Opinion
CIVIL ACTION No. 03-5691
January 30, 2004
RONALD BUCKWALTER, District Judge
REPORT AND RECOMMENDATION
Before the court is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Asim Mack ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Frackville, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed.
I. FACTS AND PROCEDURAL HISTORY
According to the facts determined at trial, this case involves the robbery of an all-night mini-market in Philadelphia on January 30, 1995, by Petitioner and two (2) co-conspirators, Michael Thomaston and Pierre Mack, during which Thomaston shot and killed the twenty-five-(25-) year old cashier, Ruben Sweeney. See Commonwealth v. Mack, No. 0054 Phila. April Term 1995, at * 1 (Phila.C.C.P. Dec. 11, 1997).
Petitioner was tried in a bench trial by the Honorable Robert A. Latrone, Court of Common Pleas of Philadelphia County. On November 18, 1996, Judge Latrone found Petitioner guilty of second-degree murder, robbery and criminal conspiracy, and sentenced him to a mandatory term of life imprisonment for murder, with a concurrent term of four (4) to eight (8) years of imprisonment for conspiracy. Petitioner appealed his conviction and sentence to the Pennsylvania Superior Court, which affirmed on November 24, 1998. Commonwealth v. Mack, 734 A.2d 437 (Pa.Super. 1998) (table). Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on July 8, 1999. Commonwealth v. Mack, 740 A.2d 1145 (Pa. 1999) (table).
On December 21, 1999, Petitioner filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann.
§ 9541 et seq. Counsel was appointed, but filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988), certifying that he had reviewed the record and concluded that there were no issues of arguable merit to advance in an amended petition. The PCRA court dismissed Petitioner's petition, and on May 22, 2002, the Superior Court affirmed the dismissal. Commonwealth v. Mack, 804 A.2d 57 (Pa., Super. 2002) (table). Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on October 30, 2002. Commonwealth v. Mack, 812 A.2d 1228 (Pa. 2002) (table).
Petitioner retained Johanna E. Markind, Esquire, to represent him on his PCRA appeal to the Pennsylvania Superior Court. Ms. Markind continues to represent Petitioner in the instant petition for writ of habeas corpus.
On August 29, 2003, Petitioner filed the instant petition for writ of habeas corpus, followed three and one-half (3 ½) months later by a memorandum of law in support of the petition. Respondents filed an answer asserting that the petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA").
II. DISCUSSION:
Section 101 of the AEDPA, effective April 24, 1996, amended habeas corpus law by imposing a one (1) year limitation period to applications for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section 2244, as amended, provides that the one (1) year 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;
(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). The amended statute also provides that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).
In the instant case, the applicable starting point for the statute of limitations is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000). Petitioner's conviction became final on October 8, 1999, ninety (90) days after his judgment of sentence was affirmed by the Pennsylvania Supreme Court on direct appeal. 28 U.S.C. § 2101(c), 2244(d)(1)(A); see Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999) (stating direct review becomes final at the conclusion of petitioner's time for seeking certiorari in the United States Supreme Court). As a result, Petitioner would normally have had until October 8, 2000, to file his § 2254 petition. See 28 U.S.C. § 2244: Duncan v. Walker, 533 U.S. 167 (2001); Burns, 134 F.3d at 111-12:see also Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 617 (3d Cir. 1998).
In his traverse, Petitioner incorrectly states that his conviction became final on July 8, 1999. See Ptr.'s Traverse at 2. As a result, all of Petitioner's subsequent calculations regarding the expiration of the AEDPA statute of limitations are incorrect by ninety (90) days.
A. Statutory Tolling
On December 21, 1999, Petitioner filed a PCRA petition. By that time, approximately 73 days of the one-(1-) year limitations period had run. Because the PCRA petition was "properly filed," it tolled the limitations period during the period in which it was "pending." See 28 U.S.C. § 2244(d)(2). Petitioner's PCRA application was pending from December 21, 1999, until October 30, 2002, when the Pennsylvania Supreme Court denied allocatur. Therefore, the limitations period resumed its countdown on October 30, 2002, and Petitioner had approximately 292 days, or until August 19, 2003, to file a timely federal habeas petition.
The ninety (90) day period for filing a petition for a writ of certiorari in the United States Supreme Court from the denial of a state post-conviction petition does not toll the AEDPA limitations period.Stokes v. District Att'y of the County of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).
However, Petitioner filed the instant, counseled petition for writ of habeas corpus on October 14, 2003 — approximately 55 days after the expiration of the one-(1-) year limitation period. Petitioner does not assert, nor do any of his claims suggest, that there has been an impediment to filing his habeas petition which was caused by state action; that his petition involves a right which was newly recognized by the United States Supreme Court; or that there are new facts which could not have been previously discovered. See 28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Petitioner would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
B. Equitable Tolling
The Third Circuit has determined that the one (1) year period of limitation for § 2254 is subject to equitable tolling because this limitation period is a statute of limitations and not a jurisdictional bar. See Miller, 145 F.3d at 618 (in considering a motion for extension of time to file petition for writ of habeas corpus, district court must apply equitable principles in applying the one (1) year limitation period). Equitable tolling is proper only when "the principles of equity would make [the] rigid application [of a limitation period] unfair." Id. at 618 (quoting Shendock v. Director. Office of Workers' Compensation Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (en bane)). Generally, "this will occur when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights.'" Id. (quoting Oshiver v. Levin. Fishbein. Sedran Berman, 38 F.3d 1380 (3d Cir. 1984)). "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 (citations omitted). As the Third Circuit has explained, equitable tolling "may be appropriate 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) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Thus, "a statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice." Id.
Petitioner argues that the AEDPA statute of limitations should be equitably tolled because counsel did not learn of the Pennsylvania Supreme Court's October 30, 2002, denial of allocatur until June 5, 2003, when counsel contacted the court to inquire about the status of Petitioner's collateral appeal. See Ptr.'s Br. at 5-6. I disagree. As an initial matter, the Pennsylvania Supreme Court sent notice of its unfavorable decision to Petitioner's counsel on the day of its decision — October 30, 2002 — and did so to the address provided to the court by counsel. See Resp.'s Br. at Exhibits "B" and "C." As a result, it does not appear that the purported late notification can be blamed on the state court.
Even assuming, arguendo, that the Pennsylvania Supreme Court failed to send notification, there are a number of reasons why I find that any such late notification would not rise to the level necessary for equitable tolling. First, attorney error does not constitute an "extraordinary circumstance." See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) ("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"). Here, privately-retained counsel waited more than one (1) year to check on the status of Petitioner's request for discretionary review and, as a result, counsel learned of the unfavorable decision of the Pennsylvania Supreme Court more than seven (7) months after the court denied allocatur, Because counsel could have learned of the denial at any time, equitable tolling is not appropriate. See Fahy, 240 F.3d at 244; Poller v. Kyler, 2003 WL 22025882, at *2 (E.D. Pa. 2003) (holding attorney failure to timely notify habeas petitioner of state court decision is not basis for equitable tolling).
Second, in order to obtain equitable tolling, a petitioner must demonstrate that an "extraordinary circumstance" — assuming one existed — actually prevented him from filing his habeas petition on time. See Miller, 145 F.3d at 618. Here, the late notification did not actually prevent Petitioner from filing his habeas petition because, at the time defense counsel learned of the Pennsylvania Supreme Court's unfavorable decision, there were still approximately 75 days remaining for Petitioner to file a timely habeas petition. Because this constituted more than enough time to file the petition, equitable tolling is not appropriate. Moreover, to the extent that counsel miscalculated the AEDPA limitation period, such ordinary attorney error does not trigger equitable tolling for the reasons previously discussed.
Petitioner's reliance on Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002) is misplaced. In Knight, the Eleventh Circuit held that equitable tolling was appropriate because the petitioner received late notification of a state court decision. As an initial matter, Knight is not binding on this court; rather, Fahy's holding on attorney error is binding in the Third Circuit. In any event, Knight is easily distinguishable. First, the petitioner in Knight was apparently pro se, whereas the petitioner in Fahy was, like Petitioner herein, represented by counsel. Second, the Eleventh Circuit indicated that Knight was largely fact-specific, including that the pro se petitioner had been assured by the Georgia Supreme Court clerk that he would be notified as soon as a decision was made, and that the petitioner demonstrated diligence in pursuing information when the court did not do so. See Knight, 292 F.3d at 710-711. Finally, inKnight, the AEDPA limitation period expired before the petitioner received actual notice of the state court's unfavorable decision, thereby making it impossible for the petitioner to file a timely habeas petition. Because Knight is non-binding and factually distinguishable, it does not suggest that the instant petition be equitably tolled.
Third, as previously explained, a petitioner seeking equitable tolling must also show "that he or she exercised reasonable diligence in investigating and bringing [the] claim." Miller, 145 F.3d at 618-619. Here, Petitioner apparently never checked the status of his appeal on his own, nor did he make any efforts to ensure that his habeas petition was timely filed after counsel learned of the state court's unfavorable decision. As a result, it cannot be said that Petitioner diligently pursued his appellate rights. See Carter v. Vaughn, 2002 WL 1565229, at *3 (E.D. Pa. 2002) (stating prisoner did not act diligently by waiting over a year to check on status of appeal);Ayala v. Superintendent, 2002 WL 207173, at *1 (E.D. Pa. 2002) (holding petitioner did not act diligently even though he sent four letters to court). Therefore, equitable tolling is not warranted for this additional reason.
For all of the aforementioned reasons, I do not find the instant matter to be one of "rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice."See Jones, supra. Because Petitioner has not established "extraordinary" circumstances which would justify application of equitable principles, this court finds that there are no circumstances which would make the rigid application of the limitation period unfair. Accordingly, Petitioner's petition should be dismissed as untimely.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of January, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and Respondents' answer thereto, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.