The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition and
pro se amended petition for a writ of habeas corpus filed by a
state prisoner pursuant to 28 U.S.C. § 2254.*fn1 On April 20, 2000,
the petitioner pled guilty in the Court of Common Pleas for Philadelphia
County to charges in two separate cases. In one case, No. 9805-0830, he
pled guilty to charges involving the armed robbery of a car on September
23, 1997; in the other case, No. 9801-0099, he pled guilty to charges of
aggravated assaulted resulting from a head on collision he caused by
driving in the wrong direction on Interstate 95 while attempting to evade
the police on October 24, 1997. The petitioner was sentenced to a term of
incarceration of ten to twenty years for these charges, the sentences to
be consecutive to any previous sentence he might have.*fn2 He is
presently incarcerated in a state correctional institution.
The petitioner raises several claims including: violation of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966); ineffective
assistance of counsel; malicious prosecution; involuntariness of his
guilty plea; bias on the part of the trial judge; and a request that his
sentences in these two cases run concurrently with other state sentences
he has. The District Attorney for Philadelphia County has responded to
the habeas petition and contends that the petition is time-barred. The
court agrees and, for the reasons which follow, will recommend that the
petition be dismissed as time-barred.
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA") was enacted and it imposes a one year period of
limitations on habeas corpus petitions. The time period begins to run on
the latest of the following:
(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;
(B) the date on which the impediment to filing an
application created by State action in violation
of the Constitution or laws of the United States
is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). The statute also provides that
"[t]he time that a properly filed application for state post-conviction or other collateral
relief with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this section."
28 U.S.C. § 2244(d)(2). The Third Circuit has explained that a properly
filed application for state collateral relief is a "one submitted
according to the state's procedural requirements, such as rules governing
the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146,
148 (3d Cir. 1998).
In order to apply the habeas period of limitations, it is necessary to
review the state procedural history in this case. The petitioner pled
guilty on April 28, 2000 and he was sentenced on the same day. The
petitioner did not pursue a direct appeal. Instead, on May 24, 2000, the
petitioner sought post conviction relief with respect to No. 9805-0830 by
filing a Post Conviction Relief Act ("PCRA") petition.*fn3 While this
petition was pending, the petitioner filed a PCRA petition to challenge
his conviction in No. 9801-0099 on August 17, 2000. The two PCRA
petitions were consolidated and counsel was subsequently appointed.
Appointed counsel filed a no merit letter on February 7, 2002 and sought
leave to withdraw as counsel. On April 15, 2002, the petitioner filed a
pro se amended PCRA petition. On May 31, 2002, the PCRA court
dismissed the consolidated petitions and permitted counsel to withdraw.
The petitioner filed his notice of appeal on July 10, 2002. On March
21, 2003, the petitioner's appeal was dismissed by the Superior Court of
Pennsylvania because of his failure to file a brief. The petitioner then
sought allowance of appeal ("allocatur") in the state supreme court. The
state supreme court denied allocatur on May 14, 2003. The petitioner filed his habeas petition on December 22, 2003.
The petitioner did not pursue a direct appeal and so his conviction
became final on May 28, 2000, which is when the thirty day period to
appeal expired. See Pennsylvania Rule of Appellate Procedure
903. Under 28 U.S.C. § 2244(d)(1)(A), this would be the expected date
on which the habeas period of limitations would begin to run. However,
the court must consider whether the habeas period of limitations could
begin to run on some other date pursuant to 28 U.S.C. § 2244(d)(1)
(B)-(D).
The petitioner does not claim that state action taken in violation of
the federal constitution or federal law prevented him from filing his
habeas petition more promptly. Thus, 28 U.S.C. § 2244(d)(1)(B) does
not call for a different starting date for the habeas period of
limitations. None of the petitioner's habeas claims rely upon a new
constitutional right announced by the Supreme Court (and made
retroactively applicable to cases on collateral review) after the
petitioner's conviction became final. Thus, 28 U.S.C. § 2244(d)(1)
(C) does not call for a different starting date for the habeas period of
limitations. Finally, the petitioner does not allege that, through the
exercise of due diligence, he could only have learned the factual
predicate for one or more of his claims after the date his conviction
became final. Thus, 28 U.S.C. § 2244(d)(1)(D) does not call for a
different starting date for the habeas period of limitations.
Since none of the alternative starting dates for the habeas period of
limitations apply, the date the petitioner's conviction became final
controls. On that date, May 28, 2000, the petitioner already had a PCRA
petition pending with respect to No. 9805-0830. The PCRA petition served
to toll the habeas period of limitations. See
28 U.S.C. § 2244(d)(2). However, the petitioner did not file a PCRA petition
with respect to No. 9801-0099 until August 17, 2000. By that time, approximately 81
days of the habeas period of limitations had expired.
On May 31, 2002, the PCRA court dismissed the consolidated PCRA
petitions. The petitioner had 30 days from that date to appeal to the
Superior Court. See Pennsylvania Rule of Appellate Procedure
903. However, he failed to do so because did not file his notice of
appeal until July 10, 2002, which was 10 days too late.
Under Third Circuit precedent, the petitioner's failure to timely
appeal the denial of PCRA relief means both that his PCRA petition ceased
to pend and that his PCRA petition ceased to toll the habeas period of
limitations on the last date he could have filed a timely appeal, which
was June 30, 2002. See Douglas v. Horn, 359 F.3d 257, 261 (3d
Cir. 2004); Swartz v. Meyers, 204 F.3d 417, 420, 421 (3d Cir.
2000). Thus, on June 30, 2002, the habeas period of limitations began to
run again for both convictions. For No. 9805-0830 it expired 284 days
later; for No. 9801-099 it expired 365 days later. For both cases, the
habeas period of limitations expired well before the habeas petition was
filed on December 22, 2003.
Even though the habeas petition is time-barred under the provisions of
the AEDPA, the habeas period of limitations is also subject to equitable
tolling. See Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir.
2003). There are two general requirements for equitable tolling: (1) the
existence of extraordinary circumstances which prevent the petitioner
from asserting his rights, and (2) the petitioner's reasonable diligence
in investigating and bringing his claims, Id. In petition and
the amended petition, the petitioner makes no effort to demonstrate
either of the two requirements for equitable tolling. Therefore, the
court concludes that the habeas petition should be dismissed as time-barred.*fn4
The court will also consider whether to recommend granting a
certificate of appealability ("COA"). Because the court has disposed of
the petition on the ground that it is time-barred, in order for the
petitioner to obtain a COA, he must show "that jurists of reason would
find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). In
Slack, the Supreme Court went on to explain that:
Where a plain procedural bar is present and the
district court is correct to invoke it to dispose
of the case, a reasonable jurist could not
conclude either that the district court erred in
dismissing the petition or that the petitioner
should be allowed to proceed further. In such a
circumstance, no appeal would be warranted.
Id. Further, the Supreme Court indicated that, since the
petitioner must make showings with respect to both the procedural issue
and the underlying, constitutional issue, a court may resolve the COA
question if either showing is lacking, Id. at 484-85.
The court has concluded that the habeas petition is time-barred based
upon well-established Third Circuit precedent. Further, the petitioner
has failed to demonstrate either of the requirements for equitable
tolling. Thus, the court finds that reasonable jurists would not ...