The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
Presently before the Court is the Petition for the Writ of Habeas
Corpus (Docket No. 1), filed on behalf of Mustafa Thomas ("Petitioner"),
the Report and Recommendation filed by Magistrate Judge Charles B. Smith,
and Petitioner's Objections To Magistrates Report and Recommendation. For
the reasons that follow, the Petition for Writ of Habeas Corpus will be
On December 19, 1994, Petitioner was convicted of second-degree murder.
He appealed and on December 31, 1997, the Superior Court of Pennsylvania
affirmed the conviction. Petitioner did not file a petition for allocatur
with the Pennsylvania Supreme Court. On January 30, 1998, the one-year
statute of limitations for filing a petition for writ of habeas corpus
began to run.
At some point before October 14, 1998, Petitioner prepared a pro se
petition under the Post Conviction Relief Act ("PCRA"), 42 PA. CONS.
STAT. § 9541, et. seq. On October 14, 1998, this petition
was "filed" in the state court. Petitioner was appointed counsel who then
amended PCRA petition on June 30, 1999. On October 21, 1999, the trial
court dismissed the PCRA petition without a hearing. Petitioner appealed
the trial court's decision and on September 11, 2000, the Superior Court
affirmed the denial of the PCRA petition. A petition for allocatur was
denied by the Pennsylvania Supreme Court on February 1, 2001.
Petitioner filed a pro se Petition for Writ of Habeas Corpus in this
Court on June 1, 2001. We issued a "Mason/Miller"*fn1 notice
and order, permitting Petitioner to withdraw his petition and re-file a
new, inclusive habeas petition. Petitioner withdrew his petition and on
October 1, 2001, a new Petition was filed by counsel. This Petition was
then referred to Magistrate Judge Charles B. Smith who prepared and filed
a Report and Recommendation. Judge Smith concluded that the Petition was
time-barred and did not address the merits. For reasons different than
those offered by Judge Smith we agree that the petition was time-barred.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a person convicted in state court has one-year to file a
petition for a writ of habeas corpus from, "the date on which the
judgment became final by the conclusion of direct review or the
expiration of time for seeking such review."
28 U.S.C. § 2244(d)(1)(A) (1996). The AEDPA also provides that "the time
during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this
subsection." 28 U.S.C. § 2244(d)(2).
On January 30, 1998, Petitioner's conviction became final. At that
point, the one year
limitation period began to run. Petitioner's pro se PCRA petition was
received and marked as filed in the state court on October 14, 1998. At
that point 257 of the 365 days permitted for the filing of a habeas
petition had expired. When the PCRA appeal was denied by the
Pennsylvania Supreme Court on February 1, 2001, there were only 108 days
remaining. Thus Petitioner had until May 20, 2001 to file the instant
Petitioner argues that the PCRA petition was not really filed on
October 14, 1998, when it was received by the court, but rather should be
deemed as filed when it was delivered by Petitioner to prison officials
sometime in the middle of September of 1998. (Consolidated Reply to
Respondents' Resp. ¶ 2.) If Petitioner is correct, he had until
mid-June, 2001, to file this habeas petition and it would therefore be
timely. The basis for Petitioner's argument is the pro se prisoner
mailbox rule. This common law rule, adopted by the Pennsylvania Supreme
Court in Smith v. Pa. Bd. of Prob. and Parole, 683 A.2d 278
(1996), recognizes that legal submissions filed by pro se parties are
"filed" when they are given to prison officials. The Supreme Court of the
United States has also recognized the need for such a rule. Houston
v. Lack, 487 U.S. 266, 270-71 (1988): see also Burns v.
Morton, 134 F.3d 109, 112 (3d Cir. 1998).*fn2 Judge Smith recognized
the applicability of the mailbox rule but found that it did not apply in
this case. In reaching this conclusion Judge Smith pointed to documents
that Petitioner had submitted to the
state court in which he represented that the PCRA Petition was filed on
October 14, 1998. He also pointed to the opinion of the Superior Court
in which that court indicated that the PCRA petition had been filed on
October 14, 1998. (Am. Pet. Under PCRA at 2); See also Commonwealth
v. Thomas, 766 A.2d 893 (Pa. Super. 2000) (table). Judge Smith
found that "[b]ased on these representations, the Pennsylvania state
courts made the factual determination that Petitioner filed his PCRA
petition on October 14, 1998."
Pursuant to the AEDPA, 28 U.S.C. § 2254(e)(1), federal courts
reviewing habeas petitions are to presume that state court factual
determinations are correct unless there is a clear and convincing showing
by petitioner to the contrary. After finding that the that the state
courts had made a factual determination that the PCRA petition was filed
on October 14, 1998, Judge Smith concluded that Petitioner "has not
satisfied his burden of proving by `clear and convincing evidence' that
the Pennsylvania state courts were wrong." (Report and Recommendation at
9.) Consequently, Judge Smith found that since the habeas petition was
filed after May 20, 2001, it was time-barred.
Petitioner objects to these findings. While Petitioner concedes that
§ 2254 requires federal courts reviewing state decisions to defer to
the findings of fact of the state court, Petitioner argues that "[n]o
state court was ever faced with the issue when petitioner filed his PCRA
petition, as that issue was never in play in the state courts." (Pet'r's
Objections to Magistrate's Report and Recommendation at unnumbered 2.)
Petitioner argues that since there is no state court ruling on the filing
date, this court must resolve the issue. We review those portions of the
Report and Recommendation to which objections have been made de novo.
FED. R. CIV. P. 72(b) and 28 U.S.C. § 636(b).
1. Deference to State Court Finding of Facts
We disagree with Judge Smith's application of
28 U.S.C. § 2254(e)(1). Judge Smith considered the date of the filing of the
PCRA petition to be a factual issue decided by the state court because the
Superior Court opinion dated September 11, 2000, stated that "[o]n
October 14, 1998, Appellant filed a PCRA petition and counsel was
appointed." Commonwealth v. Thomas, 766 A.2d 893
(Pa. Super. 2000) (table). As we view the matter, rather than a factual
determination, this language was simply a recitation of the procedural
background. As petitioner points out, the "actual" date of the filing of
the PCRA petition was never a disputed issue in the state courts. Under
the circumstances it seems clear that the Superior Court simply took the
procedural filing date from the lower court's docket. The Report and
Recommendation notes that Petitioner never objected to this inaccuracy.
No doubt Petitioner would have been better served if this issue had been
brought to the attention of the state ...