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
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,
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
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:
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
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
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