United States District Court, E.D. Pennsylvania
July 15, 2004.
MELVIN WHITE, Petitioner
COMMONWEALTH OF PENNSYLVANIA, et al Respondents.
The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
MEMORANDUM AND ORDER
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
(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
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
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
5. The Clerk of the Court shall mark this case closed.