United States District Court, E.D. Pennsylvania
April 13, 2004.
ARTHUR JAMES a/k/a ARTHUR SEABROOK a/k/a ANTHONY SEABROOK a/k/a ARTHUR THOMPSON
THOMAS LAVIN, SUPERINTENDENT OF DALLAS SCI, et al
The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge
REPORT AND RECOMMENDATION
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
[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
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
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
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
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
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
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
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
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
[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).
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.