Opinion
CIVIL ACTION NO. 01-5832
November 12, 2003
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus filed pro se, pursuant to 28 U.S.C. § 2241, by a petitioner presently incarcerated in the State Correctional Institution at Beliefonte, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed as untimely.
I. PROCEDURAL HISTORY
Following a jury trial before the Honorable Lawrence Prattis of the Philadelphia Court of Common Pleas, petitioner was convicted of first-degree murder, criminal conspiracy, and weapons offenses on July 12, 1974. On January 22, 1975, Judge Prattis sentenced petitioner to life imprisonment for first degree murder, and suspended the sentence as to the remaining convictions. Petitioner appealed directly to the Pennsylvania Supreme Court raising a claim that certain incriminatory admissions made during custodial interrogation and introduced against him at trial were improperly obtained in violation of Pa.R.Grim.P. 130. The Supreme Court found that the issue was waived due to failure to raise it at trial, and affirmed the judgments and sentence in a published opinion filed July 6, 1976. Commonwealth v. Pritchett, 468 Pa. 10, 359 A.2d 786 (1976).
Petitioner obtained new counsel and filed a petition, on April 2, 1980, under Pennsylvania's Post Conviction Hearing Act ("PCHA"). The Honorable Edward J. Blake held an evidentiary hearing and denied the petition on January 11, 1982. Represented by different counsel, petitioner appealed to the Pennsylvania Superior Court, which, on October 14, 1983, affirmed the denial of PCHA relief in a published opinion. Commonwealth v. Pritchett, 467 A.2d 364 (Pa.Super. 1983). The Pennsylvania Supreme Court denied allowance of appeal on February 8, 1984. Commonwealth v. Pritchett, No. 674 E.D. Allocatur Docket 1983.
Thirteen years later, on January 16, 1997, petitioner filed a counseled petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq. Appointed counsel reviewed the record and concluded that there were no issues of arguable merit upon which to base an amended petition, and filed a letter to the PCRA court pursuant toCommonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988). After reviewing the record, the Honorable James J. Fitzgerald, III, dismissed the petition and permitted counsel to withdraw on May 25, 1999. Petitioner then appealed to the Pennsylvania Superior Court, which affirmed the dismissal of the PCRA petition as untimely in an unpublished memorandum opinion filed on May 31, 2000. Commonwealth v. Pritchett, 760 A.2d 431 (Pa.Super. 2000)(table). The Pennsylvania Supreme Court then denied allowance of appeal on November 28, 2000. Commonwealth v. Pritchett, No. 459 E.D. Allocatur Docket 2000.
Petitioner filed this counseled habeas corpus action on November 21, 2001, alleging the following claims:
1. Petitioner's statements were obtained in violation of his due process rights; trial and appellate counsel were ineffective for failing to preserve this claim;
2. Unnecessary delay between arrest and arraignment; trial and appellate counsel were ineffective for failing to preserve this claim;
3. Trial court improperly refused to charge jury on lesser offenses; trial and appellate counsel were ineffective for failing to preserve this claim;
4. Miscarriage of justice and actual innocence.
We now address the petition at hand.
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 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 October 4, 1976, ninety days after the Pennsylvania Supreme Court deniedallocatur 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). Accordingly, petitioner's judgment of sentence became final more than 20 years before he filed his current habeas corpus petition. Because the petitioner's conviction became final prior to the effective date of the AEDPA, petitioner received a grace period of one year, starting on April 24, 1996, to file a federal petition for Writ of Habeas Corpus.
Former United States Supreme Court Rule 22 (effective July 1, 1970) 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.
Thereafter, on January 16, 1997, petitioner filed a PCRA petition. This petition, however, had no tolling effect on his federal statute of limitations. The Pennsylvania Superior Court explicitly dismissed that petition as untimely, thereby making it not "properly filed" for purposes of statutory tolling. Merritt, 326 F.3d at 165-166. Absent any other properly-filed collateral challenges to his conviction, petitioner's one-year grace period expired on April 23, 1997. As petitioner did not seek habeas relief until four and a half years later, on November 28, 2001, we must deem the instant petition untimely.
Notably, even if we were to toll the statute of limitations during the pendency of petitioner's 1997 PCRA petition, his habeas action would still be untimely. Approximately eight months passed between the start of the one year grace period and petitioner's filing of his PCRA petition, leaving only four months on the federal limitations period. The Pennsylvania Supreme Court thereafter denied allowance of appeal on November 28, 2000, giving petitioner until approximately March 28, 2001 to submit the instant petition. He did not do so, however, until almost eight months later.
Petitioner asserts, however, that the statute should be equitably tolled because he is "actually innocent" of the crime of which he was convicted. The Court disagrees.
We note that petitioner raises "actual innocence" as a substantive claim, not as a grounds for equitable tolling. For purposes of comprehensiveness, however, we consider whether it would operate to equitably toll the statute of limitations.
The statute of limitations in the AEDPA is subject to equitable tolling. Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (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). To otherwise apply equity would "loose the rule of law to whims about the adequacy of excuses, divergent responses to claims of hardship, and subjective notions of fair accommodation." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
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 Eighth Circuit Court of Appeals recently held that "to allow an assertion of actual innocence to excuse the running of the statute in such circumstances [where petitioner fails to show extraordinary circumstances preventing timely filing] would take the equitable-tolling doctrine far from its original and legitimate rationale." Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002), cert. denied, 123 S.Ct. 1361 (2003). The Court further ruled that 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." Id. at 978.
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 So. Ct. 853, 862 (1993)). Petitioner must necessarily present new reliable evidence to support his claims for habeas relief. See Schlup, 513 U.S. 324; Cristin v. Brennan, 281 F.3d 404, 420-21 (3d Cir. 2002), cert. denied, 537 U.S. 897, 123 S.Ct. 195 (2002). Additionally, the burden rests with petitioner to prove to this 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, 123 S.Ct. 1902 (2003); see also Hussmann v. Vaughn, 67 Fed. Appx. 667, 2003 WL 1924693, *1 (3d Cir. 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 does not bring forth any truly new, reliable evidence to support his claims for habeas relief. The "new" evidence that petitioner sets forth consists of newspaper articles pertaining to an investigation of the Philadelphia Police Department and its questionable interrogation tactics. This evidence has been available to petitioner since 1977 when the articles were published, yet he neglected to raise this issue in a timely fashion. In any event, it is highly unlikely that a newspaper investigation article would sway all reasonable jurors away from voting to convict the petitioner. See generally Glass v. Vaughn, 65 F.3d 13, 17 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996).
Notably, petitioner's assertion of "actual innocence" in his petition is narrower than the broad claim of actual innocence of all crimes. He claims that he is innocent only of first-degree murder and should have been convicted of a lesser degree of homicide.
Moreover, petitioner's many allegations of bias and abuse that he uses to buttress his claim of actual innocence are irrelevant. Actual innocence means "factual innocence, not mere legal insufficiency."Bousley v. United Stats, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998);Sweger, 294 F.3d at 523. If petitioner's allegations are truthful, this merely proves the legal insufficiency of the trial, not his factual innocence. See Sweger, 294 F.3d at 523 (holding that arguments "that prejudicial and inadmissible evidence impeded the jury's ability to reach a fair verdict . . . at best allege the legal insufficiency of [petitioner's] conviction, rather than establish his factual innocence on the basis of new evidence"). Ultimately, petitioner has failed to submit any facts that call into question the trial court's opinion and that justify a finding of actual innocence.
Absent any definitive showing of actual innocence, this Court has no grounds upon which to equitably toll the statute. In turn, as the petition is time-barred, it is foreclosed from federal review.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day ___ of November, 2003, 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.