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United States District Court, E.D. Pennsylvania

April 15, 2004.

THOMAS LAVAN, et al., Respondent

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


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 Dallas, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied and dismissed.


  Following a jury trial before the Honorable John W. Herron of the Philadelphia County Court of Common Pleas, petitioner was convicted, on April 22, 1991 of two counts each of rape, corrupting the morals of a minor and indecent assault, and one count each of involuntary deviate sexual intercourse and criminal conspiracy. Upon denial of post-verdict motions, Judge Hodgson sentenced him to a term of imprisonment of twenty-three to eighty years.*fn1 On appeal, the Pennsylvania Superior Court affirmed the judgments of sentence by way of a memorandum opinion issued May 25, 1993. Commonwealth v. Diller, 631 A.2d 212 (Pa. Super. 1993). On September 30, 1994, the Pennsylvania Supreme Court denied petitioner's request for allowance of appeal. Commonwealth v. Diller, 649 A.2d 668 (Pa. 1994).

  Petitioner filed a petition pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et. seq. on January 16, 1997. The trial court conducted an evidentiary hearing on petitioner's claim of recantation by Kathy Ann Miller, petitioner's daughter and victim, at which time Miss Miller testified. Upon consideration of this testimony, the court denied the petition on October 31, 2000. The Superior Court affirmed the decision, Commonwealth v. Diller, 815 A.2d 1125 (Pa. Super. 2002), and, on May 15, 2003, the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Diller, 825 A.2d 1260 (Pa. 2003).

  On October 17, 2003, petitioner submitted the instant Petition for Writ of Habeas Corpus, setting forth the following claims:

1. The Commonwealth's witnesses were not competent and credible because they were just kids;
2. The Commonwealth's witnesses were rehearsed prior to trial;
3. The testimony of the Commonwealth's expert witness, Dr. DeJong was false and should have been stricken from the record;
4. A mistrial should have been declared after defendant's wife and co-defendant started to yell and act up in front of the jury;
5. The state court erred in failing to award petitioner a new trial on the grounds of recantation of petitioner's daughter's testimony; 6. The state court erred in not permitting defendant's expert witness to testify regarding false memories of sexual abuse.
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.*fn2
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 December 30, 1994, ninety days*fn3 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). As this date was prior to the effective date of the AEDPA, petitioner had one year from April 24, 1996 to file his federal habeas petition.

  Approximately 267 days into his one-year grace period, petitioner submitted a properly-filed PCRA petition which tolled the federal statute of limitations. That petition remained pending until May 15, 2003, when the Pennsylvania Supreme Court denied allowance of appeal. Thereafter, petitioner had 98 days — until August 21, 2003 — to file his federal habeas petition. He failed to do so, however, until October 17, 2003, almost two months past his filing deadline. 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).*fn4 Petitioner has not put forth any explanation for the two month 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:

  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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