United States District Court, E.D. Pennsylvania
May 27, 2004.
DONALD T. VAUGHN, et al
The opinion of the court was delivered by: JOHN FULLAM, Senior District Judge
MEMORANDUM AND ORDER
This habeas corpus case has a protracted history, unfortunately
devoted almost exclusively to whether petitioner's claims are
time-barred. The magistrate judge to whom the case was referred for
report and recommendation initially recommended summary dismissal on
limitations grounds. However, that ruling was issued sua sponte,
before the respondent had filed a response to the petition. At about the
same time the magistrate's report was filed, the Third Circuit Court of
Appeals decided Robinson v. Johnson, 283 F.3d 581, 2002 WL
377928 (3d Cir. 2002), which held that the one-year limitations period
prescribed by the ADEPA, 28 U.S.C. § 2244, gives rise to an
affirmative defense which must be raised by the respondent, and which may
be waived. By Memorandum and Order dated June 17, 2002, I re-referred the
case to the magistrate judge for further proceedings. The magistrate
judge then appointed counsel for the petitioner, and directed the
respondent and the Philadelphia District Attorney to respond to the
petition. In their joint response, the respondents did not address the merits of
the petition, but asserted that the petition was untimely.
After extensive briefing, the magistrate judge has now filed a very
thorough report, again recommending that the petition be dismissed as
untimely. Petitioner's counsel has filed objections to the magistrate's
report, and the petitioner himself has filed pro se objections.
The respondents have filed a "consolidated response" to these objections.
Petitioner has filed a reply to that response, and respondents have filed
Petitioner's judgment of conviction became final in early 1995, after
the Pennsylvania Supreme Court denied his request for allowance of
appeal. See Commonwealth v. Perry, 653 A.2d 1229 (Pa. 1994)
(table. Petitioner filed a PCRA petition on May 9, 1997. The petition
was dismissed as untimely. On appeal from that decision, the Pennsylvania
Superior Court remanded the case to the trial court for further
proceedings. The petition was again denied, on January 22, 2001, and that
decision was affirmed by the Pennsylvania Superior Court on December 30,
2001. On February 19, 2002, petitioner filed the petition now before this
Since petitioner's judgment of conviction became final before the
effective date of the AEDPA, April 24, 1996, he was required to file his federal habeas corpus by April 24, 1997,
unless the limitations period is tolled. Under the statute, "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 subsection." 28 U.S.C. § 2244(d)(2). Unfortunately for the
petitioner, he did not file his PCRA petition until May 9, 1997, more
than one year after the effective date of the AEDPA. Thus, the statutory
provision for tolling is no help to petitioner, since his time for filing
in federal court had already expired. Moreover, since the state courts
ultimately rejected his PCRA application as untimely, it does not
constitute "a properly filed application for state conviction or other
collateral review," see, e.g., Fahy v. Horn, 240 F.3d 239, 244
(3d Cir.) cert. denied, 534 U.S. 944 (2001).
Petitioner argues that he is entitled to equitable tolling of the
pertinent time periods. It is clear that equitable tolling principles
can, in some circumstances, extend both the time for filing a PCRA under
Pennsylvania law, and the time for filing a federal habeas corpus
The issue is whether petitioner has shown that the respondents or those
for whom they are responsible improperly interfered with, and frustrated,
petitioner's efforts to challenge his conviction. Petitioner has produced evidence establishing that, at one point during
the one-year period after his conviction became final, there was a
lock-down at the institution in which he was confined. All prisoners were
locked in their cells, and, according to petitioner, all of his legal
papers were confiscated and, ultimately, destroyed. He made repeated
efforts to obtain the records which he needed to pursue his PCRA petition
(trial transcripts, etc.) but without success.
The PCRA court and the Pennsylvania Superior Court found, however,
that, even after making due allowance for these difficulties, the PCRA
petition was still untimely. These courts concluded that the lock-down
was relatively brief, and that the impediments to petitioner's PCRA
filing had been removed more than 60 days before he actually filed the
PCRA application. (Under the state statute, tolling does not extend the
filing period beyond 60 days after removal of the impediment.)
The state courts have found that the PCRA petition was untimely, even
allowing for permissible tolling. This court is bound by that
determination, and cannot now second-guess the state courts' ruling that
the PCRA application was filed too late. Thus, under state law, it was
untimely, and the period during which the PCRA application was pending in
the state court does not toll the ADEA's one-year limitations period.
Presumably, however, as a matter of federal law, in applying the AEDPA,
this court must make its own determination as to whether petitioner is entitled to equitable tolling during the
period when the state courts were considering whether or not the PCRA
application was timely. It would seem that there can be some
circumstances in which it would be inequitable to withhold the benefits
of equitable tolling from a petitioner who reasonably and in good faith
believed that his PCRA application was timely, only to learn, too late,
that the state court felt otherwise.
Be that as it may, this case must be decided on its own facts. As the
report of Magistrate Judge Welsh convincingly demonstrates, this
petitioner could readily have filed a PCRA petition within the time
limit, and could have sought the aid of the court in obtaining whatever
records might ultimately be needed. The grounds alleged in the original
and amended petitions were within petitioner's knowledge at all times.
There is no suggestion that anyone for whose conduct the respondents are
responsible led petitioner to believe that he could not file an adequate
application for judicial relief on the basis of the information already
at his disposal.
I conclude, therefore, that the magistrate judge has correctly
recommended that equitable tolling be denied. The petition will be
Although directed by the magistrate judge to file a complete and
detailed response to the petition, the respondents have not addressed the
merits in any respect. Thus, while I agree with the magistrate judge on the timeliness issue, I do not
believe it can confidently be asserted that the petitioner has failed to
raise any substantial constitutional issue. I am inclined to believe that
un-rebutted allegations of trial errors of potentially constitutional
magnitude should have some bearing upon the certification issue. I prefer
to allow the Court of Appeals to address that issue.
An order follows. ORDER
AND NOW, this ___ day of May 2004, upon consideration of the amended
petition for writ of habeas corpus, the response thereto, and the report
and recommendation of United States Magistrate Judge Diane M. Welsh, IT
IS HEREBY ORDERED:
1. The recommendation of the magistrate judge is
APPROVED and ADOPTED.
2. The amended petition for writ of habeas corpus
is DISMISSED, as untimely.
3. There may be grounds for the issuance of a
certificate of appealability.
4. The court expresses appreciation to Peter
Goldberger, Esquire for his commendable efforts
on behalf of the petitioner, pursuant to court
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