The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge
Presently before the Court is a report and recommendation from the
magistrate judge recommending that pro se petitioner Nicholas Belgiorno's
request for habeas relief be denied and dismissed as untimely. For the
following reasons, the Court shall adopt the report and recommendation of
the magistrate judge.
Following a three day jury trial in the Delaware County Court of Common
Pleas, the petitioner was convicted of murder in the first degree on
February 25, 1988. Post-trial motions were denied by the trial court and
on March 1, 1988, petitioner was sentenced to life imprisonment.
Petitioner appealed to the Superior Court of Pennsylvania, which on April 3, 1989, affirmed
the decision of the trial court. Petitioner's counsel then filed a
petition for allowance of appeal to the Supreme Court of Pennsylvania.
Subsequently, another attorney retained by the petitioner filed an
untimely petition for allowance of appeal on May 17, 1989. On March 14,
1990, the Supreme Court of Pennsylvania denied these petitions thereby
finalizing petitioner's conviction.
On February 21, 1992, petitioner sought collateral relief under the
Post Conviction Relief Act (PCRA) challenging the admission of testimony
offered by a witness for the Commonwealth, whom petitioner contended
improperly colluded with the prosecution. Following a hearing, the
petition was denied on September 10, 1992. The Superior Court of
Pennsylvania affirmed the lower court's decision on July 15, 1993 and the
Supreme Court of Pennsylvania denied petitioner's request for an
allowance of appeal on January 14, 1994.
On March 15, 1999, petitioner filed a second PCRA petition based on
alleged newly discovery evidence. Evidentiary hearings were held on
February 4, 2000 and September 8, 2000. Following these hearings, the
Delaware Court of Common Pleas denied the petition as untimely on June
26, 2001. On January 23, 2003, the Superior Court of Pennsylvania
affirmed and found the petition "clearly untimely on its face" because
none of the exceptions to the one year time limit for filing PCRA petitions
found in 42 Pa. C.S. A. § 9545(b)(1) applied under the
circumstances of the case.
The instant petition for habeas relief was filed on November 4, 2003.
The report and recommendation of the magistrate judge, recommending
dismissal of the petition as untimely, was filed on January 14, 2004.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), enacted April 24, 1996, "[a] 1-year statute 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."
28 U.S.C. § 2244(d)(1). The statute provides four starting points for
calculating the limitation period including "the date on which the factual
predicate of the claim or claims presented could have been discovered
through the exercise of reasonable diligence." § 2244(d)(1)(D).*fn1
Additionally, the statute provides 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
28 U.S.C. § 2244(d)(2).
Petitioner apparently believes that new evidence, in the form of an
affidavit signed by Ms. Lorraine Fritz on January 16, 1999 (the "Fritz
Affidavit") averring facts which, if admissible as evidence,
would cast doubt on the testimony of a trial witness who placed
petitioner in the vicinity of the murder scene could not have
been discovered through reasonable diligence until January of 1999. Based
on this argument, petitioner appears to suggest that this Court use
January 1999 as the starting point for calculating the one year
Even if the Court were to find that the factual averments made in the
affidavit could not have been discovered earlier through the exercise of
reasonable diligence, petitioner's motion is untimely because the instant
petition was filed more than one year after the discovery of the
affidavit, which petitioner clearly became aware of by March of 1999 when
he filed his second PCRA petition. Thus, petitioner cannot rely on §
2244(d)(1)(D) to support his assertion that the instant petition is
As for the statutory tolling exception, which states that "the 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 section," 28 U.S.C. § 2244(d)(2), the Court
finds that this also is inapplicable. "[A] `properly filed application'
is one submitted according to the state's procedural requirements, such
as the rules governing the time and place of filing." Lovasz v.
Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). If a state court
dismisses a PCRA petition upon a finding that it is untimely and
therefore not properly filed, the federal court is bound by that holding
for the purposes of the AEDPA. Merritt v. Blaine, 326 F.3d 157,
166-67 (3d Cir. 2003), cert. denied, 157 L.Ed.2d 219, 124 So.
Ct. 317 (2003). As noted previously, the Superior Court of Pennsylvania
dismissed petitioner's second PCRA petition as untimely. Therefore, the
Court concludes that petitioner's second PCRA petition was not a
"properly filed application" and that the 28 U.S.C. § 2244(d)(2)
tolling provision does not apply under the circumstances of this case.
Finally, the Court is mindful that the statute of limitation
established in the AEDPA is subject to equitable tolling. Miller v.
New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir.
1998). The Third Circuit has instructed that "equitable tolling is
proper only when the `principles of equity would make [the] rigid application [of a limitation period]
unfair.'" Id. (quoting Shendock v. Director, Office
Workers' Compensation Programs, 893 F.2d 1458, 1462 (3d Cir. 1990)
(en banc)) (alterations in original). Three nonexclusive circumstances
that permit equitable tolling are if (1) 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 mistakenly in the wrong forum. Fahy v.
Horn, 240 F.3d 239, 244 (3d Cir. 2001), cert. denied,
534 U.S. 934, 151 L.Ed.2d 241, 122 S.Ct. 323 (2001) (citing Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999)).
In his objections to the report and recommendation of the magistrate
judge, petitioner argues that he should not be held responsible for his
attorneys' "failures" to file timely appeals at the state level.
Petitioner does not identify with any level of specificity what failures
prevented the instant habeas petition from being filed in a timely
fashion. Petitioner did make a claim of ineffective assistance of counsel
in his second PCRA petition.However, the circumstances surrounding these
allegations relate to the mishandling of petitioner's case by counsel
during proceedings unrelated to those under which the instant habeas
petition was filed. Specifically, the allegations relate to the failure
of counsel to raise the contents of the Fritz Affidavit during
petitioner's first PCRA petition, which was filed in February of 1992. Any alleged ineffectiveness at this stage has no import on
the timeliness of the instant petition, which was filed some eleven years
later. In any event, to the extent that any acts and omissions by counsel
for petitioner during the first PCRA had an effect on the timeliness of
the instant habeas petition, the Third Circuit has instructed that, in
non-capital cases, absent attorney deception or death, "attorney ...