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O'Hara v. Brooks

June 8, 2007

JOHN ELLSWORTH O'HARA, PETITIONER,
v.
MARILYN S. BROOKS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: District Judge McLAUGHLIN

MAGISTRATE JUDGE BAXTER

MEMORANDUM ORDER

I.

This habeas action filed pursuant to 28 U.S.C. § 2254 was referred to United States Magistrate Judge Susan Paradise Baxter for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.

On May 14, 2007, Magistrate Judge Baxter issued a Report and Recommendation (Doc. No. 14) recommending that the petition be denied as it was barred by the applicable statute of limitations, which is set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and codified at 28 U.S.C. § 2244(d)(1).

Petitioner has filed Objections to the Report and Recommendation. (Doc. No. 15). Where, as here, objections have been filed, the Court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. See 28 U.S.C.§ 636(b)(1). Accordingly, the Court has carefully examined de novo all claims raised by Petitioner in his objections and finds that they have no merit.

II.

On August 9, 1990, Petitioner appeared before the Honorable Shad Connelly of the Court of Common Pleas of Erie County and pleaded guilty to two counts of burglary and one count each of aggravated indecent assault and possessing instruments of crime. Public Defender Michael Palmisano, Esq., represented him. On September 10, 1990, Judge Connelly sentenced him to an aggregate term of imprisonment of 27 1/2 to 55 years. No direct appeal was filed.

In September 1994, Judge Connelly granted Petitioner permission to file a notice of appeal nunc pro tunc and Michael J. Nies, Esq., was appointed to represent him. (State Court Record "SCR," Items 25-29). On appeal, Petitioner claimed that his guilty plea was void because it was not knowingly or voluntarily entered. On July 10, 1995, the Superior Court affirmed Petitioner's judgment of sentence, concluding that: "If there is anything about this case that is clear, it is that [Petitioner] voluntarily and knowingly entered his pleas of guilty." (SCR, Item 35 at p. 2). Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court; accordingly, his judgment of sentence became final, at the very latest, on or around August 9, 1995, when the time period for filing such a petition expired. Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000). (See also SCR, Item 38 at p. 1).

Because Petitioner's direct appeal proceedings concluded prior to the April 24, 1996 effective date of AEDPA, he had one year from that date--through April 23, 1997--to file a timely habeas petition under 28 U.S.C. § 2244(d)(1)(A).*fn1 Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). The instant petition for writ of habeas corpus, filed in August 2006, is thus untimely.

In the Objections, Petitioner claims that he instructed Attorney Palmisano to appeal his September 1990 judgment of sentence, but that counsel ignored his request. As a result, he contends, counsel provided him with constitutionally ineffective assistance and his judgment of sentence never became final. That argument has no merit. The state court reinstituted Petitioner's direct appeal rights nunc pro tunc in 1994. The Superior Court considered on the merits his claim that his guilty plea was not knowing or voluntary, and affirmed his judgment of sentence on July 10, 1995. Petitioner did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania. Accordingly, his judgment of sentence became final by operation of law on or around August 9, 1995, at the very latest.

The real issue presented by Petitioner's objections is whether he is entitled to have AEDPA's limitations period equitably tolled due to Attorney Palmisano's alleged ineffective assistance. Equitable tolling "is proper only when the principles of equity would make the rigid application of a limitation period unfair." Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998) (internal citations, quotations, and punctuation omitted). The Court of Appeals has cautioned that "courts should be sparing in their use of this doctrine, applying equitable tolling only in the rare situation where it is demanded by sound legal principles as well as the interests of justice." Lacava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005) (internal quotations, citations, and bracketed text omitted).

A litigant seeking equitable tolling bears the burden of establishing two elements: (1) he was in some extraordinary way prevented from bringing his claims, and (2) he has exercised reasonable diligence in attempting to investigate and bring his claims. Lacava, 398 F.3d at 276-78; Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner has not established these two elements.

Petitioner's allegations regarding Attorney Palmisano do not describe conduct that resulted in the level of "extraordinary" circumstances necessary to apply equitable tolling. In 1994, the state court reinstituted Petitioner's direct appeal nunc pro tunc. Thus, Attorney Palmisano's alleged failure to pursue a direct appeal in 1990 on Petitioner's behalf ultimately did not prejudice him, much less affect him in an "extraordinary" manner. For that reason ...


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