Opinion
Civil Action No. 04-1658.
June 29, 2004
REPORT AND RECOMMENDATION
Currently pending before the Court is a counseled Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner who has been released on parole. For the reasons which follow, the Court recommends that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
Following a jury trial before the Honorable Joseph D. O'Keefe of the Philadelphia County Court of Common Pleas, petitioner was convicted, on January 19, 1989 of third degree murder and recklessly endangering another person, after allegedly shooting and killing a three year old boy during an altercation with another individual concerning a drug debt. On April 24, 1989, Judge O'Keefe sentenced petitioner to an aggregate term of 11 to 22 years imprisonment.
Petitioner filed a direct appeal and on March 5, 1990, the Pennsylvania Superior Court affirmed his convictions.Commonwealth v. Henderson, 576 A.2d 1133 (Pa.Super. March 5, 1990) (table). On October 2, 1990, the Pennsylvania Supreme Court denied petitioner's request for review. Commonwealth v. Henderson, 589 A.2d 689 (Pa. Oct. 2, 1990) (table).
On January 9, 1997, petitioner filed a petition for collateral relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541, et seq. (repealed), ("PCHA"). Appointed counsel filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) and the PCRA court dismissed the petition on January 19, 1999. On March 22, 2000, the Superior Court vacated the PCRA's Court's order and remanded the matter with instructions to appoint new counsel, finding the "no merit" letter deficient. On August 3, 2000, the PCRA court appointed new counsel for petitioner and on October 19, 2000, new counsel filed a very detailed "no merit" letter. Pursuant to the letter, the Court of Common Pleas dismissed the petition on January 22, 2001. Petitioner filed a pro se appeal and the Superior Court issued a memorandum opinion on May 30, 2002, affirming the dismissal.Commonwealth v. Henderson, No. 661 EDA 2001 (Pa.Super. May 30, 2002).
Petitioner states that he then filed a pro se petition with the Supreme Court of Pennsylvania on July 19, 2002 seeking to extend time to file a Petition for Allowance of Appeal. On November 22, 2002, petitioner filed a Motion for Leave to File a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania,nunc pro tunc, which the Supreme Court denied on April 21, 2003.
On April 15, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, alleging trial counsel ineffectiveness for the following reasons:
1. Failing to impeach the credibility of the Commonwealth's key witness with exculpatory written statement in counsel's possession;
2. Failing to interview of call crucial defense witnesses, the written statements of whom, to police, absolved the petitioner of crimes charged;
3. Abandoning the issues on appeal that would have proved meritorious, to wit, the weight and sufficiency of the evidence; and
4. Failing to properly request a jury charge wherein the Court would have instructed the jury that they must receive the testimony of Joel Tucker with caution, as he was a polluted source and had received immunity.
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. 2003).
In the case at bar, petitioner's conviction became final on January 1, 1991, 90 days after the Pennsylvania Supreme Court denied petitioner's request for discretionary review. United States Supreme Court Rule 13(1); See also 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). As these events occurred prior to the effective date of the AEDPA, petitioner received a grace period of one year, starting on April 24, 1996, the effective date of the Act, giving him until April 24, 1997 to file a federal petition for writ of habeas corpus.
After approximately 259 days of the grace period had run, on January 9, 1997, petitioner filed a PCRA petition. The PCRA petition tolled the limitations period until approximately June 29, 2002, when petitioner's time for seeking discretionary review in the Pennsylvania Supreme Court ended. He then had 106 days remaining in his grace period, giving him until approximately October 13, 2002, to file a timely petition in federal court. However, he failed to file the instant petition for writ of habeas corpus until April 15, 2004, eighteen months after his time for doing so had lapsed.
Petitioner argues that his attempts to file a petition for allowance of appeal act to further toll the limitations period. However, since the time for petitioner to seek discretionary review had expired and the Pennsylvania Supreme Court denied petitioner's nunc pro tunc petition, they cannot be considered to be "properly filed" and therefore did not act to toll the limitations period. See Douglas v. Horn, 359 F.3d 257 (3d Cir. 2004). In addition, even if petitioner's grace period was tolled until the Supreme Court denied his request on April 21, 2003, this petition is still untimely. Petitioner's remaining 106 days would have commenced on that date giving him until approximately August 5, 2003 to file a timely petition for writ of habeas corpus. Petition did not, however, file the instant petition until almost a year after the Pennsylvania Supreme Court's order on April 15, 2004. Contrary to petitioner's argument, a pending PCRA petition does not restart the grace period, but rather temporarily pauses it. See Blasi v. Attorney Gen. of the Commonwealth of Pa., 30 F. Supp.2d 481, 485 (M.D.Pa. 1998) (indicating that the section 2244 tolling provisions can only "pause a clock that has not yet fully run"; they cannot "restart the clock at zero."). As petitioner failed to seek habeas relief in an expedient manner, we must deem the instant petition untimely.
One avenue of relief 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) (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 (3d Cir. 1999) (internal quotations omitted); see also Brown v. Shannon, 322 F.3d 768 (3d Cir.), cert. denied, 123 S.Ct. 2617 (2003). "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 So. Ct. 323 (2001) (citing cases).
Here, petitioner argues that even if the petition was untimely, petitioner was "otherwise prevented from filing a timely petition for allowance with the Pennsylvania Supreme Court as a result of being moved in the prison system and as a result of his release status" and he is therefore entitled to equitable tolling of the one year limitation period for filing a federal habeas petition. Petitioner has failed to provide any information regarding when he was transferred within the prison system or how this affected his ability to file his federal petition and has also failed to demonstrate how his "release status" impacted his ability to file. His choice to continue to attempt to file in state court is not a basis for this court to exercise equitable tolling. See Merritt v. Blaine, 326 F.3d at 169. Even assuming arguendo that he was advised to do so by his attorney or if his attorney incorrectly believed and advised him that the limitations period would be restarted at the conclusion of such filings, such ordinary attorney error is not a basis for equitable tolling.See Fahy v. Horn, 240 F.3d at 244. In addition, petitioner certainly has not demonstrated that he exercised reasonable diligence by making attempts to file his federal petition, even during the time period after he attempted to file with the Pennsylvania Supreme Court. Petitioner has not set forth an adequate explanation for the one and a half year delay in filing his petition, let alone a reason constituting extraordinary circumstances. Consequently, we decline to exercise our equitable tolling powers and we dismiss his entire petition.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of June, 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.