 (2003) (in order to equitably toll the statute of limitations as a result of a claim of actual innocence, "a petitioner would have to show some action or inaction on the part of the respondent that prevented him from discovering the relevant facts in a timely fashion, or, at the very least, that a reasonably diligent petitioner could not have discovered these facts in time to file a petition within the period of limitations.").
Petitioner's claim of actual innocence is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 861 (1995) (quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862 (1993)). To support his claims for habeas relief, petitioner must necessarily present new reliable evidence, be it exculpatory scientific evidence, eyewitness accounts or physical evidence, that was not presented at trial.Schlup, 513 U.S. at 324; Cristin v. Brennan, 281 F.3d 404, 420-21 (3d Cir.), cert. denied, 537 U.S. 897, 123 S.Ct. 195 (2002). Additionally, the burden rests with petitioner to prove to the court that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence."Schlup, 513 U.S. at 327; Sweger v. Chesney, 294 F.3d 506, 522 (3d Cir. 2002), cert. denied, 538 U.S. 1002, 123 S.Ct. 1902 (2003); see also Hussmann v. Vaughn, 67 Fed. Appx. 667, 668, 2003 WL 1924693, *1 (3d Cir.), cert. denied, 124 S.Ct. 343 (2003) (applying Schlup standard regarding actual innocence to statute of limitations context).
It is true that "in certain circumstances, the lack of new evidence is not necessarily fatal to an argument that petitioner is actually innocent." Cristin, 281 F.3d at 420. However, these situations where actual innocence can be found in the absence of new evidence are extremely rare, given that the actual innocence exception itself "will apply only in extraordinary cases." Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1621 (2001).
Petitioner puts forth no evidence of his actual evidence, let alone new evidence sufficient to equitably toll the statute of limitations. Rather, he argues only that he did not intend to kill anyone, but rather fired the first shot out of "revenge" and "self-defense." As found by both the trial court and the Pennsylvania Superior Court, however, there was sufficient credible evidence that petitioner went to the 1300 Block of South Mole Street with the specific intent to kill. Petitioner admitted that he intended to kill a person by the name of Jermaine in revenge for another shooting. He further admitted that he fired the first shot. An eyewitness attested to all of these facts and ballistics evidence proved that it was a bullet from petitioner's gun that killed the victim. The mere fact that the bullet struck someone other than the intended recipient does not negate petitioner's intent to kill. See Commonwealth v. Jones, 610 A.2d 931, 938 ( Pa. 1992), reargument denied, (Aug. 13, 1992) ("under the doctrine of transferred intent, criminal responsibility is not affected by the fact that the bullets struck persons other than the one for whom they were apparently intended."). More importantly, such a fact certainly does not prove actual innocence, such that we should invoke the extraordinary remedy of equitable tolling.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. There is no probable cause to issue a certificate of appealability.