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United States District Court, E.D. Pennsylvania

February 11, 2004.

KEN KYLER, ET AL, Respondents

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 dismissed.

I. Background

  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 filed an Page 2 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 Page 3 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 Petition.

  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 Page 4 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). Page 5

 II. Discussion

  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 Page 6 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 § 2254(d)(2).

  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 matter.

 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. Page 7

 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, Page 8 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. Page 9


  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 DISMISSED; and
2. There is no probable cause to issue a certificate of appealability.

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