United States District Court, E.D. Pennsylvania
July 22, 2004.
ANTHONY BOYKINS, Petitioner
FRANK TENNIS, WARDEN, SCI ROCKVIEW, et al., Respondents.
The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
MEMORANDUM AND ORDER
Petitioner Anthony Boykins ("Boykins"), a prisoner at the State
Correctional Institution at Rockview, filed a petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2254 on March 18, 2004. The
petition was referred to United States Magistrate Judge Arnold C.
Rapoport ("Judge Rapoport"), who found the petition untimely, and
issued a Report and Recommendation ("R&R") that it be denied and
dismissed without an evidentiary hearing. (Paper No. 9).
Boykins, filing objections to the R&R, asserted ineffective
counsel denied him the right to an appeal. After de novo review
of the R&R and Boykins's claims and objections, the court finds
the petition time-barred.
After a bench trial before Judge Lisa A. Richette in the Court of Common Pleas of Philadelphia County, Boykins was
convicted of third degree murder and possession of an instrument
of crime. He was sentenced to an aggregate term of ten to twenty
years' imprisonment on July 23, 1998. No direct appeal was filed.
Counsel for Boykins filed a petition under the Post Conviction
Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq.
on August 21, 1998. The PCRA petition was dismissed on January
12, 2000, and Boykins did not file an appeal. Counsel for Boykins
filed a second PCRA petition on January 22, 2002, which was
dismissed as untimely on November 12, 2002. The Superior Court
affirmed the dismissal. Commonwealth v. Boykins, 847 A.2d 755
(Pa. Super. 2004) (unpublished table decision).
Boykins, filing the instant Petition for Writ of Habeas Corpus,
requested he be granted a nunc pro tunc direct appeal of his
original conviction to the Pennsylvania Superior Court. He
asserts that ineffectiveness of his trial and post-conviction
counsel in failing to meet state court filing deadlines denied
him his right to direct review, so the statute of limitations
should be equitably tolled. Judge Rapoport found the petition
untimely and barred by the one-year statute of limitations for
habeas corpus actions.
A. One-Year Time Limit on Habeas Petitions The Antiterrorism and Effective Death Penalty Act of 1994
("AEDPA") Pub.L. 104-132, 28 U.S.C. § 2244(d), provides a
one-year time limit:
(d)(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
(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 of 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.
(2) 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
Boykins does not assert there was some state action creating an
impediment to filing, or some constitutional right was newly
recognized by the Supreme Court, or new facts were discovered.
Accordingly, the limitations period began to run on the date his
conviction became final by the conclusion of direct review or the
expiration of time for seeking direct review, i.e., on August 23, 1998. 28 U.S.C. § 2244(d)(1)(A).
Under § 2244(d)(2), the limitations period is tolled while a
properly filed action for state post-conviction relief is
pending. Boykins's first PCRA petition, filed August 21, 1998,
was pending until January 12, 2000. After the expiration of the
30-day period for seeking appellate review, the AEDPA limitations
period began to run, and ended February 13, 2001.
Boykins's second PCRA petition, dismissed as time-barred, was
not properly filed so it did not qualify for the § 2244(d)(2)
exception. Merritt v. Blaine, 326 F.3d 157, 166-67 (3d Cir.
2003), cert. denied, 124 S.Ct. 317 (2003).
B. Equitable Tolling
The AEDPA one-year time statutory limitation can be equitably
tolled when the rigid application of the limitation period would
be unfair under principles of equity. Miller v. New Jersey State
Dep't. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
For equitable tolling, the petitioner must show: 1) he was
actively misled; 2) he has been prevented from asserting his
rights in some extraordinary way; or 3) he timely asserted his
rights mistakenly in the wrong forum. Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999). 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. See Fahy v. Horn, 240 F.3d 239, 244
(3d Cir. 2001); Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir.
A petitioner must also show reasonable diligence in bringing
the claims he seeks to have equitably tolled. Miller, 145 F.3d
at 618-19. The petitioner must show "consistent assiduousness" in
pursuing his claim to meet this reasonable diligence standard.
Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 241 (3d
Boykins has not claimed he was actively misled or that he
mistakenly asserted his habeas rights in the wrong forum. The
only possibility for equitable tolling is that some extraordinary
circumstance prevented him from asserting his rights in federal
court within the one-year period allowed. Boykins claims that the
ineffectiveness of his trial counsel in failing to make a direct
appeal constitutes such error. Boykins also asserts the
ineffectiveness of later counsel was the cause of his delay in
filing. These claims do not rise to the level of an extraordinary
circumstance in a non-capital case. See Johnson, 314 F.3d at
Boykins did not appeal the denial of his first PCRA petition;
Boykins had the opportunity to file a federal habeas petition for
thirteen months after the dismissal of his first PCRA petition,
and failed to do so. He then waited two years to file a second
PCRA petition. Boykins did not exercise reasonable diligence in
pursuing his claims, as required by Miller and Seitzinger. Equitable tolling is not appropriate.
Boykins's petition is untimely; this court will adopt the
Report and Recommendation of Judge Rapoport. An appropriate 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 (Paper No. 1), United
States Magistrate Judge Arnold C. Rapoport's Report and
Recommendation (Paper No. 9), Petitioner's Objections to the
Report and Recommendation of the Magistrate Judge (Paper No. 10),
for the reasons stated in the foregoing Memorandum, it is hereby
1. The Report and Recommendation (Paper No. 9) is APPROVED AND
2. Petitioner's Objections to Magistrate Judge's Report and
Recommendation (Paper No. 10) are OVERRULED;
3. Petitioner's Petition for Writ of Habeas Corpus by a person
in State Custody (Paper 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.
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