United States District Court, E.D. Pennsylvania
February 26, 2004.
LUCIUS SHAIRD, Petitioner,
WILLIAM J. WOLF, Respondent
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court are the Report and Recommendation of
United States Magistrate Judge Arnold C. Rapoport and objections thereto
filed by pro se, Petitioner Lucius Shaird ("Petitioner"), who
is currently incarcerated at the State Correctional Institute at Albion,
Pennsylvania. Petitioner was convicted of murder in the first degree,
possession of an instrument of crime ("PIC"), aggravated assault, and
simple assault and recklessly endangering another person. Petitioner was
then sentenced to an aggregate term of life imprisonment for these
On December 20, 2002, Petitioner filed a Petition for a Writ of Habeas
Corpus with this Court, pursuant to 28 U.S.C. § 2254.*fn1 In
accordance with 28 U.S.C. § 636 and Local Rule of Civil
Procedure 72.1, the Court referred Petitioner's habeas corpus
petition for a Report and Recommendation to Magistrate Judge Rapoport,
who, on July 23, 2003, recommended that this Court dismiss Petitioner's
petition as untimely. On August 1, 2003, Petitioner filed his objections
to the Report and Recommendation.
For the following reasons, Petitioner's objections are
OVERRULED, Magistrate Judge Rapoport's Report and
Recommendation is APPROVED and ADOPTED, and
Petitioner's habeas corpus petition is DISMISSED as untimely.
I. PROCEDURAL HISTORY
A. State Court Proceedings
On January 14, 1997, Petitioner was convicted of the aforementioned
offenses after waiving his right to a jury trial, and being tried before
the Honorable C. Darnell Jones, II, in the Court of Common Pleas of
Philadelphia. On April 4, 1997, after denying post-verdict motions,
Judge Jones sentenced Petitioner to life imprisonment for first degree
murder with concurrent five to ten year terms of imprisonment for his
aggravated assault and PIC convictions.*fn2
Petitioner promptly filed a direct appeal on April 8, 1997 with the
Pennsylvania Superior Court (the "Superior Court"). On
February 10, 1999, the Superior Court affirmed Petitioner's conviction
in Commonwealth v. Shaird, 737 A.2d 812 (Pa. Super. 1999).
On August 17, 1999, the Supreme Court of Pennsylvania denied allocatur in
Commonwealth v. Shaird, 742 A.2d 674 (Pa. 1999).
Pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"),
42 Pa. Cons. Stat. §§ 9541-9551, Petitioner mailed his first pro
se, petition for post-conviction relief on January, 24, 2000 ("PCRA
I").*fn3 Petitioner was then assigned legal counsel, who subsequently
filed a no-merit letter in accordance with Commonwealth v.
Finley, 550 A.2d 213, 215 (Pa. Super. 1988).*fn4 On September
20, 2000, after an independent review of the merits, the PCRA court
agreed with counsel's Finley, letter that the
petition was meritless and dismissed Petitioner's first petition.
Petitioner, with new counsel, appealed this dismissal to the Superior
On March 6, 2001, while PCRA I was under review in the Superior Court,
Petitioner filed a second pro se, PCRA petition ("PCRA II").
On March 27, 2001, Judge Jones, acting as the PCRA court, dismissed PCRA
II for lack of jurisdiction because the appeal of PCRA I was still
pending in the Superior Court. Petitioner did not appeal Judge Jones'
disposition of PCRA II.
On July 30, 2001, the Superior Court affirmed the dismissal of PCRA I
in Commonwealth v. Shaird, 785 A.2d 1034
(Pa. Super. 2001). On February 6, 2002, the Supreme Court of Pennsylvania
denied allocatur for PCRA I.
Petitioner filed his final pro se, PCRA petition ("PCRA III")
with the PCRA court on March 16, 2002,*fn5 which was dismissed on May
30, 2002, as untimely filed. On June 25, 2002, Petitioner appealed PCRA
III to the Superior Court. On April 3, 2003, the Superior Court affirmed
the dismissal of PCRA III as untimely in Commonwealth v.
Shaird, 828 A.2d 403 (Pa. Super. 2003).
B. Proceedings in This Court
On December 20, 2002, Petitioner filed the instant Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts two
instances where he was denied due process under the Fourteenth Amendment
in his criminal case: (I) by his conviction of first degree murder in the
absence of evidence proving specific intent and (2) when the trial court,
during a bench trial presided over by Judge Jones, took additional
testimony after Judge Jones initiated deliberations. (Pet. at 9-10.),
The District Attorney of Philadelphia ("Respondent") responded that
Petitioner's claims are time-barred by the one-year statute of
limitations set forth in the Anti-Terrorism and Effective Death Penalty
Act ("AEDPA"), 28 U.S.C. § 2244(d)(1).
Magistrate Judge Rapoport, on July 22, 2003, agreed with Respondent and
issued a Report and Recommendation that recommended the petition be
dismissed as time-barred. On August 1, 2003, Petitioner filed objections
to Magistrate Judge Rapoport's Report and Recommendation claiming that
the report failed to address the PCRA court's dismissal of PCRA II.
Petitioner made two objections contending that: (1) PCRA III was untimely
filed because of the PCRA court's erroneous dismissal of PCRA II, and (2)
his subsequent filing of PCRA III was an attempt at reasonable diligence
by exhausting his ineffective assistance of counsel claims. Petitioner
claims that these objections
warrant an equitable tolling of the precisely twenty-one days he is
beyond AEDPA's one-year statute of limitations.
A pivotal issue is whether Petitioner, after being sentenced, properly
and timely exhausted his state and federal appeals for post-conviction
relief. See, 28 U.S.C. § 2254 (b). First, this Court will
address PCRA Ill's dismissal for untimeliness at the state court level to
show that the state court's dismissal was proper, and, that, since PCRA
III was filed untimely at the state level, there is no justifiable reason
for this Court to toll the AEDPA's statute of limitations requiring
habeas corpus petitions be filed in a federal district court within one
year of final judgement. See, 28 U.S.C. § 2244(d). Second,
we will discuss how the state court's proper dismissal of PCRA II
forecloses Petitioner's argument for equitable tolling of AEDPA.
A. AEDPA Statute of Limitations
The statute of limitations under AEDPA provides, in pertinent part,
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
(A) 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).
The Pennsylvania Supreme Court denied allocatur for Petitioner's
criminal case on August 17, 1999, which is considered the date that
Petitioner's judgment became final, and the date from which Petitioner
had ninety days to file for certiorari in the United States Supreme
Court. That ninety-day period, expired on November 15, 1999, and,
therefore, November 15, 1999 is the date from which Petitioner had one
year under the AEDPA statute of limitations to apply to a federal
district court for a writ of habeas corpus. Sup.Ct. R. 13(1);
Morris v. Horn, 187 F.3d 333, 337 & n.1 (3d Cir.
1999)(noting that finality of direct review occurs after ninety-day
period allowed for seeking certiorari expires). Thus, for purposes of
our review, Petitioner's state court judgment became final on November
15, 1999, when his time for seeking direct review in all courts expired.
Barring any exceptions, Petitioner had one year, or until November 15,
2000, to file a timely petition for writ of habeas corpus in this Court.
B. Statutory Tolling of AEDPA
AEDPA allows its one-year statute of limitations for federal
post-conviction relief to be tolled during the pendency of a "properly
filed" petition for state post-conviction relief.
28 U.S.C. § 2244(d)(2).
It follows that if the filing of the post-conviction petition in state
court is untimely, then that petition does not qualify as "properly
filed" under the AEDPA and, therefore, will not toll the habeas
statutory time limit in federal court. Fahy v. Horn,
240 F.3d 239, 243 (3d Cir. 2001).
When determining whether or not a state PCRA petition is timely filed,
"`we must look to state law governing when a petition for collateral
relief is properly filed' and `defer to a state's highest court when it
rules on an issue.'", Merritt v. Blaine, 326 F.3d 157, 165 (3d
Cir. 2003) (quoting Fahy, 240 F.3d at 243-4).
On January 24, 2000, Petitioner timely filed PCRA I with the PCRA
court, thereby tolling the AEDPA statutory time period from the date of
PCRA I's filing until its final disposition in the Pennsylvania Supreme
Court on February 6, 2002. Despite the tolling of this period, however,
time lapsed between final judgment of Petitioner's criminal case and
Petitioner's filing of PCRA I, and that time counts toward Petitioner's
one-year time limit. Specifically, 70 days expired between November 15,
1999, the date of final judgment, and January 24, 2000, the date PCRA I
was filed. Therefore, Petitioner had 295 days remaining from February 6,
2002, the date the Pennsylvania Supreme Court denied allocatur for PCRA
I, or until November 29, 2002, to file a timely habeas petition in this
Court. Petitioner, however, did not file his habeas petition until
December 20, 2002 twenty
one days beyond AEDPA's statute of limitations.
1. PCRA's Statute of Limitations
The PCRA is Pennsylvania's statute providing for collateral attack of
state criminal convictions, and sets forth its own statute of limitations
for petitions filed thereunder. The PCRA provides that "[a]ny
petition,. . . including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final.", 42 Pa. Cons.
Stat. § 9545(b)(1). According to 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.", § 9545(b)(3).
Petitioner's final judgment date under the PCRA is November 15, 1999,
when his time for seeking direct review in all courts expired.
Petitioner had one year from that date, or until November 15, 2000, to
file any and all PCRA petitions.
The Superior Court determined that PCRA III, filed in the PCRA court on
March 16, 2002, was untimely filed.*fn6 Commonwealth v.
Shaird, 828 A.2d 403 (Pa. Super. 2003). We agree that PCRA III
was untimely filed because it was filed one year and four months after
the PCRA one-year statute of limitations
expired on November 15, 2000. Thus, this Court cannot deem the
AEDPA time limit as statutorily tolled for the period that PCRA III was
pending because PCRA III was never "properly filed" in state court.
Petitioner timely filed PCRA I on January 24, 2000. However, both PCRA
II and PCRA III were untimely as they were filed after the PCRA's
one-year statute of limitations that expired on November 15, 2000. PCRA
II was filed on March 6, 2001 and PCRA III was filed on March 16, 2002.
2. Exceptions to PCRA's Statute of Limitations
PCRA's statutory time limit has certain exceptions for late filing.
42 Pa. Cons. Stat. § 9545(b)(1);*fn7 Commonwealth v.
Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Petitioner
asserts two reasons why PCRA III should have been considered timely
(1) PCRA II claimed ineffective assistance of PCRA I counsel, and
(2) the PCRA court's dismissal of PCRA II amounted to a governmental
interference under § 9545(b)(1)(i) that caused him to file PCRA III
in an untimely fashion. These claims are without merit.
First, under Pennsylvania law, an ineffective assistance of counsel
claim will not excuse an untimely PCRA petition. Commonwealth v.
Pursell, 749 A.2d 911, 916 (Pa. 2000)(stating a claim of ineffective
assistance of counsel in a capital case does not trigger an exception to
the one-year time limitation). "[T]he timeliness requirements of
42 Pa. Cons. Stat. § 9545(b) [are] jurisdictional in nature.",
Id., at 913. Pennsylvania courts are without jurisdiction to
grant relief on an untimely PCRA petition unless it meets one of the
enumerated exceptions in § 9545(b)(1)(i)-(iii). Id. at
914. As a claim for ineffective assistance of counsel is not one of the
enumerated exceptions, Petitioner's attempt to couch an ineffective
assistance of counsel claim in the language of the exceptions does not
save his PCRA petitions from being found untimely. See Id., at
Furthermore, Petitioner's claims of ineffective assistance of PCRA
I counsel were specifically addressed and dismissed on the merits in
Shaird, 785 A.2d 1034, where the Superior Court determined that
PCRA I counsel was not ineffective for filing a Finley, letter.
Second, Petitioner contends that PCRA III should have been found timely
because the PCRA court's dismissal of PCRA II caused him to file his
untimely PCRA III, a contention that bears resemblance to the
governmental interference exception under § 9545(b)(1)(i). Yet, as
discussed above, the PCRA court did not interfere with Petitioner having
his ineffective assistance of counsel claim heard, nor did the PCRA court
require or cause Petitioner to file PCRA III. If Petitioner believed the
dismissal of PCRA II was erroneous, then he could have appealed the PCRA
court's decision to the Superior Court, as he has done with his other
adverse decisions. Further, the exception for governmental interference
under § 9545(b)(1)(i) does not apply to this case as Petitioner has
offered no evidence that the government prevented him from asserting any
of his rights. We agree with the Superior Court's dismissal of PCRA III
because it was untimely and Petitioner did not present a valid exception
to the PCRA's jurisdictional time bar.
Petitioner does not assert a basis by which AEDPA's statute of
limitations may be statutorily tolled.
C. Equitable Tolling of the AEDPA
As discussed above, Petitioner had until November 29, 2002 to timely
file his petition for writ of habeas corpus in this Court. This deadline
was 295 days from February 6, 2002, when PCRA I, a properly filed
petition in state court, was fully adjudicated. Petitioner did not file
in this Court until December 20, 2002, twenty-one days past the statutory
deadline. Petitioner seeks equitable tolling of the statue of limitations
for the twenty-one days he is beyond the time limit.
Equitable tolling of AEDPA's statute of limitation should be sparingly
applied, "only when the principles of equity would make [the] rigid
application [of a limitation period] unfair." Brown v. Shannon,
322 F.3d 768, 773 (3d Cir. 2003)(Citation omitted). "Generally, this will
occur when the petitioner has in some extraordinary way,. . . been
prevented from asserting his or her rights.", Id., (Citation
omitted). "Moreover,. . .[t]he petitioner must show that he or
she exercised reasonable diligence in investigating and bringing the
claims. Mere excusable neglect is not sufficient.", Id.,
(Citation omitted). "Mere mistake or negligence on the part of an
attorney generally does not `rise to the extraordinary circumstances
required for equitable tolling.'", Fahy 240 F.3d at 244.
The United States Court of Appeals for the Third Circuit has recognized
that equitable tolling may be appropriate under three
circumstances: "(1) the defendant has actively mislead 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) (citation omitted). "In
the final analysis, however, `a statute of limitations should be tolled
only in the rare situation where equitable tolling is demanded by sound
legal principles as well as the interests of justice.'", Id.,
Moreover, "[i]n non-capital cases, attorney error, miscalculation,
inadequate research, or other mistakes have not been found to rise to the
`extraordinary' circumstances required for equitable tolling.",
Fahy, 240 F.3d at 244.
1. PCRA Court's Dismissal of PCRA II
Petitioner claims that the PCRA court's allegedly erroneous dismissal
of PCRA II caused him to file PCRA III in an untimely manner. The PCRA
court's actions, according to Petitioner, "actively misled" and caused
him to file his untimely PCRA III. (Obj. at 2.), This Court does not
agree with Petitioner and finds the PCRA court's dismissal of PCRA II
Petitioner filed PCRA II on March 6, 2001, after the PCRA's one-year
statute of limitations expired, and it was dismissed by the PCRA court on
March 27, 2001, for lack of jurisdiction. The
PCRA court does not have jurisdiction to review a second petition
when a first petition is currently being reviewed in a higher court.
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). According
to the Pennsylvania Supreme Court in Lark, "when an appellant's PCRA
appeal is pending before a court, a subsequent PCRA petition cannot be
filed until the resolution of review of the pending PCRA petition by the
highest state court in which review is sought, or upon the expiration of
the time for seeking such review.", Id., Because Petitioner's
PCRA I appeal was pending in the Pennsylvania Superior Court at the time
he filed PCRA II, the PCRA court, according to Lark, did not have
jurisdiction to review it. Accordingly, we must conclude that the PCRA
court's dismissal of PCRA II was not erroneous, but rather demanded under
2. Reasonable Diligence in Exhausting Ineffective Assistance
Petitioner also claims that in filing PCRA II and PCRA III, he was
merely "attempting to exercise `reasonable diligence' [by] exhausting his
ineffective assistance of counsel claims." (Obj. at 3.), However, as
previously discussed, his claim for ineffective assistance was reviewed
on the merits in his PCRA I appeal in Commonwealth v. Shaird,
785 A.2d 1034 (Pa. Super. 2001). Whatever diligence Petitioner was
trying to exercise by
filing PCRA II before the Superior Court ruled on PCRA I appears to
be a redundancy of PCRA I at best. Moreover, ineffective assistance of
counsel claims are not considered "extraordinary" enough to equitably
toll the habeas limitations. Fahy, 240 F.3d at 244.
Petitioner had 295 days from the final decision of PCRA I to file a
petition for writ of habeas corpus in this Court, but instead chose to
file another PCRA petition. Even after PCRA III was dismissed as
untimely on May 30, 2002 by the PCRA court, Petitioner had 182 days left
to file a timely habeas petition in this Court by November 29, 2002, but
again chose to pursue PCRA relief in state court. Petitioner's claim
that he was unaware that the AEDPA statute of limitations did not toll
during this time is disingenuous, as he filed a habeas petition in this
Court before the Pennsylvania Superior Court ruled on his appeal in PCRA
III on April 3, 2003.
This Court is not persuaded by Petitioner's objections to Magistrate
Judge Rapoport's Report and Recommendation, and does not accept
Petitioner's argument that he was attempting to exercise reasonable
diligence in pursuing post-conviction relief. Accordingly, AEDPA's
statute of limitations will not be equitably tolled in this matter.
As equitable and statutory tolling of AEDPA's statute of limitations is
not warranted by the facts of this non-capital case, this Court need not
reach the merits of Petitioner's claims for collateral relief.
Accordingly, Petitioner's Petition for Writ of Habeas Corpus is hereby
DENIED as untimely filed.