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BELGIORNO v. BENNINGS

United States District Court, E.D. Pennsylvania


May 26, 2004.

NICHOLAS V. BELGIORNO, Petitioner,
v.
L.P. BENNINGS, ET AL., Respondents

The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge

MEMORANDUM

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.

I. BACKGROUND

  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.

 II. DISCUSSION

  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 subsection.
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 limitation period.

  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 timely.

  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 error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy, 240 F.3d at 244-45 (citing cases from various circuits). For these reasons, the Court finds that petitioner has failed to justify equitable tolling of the limitation period.

 III. CONCLUSION

  In view of the foregoing, the report and recommendation of the magistrate judge is adopted. The petition for writ of habeas corpus is dismissed with prejudice.


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