United States District Court, E.D. Pennsylvania
January 30, 2004.
DONALD T. VAUGHAN, et al.
The opinion of the court was delivered by: PETER SCUDERI, Magistrate 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)
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.*fn1
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).
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").
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.*fn2 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).
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.*fn3 Therefore, the limitations period resumed
countdown on October 30, 2002, and Petitioner had approximately 292
days, or until August 19, 2003, to file a timely federal habeas petition.
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
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
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
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
Therefore, I make the following:
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