United States District Court, E.D. Pennsylvania
July 22, 2004.
DAVID ANTWON RICHARDSON, Petitioner
R. SHANNON, et al. Respondents.
The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge
SUPPLEMENTAL REPORT AND RECOMMENDATION
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.
I. PROCEDURAL HISTORY
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,
(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.