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KUBIS v. KYLER

United States District Court, E.D. Pennsylvania


February 5, 2004.

George V. Kubis, Petitioner,
v.
Kenneth Kyler, Respondent

The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge

Memorandum and Order

George V. Kubis, the petitioner, filed a pro se petition for writ of habeas corpus in this court pursuant to 28 U.S.C. § 2254 (2003). He argues that in violation of his due process rights, the officers who testified against him at trial fabricated evidence; that the prosecution withheld evidence that revealed the falsity of the officers' testimony; that trial counsel was ineffective for failing to raise the issue of a suggestive photographic line-up; and that all subsequent counsel were ineffective because they failed to raise these issues (Doc. #1). After conducting a de novo review of Magistrate Judge Welsh's findings and recommendations, I have determined that Kubis' petition should be dismissed.

BACKGROUND

  Following a jury trial in the Montgomery County Court of Common Pleas petitioner was convicted on January 20, 1995 of two counts of robbery, two counts of theft of movable property Page 2 and two counts of possessing an instrument of crime with intent to employ it criminally.*fn1 Petitioner was sentenced on July 20, 1995 to six to thirteen years imprisonment, followed by two years of probation.

  The petitioner's charges stemmed from the robberies of two separate gas stations in Montgomery County, Pennsylvania, on two consecutive nights in September 1993. A Sunoco gas station was robbed on September 12 and an Atlantic gas station was robbed on September 13; both stations were robbed at knifepoint. On September 17, two police officers spotted a car matching a description of the thief's car at a third gas station. The officers testified that a gas station attendant ran from that store screaming that he was about to be robbed. Petitioner then exited the store and entered his car. Petitioner was arrested because police suspected him of driving under the influence after observing his behavior.*fn2

  Petitioner filed a timely direct appeal of his judgment of sentence to the Superior Court of Pennsylvania on August 18, 1995, alleging twenty-one grounds of error. On October 18, 1996, the trial judge filed an opinion affirming the conviction. Doc. #10, Exhibit B. Petitioner's motion for a new trial was denied by the trial court on February 12, 1997, after a hearing, held November 19, 1996.*fn3 Doc. #10, Exhibit C. The Superior Court of Pennsylvania affirmed the petitioner's Page 3 sentence on April 11, 1997.*fn4 Doc. #10, Exhibit D. Petitioner then sought reargument in the Superior Court, which denied his request on June 23, 1997. Doc. #10, Exhibit K ¶ 3. The petitioner did not file a petition for allowance of appeal (allocatur) in the Supreme Court of Pennsylvania; however, in December 1997,*fn5 the petitioner submitted a nunc pro tunc allocatur petition to the Supreme Court of Pennsylvania.*fn6 According to the petitioner, the nunc pro tunc allocatur petition was denied on April 1, 1998. Page 4

  On March 31, 1999, with the help of his attorney, Theodore Thompson,*fn7 Kubis filed a petition under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann § 9541 et seq., and then almost a year later filed an amended PCRA petition on March 14, 2000 with the help of Paul Bauer, alleging the following broad grounds: 1) trial counsel (Mullaney) was ineffective for failing to preserve the issue of prosecutorial misconduct; 2) appellate counsel (Thompson) was ineffective for failing to raise, preserve and argue trial counsel's ineffectiveness; and 3) appellate counsel was also ineffective for failing to object to, raise, preserve and argue the misconduct of the trial court, trial counsel and prosecutor.*fn8 Doc. #10, Exhibit E ¶¶ 10-12. Neither PCRA petition discussed the timeliness of the petition.

  After oral argument, Judge Maurino J. Rossanese, Jr., granted the Commonwealth's motion to dismiss the petition for post-conviction relief on April 27, 2000 because of its untimeliness. Doc. #10, Exhibits I and J. Petitioner's then-counsel, Bauer, sent a letter to petitioner notifying him of his right to appeal, but the petitioner did not receive this letter because he was being moved to another prison. As a result, petitioner failed to file a timely appeal. On September 21, 2000, the court granted Bauer's petition to withdrawal as court-appointed counsel at petitioner's request; the court also granted petitioner the right to appeal nunc pro tunc the April 27, 2000 order that dismissed his PCRA petition. Doc. #10, Exhibit J at 2.

  Appellant filed an appeal on October 23, 2000 to the superior court in which he argued Page 5 that 1) he filed his March 31, 1999 petition within one year of the date that his judgment became final; 2) that even if he did not comply with this deadline, his petition falls within the after-discovered evidence exception; 3) that he did not receive effective assistance of counsel in preparing that petition; and 4) that the court erred in failing to appoint counsel on the instant appeal. Doc. #10, Exhibit K (citing Petitioner's Brief at 3). On September 19, 2002, the superior court affirmed the denial of post-conviction relief because the PCRA petition was untimely. Doc. #10, Exhibit K. The petitioner then sought an allowance of appeal from the Supreme Court of Pennsylvania,*fn9 which was denied without explanation on December 19, 2002. Doc. #10, Exhibit L.

  On March 10, 2003, petitioner filed this petition for writ of habeas corpus (Doc. #1).*fn10 Petitioner asserts a number of substantive grounds for habeas relief. First, Kubis claims that the police fabricated evidence concerning witness Talbot Morgan,*fn11 the gas station attendant who was on duty at the Exxon station the night that petitioner was arrested. The officers testified that a gas station attendant ran from the Exxon on the night of September 17, 1993, screaming that he was about to be robbed; however, based on a private investigator's reports of October 1998 and November 1998, Kubis argues that this testimony was fabricated. The investigator that Kubis hired reported that Morgan said he did not run out of the station with his hands in the air screaming that he was going to be robbed. According to the report, Morgan stated that he has Page 6 never had anyone attempt to rob the station during his shift. Kubis contends that the prosecution relied on the officer's allegedly false testimony to establish probable cause and to obtain a conviction. Kubis also avers that the prosecutor, knowing the officers' testimony to be false, withheld exculpatory evidence concerning Morgan. Additionally, Kubis claims that trial counsel was ineffective for failing to raise the issue of a suggestive photo-lineup and that all subsequent counsel were ineffective for not raising these issues.

  On June 2, 2003, the District Attorney for Montgomery County filed an answer to the habeas petition, arguing that none of the petitioner's claims are exhausted pursuant to 28 U.S.C. § 2254(c) (Doc. #9). Respondent argues that because petitioner has failed to properly raise these issues in the state courts, all of his claims are procedurally defaulted.*fn12 Respondent's Answer ¶ 19-20. In answering the petition, the respondent also raised the defense that the AEDPA imposes a one-year statute of limitations on applications for a writ of habeas corpus. Id. at 13. On June 6, 2003, Magistrate Judge Diane M. Welsh filed a report and recommendation (Doc. #11), which found that all of petitioner's claims were procedurally defaulted and recommended that the petition be dismissed and a certificate of appealability not be granted with respect to any of the petitioner's claims.

  On June 13, 2003, the petitioner, having not yet received the report and recommendation, filed a reply to respondent's answer (Doc. # 12). Therein, petitioner argued that he timely filed his PCRA petition because the judgment was not final until April 1, 1998, when the Supreme Court Page 7 of Pennsylvania denied petitioner's allowance of appeal. He also argued that he was "not afforded the right to be present at his PCRA hearing," that his appellate counsel abandoned him, and that petitioner was never given an evidentiary hearing and was not able to make an argument defending the timeliness of the PCRA petition. Reply at 6-7.

  On June 26, 2003, having received the report and recommendation, petitioner then filed a motion for reconsideration of the report and recommendation (Doc. # 13). Magistrate Judge Welsh addressed the petitioner's motion for reconsideration and filed a supplemental report and recommendation, dated July 22, 2003 (Doc. #14), which again recommended dismissal of petitioner's writ of habeas corpus.

  On August 6, 2003, petitioner filed his objections to the report and recommendation. Petitioner's Objections, Doc. #15. Petitioner argues that he filed his petition for allowance of appeal nunc pro tunc with the Supreme Court of Pennsylvania in December 1997 under "extraordinary circumstances and impediment," and that petitioner missed the July 23, 1997 deadline for filing allocatur with the state supreme court because of his attorney's "fraudulent misrepresentations"; petitioner argues that his attorney falsely assured him that the appeal was in progress, and his attorney's misrepresentations caused him to have to file the nunc pro tunc petition. Id. at 2-4.

  Kubis relies on Commonwealth v. Lantzy to argue that at the time he filed his nunc pro tunc petition with the state supreme court in December 1997, he took the appropriate course of action because the supreme court had not yet found that filing a PCRA petition was the "exclusive remedy for post-conviction claims seeking restoration of appellate rights due to counsel's failure to perfect a direct appeal." Lantzy, 736 A.2d 564, 570 (Pa. 1999). Petitioner argues that Page 8 according to Commonwealth v. Hernandez, 817 A.2d 479 (Pa. 2003), his reliance was proper. In Hernandez, the state supreme court stated that "prior to our decision mLantzy, the Superior Court had held that one could not bring a PCRA claim of ineffective assistance of counsel for failing to file an appeal challenging the discretionary aspects of the sentence." Id. at 481.

  Kubis also argues that the magistrate judge's reliance on Commonwealth v. Hutchins, 760 A.2d 50 (2000) was misplaced because the rule it relied on-that allocatur was no longer required for purposes of exhaustion-was not announced until May 9, 2000, after the petitioner had filed his petition.

  Petitioner further maintains that the deadline for filing his PCRA petition was on April 1, 1999, one year after his petition for allowance of appeal nunc pro tunc was denied by the state supreme court, and that his PCRA petition was timely filed the day before, on March 31, 1999. Id. at 4. In the alternative, petitioner invokes the after-discovered evidence exception-pointing to the private investigator's interview of Morgan in October and November 1998 as the after-discovered evidence-and contends that the PCRA petition was filed within sixty days after the claim could have been presented. Id. at 7. Petitioner argues that he did not receive the investigator's report until January 2, 1999, and also notes that on January 6, 1999, he was in transit from SCIHuntington to Montgomery County Correctional Facility. Id. at 7. He avers that at that time, Bauer told petitioner that he could not "put his name on" his client's petition until he could verify the evidence as true. On February 15, 1999, counsel contacted Morgan, verified the information and subsequently filed the petition on March 31, 1999, which petitioner avers met the sixty-day deadline for after-discovered evidence. In response to the magistrate judge's finding that the petitioner need not be present at the PCRA hearing because he was represented by his Page 9 attorney who attended the hearing, petitioner argues that his attorney, though present, was ineffective because he failed to raise a timeliness argument. Id. at 7.

  On August 27, 2003, petitioner filed a supplemental memorandum of law in support of his objections to the report and recommendation (Doc. #16). Petitioner argues that his nunc pro tunc petition was properly filed. Supp. Mem. of Law in Support of Objections to Mag. J. Report and Recommendation at 2. He contends that he reasonably relied on decisions by the superior court that held that post-conviction relief was not available for those seeking restoration/reinstatement of appellate rights nunc pro tunc unless they were asserting actual innocence and so long as the nunc pro tunc petition was not filed with the Supreme Court of Pennsylvania to avoid the jurisdictional time bar of the PCRA. Supp. Mem. of Law in Support of Objections to Mag. J. Report and Recommendation at 2 (citing Commonwealth v. Hernandez, 817 A.2d 479 (2003)). Petitioner argues that he filed his petition prior to the supreme court's holding, presumably in Hernandez, "that PCRA was the exclusive remedy for restoration/reinstatement of appellate rights." Furthermore, he avers that he filed his nunc pro tunc petition while he still had eight months left to file his PCRA petition, which he argues makes clear that he did not file the petition to avoid the jurisdictional time bar. Id. Kubis also argues that the state failed to afford petitioner a full and fair evidentiary hearing. Id. at 3.

  In objecting to the magistrate judge's conclusion that the "new" evidence petitioner presented would not change the outcome of his case, petitioner cites White v. Helling, an Eighth Circuit case, in which the court found that evidence is material to the defense if it gives rise to impeachment evidence.

  Finally, petitioner insists that his nunc pro tunc petition was denied on the merits and that Page 10 petitioner therefore exhausted his state remedies on appeal. Petitioner maintains that the magistrate judge erroneously relied on Caswell. He argues that Caswell v. Ryan, 953 F.2d 853 (3d Cir. 1992) has since been clarified*fn13 such that the denial, as opposed to a dismissal of a petition for allocatur without comment, is treated as a decision on the merits, rather than a rejection based on timeliness.

 DISCUSSION

  I have conducted a de novo review of the magistrate's report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(2003), and I find that Kubis is barred from bringing this federal habeas petition because he failed to timely file his habeas petition pursuant to 28 U.S.C. § 2244(d)(1)(A).

 A. Whether petitioner's federal habeas petition was timely filed

  Kubis' pro se habeas petition was stamped "filed" by the clerk of this court on March 14 2003,*fn14 several years after his judgment became final.*fn15 Under the Anti-Terrorism and Effective Page 11 Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1)(A) (2003), state prisoners must promptly file federal habeas petitions: "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 the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. The Third Circuit has found that the government may waive its defense that the petitioner failed to comply with this statute of limitations provision. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002). Therefore, like affirmative defenses in other contexts, this defense should be raised at the "earliest possible moment" after the answer is filed, if it is not actually pleaded in the answer itself. Id. at 137. Otherwise, the defense is waived.

  In its memorandum of law attached to its answer to petitioner's habeas petition, the Commonwealth raised the defense that Kubis' statute of limitations for filing a federal habeas petition had expired. Respondent/Commonwealth's Answer to Petition for Writ of Habeas Corpus, Doc. #9, at 13. As such, I find that the Commonwealth has not waived its defense that Kubis failed to file with this court a timely habeas petition.

  Once successfully raised, this defense could bar petitioner from bringing his habeas claims before this court. Petitioner is required to file his federal habeas claims before "the latest of 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)(A). However, if a petitioner has properly filed a PCRA petition, time does not accrue while that petition is pending for purposes of the AEDPA one-year statute of limitations period. 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect Page 12 to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection") (emphasis added).

  The Supreme Court has stated that "a petition is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original). The Third Circuit has found that a properly filed PCRA application is one "submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001) (quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998)). "State petitioners therefore must file their state claims promptly and properly under state law in order to preserve their right to litigate constitutional claims that are more that one year old in federal court." Id. It follows that the timeliness of Kubis' habeas petition may depend upon whether his PCRA petition was timely.

 B. Whether petitioner's PCRA petition was timely filed

  Under the PCRA, a petitioner is required to file a PCRA petition "within one year of the date the judgment becomes final" unless the petition meets one of three exceptions. 42 Pa. C.S.A. § 9545(b)(1).*fn16 For purposes of the PCRA, "a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Page 13 Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3) (emphasis added).

  In Kubis' case, judgment became final when his time for seeking review elapsed. Under the Pennsylvania Rules of Appellate Procedure, an allocatur petition (one for allowance of appeal) must be filed within thirty days after the entry of the order of the superior court sought to be reviewed. Pa. R.A.P. 1113 (2003). Petitioner desired review of the superior court's June 23, 1997 denial of his request for reargument. Therefore, as the superior court found, Kubis' deadline for appealing the denial of his application for reargument was thirty days later, on July 23, 1997. See Commonwealth v. Kubis, 808 A.2d 196, 200-01 (Pa. Super. 2002). However, Kubis failed to submit a timely allocatur petition.*fn17 Therefore, Kubis' judgment of sentence for robbery and other crimes became final on July 23, 1997, when the deadline for filing a petition for allowance of appeal elapsed. See Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000); Commonwealth v. Hernandez, 755 A.2d 1, 29 (Pa. Super 2000); Commonwealth v. McMaster, 730 A.2d 524, 527 (Pa. Super. 1999).

  Thus, absent a statutory exception, the PCRA statute of limitations began to run on July 23, 1997, and petitioner's statute of limitations deadline for filing his PCRA petition expired on July 23, 1998, one year after his judgment of sentence became final, pursuant to 42 Pa. C.S.A. § 9545(b)(I).*fn18 Yet, Kubis failed to file a timely PCRA petition because he filed his PCRA petition Page 14 on March 31, 1999, well after the statute of limitations had expired. Absent a properly filed PCRA petition, Kubis' habeas petition was due before this court no later than July 23, 1998, one year after judgment became final. However, petitioner filed his habeas petition on March 10, 2003. As such, the one-year statute of limitations period of the AEDPA bars Kubis from bringing his habeas claims before this court.

  Kubis argues that his petition was timely because the so-called after-discovered evidence exception under the PCRA's statute of limitations provision grants an extension where "facts upon which a claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence." See supra note 17. Kubis attempts to invoke this exception on the grounds that he was presenting newly discovered evidence, namely witness Talbot Morgan's account of the night petitioner was arrested. According to the exception, a PCRA petition must be filed within sixty days of learning of new evidence through the exercise of due diligence. 42 Pa. C.S.A. § 9545(b)(1)(ii) & (2).

  The superior court found Kubis' filing untimely because petitioner was already aware of the identity of the witness, Talbot Morgan, at the time of the trial and that the recent version of the facts could have been easily obtained at the time of trial through the exercise of due diligence. Superior Court opinion at 9-10. As such, the court found that the investigator's report could not be characterized as new evidence for purposes of the after-discovered evidence exception. Id. Furthermore, the court found that petitioner waited too long to present this evidence even after he admittedly had actual knowledge of it, noting that petitioner was aware of Morgan's account in 1998, but that he did not raise this exception until he filed his appeal nunc pro tune two years later Page 15 in October 23, 2000. Id.*fn19 The superior court's opinion clearly explains that the petitioner's PCRA petition was untimely and that he did not successfully invoke the statutory exception for newly discovered evidence.

  The Third Circuit has held that "an untimely application for state post-conviction relief by a petitioner, who sought but was denied application of a statutory exception to the PCRA's time bar, is not properly filed under 28 U.S.C. § 2244(d)(2)." Merritt v. Blaine, 326 F.3d 157, 159 (3d Cir. 2003) (finding that once the highest Pennsylvania court to have ruled on the matter has decided that a PCRA petition is not timely, "it would be undue interference for a federal district court to decide otherwise"). In Merritt, the Third Circuit held that the petitioner's PCRA petition was not "properly filed" for purposes of the AEDPA because the superior court had rejected the petitioner's contention that his PCRA petition was timely. Id. at 167-68. As in Merritt, the superior court has ruled that Kubis' PCRA petition was untimely and that he could not successfully invoke the statutory exceptions. Thus, bound by the state court's findings, I conclude that petitioner's PCRA petition was untimely, and therefore Kubis did not "properly file" a PCRA petition. Consequently, the tolling provision of the AEDPA for a properly filed state habeas petition does not assist the petitioner. Kubis waited from July 23, 1997, the date of final judgment, until March 10, 2003 to file his federal habeas petition. Therefore, he is time barred Page 16 from petitioning this court for habeas relief because he waited longer than a year to file his petition.

  Petitioner also argues that his judgment of sentence did not become final until April 1, 1998, when the Supreme Court of Pennsylvania denied his nunc pro tune allocator petition. After the petitioner submitted a nunc pro tunc petition in December 1997, requesting reconsideration of the superior court's denial of his request for reargument nunc pro tunc, the supreme court denied his petition without explanation on April 1, 1998. Petitioner incorrectly concludes that this is the date of his final judgment. In Pennsylvania, a judgment becomes final for purposes of filing a PCRA petition at the conclusion of direct review or at the expiration of time for seeking the review. Whitney v. Horn, 280 F.3d 240, 251 (3d Cir. 2002); Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. Super. 2001). Kubis' time for seeking review expired on July 23, 1997, when petitioner failed to timely file an appeal. See Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000); Commonwealth v. Hernandez, 755 A.2d 1, 29 (Pa. Super 2000); Commonwealth v. McMaster, 730 A.2d 524, 527 (Pa. Super. 1999). It makes little jurisprudential sense that a petitioner can prolong final judgment by filing a nunc pro tunc petition after the thirty days have expired, only to have it denied as untimely, in order to extend the deadline for filing a PCRA petition. As Magistrate Judge Welsh has pointed out, this conclusion is consistent with Pennsylvania case law and the plain reading of the statute. Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000). The Supreme Court of Pennsylvania has not yet addressed whether a conviction becomes final upon the denial of a nunc pro tunc allocatur petition rather than upon the expiration of the time to seek allocatur. However, the Superior Court of Pennsylvania did address this question, most recently in Hutchins, and until this case is overruled or reversed, I will Page 17 consider it as persuasive authority for the law of Pennsylvania. See Everett v. Beard, 290 F.3d 500, 511 (3d. Cir. 2002). Thus, petitioner does not get the benefit of the tolling of the AEDPA's limitation period on this basis either.

  However there is an even stronger reason that I must dismiss the petition for a violation of the AEDPA's statute of limitations. Even if I give the petitioner the benefit of every doubt on the timeliness issues, and accept his assertions as true that his judgment did not become final until April 1, 1998 and that his state PCRA petition was properly filed on March 31, 1999, Kubis' federal habeas petition still came too late. Kubis did not file his PCRA petition until the March 31, 1999. Having waited a year short of a day to file his PCRA petition (from April 1, 1998, to March 31, 1999), petitioner accrued that time such that it counted toward the one-year AEDPA period of limitation. Even if the clock did not start ticking again until December 19, 2002, when the state supreme court denied Kubis' allocatur petition to review the superior court's denial of his PCRA petition, Kubis waited another 81 days to file his habeas petition with this court (from December 19, 2002 to March 10, 2003). A year short of a day in addition to nearly three months obviously exceeds the one-year statute of limitations period under the AEDPA. Thus, even accepting every argument that petitioner has made, I find that the Commonwealth's statute of limitations defense bars the petitioner from bringing his federal habeas claims before this court.

  As outlined in the fact section of this opinion, Kubis raises a number of other objections to the magistrate judge's opinion;*fn20 however, I find none of these arguments availing because I have Page 18 already found that the Commonwealth raised the statute of limitations defense under 28 U.S.C. § 2244(d)(1) and that Kubis failed to file his federal habeas petition before the AEDPA's one-year filing deadline.

 C. Equitable Tolling

  Although petitioner has not raised the issue, there is one further possibility to consider. The Third Circuit has found that the AEDPA's one-year filing deadline under 28 U.S.C. § 2244(d)(1) is subject to the doctrine of equitable tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). Equitable tolling is available "only when the principle of equity would make the rigid application of a limitation period unfair." Miller v. New Jersey Dept. of Corr., 145 F.3d 616, 618 (3d. Cir. 1998). In order for this doctrine to take effect, the petitioner must in some way have been prevented from asserting his or her rights, and the petitioner must show that he or she exercised reasonable diligence in investigating and bringing claims. Id. The Third Circuit has explained that 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) (citing United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). "The law is clear that courts must be sparing in their use of equitable tolling." Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). Page 19

  Kubis has offered explanations for why he filed a PCRA petition after the July 23, 1997 deadline,*fn21 but these arguments have no bearing on the applicability of the equitable tolling doctrine. Having already given Kubis the benefit of every doubt by accepting arguendo petitioner's assertion that final judgment was on April 1, 1998, and that his PCRA petition was timely filed, I still reached the conclusion that Kubis missed the deadline for filing his habeas petition. I have already found that Kubis failed to file his habeas petition within one year from April 1, 1998, excluding the time during which his PCRA petition was pending (from March 19, 1999 to March 10, 2003). Petitioner has suggested no reason for the exclusion of additional time. Therefore, I find that any explanation Kubis has offered to excuse the untimely filing of his PCRA petition is moot and inapplicable here.

  Petitioner has raised no reasons for why his habeas petition was untimely. Therefore, I conclude that the Commonwealth's properly raised statute of limitation defense bars petitioner from bringing his federal habeas claims before this court and the petition will be dismissed. Page 20

  Order

  And now on this ___ day of February 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. #1), and after review of the Report and Recommendation (Doc. #11) and Supplemental Report and Recommendation (Doc. #14) of the United States Magistrate Judge Diane M. Welsh, and consideration of petitioner's reply (Doc. #12), petitioner's motion for reconsideration of the magistrate judge's Report and Recommendation (Doc. #13), petitioner's objections to the Report and Recommendation (Doc. #15), and petitioner's memorandum of law in support of his objections (Doc. #16), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. Petitioner's objections are OVERRULED;
  2. The Report and Recommendation and the Supplemental Report and Recommendation of Magistrate Judge Diane M. Welsh are APPROVED and ADOPTED as supplemented herein. Page 21


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