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GONZALES v. ROSENMEYER

United States District Court, E.D. Pennsylvania


April 5, 2004.

ELIAS GONZALES
v.
FREDRIC ROSENMEYER, et al

The opinion of the court was delivered by: JACOB HART, Magistrate Judge

REPORT AND RECOMMENDATION

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Laurel Highlands, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed as untimely.

FACTS AND PROCEDURAL HISTORY:

  On July 30, 1997, Elias Gonzales was convicted of knowing and intentional possession of a controlled substance and possession of a controlled substance with intent to deliver. Following his conviction, petitioner was placed on house arrest pending sentencing. The Honorable Robert A. Latrone sentenced petitioner to a term of five to ten years' imprisonment on October 20, 1997. A hearing to address petitioner's post-sentence motions was scheduled for February 19, 1998. Prior to the February 19 hearing, petitioner removed his electronic monitoring device and fled. On February 13, 1998, Judge Latrone denied the petitioner's post-sentence motions. Petitioner was subsequently arrested on April 29, 1998.

  On January 20, 1999, petitioner filed a petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9551. This petition was dismissed, and the dismissal was affirmed by the Pennsylvania Superior Court. Commonwealth v. Gonzales. 766 A.2d 886 (Pa. Super. 2000). Instead of filing for allocator, the petitioner filed a pro se application for habeas corpus relief with the Pennsylvania Supreme Court on March 12, 2003. That petition was denied on September 16, 2003. The petitioner filed this pro se Petition for Writ of Habeas Corpus on October 17, 2003. DISCUSSION:

The Petition for Habeas Corpus Is Time Barred
  A timely petition for writ of habeas corpus must be filed within one year from the date on which the judgment became final (excluding time spent on collateral appeal if the state post-conviction petition is properly filed or the constitutional issue was newly recognized.) 28 U.S.C. § 2244(d). On April 24, 1996, 28 U.S.C. § 2241, et. seq., was amended under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Section 2244(d), which created a strict one-year limitation on filing of new petitions, states:

 

(1) 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;
(B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action;
(C) 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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).

  Gonzales' petition is untimely. The judgement against the petitioner became final when Judge Latrone entered an order denying his post-sentence motions on February 13, 1998. Petitioner then had thirty days in which to file an appeal of this order. Pa.R.A.P. 903(a) (2004). The petitioner failed to file an appeal within the thirty day limit and the statute of limitations under 28 U.S.C. § 2241(1) began to run on March 15, 1998.

  The petitioner's PCRA petition filed on January 20, 1999, tolled the statute of limitations. Under the AEDPA, the time during which a properly filed petition for collateral relief in a state court is pending is not counted against the one year statute of limitations. 28 U.S.C. § 2244(d)(2). At the time petitioner filed his PCRA petition, 306 days of the habeas limitations period had elapsed. The petition was dismissed by the PCRA court and this decision was affirmed by the Pennsylvania Superior Court on September 11, 2000.

  Petitioner then had thirty days to appeal the Superior Court decision to the state Supreme Court. He did not file an appeal. When the petitioner's time to appeal the decision of the Superior Court expired, the statute of limitations resumed, with only fifty nine days remaining in which to file this petition, or until approximately December 9, 2000. Petitioner did not meet this deadline. Rather, he filed this petition on October 17, 2003, nearly three year later. Therefore, this petition is clearly untimely.

  The Third Circuit has found that § 2244's limitations period is subject to equitable tolling in four narrow circumstances: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum; or (4) if the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing he had done everything required of him. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). However, equitable tolling is to be invoked "only sparingly," see United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998), and only when the petitioner establishes that he exercised "reasonable diligence" in investigating and bringing the claims. Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618-619 (3d Cir. 1998) (citing New Castle County v. Haliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)).

  Equitable tolling is not appropriate in this case. The petitioner has made no showing that he has "in some extraordinary way . . . been prevented from asserting his or her rights." Miller. 145 F.3d at 618. Petitioner has not set forth any of the limited circumstances in which equitable tolling is required. See Morton, 195 F.3d 153. (3d Cir. 1999). Therefore, equitable tolling is not appropriate for this petition. Therefore, I make the following:

RECOMMENDATION
  AND NOW, this 5th day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED AS UNTIMELY. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. ORDER

  AND NOW, this day of, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DISMISSED AS UNTIMELY.
  3. There is no basis for the issuance of a certificate of appealability.

20040405

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