Opinion
Civil Action No. 05-CV-2114.
November 22, 2005
REPORT AND RECOMMENDATION
Presently before this court is a petition for writ of habeas corpus filed pro se by Clemon Perry ("Petitioner"), pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner serving a sentence at the State Correctional Institution at Rockview, in Bellefonte, Pennsylvania. Petitioner seeks habeas relief alleging expiration of his sentence, trial court error, prosecutorial misconduct, and denial of his right to a speedy trial. The Honorable Clifford Scott Green referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that this time-barred petition be DISMISSED without a hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The Facts set forth in this section were gleaned from the Petition for Writ of Habeas Corpus, inclusive of all exhibits thereto, the Commonwealth's Answer, inclusive of all exhibits thereto, Petitioner's Letter of Rebuttal to Commonwealth's Answer, and the State Court record.
The facts leading to Petitioner's conviction as summarized by the Honorable Lisa A. Richette of the Court of Common Pleas of Philadelphia County, follow:
Officer Terence Gumpper testified that on December 21, 1976, at 1:21 p.m., he and his partner, Officer Scott Earling, received a report of a rape at 4920 City Line Avenue over their police radio.
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Six or seven minutes after the initial radio call, Gumpper saw the [Petitioner] coming out of the railroad property, running west on Woodbine Avenue towards the patrol wagon.
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. . . . Gumpper got out of the van and told the [Petitioner] to halt. He saw the [Petitioner's] face, and immediately concluded that the [Petitioner] was the man wanted for a prior rape on Drexel Road. The physical description, the clothing and the face were identical to the composi[t]e and information contained in a police wanted flier which was in Gumpper's patrol wagon. The point where the officers stopped the [Petitioner] was thirteen blocks from the scene of the prior rape.
. . . . Gumpper and Earling handcuffed the [Petitioner], and seized a salami-type object, which proved to be a sock, from inside the [Petitioner's] coat.
They returned to the scene of the alleged crime at 4920 City Avenue. . . . Once on the 4th [f]loor, an older man who had been robbed saw the sock which Gumpper was holding and said "That's my sock, that's my money.". . . Thereafter, the rape victim, Doris Sanford, came to her apartment door, and, as soon as she saw the [Petitioner] said, "That's him, that's the man who raped me." Twenty seconds passed between the older man's identification and Ms. Sanford's identification.
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[On January 19, 1978 Miss Alice Mooney testified that] in the early morning hours of November 4, 1976, she was awakened from her sleep by the weight of a strange [b]lack man laying of top her. The intruder threatened to kill her if she made any out-cry and held a bolster from the bed over Miss Mooney's face, threatening to smother her; he then raped her while continually holding the bolster over Miss Mooney's head. Following the attack, [Miss Mooney] was allowed to get up and go to the bathroom; [she] testified that there was only a small night-light in the bathroom and the [Petitioner] warned her not to look at him. Miss Mooney stated that she averted her eyes from the [Petitioner] as she was frightened and afraid to aggravate her attacker in any way.
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Although Miss Mooney was able to give a general description to the police . . . police found a latent finger-print on a piece of glass on the fire escape in the vicinity of Miss Mooney's back door, which compared positively with [Petitioner's] fingerprint.Commonwealth v. Perry, J. No. 40001/84, Op. (Ct. Com. Pl. Phila. County, July 14, 1983) at 7-19 (Resp't Ex. A).
Petitioner was convicted, in two separate jury trials, held in October, 1977 and January, 1978, of rape, robbery, burglary, and aggravated assault committed against two elderly female victims in separate criminal episodes. See Commonwealth of Pennsylvania, ex rel. Clemon Perry v. Tennis, No. 1161 MDA 2004 (Pa.Super.Ct. Jan. 31, 2005) ( citing Commonwealth v. Perry, 487 A.2d 440 (Pa.Super. 1984) (unpub. mem.)) (Pet'r Ex. D-2). Almost one and one-half years later, on May 1, 1980, appellant received a consolidated sentence of imprisonment of ten (10) years to twenty (20) years of imprisonment for robbery (bill 915), to be followed by six consecutive periods of incarceration: ten (10) to twenty (20) years for rape (bill 917), ten (10) years to twenty (20) for burglary (bill 918), ten (10) years to twenty (20) years for aggravated assault (bill 924), five (5) years to ten (10) years for aggravated assault (bill 925), ten (10) years to twenty (20) years for burglary (bill 926), and ten (10) years to twenty (20) years for robbery (bill 927). Id. at 2. Thus, the aggregate sentence was sixty-five (65) to one hundred and thirty (130) years. On November 9, 1984, the judgment of sentence was affirmed by [the Superior Court]. Id. Petitioner did not appeal this decision to the Pennsylvania Supreme Court.
However, on November 20, 1996, Petitioner did file a pro se petition for collateral relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Court-appointed Counsel timely filed a "no merit" letter pursuant to Commonwealth v. Finely, 550 A.2d 213 (Pa.Super. 1988) ( en banc). Almost two years later, on November 9, 1998, the PCRA court dismissed Petitioner's petition as frivolous. Petitioner did not appeal this decision.
Next, on April 13, 2004, Petitioner sought habeas corpus relief from the Court of Common Pleas of Centre County on the grounds that his sentence had expired and, therefore, he was being illegally detained. See Commonwealth v. Perry, No. 1161 MDA 2004 (Pa.Super.Ct. Jan. 31, 2005) at p. 3. The Court of Common Pleas denied relief and Petitioner's subsequent appeal to the Pennsylvania Superior Court was denied on January 31, 2005. Id. at p. 4-5.
Finally, Petitioner filed, pro se, the within petition seeking a federal writ of habeas corpus on April 29, 2005. He contends that: 1) his entire sentence has been served; 2) the Jury did not sentence him; 3) the Prosecutor at his 1979 trial exercised peremptory challenges based on race; and, 4) he was denied a speedy trial. See Pet. at 9.
The Commonwealth contends, and this court finds, that Petitioner is not entitled to federal habeas review or relief, because his claims are procedurally defaulted. See 28 U.S.C. § 2244(d)(1).
II. DISCUSSION
A. AEDPA Statute of Limitations
1. General Provisions
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, requires that all habeas corpus petitions be filed within one year of the date on which the underlying state court judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). A state judgment of conviction becomes final once direct review is concluded or the time for seeking such review has expired. Id. Any time which elapses after the state court judgment of conviction becomes final and before a habeas petition is filed is subtracted from the one year allotted under the AEDPA statute of limitations.
While the date on which the petitioner's conviction becomes final is typically the "run" date for the limitations period, the statute permits the limitation period to run from three other points in time:
(d)(1)(B) the date on which the impediment to filing an application created by State action in violation of the Constitution of laws of the United States is removed, if the applicant was prevented from filing by such State action;
(d)(1)(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)(1)(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). These alternative dates are not herein applicable.
Petitioner's conviction became final on December 9, 1984 when his thirty (30) day deadline for filing a petition for allocatur in the Pennsylvania Supreme Court expired. See Pa.R.A.P. § 1113; Maraj v. Gillis, 2004 U.S. Dist. LEXIS 22102, *8 (E.D. Pa. Jan. 4, 2005) (finding an appeal filed more than five months after the Superior court issued it's decision untimely); Kubis v. Kyler, 2004 U.S. Dist. LEXIS 1613, *22 (E.D.Pa. Feb. 5, 2004). However, AEDPA allows petitioners whose convictions became final before April 24, 1996, its effective date, a one-year grace period, or until April 24, 1997 to initiate their habeas actions, regardless of the date on which direct review concluded. The present petition was filed on April 29, 2005, almost eight (8) years after expiration of Petitioner's AEDPA deadline. Therefore, unless an exception extends his time to file, this Court lacks jurisdiction to consider Petitioner's federal habeas corpus filing.
2. Statutory Tolling
In appropriate instances, statutory or equitable tolling provisions extend the initial AEDPA deadline. See 28 U.S.C. § 2244(d)(1)(A); see Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004); Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001). For example, if, prior to expiration of the full AEDPA year, Petitioner sought collateral relief, "the time during which [that] properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment of claim [was] pending [would] 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 submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998); Dyson v. Superintendent, 2004 U.S. Dist. LEXIS 18695, *3 (E.D. Pa., Sept. 13, 2004). See also Artuz v. Bennett, 531 U.S. 4, 9 (2000) (citing Lovasz 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); Edwards v. Folino, 2004 U.S. Dist. LEXIS 26236, *8 (E.D. Pa., Dec. 29, 2004). Conversely, an untimely state collateral petition is not "properly filed" for purposes of tolling the AEDPA clock. See Pace v. DiGuglielmo, ___ U.S. ___, 125 S.Ct. 1807 (April 27, 2005) (stating that state time limits are conditions for a "properly filed" application that must be met under § 2244); see also Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003) (holding "[that] an untimely application for state post-conviction relief . . . was not `properly filed' for the purpose of federal habeas statute's tolling provision").
Since, Petitioner's sentence became final before AEDPA passed, he had until April 24, 1997 to pursue federal habeas relief. A PCRA petition filed on November 22, 1996 (after 213 AEDPA days had passed), tolled Petitioner's AEDPA year until its dismissal on November 6, 1998. Since Petitioner did not appeal the dismissal, his AEDPA year expired on or about April 8, 1999 (when the balance of his AEDPA year, 152 days, expired). No additional state actions were filed before this deadline, hence there was no further statutory tolling and this July 29, 2005 petition was over six (6) years late.
3. Equitable Tolling
The one-year limitation period, nevertheless, may be subject to equitable tolling when the principles of equity would make the rigid application of a limitation period unfair. Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004) ( citing Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998)). To warrant relief a petitioner must show that he or she "exercised reasonable diligence in investigating and bringing [the] claims," mere excusable neglect is not sufficient. Miller, 145 F.3d at 618-19. In applying this standard, a court should 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 Frappe v. Meyers, 2004 U.S. Dist. LEXIS 12070, *11-12 (E.D.Pa. June 24, 2004); 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). Specifically, equitable relief will be permitted if:
(1) the defendant has actively misled the plaintiff; (2) the plaintiff has in some extraordinary way been prevented from asserting his rights; or, (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum.Phillips v. Vaughn, 55 Fed. Appx. 100, 101 (3d Cir. 2003); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) ( citations omitted) ( emphasis applied).
While Petitioner, in the instant case, may be able to claim ignorance of the rules of procedure and a lack of understanding of the consequences of his dilatory behavior, he has neither offered any reason for the delay and lack of diligence nor shown bona fide efforts toward compliance. In as much as, Petitioner neglectfully abandoned his case, this Court finds no "reasonable diligence" on Petitioner's part.
Moreover, Petitioner has not alleged governmental misconduct or extraordinary hindrance to filing. Therefore, this court must only consider if the Petitioner has timely asserted his rights mistakenly in the wrong forum placing him in compliance with the AEDPA's filing requirements.
Petitioner erroneously filed a state writ of habeas corpus in Centre County instead of Philadelphia County, on April 13, 2004. See Commonwealth v. Perry, No. 1161 MDA 2004 (Pa.Super.Ct. Jan. 31, 2005) at p. 2. The state intermediate court, finding no jurisdictional issue, addressed the substance of Petitioner's claim that his sentence had expired and dismissed the petition. Id. The state intermediate court's conclusion that there was no jurisdictional issue cannot be challenged now, because no objections to venue ensued. Id. at n. 1. Hence, Petitioner was not in the wrong forum at the right time, he was in the wrong forum at the wrong time. Therefore, equitable tolling is not applicable to this case.
The Superior Court stated:
It merits mention that [Petitioner] should have filed this petition in the Court of Common Pleas of Philadelphia County, where he was sentenced. See: Pa.R.Crim.P. 108(A) ('A petition for writ of habeas corpus challenging the legality of the petitioner's detention or confinement shall be filed with the clerk of court of the judicial district in which the order directing the petitioner's detention or confinement was entered'). See also: Brown v. Dept. of Corrections, 601 A.2d 1345 (Pa.Cmwlth. 1992) (writ of habeas corpus will lie to challenge legality of sentence rather than a mere challenge to an administrative calculation). However, no objection was raised regarding venue.
We detect no jurisdictional issue. See: 42 Pa.C.S. § 762(a)(1). See e.g.: Rivera v. Pa. Dept. of Corrections, 837 A.2d 525, 527 n. 1 (Pa.Super. 2003), appeal denied, ___ Pa. ___ 857 A.2d 680 (2004).See Commonwealth v. Perry, No. 1161 MDA 2004, (Pa.Super.Ct. Jan. 31, 2005) at n. 1, p. 1.
Petitioner's remaining claims are procedurally defaulted, as they have never been presented in state court. Notably, Petitioner's PCRA counsel filed a Finley no-merit letter which resulted in the dismissal of Petitioner's PCRA claims. See Finley Letter filed by Thomas E. Naughton, Esq. on Sept. 23, 1998. Petitioner neither appealed this decision nor gave any valid reason why the state courts determination was "contrary to," or an "unreasonable application of clearly established Federal law." Therefore, the state court's ruling, consistent with Federal law, will not be overruled.
However, if this court were to review Petitioner's claims, they lack any merit. See 28 U.S.C.A. § 2254(b)(2) (providing that a meritless application for a writ of habeas corpus may be denied, notwithstanding procedural default in the courts of the state). Pursuant to the AED PA, a federal habeas court may overturn state court's resolution of the merits of a constitutional issue only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Petitioner's PCRA petition asserted ineffective assistance of counsel claims, because he was not allowed to testify regarding alleged police brutality and unlawful pre-arraignment detention . See PCRA Pet. filed Nov. 22, 1996.
First, Petitioner alleges that he is serving an expired sentence. Pet. at 9. This contention is factually inaccurate, as the record definitely proves that he was sentenced to serve consecutive terms that total 65-130 years. See Commonwealth v. Perry, 1161 MDA 2004 (Jan. 31, 2005) (Pet'r Ex. D-4 and D-5). Second, Petitioner claims that "the jury was taken from [him] before rendering and sectioning [sic] [his] sentence." (Pet. at 9). Even presuming that Petitioner is raising an Apprendi claim, these charges lack merit. See Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt"). Apprendi requirements are not retroactive to cases already on collateral review. See Tyler v. Cain, 533 U.S. 656, 663 (2001) (holding that "a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive"); see also In re: Anthony Bola Olopade, 403 F.3d 159, 162 (3d Cir. 2005); In re: Carnell Turner, 267 F.3d 225 (3d Cir. 2001).
Claims asserted in Grounds Three and Four, abandoned after one level of direct appeal, are procedurally defaulted. See Commonwealth v. Perry, 487 A.2d 400 (Pa.Super.Ct. 1984) at 1-2 (Resp't Ex. B). Petitioner has failed to articulate any reasons for his untimeliness and failure to preserve these claims. See 28 U.S.C. § 2254(b) (state prisoner may obtain federal habeas review only after he first exhausts available remedies in state court); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004); Wallace v. Dragovich, 143 Fed. Appx. 413, 417 (3d Cir. 2005). The record evinces no newly discovered evidence or recent applicable change in constitutional law to excuse Petitioner's failure promptly to seek habeas relief. Based on Petitioner's dilatory behavior, I find that no injustice will occur if this Petition is not reviewed on the merits. The record, devoid of factual justification for equitable tolling, warrants dismissal on procedural grounds, without a hearing.
CONCLUSION
For the foregoing reasons, this Court finds that Petitioner is ineligible for equitable tolling of the AEDPA deadline. Thus, he is not entitled to federal habeas review. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 22nd day of November, 2005, for the reasons contained in the foregoing report, it is hereby recommended that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED without an evidentiary hearing. Petitioner has presented meritless claims and/or failed to meet the procedural requirements to have a petition reviewed. Furthermore, he has shown neither a denial of a constitutional right, nor established that reasonable jurists would disagree with this court's procedural ruling.