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United States District Court, E.D. Pennsylvania

July 15, 2004.

MELVIN WHITE, Petitioner

The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge



Petitioner Melvin White ("White") is a state prisoner currently incarcerated at the State Correctional Institution in Huntington, Pennsylvania. White, filing a pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, claimed he was actually innocent of the charges for which he was convicted. The Commonwealth, responding to the petition, asserted that White's claims were procedurally defaulted and untimely. The court referred White's petition to Magistrate Judge Linda Caracappa (Judge Caracappa) for a Report and Recommendation (R & R), and Judge Caracappa recommended the petition be denied.*fn1 Presently before the court are the petitioner's Objections to the R & R. II. FACTUAL AND PROCEDURAL HISTORY

  On September 26, 2000, White entered a negotiated plea agreement to charges of rape and endangering the welfare of a child*fn2 with a sentence of five to ten years' imprisonment. The written plea colloquy informed White that he had a right to a trial and by accepting the plea he was waiving his pre-trial rights and right to a trial by a judge or jury. The written plea colloquy also informed him of his right to appeal and that he could have faced twenty-seven years in jail if he were found guilty at trial.

  In addition to the written plea colloquy, White acknowledged that his plea was voluntary and knowing. White admitted orally to the facts presented by the Commonwealth supporting the underlying charges. The judge advised White that he had ten days to ask the judge to reconsider acceptance of the negotiated sentence and thirty days to appeal to the Superior Court. White did not file a state court appeal or petition under the Post Conviction Relief Act ("PCRA") 42 Pa.C.S.A. § 9541, et seq.

  In his habeas petition, filed August 5, 2002, White claimed he was actually innocent of the rape charge because the factual basis of his conviction could support only the charge of "attempted rape." He also asserted his constitutional rights were violated when he pleaded guilty, his lawyer was ineffective because she did not seek any post-conviction relief, and the trial court failed to inform him of the maximum sentence.

  Judge Caracappa concluded that White's claims had not been exhausted because they were not raised in state court and the claims had been procedurally defaulted because review by any state court was foreclosed. Judge Caracappa also concluded that White's habeas petition was untimely.


  In his Objections, White argues his lawyer "deceived him into believing that a direct appeal was pending," and he is actually innocent of the rape charge.*fn3 A. Timeliness of the Habeas Petition

  White's petition is governed by the federal habeas statute, 28 U.S.C. § 2241, et seq., amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996. Section 2244(d) of the statute creates a one-year time limitation on filing:

  (1) 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 review;
(B) the date on which the impediment to filing an application created by the 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 presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).

  White was sentenced on September 26, 2000; his direct appeal time expired on October 26, 2000. See, Pa. R.A.P. 903(a) (requiring notice of appeal to be filed "within thirty days of the entry of the order from which the appeal is taken."). Because no appeal to the Superior or Supreme Court was filed, White had until October 25, 2001, to file a timely federal habeas petition, absent statutory or equitable tolling. White filed his petition on August 5, 2002, more than nine months after the statutory deadline.

  There are statutory exceptions to the one year time limitation. See 28 U.S.C. § 2244(d)(1)(B)-(D). However, White fails to satisfy any of these. He does not allege that any state action prevented him from filing his petition or that any claim relies on a new rule of retroactively applicable constitutional law.

  In addition to the statutory exceptions, the time limitation can be equitably tolled in situations when the principles of equity would make the rigid application of a limitation period unfair. Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Equitable tolling is appropriate when the petitioner has been prevented, in some extraordinary way, from asserting his or her rights. Id. at 618-619. The petitioner must show that he exercised reasonable diligence in investigating and bringing the claims. Id.

  Equitable tolling may be appropriate if: (1) the defendant actively misled the petitioner; (2) the petitioner, in some extraordinary way, has been prevented from asserting his rights; or (3) the petitioner timely asserted his rights mistakenly in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). White asserts that he directed his attorney to file an appeal, she failed to do so and led him to believe an appeal was pending, and he did not learn of her failure to appeal until July 2002.

  The Court of Appeals for the Third Circuit has determined that, "[i]n 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 (3d Cir. 2001). Even if White did direct his attorney to file an appeal and she failed, this would not meet the requirements for equitable tolling. White's failure to file a timely petition does not fall into any of these categories.

  B. The Exhaustion Requirement

  A federal court will not entertain the claims of a habeas petitioner unless he has exhausted all available state remedies. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). Judge Caracappa discussed White's failure to exhaust his claims in detail in the Report and Recommendation. Because this court finds White's petition untimely, it is not necessary to discuss exhaustion, procedural default or White's attempts to overcome procedural default through a claim of actual innocence.*fn4 III. CONCLUSION

  For the foregoing reasons, White's Objections to the Report and Recommendation will be overruled. An appropriate Order follows. ORDER

  AND NOW, this ____ day of July 2004, upon consideration of petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (Document No. 1), United States Magistrate Judge Linda Caracappa's Report and Recommendation (Document No. 15) and Supplemental Report and Recommendation (Document No. 18), Petitioner's Objections to Magistrate Judge's Report and Recommendation (Document No. 22), for the reasons stated in the foregoing Memorandum, it is hereby ORDERED that:

  1. The Supplemental Report and Recommendation (Document No. 18) is APPROVED and ADOPTED;

  2. Petitioner's Objections to Magistrate Judge's Report and Recommendation (Document No. 22) are OVERRULED;

  3. Petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody (Document No. 1) is DENIED;

  4. There is no probable cause to issue a certificate of appealability;

  5. The Clerk of the Court shall mark this case closed.

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