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United States District Court, E.D. Pennsylvania

April 20, 2004.

FREDRIC A. ROSEMEYER, et al, Respondents

The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge


Now pending before this court is a Petition for Writ of Habeas Corpus, filedpursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State CorrectionalInstitution at Laurel Highlands, Pennsylvania. For the reasons which follow, it is recommendedthat the petition be denied and dismissed.


  On March 8, 1995, petitioner pled guilty to rape, two counts of aggravatedindecent assault, and corruption of minors.*fn1 Specifically, petitioner admitted to committingsexual assaults on his two and one half and nine year old daughters. On May 4, 1995, theHonorable Anthony R. Semeraro of the Delaware County Court of Common Pleas sentencedpetitioner to nine to eighteen years imprisonment for these offenses.

  Petitioner directly appealed his sentence to the Superior Court, arguing that it washarsh and excessive. On January 4, 1996, petitioner's sentence was affirmed, and his appeal denied.

  Petitioner then filed a petition under the Post Conviction Relief Act (PCRA), andan evidentiary hearing was held on June 21, 1996, before the Honorable Harry J. Bradley.*fn2 Petitioner testified that he had not knowingly, intelligently, and voluntarily entered his guiltyplea. Rather, petitioner claimed that he was merely following the directions of his attorney.Trial counsel testified to the contrary, arguing that petitioner, after having been read andexplained the guilty plea statement, chose to plead guilty to all charges under oath in open court.On February 4, 1997, the PCRA court denied the petition.

  Petitioner appealed the decision, which was later affirmed by the Superior Courton February 5, 1998. The court permitted appointed counsel to withdraw his representationunder Commonwealth v. Turner. 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988).

  Petitioner filed a second PCRA petition, pro se, on May 20, 1998. On June 30, 1998, the Honorable Judge Keeler dismissed the petition, and petitioner failed to file an appeal.

  Petitioner filed a third PCRA petition on November 19, 1998, claiming that hisguilty plea violated his constitutional rights and Criminal Rule of Procedure 319(a). Thispetition was also dismissed.

  The Superior Court affirmed the above dismissal on June 5, 2000. On November 21, 2000, the court denied petitioner's request to file a petition for allowance of appeal, nunc pro tunc, to the Pennsylvania Supreme Court.

  Petitioner filed a fourth PCRA petition on June 11, 2002. The Honorable Judge Keeler appointed counsel and then subsequently denied petitioner's request for relief.

  Petitioner executed his Petition for Writ of Habeas Corpus on February 2, 2004, setting forth the following claims:

(1) Petitioner's conviction was obtained through a coerced confession; and
(2) Petitioner's counsel was ineffective in that he failed to object to unlawfulevidence, assert due process, and call certain witnesses requested by petitioner.
  Respondent retorts that petitioner's Petition for Writ of Habeas Corpus was filedafter the one-year grace period subsequent to the effective date in 28 U.S.C. § 2244(d)(1) was exhausted, and thus, is untimely.


  Notwithstanding petitioner's allegations of substantive grounds for relief, oneprocedural obstacle precludes federal review of those claims — timeliness. Under theAntiterrorism 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 directreview or the expiration of the time for seeking such review.*fn3 28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal conviction ended prior to thestatute's effective date, then under Third Circuit precedent, a prisoner has a one-year grace period subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998).

  The statute, however, creates a tolling exception, which notes that "[t]he timeduring which a properly filed application for state post-conviction or other collateral review withrespect to the pertinent judgment or claim is pending shall not be counted toward any period oflimitation under this subsection." 28 U.S.C. § 2244(d)(2). A "properly filed application" is "onesubmitted according to the state's procedural requirements, such as the rules governing the timeand place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998). If a petitioner files anout-of-time application and the state court dismisses it as time-barred, then it is not deemed to bea "properly filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3rd Cir. 2003).

  In the case at bar, petitioner's conviction became final on February 3, 1996. Sincepetitioner's conviction became final before the effective date of the AEDPA, he normally wouldhave had until April 24, 1997 to seek federal habeas relief.

  However, in this case the tolling exception applies. Petitioner's first PCRA petition was dismissed on February 4, 1997, and was subsequently affirmed by a Judgment and Memorandum Opinion on February 5, 1998. Petitioner had thirty days from this date in which tofile an allowance of appeal. Thus, petitioner had one year from March 7, 1998 to file his petition for a writ of federal habeas corpus. Petitioner's successive PCRA petitions were dismissed bythe state courts as time-barred, and thus did not toll the statute.

  Petitioner did not file his current habeas petition until February 2, 2004, almostfive years after the statute of limitations expired. Having thus failed to comply with the statute, this court has no choice but to dismiss the request for habeas relief without consideration on themerits.

  One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling. Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3rd Cir. 1998). Equitable tolling is proper only when the "principles of equity wouldmake [the] rigid application [of a limitation period] unfair." Id. (quotation omitted). Thepetitioner "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 quotationomitted). The Third Circuit has set forth three circumstances permitting equitable tolling: (1) ifthe defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary waybeen prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights, buthas mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3rd Cir. 1999)(internal quotations omitted). "In non-capital cases, attorney error, miscalculation, inadequateresearch, or other mistakes have not been found to rise to the `extraordinary' circumstancesrequired for equitable tolling." Fahy v. Horn, 240 F.3d 239, 244 (3rd Cir. 2001), cert. denied, 122S. Ct. 323 (2001) (citing cases). To otherwise apply equity would "lose the rule of law to whimsabout the adequacy of excuses, divergent responses to claims of hardship, and subjective notionsof fair accommodation." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). None of the circumstances permitting equitable tolling apply in this case. Thoughthe District court has the ability to review the substantive issues raised in a habeas corpus petitionwhen applying the statute of limitations would unfairly prejudice the petitioner, the petitionermust show more than excusable neglect in order for the court to do so. Rather, the petitionermust prove that he exercised reasonable diligence but that for some extraordinary reason, he wasprevented from asserting his rights. See Miller, 145 F.3d at 618-19. Petitioner has failed to meetthis burden. Consequently, we decline to exercise our equitable tolling powers, and we dismisshis entire petition.

  Therefore, I make the following recommendation:

  AND NOW, this ___ day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for a Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.

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