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United States District Court, E.D. Pennsylvania

January 28, 2004.


The opinion of the court was delivered by: JACOB HART, Magistrate Judge


This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Coal Township, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed as untimely.


  On March 12, 1997, after a straight guilty plea before the Honorable Wilson Bucher, Sr., of the Court of Common Pleas of Lancaster County, Pennsylvania, Hightower was convicted of seven counts of robbery (F-1) and three counts of robbery (F-3). Hightower stood for sentencing on May 23, 1997, and received a sentence in the aggregate of eleven to twenty — two years.

  On June 20, 1997, Hightower filed a direct appeal to the Superior Court. On June 9, 1998, the Superior Court affirmed the judgment of the trial court. Commonwealth v. Hightower, 2566 Phila. 1997. Hightower did not file for Allowance of Appeal to the Supreme Court of Pennsylvania.

  Hightower also filed a Motion to Modify Sentence with the Court of Common Pleas of Lancaster County, which was denied on September 8, 1998. On August 2, 1999, Hightower filed Page 2 a petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551. After counsel was appointed and filed an amended petition, Judge Bucher dismissed the petition on November 5, 1999. Hightower filed an appeal to the Superior Court on November 28, 1999. On February 26, 2001, the Superior Court dismissed the appeal for failure to file a brief. Commonwealth v. Hightower, 608 MDA 2000. The Supreme Court of Pennsylvania denied the Application for Leave to File Petition for Allowance of Appeal Nunc Pro Tune on June 7, 2001. Commonwealth v. Hightower, 52 MM 2001.

  On November 20, 2003, Hightower filed this petition for habeas corpus. In response, the District Attorney has asserted that the petition is untimely. With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress enacted a one — year limitation period for federal habeas corpus petitions. 28 U.S.C. § 2244(d). The one — year period begins to run from the date on which the judgment became final in the state courts and is tolled only by a properly filed PCRA petition. 28 U.S.C. § 2244(d)(1)(A) and (d)(2). For the reasons set forth below, Hightower's PCRA petition did not toll the federal statute of limitations.

  Hightower's conviction became final on July 8, 1998, when the time for seeking allowance of appeal in his direct appeal expired. See Pa. R. App. P. 1113(a) (allowing thirty days for the filing of a petition for allowance of appeal from an order of the Superior Court). His PRCA petition was not filed until August 2, 1999, which was three hundred and ninety days after the judgment became final. The AEDPA one — year limitation period had already expired twenty — five days before Hightower's PCRA petition was filed, thus preventing any tolling of the federal time limits. Hightower, therefore, had to file this habeas petition on or before July 8, 1999. Unfortunately, he did not file until November 20, 2003, more than four years after the limitation Page 3 period had expired. Thus, this petition is untimely.*fn1

  Finally, Hightower has failed to establish that his case is deserving of equitable tolling. Equitable tolling is appropriate "when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights.'" Miller v. New Jersey Department of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). The Third Circuit has found that equitable tolling is appropriate in four narrow circumstances: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum; or (4) if the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). However, equitable tolling is to be invoked "only sparingly." see United States v. Midgely. 142 F.3d 174, 179 (3d Cir. 1998), and only when the petitioner establishes that he exercised "reasonable diligence" in investigating and bringing the claims. Miller, 145 F.3d at 618-19 (citing New Castle County v. Haliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)).

  In the present case, Hightower has not asserted, nor established, that his case applies to the narrow circumstances deserving equitable tolling. He has presented no evidence that he exercised "reasonable diligence" in presenting his claims. Page 4

  Therefore, I make the following:

  AND NOW, this 28th day of January, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED AS UNTIMELY. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. Page 5


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