United States District Court, E.D. Pennsylvania
February 11, 2004.
MUSTAFA THOMAS, Petitioner
KEN KYLER, ET AL, Respondents
The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
MEMORANDUM & ORDER
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 court given the statute of
limitations under the AEDPA. See 28 U.S.C. § 2244(d)(1)(A).
However, the failure to raise the issue is understandable given the fact
that the difference in filing date had no impact whatsoever on the state
court PCRA proceedings.
We are satisfied that this is not the type of "fact finding" that the
AEDPA contemplates in mandating deference to state courts findings. The
language of § 2254(d)(2) is instructive in this regard:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim resulted in a
decision that was based on an unreasonable
determination of the facts in light of the
evidence presented in the
State court proceeding.
28 U.S.C.A. § 2254(d)(2) (emphasis added). A plain reading of
section § 2254(d)(2) reveals that it deals with claims that are
adjudicated on the merits and factual determination that are made when
evidence is presented. Certainly the standard provided in §
2254(e)(1) was intended to apply to the claims and facts contemplated in
In this case, no evidence was presented because Petitioner had no
reason to challenge the date of filing at that time. Moreover, the date
on which the PCRA petition was filed was never a claim that was
adjudicated on the merits. The issue of when Petitioner's PCRA petition
was filed is only of importance now because it is determinative of
whether Petitioner's habeas petition was filed within the statute of
limitations. Under the circumstances, we will review the record before us
to determine the implications of the prisoner mail box rule in this
2. Prisoner Mailbox Rule
The burden rests on a habeas petitioner to prove all facts warranting
relief. Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). As
mentioned above, both the federal courts and the Pennsylvania state
courts recognize the prisoner mailbox rule. See Houston, 487
U.S. at 270-71; Smith, 683 A.2d at 281. In Houston
the Court thought that it would be easy for a pro se prisoner to
establish the day on which a filing was handed over to prison officials:
The pro se prisoner does not anonymously
drop his notice of appeal in a public mailbox he
hands it over to prison authorities who have
well-developed procedures for recording the date
and time at which they receive papers for mailing
and who can readily dispute a prisoner's
assertions that he delivered the paper on a
different date. Because reference to prison mail
logs will generally be a straightforward inquiry,
making filing turn on the date the pro
se prisoner delivers the notice to prison
authorities for mailing is a bright-line rule, not
an uncertain one.
487 U.S. at 275. Some federal courts have taken this language to require
proof of the mailing of the document. See Acheampong, 2002 WL
32130108, at * 3 n.6 (denying prisoner application of prisoner mailbox
rule where prisoner failed to supply prison log, certified mail receipt,
or postmark date). Other federal courts when considering the
applicability of the mailbox rule have only required the prisoner to
submit a declaration in compliance with Fed.R.App.P. 4(c)(1).*fn3
See In re Rashid, 210 F.3d at 205. Generally, the courts in
Pennsylvania have closely adhered to the pronouncement in
Houston, The Superior Court of Pennsylvania has indicated that
"to avail himself of the prisoner mailbox rule, . . ., an
incarcerated litigant must supply sufficient proof of the date of the
mailing." Thomas v. Elash, 781 A.2d 170, 176
(Pa. Super. 2001). The Pennsylvania Supreme Court has stated that, "[p]roof
is not limited . . ., and we are inclined to accept any reasonably
verifiable evidence of the date that the prisoner deposits the appeal
with prison authorities." Jones, 700 A.2d at 426. This
evidence could consist of a receipt that the prison authorities gave the
prisoner noting the deduction from his account for mailing, evidence of
internal operating procedures regarding mail delivery, or an affidavit
of a prison official. Id.
In this case, Petitioner has submitted only his own affidavit.
(Consolidated Reply to Respondents' Resp. Ex. A.) In that affidavit,
Petitioner states that "[s]ometime in mid-September,
1998, 1 handed to state prison authorities an original and several copies
of my state court Petition under the Post-Conviction Relief Act for
mailing. . . . Several weeks later, when I received in the mail a copy of
my filed PCRA petition, I was somewhat surprised that it was time-stamped
October 14, 1998." (Thomas Aff. ¶¶ 2, 3.) Petitioner has provided no
other reasonably verifiable evidence. Under the circumstances Petitioner
has failed to provide sufficient evidence to warrant the application of
the prisoner mailbox rule in this case.
Petitioner has suggested that the timeliness needs to be resolved by
this Court "in perhaps an evidentiary hearing". While making this oblique
suggestion neither Petitioner nor his counsel have given this Court any
indication as to what evidence would be presented at such a hearing.
Obviously, the testimony of Petitioner alone would not be sufficient.
Since Petitioner has offered the mailbox rule as justification for his
position that the petition was timely filed, we assume that he knows what
proof is required in order to get the benefit of the rule. We also assume
that he knows what proof is available. Petitioner had the opportunity
both before and after the Report and Recommendation was issued to advise
the Court as to what evidence is available to establish that delivery of
the PCRA petition was made to prison officials in mid-September of 1998.
As of this date only Petitioner's affidavit has been offered. Under the
circumstances, a hearing would be an exercise in futility. We are
compelled to conclude that Petitioner has failed to justify the
application of the prisoner mailbox rule, and accordingly the Petition
for Writ of Habeas Corpus will be dismissed.
An appropriate Order follows.
AND NOW, this _____ day of February, 2004, upon consideration of
Petitioner's Petition for Writ of Habeas Corpus (Docket No. 1), the
Report and Recommendation of Magistrate Judge Charles B. Smith (Docket
No. 20), and Petitioner's objections to the Report and Recommendation, it
is ORDERED that:
1. The Petition for Writ of Habeas Corpus is
2. There is no probable cause to issue a
certificate of appealability.
IT IS SO ORDERED.