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