United States District Court, E.D. Pennsylvania
July 22, 2004.
WILLIAM HENRY SMITH
DONALD T. VAUGHN, ET AL.
The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
MEMORANDUM & ORDER
Presently before the Court is the Petition for Writ of Habeas
Corpus, (Doc. No. 1), the Report and Recommendation filed by
Magistrate Judge Peter B. Scuderi, (Doc. No. 10), and the
Objection to the Magistrate Report and Recommendation, (Doc. No.
11). For the reasons that follow, we will approve and adopt the
Report and Recommendation, and dismiss the Petition.
On September 11, 1970, following a trial in the Court of Common
Pleas of Philadelphia County, Judge John J. McDevitt, sentenced
Petitioner to a term of life imprisonment for firstdegree murder
and a concurrent term of ten to twenty years for aggravated
robbery. Petitioner's conviction was affirmed by the Pennsylvania
Supreme Court on May 5, 1973. Commonwealth v. Smith,
304 A.2d 456 (Pa. 1973). Petitioner's Writ of Certiorari to the United
States Supreme Court was denied. Smith v. Pennsylvania,
414 U.S. 1076 (1973).
On September 4, 1997, Petitioner filed his first pro se
petition for collateral relief in the state courts. See Post
Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et
seq. On March 11, 1998, Judge John J. Poserina, Jr., of the
Court of Common Pleas of Philadelphia County, dismissed Smith's PCRA petition as untimely.*fn1 On
appeal, the Pennsylvania Superior Court remanded the matter for
appointment of counsel and to allow Petitioner to file an amended
PCRA petition. Commonwealth v. Smith, 747 A.2d 420 (
Pa. Super. 1999) (table). On February 2, 2000, Gary S. Server was
appointed to represent Petitioner. (Doc. No. 7 Ex. C.) On May 5,
2000, Server filed a letter certifying that he had reviewed
Petitioner's case and concluded that Petitioner was time-barred
from filing a PCRA petition. See Commonwealth v. Finley,
550 A.2d 213, 215 (Pa. Super. 1988) (holding that "Once counsel
for the petitioner determines that the issues raised under the
[PCRA] are `meritless,' and the [PCRA] court concurs, counsel
will be permitted to withdraw. . . ."). On September 5, 2000, the
PCRA court permitted counsel to withdraw and dismissed the PCRA
petition. On July 16, 2001, the Superior Court affirmed the
dismissal of the PCRA petition. On December 28, 2001,
Petitioner's request for allowance of appeal to the Supreme Court
was denied. Commonwealth v. Smith, 792 A.2d 1253 (Pa. 2001).
On January 30, 2002, Petitioner filed the instant pro se
Petition for Writ of Habeas Corpus. We referred the Petition to
Magistrate Judge Peter B. Scuderi. On July 26, 2002, Judge
Scuderi recommended that the Petition be denied as time-barred.
Petitioner subsequently filed his "Objection to Magistrate Report
and Recommendation" (Doc. No. 11).
II. THE MAGISTRATE'S REPORT AND RECOMMENDATION
Magistrate Judge Scuderi recommended that we dismiss the
Petition as time-barred by the statute of limitations set forth
in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA imposes a one-year limitation period for filing
petitions for writs of habeas corpus. 28 U.S.C. § 2244(d)(1).
Specifically, § 2244(d)(1) states as follows:
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 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.
On direct appeal, Petitioner's Writ of Certiorari to the United
States Supreme Court was denied on December 3, 1973. Thus,
Petitioner's conviction became final before April 24, 1996, the
effective date of AEDPA. The Court of Appeals for the Third
Circuit has held that a federal habeas petition is not barred by
AEDPA if the petition was filed within one year of the effective
date of the AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d
Cir. 1998). As a result, Petitioner had until April 23, 1997, to
timely file a federal habeas petition. See id.
Petitioner submitted this Habeas Corpus Petition on January 30,
2002, over four years after the AEDPA statute of limitations had
run. Section 2244(d)(2) 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." However, because Petitioner's
PCRA petition was not filed until September 4, 1997, after the
federal statute of limitations had run, even if this PCRA
petition was considered to be "properly filed" it would not toll
the statute of limitations. Petitioner does not assert that some
state action has caused an impediment to filing his Petition,
that his Petition involves a right which has been newly
recognized by the Supreme Court, or that new facts have come to
light which could not have been previously discovered,
28 U.S.C. § 2244(d)(1)(B)-(D). Therefore, Petitioner is barred from
presenting his claims unless the statute of limitations is
subject to equitable tolling.
The Magistrate Judge reviewed the ways in which the AEDPA
limitations period can be "equitably tolled" in order to
determine if the Petition was timely. Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999) (quoting United States v. Midgley,
142 F.3d 174, 179 (3d Cir. 1998)). Petitioner did not present any
extraordinary circumstance that prevented him from asserting his
claims. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001).
Accordingly, the Magistrate Judge recommended that we dismiss the
Petition as untimely.
III. PETITIONER'S OBJECTIONS
We review de novo those portions of the Report and
Recommendation to which Petitioner objects.
28 U.S.C. § 636(b)(1). Petitioner does not object to the conclusion in the
Report and Recommendation that his claims are time-barred, rather
he uses this filing to reargue the merits of the Petition, and
argue that to deny him relief based on "procedural default or
waiver" would "damage the integrity, reputation, and the fairness
of the judicial process. . . ." (Doc. No. 11 at 1.) Concurrently,
Petitioner argues that it is inappropriate for the Court to raise
the issue of procedural default where "it is evident that a
miscarriage of justice has occurred." (Id. at 2.)
Judge Scuderi's conclusion that the Petition is time-barred is
correct. Petitioner had until April 23, 1997, to file a Petition
of Habeas Corpus. As the Petition was not filed until January 30,
2002, we cannot consider the merit of Petitioner's claims. Judge
Scuderi accurately stated the standard for equitable tolling to
apply. We reiterate that equitable tolling "may be appropriate 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." Morton, 195 F.3d at
159. In lieu of presenting evidence that supports the conclusion
that one of these situations exist, Plaintiff argues that
perceived shortcomings at his trial constituted a denial of due
process. Under the circumstances, we are compelled to conclude
that the doctrine of equitable tolling is not available to
Petitioner under the facts presented. Petitioner's Habeas
Petition must be dismissed as untimely.
IV. CERTIFICATE OF APPEALABILITY
The court must decide whether to issue a certificate of
appealabilty. See Third Circuit Local Appellate Rule 22.2. When
a federal court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claims, the court
is not required to issue a certificate of appealability unless
the petitioner demonstrates that jurists of reason would find it
debatable: (1) whether the petition states a valid claim of the
denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484-85 (2000). "Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the petitioner should be allowed
to proceed further." Id. We have concluded that Petitioner's
habeas Petition must be dismissed as untimely. Reasonable jurists
would not find this conclusion to be debatable. Consequently, we
decline to issue a certificate of appealability.
An appropriate Order follows. ORDER
AND NOW, this ____ day of July, 2004, upon consideration of
the Petition for Writ of Habeas Corpus, (Doc. No. 1), the Report
and Recommendation filed by Magistrate Judge Peter B. Scuderi,
(Doc. No. 10), and the Objection to the Magistrate Report and
Recommendation by William Henry Smith, (Doc. No. 11), it is
1. The Objections to the Report and Recommendation are
2. The Report and Recommendation is APPROVED and ADOPTED.
3. The Petition is DISMISSED.
4. There are no grounds for a Certificate of Appealability.
IT IS SO ORDERED.