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HOLMAN v. GILLIS

July 21, 1999

ROBERT HOLMAN, PETITIONER,
v.
FRANK D. GILLIS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.

MEMORANDUM

This case raises issues of comity and federalism at the intersection of a state's power to administer its criminal justice system and federal habeas corpus jurisdiction. To harmonize these interests, federal law requires that, in order to seek federal habeas corpus review of claims challenging a state criminal conviction, a petitioner must show that he has exhausted all available state remedies as to all such claims. The 1995 amendments to the Pennsylvania Post-Conviction Relief Act ("PCRA") mandate that PCRA petitions must be filed within one year from the date of final judgment. Application of this one-year statute of limitations would render untimely filed PCRA claims unexhausted but procedurally defaulted.

The Third Circuit has previously held that it was not confident that, despite the PCRA one-year statute of limitations imposed by the 1995 amendments, the Pennsylvania Supreme Court had abandoned its practice of reaching the merits of PCRA petitions in capital cases (and other cases as well) that appeared to be procedurally barred. The Third Circuit, however, left open the door to so finding, if future experience showed that the Pennsylvania Supreme Court consistently and regularly applied the PCRA one-year statute of limitations to bar untimely filed PCRA petitions. The court concludes that the Pennsylvania Supreme Court has now answered the Third Circuit's concerns and that it can be said with confidence that the PCRA one-year statute of limitations creates a jurisdictional bar to untimely filed PCRA petitions.

I

On December 14, 1992, after a jury trial in the Court of Common Pleas for Philadelphia County, petitioner was convicted of robbery and violating the Uniform Firearms Act. On April 7, 1993, after denying post-trial motions, the Court of Common Pleas judge sentenced petitioner to a term of ten (10) to twenty (20) years imprisonment. Upon obtaining new counsel, petitioner appealed to the Superior Court of Pennsylvania, which, on October 27, 1994, denied petitioner's claims and affirmed his sentence. Petitioner filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on January 19, 1995.

On March 7, 1995, petitioner filed a pro se petition for collateral review under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.Cons.Stat.Ann. § 9541 et seq. New counsel was appointed. After review of the record, new counsel filed a "no merit" letter with the PCRA court, indicating that there were no issues of merit and requested permission to withdraw as counsel. On October 7, 1996, the PCRA court dismissed petitioner's petition and permitted counsel to withdraw. Petitioner appealed the dismissal of his PCRA petition to the Superior Court of Pennsylvania, which, on November 25, 1997, affirmed the dismissal by the PCRA court. Petitioner then filed a pro se petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on June 26, 1998.

On August 14, 1998, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging nine substantive claims.*fn1 In their answer, respondents argued on procedural and substantive grounds that petitioner is not entitled to any habeas corpus relief.

The case was referred to Magistrate Judge Diane M. Welsh for a Report and Recommendation. On February 8, 1999, the Magistrate Judge issued a Report and Recommendation, concluding that the petition was a "mixed petition" because it contained both exhausted and unexhausted claims. Specifically, the Magistrate Judge found that petitioner's second, fifth, and seventh claims were unexhausted because petitioner failed to raise these claims before each level of the state courts. The Magistrate Judge did not reach the merits of the remaining six exhausted claims. However, the Magistrate Judge, relying upon the authorities of Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997) and Banks v. Horn, 126 F.3d 206 (3d Cir. 1997), found that, even though petitioner had already filed one PCRA petition and that the one-year statute of limitations for filing yet another PCRA petition had run, there was a chance that the state courts might nevertheless entertain a second PCRA petition filed by petitioner and address petitioner's three unexhausted claims on the merits. Having concluded that returning this case to state court would not necessarily be futile, and that there was no absolute statement by the Pennsylvania Supreme Court that an untimely PCRA petition would not be permitted, the Magistrate Judge recommended that the mixed petition be dismissed without prejudice for failure to exhaust state court remedies.

Respondents filed objections to the Report and Recommendation asserting that petitioner had no available state remedies because any unexhausted claims presented by petitioner in a subsequent PCRA petition would be procedurally barred as untimely. Respondents' arguments were premised upon a recent Pennsylvania Supreme Court decision, Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), where the Pennsylvania Supreme Court denied a PCRA petition as untimely for failing to comply with the one-year statute of limitations and where none of the statutory exceptions applied. Given the novelty and complexity of the issues, the court appointed Jules Epstein, Esq. as counsel for petitioner for the limited purpose of addressing respondents' objections. Now counseled, petitioner filed a memorandum of law arguing that if petitioner were to file a second PCRA petition, the Pennsylvania Supreme Court's decision in Peterkin would not act to procedurally bar as untimely review of petitioner's unexhausted claims in state court. Respondents' filed a reply addressing the five arguments by petitioner in his memorandum of law.

II

(A)

The purpose of the PCRA is to "provide[] for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief." 42 Pa.Cons.Stat. Ann. § 9542. Amendments to the PCRA were enacted on November 17, 1995, and became effective sixty days thereafter (January 16, 1996), which provide that:

§ 9545. Jurisdiction and proceedings

(b) Time for filing petition. —

  (1) [a]ny petition under this subchapter, including a
  second or subsequent petition, shall be filed within
  one year of the date the judgment becomes final. . ..
  (3) For purposes of this subchapter, a judgment
  becomes final at the conclusion of direct review,
  including discretionary review in the Supreme Court
  of the United States and the Supreme Court of
  Pennsylvania, or at the expiration of time for
  seeking the review.

42 Pa.Cons.Stat.Ann. § 9545(b). The purpose of the 1995 amendments was to put an end to the practice of state prisoners challenging criminal convictions of long ago. See Commonwealth v. Banks, 726 A.2d 374, 376 (Pa. 1999) ("We believe that the examination of the merits of Appellant's second PCRA petition fifteen years after he was convicted is precisely what the Legislature intended to preclude by amending the [PCRA]."). Therefore, to be eligible for relief under the PCRA, a petition must be filed within one year from the date of final judgment.*fn2

Here, direct review concluded on January 19, 1995, when the Pennsylvania Supreme Court denied petitioner's request for allowance of appeal. Petitioner then filed his first PCRA petition on March 7, 1995, which was dismissed by the PCRA court, affirmed by the Pennsylvania Superior Court, and petitioner's request for appeal to the Pennsylvania Supreme Court was denied on June 26, 1998. Respondents contend that, given the applicability of the one-year statute of limitations for filing PCRA petitions, petitioner has no available state remedies because a second PCRA petition filed by ...


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