United States District Court, E.D. Pennsylvania
July 14, 2004.
KEVIN EVERETT, Petitioner
DONALD T. VAUGHN, et. al. Respondents.
The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas
Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner
currently incarcerated in the State Correctional Institution at
Dallas, Pennsylvania. For the reasons which follow, it is
recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On September 29, 1989, petitioner pled guilty before the
Honorable Theodore A. McKee to four counts of aggravated assault,
one count of burglary, and three first-degree misdemeanors. On
April 6, 1990, petitioner was sentenced to twenty-three to fifty
years imprisonment for these offenses. A concurrent sentence
totaling eighteen to forty years was also recorded on the docket.
Both petitioner and respondent filed petitions to modify the
sentence. On January 10, 1991, the trial court denied both
petitions, but corrected the docket to reflect the original
sentence of twenty-three to fifty years.
Petitioner directly appealed his sentence to the Superior Court
of Pennsylvania, alleging the correction of the recording error
violated double jeopardy. On August 11, 1992, the Superior Court held that the correction of a clerical error did
not violate the constitutional guarantee against double jeopardy.
Commonwealth v. Everett, 617 A.2d 388 (Pa. Super. 1992).
Petitioner's request for allocatur was denied on February 12,
1993. Commonwealth v. Everett, 622 A.2d 1375 (Pa. 1993).
Petitioner then filed a petition under the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq, which was
dismissed as untimely on January 3, 1992.
On July 13, 1994, petitioner filed a second PCRA petition
alleging the following:
(1) The trial court misled the Superior Court as to
the sentence that was originally imposed;
(2) Petitioner's rights were grossly violated by the
(3) The correction of petitioner's sentence violated
double jeopardy protections;
(4) Petitioner's counsel was ineffective for
influencing his guilty plea;
(5) The trial court failed to explain the range of
(6) Petitioner did not knowingly or intelligently
enter a guilty plea;
(7) Petitioner had knowledge he could have used as a
defense during his guilty plea; and
(8) Due to unusual circumstances, petitioner should
be permitted the opportunity to withdraw his guilty
Court appointed counsel filed a no merit letter pursuant to
Commonwealth v. Finley, 379 Pa. Super. 390, 393-94,
550 A.2d 213, 215 (1988). On January 30, 1995, the PCRA court dismissed
the petition as meritless.
Petitioner appealed to the Pennsylvania Superior Court, which
found that his brief precluded meaningful review. On April 9, 2001, petitioner filed a third PCRA petition, which
was subsequently dismissed as untimely. Petitioner appealed to
the Pennsylvania Superior Court, which affirmed the dismissal on
September 16, 2002. Commonwealth v. Everett, 813 A.2d 901 (
Pa. Super. 2002). Petitioner's request for allowance of appeal was
denied by the Pennsylvania Supreme Court on December 18, 2001.
Commonwealth v. Everett, 814 A.2d 676 (Pa. 2002).
On January 21, 2003, petitioner filed the instant Petition for
Writ of Habeas Corpus, raising the following claims:
(1) The sentencing process constitutes a violation of
(2) The correction of petitioner's sentence amounted
to cruel and unusual punishment;
(3) Petitioner's original sentence was
(4) A miscarriage of justice occurred because
petitioner never received the decision on his appeal
before the Honorable Alex Bonaritacola dated February
Respondent retorts that the petition is time-barred, and thus
petitioner is not entitled to habeas relief.
Notwithstanding petitioner's allegations 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 latest of
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such
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 petitioner has a one-year grace
period subsequent to the effective date to commence a habeas
action. Burns v. Morton, 134 F.3d 109, 111 (3rd 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. § 2254(d)(2). 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 (3rd 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 (3rd Cir. 2003).
In the case at bar, petitioner's conviction became final on May
11, 1993. Thus, petitioner had until April 23, 1997 to file a
petition for Writ of Habeas Corpus. Petitioner's first habeas
petition was not docketed until January 21, 2003, nearly six
years after the deadline. Having thus failed to comply with the
statute, this court has no choice but to dismiss the request for
habeas relief without consideration on the merits.
One avenue of relief remains for petitioner. The statute of
limitations in the AEDPA is subject to equitable tolling. Miller
v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618
(3rd Cir. 1998). Equitable tolling is proper only when the
"principles of equity would make [the] rigid application [of a
limitation period] unfair." Id. (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 (3rd Cir. 1999) (internal quotations omitted).
"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 (3rd Cir. 2001), cert.
denied, 122 S.Ct. 323 (2001) (citing cases). To otherwise apply
equity would "lose the rule of law to whims about the adequacy of
excuses, divergent responses to claims of hardship, and
subjective notions of fair accommodation." Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). Though the District court has the ability to review the
substantive issues raised in a habeas corpus petition when
applying the statute of limitations would unfairly prejudice the
petitioner, the petitioner must show more than excusable neglect
in order for the court to do so. Rather, the petitioner must
prove that he exercised reasonable diligence but that for some
extraordinary reason, he was prevented from asserting his rights.
See Miller, 145 F.3d at 618-19. Petitioner has failed to meet
this burden. Consequently, we decline to exercise our equitable
tolling powers, and we dismiss his entire petition.
Therefore, I make the following:
AND NOW, this ____ day of June, 2004, IT IS RESPECTFULLY
RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED
AND DISMISSED. It is also RECOMMENDED that a certificate of
appealability not be granted.
AND NOW, this ____ day of ____, 2004, upon careful and
independent consideration of the petition for Writ of Habeas
Corpus, and after review of the Report and Recommendation of
United States Magistrate Judge Linda K. Caracappa, IT IS ORDERED
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for Writ of Habeas Corpus is DENIED with
3. There is no probable cause to issue a certificate of
4. The Clerk of Court shall mark this case closed for