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ANDERSON v. WILSON

United States District Court, E.D. Pennsylvania


April 8, 2004.

KEVIN ANDERSON, Petitioner,
v.
HARRY WILSON, et al., Respondent

The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge

REPORT AND RECOMMENDATION

Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution at Cresson, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied and dismissed.

I. PROCEDURAL HISTORY

  Following a jury trial before the Honorable Richard T. Hodgson of the Montgomery County Court of Common Pleas, petitioner was convicted, on June 25, 1998 of robbery and related charges. Judge Hodgson then sentenced him to a term of imprisonment of twelve and a half to twenty-five years.

  Petitioner filed timely a pro se Notice of Appeal and, shortly thereafter, filed a pro se Motion of Appointment of Counsel in connection with that appeal. The Superior Court appointed counsel, but, on March 10, 1999, dismissed the appeal due to appointed counsel's failure to file a brief. On July 26, 1999, petitioner filed a petition pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Upon agreement of counsel, the court granted the PCRA petition to allow petitioner to file a direct appeal nunc pro tunc.

  Thereafter, petitioner filed his Notice of Appeal on October 15, 1999, setting forth four grounds for relief. By way of opinion, dated November 3, 1999, the trial court affirmed the judgment of sentence. The Pennsylvania Superior Court upheld this decision on May 11, 2000. New counsel was then appointed for purposes of seeking allowance of appeal from the Pennsylvania Supreme Court, but the petition was nonetheless denied on June 26, 2001.

  Over two and a half years later, on February 4, 2004, petitioner submitted the instant Petition for Writ of Habeas Corpus, setting forth the following claims:

1. The jury's verdict was not supported by sufficient evidence and was against the weight of the evidence; ineffective assistance of counsel for failure to raise this issue;
2. The trial judge abused his discretion in deviating from the sentencing guidelines; ineffective assistance of counsel for failure to raise this issue;
3. Unduly suggestive photo array;
4. Ineffective assistance of counsel for failure to present any alibi defense;
5. Ineffective assistance of counsel for ignoring petitioner.
The Commonwealth responds that the entire petition is time-barred and must therefore be dismissed. II. TIMELINESS

  Notwithstanding petitioner's allegation of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:

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.*fn1
28 U.S.C. § 2244 (d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective date, then under Third Circuit precedent, a prisoner has a one-year grace period subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). The statute, however, creates a tolling exception, which notes that "[t]he 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 shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244 (d)(2). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly-filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).

  In the case at bar, petitioner's conviction became final on September 26, 2001, ninety days*fn2 after the Pennsylvania Supreme Court denied allocatur on direct appeal. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). Subsequently, he had one year — until September 26, 2002 — to file his federal habeas petition. He failed to do so, however, until February 4, 2004, over a year and four months too late. Nor did he submit a second PCRA, in the interim, which could have had a tolling effect on the statute of limitations. As petitioner failed to seek habeas relief in an expedient manner, we must deem the instant petition untimely.

  One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling, which is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair.". Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quotation omitted). The petitioner "must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. Mere excusable neglect is not sufficient." Id. at 618-19 (internal quotation omitted).*fn3

  Petitioner has not put forth any explanation for the over two year delay in filing his petition, let alone a reason constituting extraordinary circumstances. Consequently, we decline to exercise our equitable tolling powers and we dismiss his entire petition.

  Therefore, I make the following: RECOMMENDATION

  AND NOW, this day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. There is no probable cause to issue a certificate of appealability.


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