United States District Court, E.D. Pennsylvania
April 21, 2004.
JOHN PAYNE, Petitioner,
DAVID DIGUGLIELMO, WARDEN, AND THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents
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 Graterford, Pennsylvania. For the
reasons which follow, the Court recommends that the petition be denied
I. PROCEDURAL HISTORY
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 (repealed), ("PCHA").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
3. The prosecution concealed exculpatory evidence
4. Petitioner was denied effective assistance of
counsel at all stages and counsel conspired with
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
(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.
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 habeas petition and
thenclarify it once he had access to his materials"). Finally, as
respondent notes, even assuming that petitioner was entitled to equitable
tolling for this time period and his grace period did not begin until
January 2001, when petitioner encountered Mr. Moore and located his
transcripts, his petition is still almost two years too late. Petitioner
has not set forth an adequate explanation for the six and a half year
delay in filing his petition, let alone a reason constituting
extraordinary circumstances.*fn7 Consequently, we decline to exercise
our equitable tolling powers and we dismiss his entire petition.
Therefore, I make the following: RECOMMENDATION
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.
AND NOW, to wit, this ___ day of ___, 2004, upon consideration of the
pleadings and record herein, and after review of the Report and
Recommendation of United States Magistrate Judge Charles B. Smith, it is
hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254,
is DENIED and DISMISSED.
3. There is no probable cause to issue a certificate of appealability.
It is so ORDERED.