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United States District Court, E.D. Pennsylvania

July 22, 2004.

R. SHANNON, et al. Respondents.

The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge


On September 9, 2003, petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This court filed a Report and Recommendation in the above matter on March 22, 2004, recommending that the petition be denied and dismissed. On April 6, 2004, the district court approved and adopted said Report and Recommendation. Petitioner's Motion to Alter or Amend Judgment was received on April 26, 2004, and was subsequently granted by the Honorable J. Curtis Joyner. In light of petitioner's motion, Judge Joyner remanded the matter to this court for further review. For the reasons which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed.


  On December 13, 1994, following a jury trial presided over by the Honorable John J. Poserina, Jr. of the Philadelphia County Court of Common Pleas, petitioner was convicted of two counts of aggravated assault and one count each of possession of an instrument of crime, recklessly endangering another person, and criminal conspiracy. The jury failed to reach a verdict with respect to the charge of murder. After being sentenced to ten to twenty years imprisonment for the above convictions, petitioner was retried on the murder charge before Judge Poserina. On July 21, 1995, the jury found petitioner guilty of first degree murder. Specifically, petitioner was found guilty of the drive-by killing of Gerald Smith. Three days later, on July 24, 1995, petitioner was sentenced to life imprisonment.

  Petitioner appealed to the Pennsylvania Superior Court, which affirmed his sentence on February 6, 1997. Commonwealth v. Richardson, 694 A.2d 1121 (Pa. Super. 1998). The Pennsylvania Supreme Court subsequently denied allocatur on August 8, 1997. Commonwealth v. Richardson, 549 Pa. 699, 700 A.2d 440 (1997).

  On January 11, 2000, petitioner filed a state court collateral petition under the Post Conviction Relief Act (PCRA). This petition was dismissed by the Court of Common Pleas on January 12, 2001,*fn1 and petitioner did not appeal.

  On September 4, 2001, petitioner filed a second PCRA petition. The petition was dismissed as untimely on March 1, 2002, and petitioner did not appeal.

  On May 14, 2003, petitioner filed a third PCRA petition. As a result of its untimeliness, it was dismissed on January 6, 2004, and petitioner did not appeal.

  Petitioner filed his Petition for Writ of Habeas Corpus on September 9, 2003, alleging that his conviction was in violation of the Double Jeopardy Clause of the United States Constitution. Respondent retorted that petitioner's Petition for Writ of Habeas Corpus was timebarred, and thus petitioner was not entitled to habeas review or relief.*fn2 This court issued a Report and Recommendation on March 22, 2004, finding the Petition for Writ of Habeas Corpus untimely. Petitioner filed objections, and on April 6, 2004, the Honorable J. Curtis Joyner approved the Report and Recommendation.

  On April 26, 2004, petitioner filed a Motion to Alter or Amend Judgment, alleging the following:

(1) In adopting the Report and Recommendation, the district court failed to consider that petitioner was not in custody of his life sentence until July 11, 2002;
(2) The district court erred in failing to consider petitioner's double jeopardy claim; and
(3) Petitioner is entitled to file an amended petition offering evidence that he was not in custody of his life sentence until July 11, 2002.
  Petitioner's motion was granted by Judge Joyner on April 29, 2004, and the matter was remanded to this court for further review and preparation of an Amended Report and Recommendation.

  As petitioner has not filed an amended petition, the claims before this court are those alleged in the Motion to Alter or Amend Judgment. Respondents have reviewed these claims, and argue that petitioner has failed to present sufficient evidence of equitable tolling to overcome the time bar. In the alternative, respondents allege that petitioner's double jeopardy claim is procedurally defaulted and without merit.


  Notwithstanding petitioner's allegations of substantive grounds for relief, one procedural obstacle precludes federal review of his claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996: A 1-year limitation period 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.*fn3
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 prisoner 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. § 2244(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).

  Under the AEDPA, a petitioner's conviction becomes final ninety days after the conclusion of his direct appeal. See Kapral v. United States, 166 F.3d 565, 575 (3rd Cir. 1999); Johnson v. Hendricks, 314 F.3d 159 (3rd Cir. 2002). In the case at bar, petitioner was denied allocatur by the Pennsylvania Supreme Court on August 8, 1997. Thus, his conviction became final ninety days later, on November 6, 1997. As directed by AEDPA, petitioner had until November 6, 1998 to initiate his federal habeas action.

  Petitioner argues that he could not have filed his Petition for Writ of Habeas Corpus within AEDPA's one-year grace period, as he was not in custody of his life sentence until July 11, 2002.

  However, petitioner was present for his sentencing on July 24, 1995, and reasonably knew or should have known at that point that he was sentenced to life imprisonment. As well, petitioner was aware of the fact that he was eligible to file appeals after that date. This is evidenced by the fact that petitioner filed a direct appeal and two PCRA petitions prior to receiving custody of his life sentence.

  Even if petitioner were correct that AEDPA's grace period did not begin to expire until July 11, 2002, he still would have to have filed his Petition for Writ of Habeas Corpus by July 10, 2003 in order for it to have been timely. Thus, it is of no matter that petitioner was not in custody of his life sentence until July 11, 2002.

  The fact remains that petitioner did not file his current habeas petition until September 9, 2003, almost five years after the statute of limitations expired. 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).

  Petitioner's first PCRA petition failed to toll the statute of limitations, as it was not filed until January 11, 2000, more than one year after the statute had run. Likewise, petitioner's second and third PCRA petitions were filed after the expiration of the statute. Since these latter petitions were expressly deemed untimely by the state court, they were improperly filed and did not toll the statute. See Merritt, 326 F.3d at 167-68; Fahy, 240 F.3d at 243-44. Even if the state court had tolled the statute of limitations, the one-year period would still have run well before petitioner filed his Petition for Writ of Habeas Corpus in September of 2003.

  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 recommendation: RECOMMENDATION

  AND NOW, this ____ day of July, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.

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