United States District Court, E.D. Pennsylvania
April 20, 2004.
ROBERT PETERSON, Petitioner,
FREDRIC A. ROSEMEYER, et al, Respondents
The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge
REPORT AND RECOMMENDATION
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.
I. PROCEDURAL HISTORY
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
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
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
(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.
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.