United States District Court, E.D. Pennsylvania
February 5, 2004.
George V. Kubis, Petitioner,
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.
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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).
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.
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.