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United States District Court, E.D. Pennsylvania

April 13, 2004.


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


Presently before this Court is a counseled petition for writ of habeas corpus filed by a state prisoner, pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution, Dallas, Pennsylvania, where he is serving a 43 to 86 year sentence for robbery, theft, receiving stolen property, conspiracy to receive stolen property, possession with intent to deliver, and conspiracy to commit robbery. For the reasons which follow, it is recommended that the instant habeas petition be denied and dismissed as untimely under 28 U.S.C. § 2244(d)(1). It is further recommended that a finding be made that there is no probable cause to issue a certificate of appeal ability.


  The background of this case was set forth by the Superior Court of Pennsylvania as follows: [Petitioner] participated in a robbery, which resulted in the victim's death. In 1994, [Petitioner] entered a negotiated guilty plea to five counts of receiving stolen property, three counts of conspiracy to receive stolen property, one count of possession with intent to deliver, one count of robbery and one count of conspiracy to commit robbery. Pursuant to his bargain with the Commonwealth, [Petitioner] agreed to testify in the robbery/homicide prosecution of James Fiers. The Commonwealth agreed not to bring additional charges against [Petitioner] and to inform the sentencing court of the nature and extent of [Petitioner's] cooperation during Fiers' trial. However, [Petitioner's] testimony exonerated Fiers, which directly led to a verdict of acquittal.


[Petitioner] appeared for sentencing on January 31, 1996. At the sentencing hearing, the prosecutor informed the court that [Petitioner] was in breach of his plea agreement. Noting [Petitioner's] extensive criminal history, the sentencing court found [Petitioner] to be a chronic liar and held that he was incapable of rehabilitation. The sentencing court subsequently imposed an aggregate term of imprisonment of forty-three to eighty-six years of imprisonment. Commonwealth v. James, No. 2539 EDA 2001 slip op. at 1-2 (Superior Court, August 14, 2002).
On direct appeal, Mr. James raised the following issues for review:
[1. Whether] the trial court abused its discretion and committed an error of law by imposing sentence outside the aggravated ranges of the sentences suggested by the sentencing guidelines where it failed to make a contemporaneous written statement of the applicable guideline ranges themselves and a statement of reasons for doing so.
  [2. Whether] the combined sentence of 43 to 86 years imposed upon the [petitioner] amounted to an abuse of discretion in that it was manifestly excessive under the circumstances and the trial court failed to take into account the rehabilitative needs of the [petitioner] and resulted from an over-emphasis on [petitioner's] prior criminal record and the seriousness of the crimes. Commonwealth v. Thompson, No. 00854 Philadelphia 1996 slip op. at 2-3 (Superior Court, March 5, 1997). Petitioner's sentence was affirmed on March 5, 1997.*fn2 See Commonwealth v. Thompson, 695 A.2d 441 (Pa. Super. 1997). Mr. James filed a petition for reargument, which was denied on May 13, 1997, and he did not file a petition for allowance of appeal with Pennsylvania's Supreme Court. See Commonwealth v. James, No. 2539 EDA 2001 slip op. at 2.

  On March 3, 1998, Petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 541, et seq., and counsel was appointed. As the Superior Court of Pennsylvania explained:

Counsel filed a "no-merit" letter pursuant to the dictates of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). The PCRA court provided notice of its intent to dismiss the PCRA petition, and [Petitioner] filed a timely response. The PCRA court directed prior counsel to supplement the record for the benefit of PCRA counsel. On May 29, 1999, PCRA counsel filed an amended "no-merit" letter. The PCRA court provided proper notice of its intent to dismiss the petition, and [Petitioner] timely responded. Upon review, the PCRA court concluded [Petitioner's] contentions were non-meritorious and dismissed the petition on July 14, 1999. [Petitioner] filed a notice of appeal from the PCRA court's order, but the appeal was dismissed on April 14, 2000, for failure to file a brief. Commonwealth v. James, No. 2539 EDA 2001 slip op. at 2-3.
  Mr. James filed a second PCRA petition on July 18, 2000, followed by a supplemental counseled petition filed on December 27, 2000. In this petition, Petitioner alleged that he was the victim of an illegal sentence imposed in violation of due process of law. Alternatively, he advanced his sentencing claims "under color of apetition for writ of habeas corpus". It was determined by the PCRA court that Mr. James' second petition was untimely, and it did not qualify for any of the exceptions to the PCRA timing requirements. The Court further held that Petitioner was not eligible for habeas corpus relief. Id. at 3. On August 8, 2001, the PCRA court provided Mr. James with notice of its intent to dismiss without a hearing; however, he did not respond. Accordingly, the PCRA court dismissed the petition on September 7, 2001.

  Petitioner made a timely notice of appeal. The PCRA court did not require Mr. James to file a Rule 1925(b) statement, and one was not filed. Id. Petitioner raised the following issues:

I. Are [Petitioner's] claims that counsel was ineffective during the sentencing proceedings which followed his guilty pleas and on appeal were not cognizable under the PCRA but have always been cognizable in state habeas corpus proceedings correct so that he is not time barred in bringing a state habeas proceeding challenging the imposition of his 43 to 86 year prison term following his guilty pleas?
II. Was guilty plea counsel ineffective for not invoking paragraph 14 of the plea agreement and establishing that the plea agreement was "null and void" and that [Petitioner] should be prosecuted and not sentenced on a guilty plea?
III. Because [Petitioner] filed his PCRA/state habeas petition within sixty (60) days of the United States Supreme Court's decision in Apprendi v. [sic] New Jersey, 530 U.S. 466 (2000) was he timely, and because the sentencing court enhanced his sentences because it obviously believed he had committed perjury — although it denied perjury was a factor — is [Petitioner] entitled to a re-sentencing? Id. at 3-4.
Pennsylvania's Superior Court found that "[Petitioner's] petition is untimely, it does not come within the purview of Apprendi, and the PCRA court properly declined to exercise jurisdiction over the claims. Id. at 8. Additionally, the Court stated that "because all of [Petitioner's] claims have either been addressed by the Court and/or are cognizable under the PCRA, his claims are not the type envisioned for separate habeas corpus review". Id. at 11. The PCRA court's denial of relief was affirmed on August 14, 2002. See Commonwealth v. James, 809 A.2d 958 (Pa. Super. 2002). The Supreme Court of Pennsylvania denied allocatur on January 28, 2003. See Commonwealth v. James, 816 A.2d 1102 (Pa. 2003).

  On March 28, 2003, Petitioner filed the instant counseled federal habeas petition raising the following claims as a basis for granting habeas relief:

A. Ground one: Petitioner's 43-86 year sentence (that is not a typo — it is 43-86 years) was unconstitutionally harsh and imposed on Petitioner when he was 22 years of age and was imposed without benefit of a pre-sentence report, psychiatric evaluation, psychological evaluation — or any evaluation other than the jurist's rage.
B. Ground two: Petitioner has agreed to testify in a murder trial on behalf of the Commonwealth. While he did testify he testified so as to exculpate the accused, and not inculpate him. The accused was acquitted. Petitioner's sentencing judge called him "a chronic liar, and you're a deceiver. And I think that you are still trying to deceive the court . . ." The sentencing jurist declaimed, "I see you as a con man. I see . . . as a thief. I see . . . as a chronic liar! And: I see … as a manipulator." This was in response to the prosecutor's having informed the court of Petitioner's surprise testimony at the homicide trial which resulted in the aforesaid acquittal. Although the sentencing court tried to specifically rule out the homicide trial in imposing sentence, the "chronic liar", "deceiver" could only arise from that trial. The sentencing court's finding that Petitioner lied or committed perjury during the homicide trial factored into his sentencing so as to produce maximum sentences on all charges to which Petitioner had pled guilty. This finding by the sentencing court violated Apprendi.
C. Ground three: The 43-86 year sentence was so fundamentally unfair as to violate due process of law. The imposition of a sentence that carries more time than a life sentence on a 22 year old who has a modest juvenile record and no other adult record is explicable only in terms of the court's belief that Petitioner comitted [sic] perjury during his testimony at the homicide trial. If indeed that testimony was irrelevant to his sentencing why would his prosecutor have harped on it repeatedly? Petition at 9-10.
Petitioner further elaborates on his habeas claims in his Memorandum of Law in Support of his 2254 Habeas Corpus Petition as follows: [I.] Because Petitioner filed his PCRA/state habeas petition within sixty (60) days of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) and the Superior Court ruled on his Apprendi claim on its merits, his claim was timely under state law.


Because the sentencing court enhanced his sentences because it obviously believed he had committed perjury — although the court denied perjury was a factor — Petitioner is entitled to a resentencing.
II. Petitioner is actually innocent of a sentence of such savage severity which was based at least in part on the court's erroneous belief that what the prosecutor called his perjured testimony at the Fiers murder trial could be relied on by the court. Petitioner's Memorandum of Law in Support of his 2254 Habeas Corpus Petition at 7, 17.
The Commonwealth denies that Mr. James is entitled to federal habeas corpus relief because his petition is time-barred. See Response at 3.


  AEDPA's Statute of Limitations

  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).*fn3 In applying the one-year statute of limitations to convictions which became final before the 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 109, 111 (3d Cir. 1998).

  In the instant case, the Pennsylvania Superior Court, on direct appeal, affirmed Mr. James' conviction on March 5, 1997. Consequently, his conviction became final on April 4, 1997, when the time for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired. See Pa.R.A.P. 903(a) (which requires that notice of appeal be filed "within thirty days of the entry of the order from which the appeal is taken").*fn4 Because Petitioner's conviction became final after the effective date of AEDPA, he was subject to its one year limitation for filing a federal habeas claim. Thus, Petitioner had until April 4, 1998 in which to file a timely Petition for Writ of Habeas Corpus. The instant habeas petition was not filed for almost three years beyond the statutory deadline. It is untimely and not subject to habeas review.

 A. Statutory Tolling

  The amended habeas statute does 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." 28 U.S.C. § 2244(d)(2).

  On March 3, 1998, Mr. James filed his first PCRA petition — 333 days into the AEDPA limitation period. This timely petition for state collateral relief tolled the one-year limitation period, but only while it was pending. On April 14, 2000, the Superior Court of Pennsylvania dismissed Petitioner's appeal, and, on May 14, 2000, the AEDPA limitation period began to run again.*fn5 The deadline for the filing of Mr. James' petition would have been 32 days later, or June 15, 2000.

  Though Petitioner filed a second PCRA petition on July 18, 2000, it was found to be untimely. Consequently, it was not "properly filed" under state law, and it did not toll the federal habeas limitations period. 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).*fn6 In any event, this second petition was filed on July 18, 2000, after Mr. James' habeas deadline had expired. Thus, it did not have any effect on the statute of limitations period.

 B. Equitable Tolling

  Section 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).

  The record before me does not support a finding that the circumstances of this case present the "rare situation" which demands equitable tolling of the habeas statute.*fn7 Therefore, Petitioner's untimely habeas petition is not subject to federal review.


  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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