United States District Court, M.D. Pennsylvania
November 9, 2005.
ANTHONY GONZALEZ, Petitioner,
FRANK GILLIS, Respondent.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
MEMORANDUM AND ORDER
Anthony Gonzalez ("Petitioner"), an inmate presently confined
at the State Correctional Institution, Coal Township,
Pennsylvania ("SCI-Coal Twp."), initiated this pro se
petition for writ of habeas corpus. Named as Respondent is
SCI-Coal Twp. Superintendent Frank Gillis. The York County,
Pennsylvania District Attorney's office has filed an answer to
Gonzalez was convicted of second degree murder, unlawful
restraint, aggravated assault, criminal conspiracy, and two (2)
counts of robbery following a jury trial in the York County Court
of Common Pleas. On May 1, 1995, he was sentenced to a term of life imprisonment plus 7 to 14 years.
Following a direct appeal to the Pennsylvania Superior Court, his
conviction was affirmed on May 10, 1996. See Record document
no. 15, Exhibit C. The Pennsylvania Supreme Court denied his
request for allowance of appeal on January 7, 1997. See
Commonwealth v. Gonzalez, 687 A.2d 376 (Pa. 1997) (Table).
On December 29, 1997, the Petitioner initiated an action
pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA").
His petition was denied by the trial court on July 21, 1998. The
record indicates Petitioner attempted to file a pro se
appeal. However, the notice of appeal was apparently forwarded by
the York County Clerk of Court to Petitioner's PCRA counsel.
Thereafter, a series of confusing events transpired which
included the trial court's revocation of the appointments of both
Petitioner's original and substitute PCRA counsel. According to
the record, the end result was that a timely PCRA appeal was not
A submission made by the Petitioner on March 18, 2002 was
deemed a second PCRA petition by the trial court. Gonzalez's
filing requested reinstatement of his appellate rights with
respect to his initial PCRA action. Gonzalez's second PCRA
petition was dismissed as being untimely filed by both the trial
court and the Superior Court. See Record document no. 15, Exhibit J. On
July 27, 2004, the Pennsylvania Supreme Court denied Petitioner's
request for allowance of appeal. See Commonwealth v.
Gonzalez, 858 A.2d 108 (Pa. 2004) (Table).
Gonzalez filed his present § 2254 petition on August 10, 2004.
Petitioner claims that he is entitled to federal habeas corpus
relief on the grounds that: (1) his conviction was the result of
actions taken by an unconstitutionally selected and impaneled
jury; (2) he received ineffective assistance from his trial and
PCRA counsel; and (3) the imposition of a mandatory life sentence
for felony murder violated both his due process and equal
protection rights. The Respondent argues that Gonzalez's petition
is barred by the applicable statute of limitations.
The Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) amended the federal habeas statute by imposing a statute
of limitations on prisoners requesting habeas corpus relief
pursuant to 28 U.S.C. § 2254. Specifically,
28 U.S.C. § 2244(d)(1)-(2) provides, in relevant part, as follows:
(d)(1) A one-year period of limitations 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 for seeking such review . . . (d)(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
(emphasis added); see generally, Jones v. Morton, 195 F.3d.
153, 157 (3d Cir. 1999). Thus, under the plain terms of §
2244(d)(1)(A), the period of time for filing a habeas corpus
petition begins to run when the direct appeal is concluded. See
Harris v. Hutchinson, 209 F.3d 325
, 327 (4th Cir. 2000)
("[T]he AEDPA provides that upon conclusion of direct review
of a judgment of conviction, the one year period within which to
file a federal habeas corpus petition commences, but the running
of the period is suspended for the period when state
post-conviction proceedings are pending in any state court.")
(emphasis in original).
However, a one year grace period existed for applicants whose
convictions became final before the April 23, 1996 effective date
of the AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
1998). Gonzalez was convicted and sentenced in 1995. However, the
Pennsylvania Supreme Court did not deny his request for allowance
of appeal on January 7, 1997, after the AEDPA's effective date.
According to the Respondent, Gonzalez was required to seek
federal habeas corpus relief on or before April 7, 1998 (one year
from the expiration of "the time period within which to file for writ of certiorari
with the United States Supreme Court expired"). Record document
no. 14, ¶ 6.
Respondent's computation properly considers the period during
which Gonzalez could seek review from the United States Supreme
Court. See Kapral v. United States, 166 F.3d 565, 570 (3d
Cir. 1999). Accordingly, this Court agrees that Petitioner's
conviction became final when the time period for seeking
certiorari expired. Accordingly, Gonzalez had until April 7,
1998 in which to timely seek federal habeas corpus relief.
As indicated above, § 2244(d)(2) operates to exclude only the
time within which a "properly filed application" for post
conviction relief is pending in state court. Thus, when a
petition or appeal has concluded and is no longer pending, the
one (1) year statute of limitations starts to run and the time is
counted. A "properly filed application" for post conviction
relief under § 2244(d)(2) is one submitted according to the
state's procedural requirements, such as rules governing time and
place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir.
1998). The Third Circuit Court of Appeals has defined "pending"
as the time during which a petitioner may seek discretionary
state court review, whether or not such review is sought. Swartz
v. Meyers, 204 F.3d 417 (3d Cir. 2000). "Pending," however, does not include the period during which a
state prisoner may file a petition for writ of certiorari in
the United States Supreme Court from the denial of his state
post-conviction petition. Stokes v. District Attorney of the
County of Philadelphia, No. 99-1493, 2001 WL 387516, at *2 (3d
Cir., April 17, 2001). Likewise, the statute of limitations is
not tolled under § 2244(d)(2) for the time during which a habeas
petition is pending in federal court. Jones, 195 F.3d at 158.
In Nara v. Frank, 264 F.3d 310, 316 (3d Cir. 2001) the Third
Circuit recognized that a motion to withdraw a guilty plea nunc
pro tunc "was a `properly filed application for state
post-conviction or other collateral review' within the meaning of
§ 2244(d)(2)." However, a subsequent ruling by the Third Circuit
held that an untimely PCRA petition was not a properly filed
action for purposes of the AEDPA and therefore did not toll the
statute of limitation for the filing of a federal habeas
petition. Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003).
In Schleueter v. Varner, 2004 WL 2035180 (3d Cir. Sept. 14,
2004), the Third Circuit established that a state court ruling
dismissing a PCRA petition as untimely was controlling for
purposes of a determination under Merritt. The Court of Appeals
added that tolling was not permissible "merely because petitioner unsuccessfully has sought the right to appeal nunc pro tunc
years after his unexercised right to file a timely direct appeal
has expired." Id. at p. 6.
Furthermore, the AEDPA's "one-year filing requirement is a
statute of limitations, not a jurisdictional rule, and thus a
habeas petition should not be dismissed as untimely filed if the
petitioner can establish an equitable basis for tolling the
limitations period." Jones, 195 F.3d at 159, citing Miller v.
New Jersey State Department of Corrections, 145 F.3d 616 (3d
Cir. 1998). The Jones court held that "extraordinary" and
"rare" circumstances are required for the granting of equitable
tolling.*fn1 "In non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not
been found to rise to the `extraordinary' circumstances for
equitable tolling." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
The one year period began to run when Petitioner's conviction
became final on April 7, 1997. The limitation period was
statutorily tolled beginning on December 29, 1997 when Gonzalez filed his initial PCRA action. As
noted earlier, after the trial court's denial of the initial PCRA
petition a confusing chain of events ensued. Based on the ensuing
period of confusion, it is apparent to this Court that Petitioner
is entitled to either statutory or equitable tolling from the
December 29, 1997 filing of his initial PCRA action to January 2,
2002, when the trial court again denied collateral relief to
On March 18, 2002, the Petitioner made a filing with the trial
court which was construed as a second PCRA action. Both the trial
court and the Superior Court dismissed the matter as being an
untimely second PCRA petition. Thereafter, the Pennsylvania
Supreme Court denied Gonzalez's petition for allowance of appeal.
Under the standards announced in Merritt and Schleueter,
the Petitioner is not entitled to statutory tolling for the
period of time in which his second untimely PCRA action was
pending before the Pennsylvania state courts, specifically from
March 18, 2002 to July 27, 2004. With respect to the issue of equitable tolling for the same
March 18, 2002-July 27, 2004 period, the Petitioner has not
demonstrated the extraordinary and rare circumstances required
for the equitable tolling exception under Jones. In Johnson v.
Hendricks, 314 F. 3d 159 (3d Cir. 2002), the Third Circuit held
that attorney error was not a sufficient basis for equitable
tolling. Likewise, it has been established that the principles of
equitable tolling do not extend to claims of excusable neglect.
Irwin, Dept. Of Veterans' Affairs, 498 U.S. 89, 96 (1990).
While this Court is sympathetic to the plight of pro se
litigants, under the standards set forth in Miller and Jones,
the present petition simply does not allege the type of
extraordinary circumstances which would warrant equitable tolling
for the March 18, 2002 to July 27, 2004 period during which
Petitioner's untimely second PCRA action was pending.*fn4
Since Gonzalez's present § 2254 action was not filed until August
10, 2004, it was well beyond the one year limitations period
established by § 2244. Thus, Petitioner's request for federal
habeas corpus relief will be dismissed pursuant to §
2244(d)(1)(A). Consequently, IT HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus is
dismissed as untimely pursuant to
28 U.S.C. § 2244(d)(1)(A).
2. The Clerk of Court is directed to close the case.
3. Based on the Court's conclusion herein, there is
no basis for the issuance of a certificate of
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