United States District Court, E.D. Pennsylvania
March 15, 2004.
ANTHONY EEWIS [AY-5718]
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).
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
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"
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
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.
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
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
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
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].
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
"[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
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.