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LEWIS v. VAUGHN

United States District Court, E.D. Pennsylvania


March 15, 2004.

ANTHONY EEWIS [AY-5718]
v.
DONALD T. VAUGHN, et al

The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge

REPORT AND RECOMMENDATION

Presently before this Court is a pro se petition for writ of habeas corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ["SCI"] Pittsburgh, Pennsylvania, where he is serving a life sentence for murder. For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed as untimely under 28 U.S.C. § 2244(d)(1).

BACKGROUND*fn1

  On July 2, 1984, following a jury trial before the Honorable Edwin S. Maimed of the Philadelphia County Court of Common Pleas, Petitioner was convicted of first degree murder, simple and aggravated assault, and possession of an instrument of crime for the shooting death of James Brown and the wounding of James Patterson. The jury found both aggravating and mitigating circumstances and fixed the penalty for the murder charge as life imprisonment. See "Response To Petition For Writ of Habeas Corpus" [Docket Entry No. 8]:*fn2 Exhibit "A" (December 5, 1986 Superior Court Opinion) at p. 1.

  The facts underlying Petitioner's convictions were described by the Superior Court as follows:

"On December 19, 1982, the Appellant [Petitioner] became involved in an argument with James Patterson, while a patron at the Quaker City Golf Club. Patterson and the Appellant were evicted from the club. The Appellant was escorted from the premises first. The Appellant immediately obtained a handgun and fired at Patterson as he was guided from the club. The shot wounded Patterson in the leg, accidentally killing an innocent bystander, James Brown.
In a preliminary hearing, the District Attorney's Office elicited testimony from Patterson about the altercation. At the time, opposing counsel was given a fair and complete opportunity to examine the witness.
At trial three disinterested witnesses testified, identifying the Appellant as the shooter. Appellant's father testified that neither his son nor any of the family carried guns. Thereafter, the prosecutor introduced evidence of a prior conviction showing that Appellant had a gun. The evidence was admitted, allegedly, for the purpose of impeaching the father as a witness. However, the evidence was also used to discredit the character of the Appellant. The prosecution was also granted permission to read the notes from the preliminary hearing because Patterson was unavailable for trial. The prosecution established, to the satisfaction of the court, that they made a good faith effort to produce Patterson for trial, but failed. The preliminary hearing District Attorney testified explaining the circumstances behind the necessity for admission of Patterson's testimony."
See Commonwealth's Response: Exhibit "B" (August 24, 1990 Superior Court Opinion) at pp. 1-2.

  On September 23, 1985, after an evidentiary hearing, Judge Maimed denied post-verdict motions, and imposed the mandatory life sentence, plus a consecutive term of two and one-half to five years for assault and a concurrent term of two and one half to five years for the weapons offense. See Commonwealth's Response: Exhibit "A" (December 5, 1986 Superior Court Opinion) at p. 1. Petitioner filed a direct appeal to the Pennsylvania Superior Court, asserting the following claims:

1. "Did trial counsel render the Appellant ineffective assistance of counsel when he failed to impeach Commonwealth witness, James Patterson, with his prior conviction for robbery?"
2. "Did the trial court err when it permitted the prosecution to introduce evidence of the Appellant's prior conviction for violations of the Uniform Firearms Act, 18 Pa. C.S.A. § 6100 et seq?"
3. "Did trial counsel render the Appellant ineffective assistance of counsel when he failed to request a cautionary instruction regarding Appellant's prior conviction and whether post-trial counsel was ineffective in failing to preserve the issue for appeal?"
4. "Did the trial court err when it failed to conduct a voir dire of jurors who might have seen the Appellant while he was in handcuffs?"
Id. at p. 2.
  The Superior Court, adopting the trial court's analysis on the first two issues, rejected the first three issues on the merits. It determined that the four issue had not been properly preserved and declined review. See Commonwealth's Response: Exhibit "A" (December 5, 1986 Superior Court Opinion) at pp. 2-3.

  Petitioner sought discretionary review in the Supreme Court of Pennsylvania. Allocatur was denied on August 4, 1987. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 2.

  On August 31, 1987, Petitioner submitted his first pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 Pa.C.S.A. § 9541 et seq. Counsel was appointed; he filed an amended PCRA petition on May 31, 1988. See State Court Record at "D-16" and "D-17."

  In an Opinion and Order dated October 30, 1989, the Court denied PCRA relief. See State Court Record at "D-22." Petitioner filed an appeal from the denial of PCRA relief to the Pennsylvania Superior Court. On appeal, he raised the following issues:

1. Trial counsel was ineffective for failing to move for a limiting instruction on Appellant's prior conviction for carrying a gun without a license.
2. Trial counsel was ineffective for failing to object to certain allegedly prejudicial remarks made by the prosecutor in closing argument.
3. Trial counsel was ineffective for failing to interview and call the Appellant's mother at trial as an alibi witness.
4. Trial counsel was ineffective for failing to object to the admission of testimony by the district attorney present at the preliminary hearing.
See Commonwealth's Response: Exhibit "B" (August 24, 1990 Superior Court Opinion) at pp. 3-7.

  In an August 24, 1990 Opinion, the Superior Court rejected all claims, concluding that they were waived, previously litigated and/or meritless. Id.

  Petitioner sought discretionary review in the Pennsylvania Supreme Court. On March 12, 1991, the Supreme Court denied allocatur. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 2.

  On July 25, 1994, Petitioner filed a second PCRA petition. It was denied, without appointment of counsel and without a hearing, on October 21, 1994. Id.

  On March 31, 1998, Petitioner filed his third PCRA petition. It was denied by Order dated May 28, 1998. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 2. Petitioner appealed the dismissal of his third PCRA petition to the Superior Court. On appeal, he raised the following issues:

1. "Whether the second or subsequent Post Conviction Hearing Act Petition should be dismissed by the Court without a hearing to determine if the petitioner (sic) issues raises (sic) a strong prima facie showing that a miscarriage of justice may have occurred."
2. "Whether the Court erred when it dismissed Petitioner (sic) pro se Post Conviction Hearing Act petition due to delay in filing and without a hearing on a Commonwealth motion to dismiss."
3. "Whether `After-discovered evidence' evidence (sic) which subsequently became available (via Philadelphia District Attorneys Office) after the trial and could not have been obtained by any of the attorneys who formerly represented Petitioner through the exercise of reasonable diligence; is not merely corroborative or cumulative and/or used for impeachment of any witness; and is of such a nature and character that a different verdict in the case would likely result if a new trial is granted."
4. "Whether `After-discovered evidence' evidence of prosecutorial misconduct relating to systematic race-based exclusions of African Americans and women from the jury selection process violates black criminal defendants (sic) rights to be tried by a fair and impartial jury."
Id. at pp. 2-3.
  By Memorandum and Order dated July 9, 1999, the Superior Court affirmed the PCRA Court, determining that Petitioner was not entitled to PCRA relief because his third habeas petition was untimely under 42 Pa.C.S. § 9545. See Commonwealth's Response: Exhibit "C" (July 9, 1999 Superior Court Opinion) at p. 7.

  It is undisputed that Petitioner did not seek allowance of appeal in the Pennsylvania Supreme Court. See Petitioner's Reply to the Commonwealth's Response [Docket Entry No. 12] at p. 3 ¶ 8 On July 13, 2003, Petitioner signed and dated the instant habeas petition. It was filed in this Court on July 21, 2003. See Habeas Petition [Docket Entry No. 1].*fn3

  As grounds for habeas relief, Petitioner presents the following issues:

1. "Former assistant district attorney Jack McMahon intentionally excluded venirepersons on the basis of race in this case. Petitioner has evidence of purposeful discrimination on the part of Mr. McMahon who prosecuted this case. The Petitioner has recently became [sic] in possession of the venires of his case and other cases which were prosecuted by McMahon. The venires amount to a pattern of purposeful discrimination on the part of former Assistant District Attorney Jack McMahon."
2. "Former assistant district attorney Jack McMahon has denied this Petitioner the right to a fair and impartial jury trial. Petitioner has evidence that McMahon's pattern and practice of discrimination during the jury selection process was race based and gender biased in his case and other cases prosecuted by McMahon. A legal and empirical study supports the use of peremptory challenges in this case and other case, prosecuted by McMahon in a discriminatory fashion."
3. "Former assistant district attorney Jack McMahon made a videotape advocating striking African Americans and women from [sic] On a video tape released by the Philadelphia District Attorney's office under DATV Productions, titled `Jury Selection with Jack McMahon.' McMahon' remarks make clear that race is prominent in his decisions as to whom to permit on the jury. The videotape is evidence of the techniques practiced by McMahon on cases he prosecuted."
4. "Petitioner can show and prove a prima facie case of purposeful discrimination on the part of prosecutor McMahon. McMahon made a reference on the videotape about lying to judges to get rid of afternoon panels. McMahon lied to the judge (Maimed) in this case because he did not like the racial make-up of the afternoon panel. McMahon admits this fact during the taped seminar."
Id. at pp. 9-10. On September 26, 2003, the Respondents answered the habeas petition, arguing that it is time-barred under 28 U.S.C. § 2244(1)(A). In the alternative, the Respondents argue that, assuming arguendo that Mr. Lewis' habeas petition is timely, his claims are procedurally defaulted See Commonwealth's Response at p. 4.

  Both parties have filed additional pleading addressing the timeliness issue. See Petitioner's Reply to the Commonwealth's Answer [Docket Entry No. 12], the Commonwealth's Sur-Reply [Docket Entry No. 13], and the Petitioner's Reply to the Sur-Reply [Docket Entry No. 14].

  DISCUSSION

  The Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA" or the "Act"], signed into law on April 24, 1996, significantly amended the laws governing habeas corpus petitions.

  One of the amended provisions, 28 U.S.C. § 2244(d), imposes a one-year statute of limitations on state prisoners who seek federal habeas relief. A habeas petition must be filed within one year from the date on which the petitioner's judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1).

  In applying the habeas statute of limitations to convictions which became final before AEDPA was signed into law, the Third Circuit has held that habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 2244(d)(1)'s time limit. See Burns v. Morton, 134 F.3d at 111 (3d Cir. 1998). In the instant case, Mr. Lewis' state conviction became final on November 4, 1987, when the time for seeking certiorari review in the United States Supreme Court (90 days) expired. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999)("Therefore, a state court criminal judgment is `final' (for purposes of collateral attack) at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires."). Because Petitioner's conviction became final before the effective date of AEDPA, he would not have been barred by the statute of limitations from filing a habeas petition on or before April 23, 1997. See Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999)(AEDPA's one year statute of limitations begins to run on April 24, 1996 (the date of AEDPA's enactment) for a petitioner whose conviction became final before that date).

 A. The Habeas Statute of Limitations Start Date.

  The date on which the petitioner's conviction becomes final is typically the start date for the limitations period, however, the statute permits the limitation period to run from four different points in time, depending on which occurs latest. In addition to the date on which the petitioner's conviction becomes final, the start date can also run from:

(1) "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action"; (2) "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review"; or (3) "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
See 28 U.S.C. § 2244(d)(1). Mr. Lewis argues that the start date for his statute of limitations period should run from April 14, 2003, the date on which he knew "all the facts upon which [his] claims is [sic] predicated." According to Petitioner, he could not, through the exercise of due diligence, have known these facts earlier. See Memorandum of Law in Support of Habeas Petition [Docket Entry No. 6] at pp. 6-7.*fn4

  Petitioner acknowledges that he became aware of statistical evidence to support his Batson claims, and the alleged videotape made by the prosecuting attorney, while filing an appeal from the dismissal of his third PCRA petition. However, he argues that the Baldus studies, which form part of the foundation for his habeas claims, were not made available to him until April 14, 2003. See Reply to Commonwealth's Response [Docket Entry No. 12] at pp. 17-18.

  In a supplemental PCRA brief submitted to the Superior Court by Mr. Lewis on December 26, 1998, Petitioner cited to the McMahon videotape and "jury strike rates in sixteen of Prosecutor McMahon's trials" in support of his Batson claims. See Commonwealth's Response: Exhibit "E" ("Supplemental To The Appellant's Brief To Further Support The Appellant's Contention Regarding The Peremptory Challenge Argument Of Appellant") at pp. 1-4. It is clear that the factual basis of Mr. Lewis' Batson claims were known to him by December 26, 1998, at the latest. Assuming arguendo that § 2244(d)(1)(D) applies in this case, Petitioner's habeas statute of limitations period began to run on December 26, 1998, and, absent statutory tolling, expired on December 26, 1999. The instant habeas petition was not filed until over three and one half years beyond the expiration of Petitioner's statute of limitations.

 B. Statutory Tolling.

  The AEDPA amendments include a tolling provision for "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." See 28 U.S.C. § 2244(d)(2).

  Assuming arguendo that Petitioner's habeas statute of limitations began on December 28, 1998, the fact that Petitioner's third PCRA petition was pending through July 9, 1999, does not toll the statutory period. Mr. Lewis' third PCRA petition was untimely and not "properly filed" for the purposes of triggering the habeas tolling provision. See Carey v. Saffold, 122 S.Ct. 2134, 2139 (2002)(an untimely application for collateral review is not "properly filed,"and does not statutorily toll the habeas limitations period.) See also Phillips v. Vaughn, No. 02-2109, 2003 WL 202472 at *2 (3d Cir. January 29, 2003) ("Carey made quite clear that to be deemed `properly filed,' an application for collateral review in state court must satisfy the state's timeliness requirements."), cert. denied, 123 S.Ct. 1761 (2003).

 C. Equitable Tolling.

  § 2244's one-year statute of limitations is subject to equitable tolling. However,

"[E]quitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.' Generally, this will occur when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights.' Moreover, to be entitled to equitable tolling, `[t]he petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims.' Mere excusable neglect is not sufficient." Brown v. Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir. March 17, 2003)(citations omitted).
  Equitable tolling may be appropriate where: "(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).

  Petitioner has mentioned the "actual innocence" and "miscarriage of justice" exceptions, without further detail. See Reply to Commonwealth's Response [Docket Entry No. 12] at pp. 13-14. These references do not meet Petitioner's burden of proof, nor does the record before me support a finding that the circumstances of this case present the "rare situation" which demands equitable tolling of the habeas statute. Therefore, Petitioner's untimely habeas petition is not subject to federal review. RECOMMENDATION

  For the reasons stated above, it is recommended that the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, be DENIED AND DISMISSED AS TIME-BARRED. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability.


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