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April 21, 2004.

JOHN PAYNE, Petitioner,

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


  Following a jury trial before the Honorable David N. Savitt of the Philadelphia Count Court of Common Pleas, petitioner was convicted, on October 17, 1985 of first degree murder and possession of an instrument of crime. Judge Savitt, finding insufficient evidence of aggravating circumstances, directed the jury to enter a sentence of life imprisonment on the murder conviction and he was sentenced to a concurrent term of one to two years imprisonment on the weapons charge.

  Petitioner filed a direct appeal and on April 16, 1987, the Pennsylvania Superior Court issued a decision affirming his conviction. Petitioner did not request allocatur review from the Pennsylvania Supreme Court.

  On September 29, 1987,*fn1 petitioner filed his first petition for collateral relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541, et seq. (repealed), ("PCHA"). He claimed that appellate counsel was ineffective for failing to argue that the trial court erred in refusing to give a jury instruction regarding alibi evidence. After counsel was appointed his petition was denied without a hearing on May 25, 1988. Petitioner appealed and on June 14, 1989, the Pennsylvania Superior Court issued a published opinion upholding the denial, finding that the jury instruction given by the trial court was proper without the additional language requested by defense counsel and appellate counsel was therefore not ineffective. Commonwealth v. Payne, 559 A.2d 951 (Pa. Super. 1989). On December 22, 1993, petitioner filed a second PCHA petition for collateral relief, which the Superior Court dismissed as previously litigated under Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988), on January 27, 1994. Petitioner did not seek appellate review.*fn2

  Petitioner filed his third petition for collateral relief on December 14, 2001, this time pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9545 et seq. ("PCRA").*fn3 The petition was dismissed as untimely on February 12, 2002 and on December 11, 2002, the Pennsylvania Superior Court upheld the dismissal. Commonwealth v. Payne, 817 A.2d 1183 (Pa. Super. 2002) (Table). Petitioner did not seek review from the Pennsylvania Supreme Court.

  On December 10, 2003,*fn4 petitioner filed the instant Petition for Writ of Habeas Corpus, setting forth the following claims:
1. The conviction was obtained by the Commonwealth's unlawful use of evidence obtained pursuant to an unlawful arrest without a warrant;
2. The prosecution knowingly used a perjured in-court identification;
3. The prosecution concealed exculpatory evidence and witnesses;
4. Petitioner was denied effective assistance of counsel at all stages and counsel conspired with the Commonwealth;
5. Ineffective assistance of counsel for ignoring petitioner and failing to call alibi witnesses.
The Commonwealth responds that the entire petition is time-barred and must therefore be dismissed.


  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.*fn5
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." Lovaszv. 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 May 16, 1987, thirty days after the Superior Court affirmed his conviction on April 16, 1987.*fn6 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 these events occurred prior to the effective date of the AEDPA, petitioner received a grace period of one year, starting on April 24, 1996, the effective date of the Act, giving him until April 24, 1997 to file a federal petition for writ of habeas corpus. He failed to do so, however, until December 10, 2003, over six and a half years too late. While petitioner filed three petitions for collateral relief, none of them acted to toll the one year grace period. The first two PCHA petitions were both pending prior to the effective date of the AEDPA and therefore were prior to the beginning of petitioner's one year grace period. Finally, petitioner's PCRA petition filed on December 14, 2001 was deemed untimely by the State Court and therefore does not act to toll the limitations period as it was not a "properly-filed application". See Merritt v. Blaine, 326 F.2d at 167-168. In addition, the PCRA petition was filed well after petitioner's time to file for federal habeas relief had already expired. 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). The Third Circuit has set forth three circumstances permitting equitable tolling: (1) if 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, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (internal quotations omitted); see also Brown v. Shannon, 322 F.3d 768 (3d Cir.), cert. denied, 123 S.Ct. 2617 (2003). "In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy v. Horn. 240 F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944, 122 S.Ct. 323 (2001) (citing cases).

  Petitioner has submitted an affidavit of "assistant inmate-paralegal", Thomas J. Moore, stating that he assisted petitioner with his case starting in September of 1993 until he was transferred to a different correctional institution in December of 1994, at which time he had petitioner's case records and transcripts in his possession. He states that he was not able to return them to petitioner until February 2001, after he encountered petitioner during a chance meeting in Graterford in January of 2001. (Petitioner's Exhibit M). However, the fact that Mr. Moore had petitioner's transcripts fails to demonstrate the extraordinary circumstances necessary for equitable tolling. A petitioner need not have his trial transcript to file a petition for federal habeas relief. White v. Shannon, 2003 WL21771723 (E.D. Pa.) (Shapiro, S.J.) (stating "it is not required that a petitioner have a complete trial record when filing a state PCRA or a federal habeas claim"); See also. Brown v. Shannon, 322 F.3d 768 (3d Cir.), cert. denied, ___ U.S. ___ 123 S.Ct. 2617, 156 L.Ed.2d 637 (2003), (holding that there were not extraordinary circumstances sufficient to justify equitable tolling despite the fact that the petitioner's attorney was unable to obtain the trial transcript, since these circumstances did not prevent the petitioner from filing "a basic pro se habeas petition."). Petitioner has not demonstrated that he exercised "reasonable diligence" to obtain the transcripts or to pursue his claim. He has failed to demonstrate that he made any attempts to locate his records by writing to Mr. Moore or that he ever requested the transcripts from the Commonwealth. In addition, he has not identified any reason why he could not file a habeas petition and amend it later after obtaining his records. See Robinson v. Johnson, 313 F.3d 128, 143 (3d Cir. 2002) (holding that petitioner did not exercise reasonable diligence in bringing claim to justify equitable tolling, noting that petitioner "did not seek to file a timely petition and then clarify it once he had access to his materials"); See also. Holmes v. Vaughn, 2003 WL23112383 (E.D. Pa.) (Welsh, U.S.M.J.) (holding that petitioner failed to exercise reasonable diligence in bringing claim where "petitioner fail[ed] to allege any steps that he took to attempt to obtain from the state court or his previous counsel portions of the state proceedings which he felt he needed to file a federal habeas petition, and he d[id] not allege that he sought to file a timely ...

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