UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA
October 27, 2009
JEFFREY O. BRIGHT, PETITIONER
COMMONWEALTH OF PENNSYLVANIA AND PA STATE ATTORNEY GENERAL, RESPONDENTS
The opinion of the court was delivered by: (mannion, M.J.)
REPORT AND RECOMMENDATION*fn1
On April 28, 2008, the petitioner, through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254, in which he challenged his conviction and sentence imposed in the Court of Common Pleas of York County. (Doc. No. 1). The filing fee having been paid, on June 6, 2008, the petition was given preliminary consideration pursuant to Rule 4 of the Rules Governing Section 2254 Cases, 28 U.S.C.foll. §2254, and it was recommended that the matter be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Doc. No. 2). The petitioner, thereafter, filed objections on June 23, 2008. (Doc. No. 3). The district judge did not adopt the recommended disposition and remanded the matter for ". . . resolution of the equitable tolling issue expressed in the Petitioner's objections." (Doc. No. 4).
Upon remand, counsel for the parties were ordered to brief the equitable tolling issue. (Doc. No. 6). On August 20, 2009, counsel for the respondent submitted his brief, (Doc. No. 7), and on September 25, 2009, counsel for the petitioner submitted his reply brief. (Doc No. 10). The matter is now ripe for decision.
By way of relevant background, on or about January 18, 2002, the petitioner was arrested and charged with possession of marijuana. According to the October 24, 2006, decision of the Superior Court of Pennsylvania:
"...York County Police Officers Paul DeHart and M. Muldrow were patrolling in an unmarked vehicle when they observed two men sitting in a green 1993 Volvo sedan handling what they observed to be a clear plastic baggie containing a grassy substance. Believing that the bag contained marijuana, the police officers conducted a vehicle stop. The vehicle was occupied by Bright and his passenger, Rodney Balls. As Bright and Balls exited the vehicle, the officers could smell fresh marijuana coming from the vehicle. A subsequent patdown of the two men uncovered a large plastic bulge on Bright's left hip, which was later revealed to contain 418 grams of marijuana. (Doc. 1, Ex. 4).
Petitioner, through counsel, filed a motion to suppress evidence and received a suppression hearing which was held before the Common Pleas Judge on October 15, 2002. Following the hearing, petitioner's motion to suppress was denied. Id. He was found guilty after a trial by jury and sentenced to a mandatory two to four years of incarceration. The petitioner filed a direct appeal to the Pennsylvania Superior Court, which affirmed the sentence by order dated July 8, 2004*fn2 . (Doc. No. 1, Ex. 1).
On or about July 7, 2005, the petitioner filed a post-conviction petition with the Court of Common Pleas of York County. A hearing was scheduled on the petition, after which an order was entered on September 26, 2005, granting the petition and setting bail at $250,000. (Doc. No. 1, Ex. 2). On the following day, however, the court vacated it's prior order and denied the petitioner's post-conviction petition finding that the issue raised in the petition had previously been litigated and decided adversely to the petitioner. The court directed, however, that the petitioner should be released from the York County Prison. (Doc. No. 1, Ex. 3). The petitioner filed an appeal to the Superior Court, which affirmed the lower court's decision by order dated October 24, 2006.*fn3 (Doc. No. 1, Ex. 4). A petition for allowance of appeal to the Pennsylvania Supreme Court was denied by order dated April 17, 2007. (Doc. No. 1, Ex. 5).
On April 28, 2008, the instant action was filed in which it is argued that the trial court erred as a matter of law and/or abused its discretion in sentencing the petitioner to a term of two to four years for a simple possession of marijuana charge because it: (1) ". . . erred in denying Defendant's PCRA Petition, without ever addressing the issues presented in Defendant's petition, after granting the petition and ordering a new trial, arresting the Defendant and setting new bail of $250,000 for the defendant;" (2) "...erred in denying Defendant's Motion to Suppress evidence;" (3) erred because ". . . Defendant's prior counsels were ineffective in various stages of the case;" and, (4) "ineffective . . . in violation of the Sixth Amendment . . ." (Doc. No. 1).
As noted earlier, the petitioner's habeas petition is governed by the AEDPA. Pursuant to the AEDPA, a habeas petition must be filed in a timely manner. The provision of the AEDPA relevant to the instant matter provides as follows:
(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 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;
(B) the date on which the impediment to filing an application created by 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 subsection.
28 U.S.C. §2244(d). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir.1998).
In this case, the Superior Court of Pennsylvania affirmed the petitioner's sentence imposed by the lower court on July 8, 2004. The petitioner's conviction became final thirty days later, on August 9, 2004*fn4 , when the time for filing a petition for allowance of appeal in the Pennsylvania Supreme Court expired. See Pa.R.App.P. 1113(a)(petition for allowance of appeal shall be filed within thirty days of entry of order of Superior Court sought to be reviewed). See also Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir. 2000)("[T]he period of limitation tolls during the time a prisoner has to seek review of the Pennsylvania Superior Court's decision[,] whether or not review is actually sought." ). The petitioner would have had one year from that date, or until August 9, 2005, in which to seek federal habeas review.
Approximately one month prior to the expiration of time in which to seek federal habeas review, on July 7, 2005, the petitioner, represented by counsel, filed a proper post-conviction petition. That petition was pending until April 17, 2007, when the Pennsylvania Supreme Court denied the petition for allowance of appeal. Therefore, the limitations period was tolled during this time.
However, the instant action was not filed until April 28, 2008, over one year later and well outside of the limitations period. Counsel does not contest that the filing is more than a year late under the AEDPA, rather he argues that an equitable tolling exception is applicable to the petitioner's case. (Doc. No. 3 & 10). Counsel argues that, upon the denial of the petition for allowance of appeal to the Pennsylvania Supreme Court on April 17, 2007, the petitioner exercised due diligence by conducting investigations in preparation for the filing of the instant petition. Specifically, it is argued that he investigated the intersection where the two officers allegedly viewed him and his passenger through the tinted windows of his vehicle on the evening of his arrest, and learned that the location had been changed by the Commonwealth of Pennsylvania, in that a stop light which illuminated the intersection was added. Counsel claims that the petitioner "hoped to capture the intersection on a dark evening such as the one in which he was arrested in support of his claims that the officers could not have viewed petitioner and his passenger through the tinted windows of petitioner's vehicle on the dark evening in which he was arrested." Further he claims, "[i]f not for the Commonwealth's changes to the intersection, Petitioner's claims would have been supported by this evidence."*fn5 (Doc. No. 10).
Moreover, counsel claims that the vehicle which the petitioner had been driving at the time of his arrest had been sold by the Commonwealth, and that "numerous efforts" were made to ascertain the whereabouts of the vehicle for inspection. Counsel indicates that the petitioner wished to photograph the vehicle's tinted windows to support his claims that the officers could not have viewed the inside of the vehicle on the dark evening of his arrest.
In sum, counsel argues that the alterations to the intersection in question and the sale of petitioner's car by the Commonwealth hindered his ability to file the instant petition in a timely manner.
Counsel further claims that the "petitioner believed that he would be successful in his properly filed post-conviction petition, and his need for filing a habeas corpus in federal court did not essentially come to light until the April 17, 2007 decision of the Pennsylvania Supreme Court to deny his petition for allowance of appeal." (Doc. No. 10, p. 3).
Equitable tolling of the AEDPA limitations period is to be used sparingly and only in "extraordinary" and "rare" circumstances. See Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006); LaCava v. Kyler, 398 F.3d 271, 274-75 (3d Cir. 2005). It is only in situations "when the principle of equity would make the rigid application of a limitation period unfair" that the doctrine of equitable tolling is to be applied. See Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003).
Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The burden of establishing entitlement to equitable tolling lies with the petitioner, who must show that he or she exercised reasonable diligence in investigating and bringing the claims. See Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002). Mere excusable neglect is not sufficient. See LaCava, 398 F.3d at 276.
Extraordinary circumstances have been found where: (1) the defendant has actively misled the plaintiff, (2) the plaintiff has been prevented, in some extraordinary way, from asserting his rights, (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum, see Jones, 195 F.3d at 159, or (4) the court has misled a party regarding the steps that the party needs to take to preserve a claim, see Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). 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, 240 F.3d at 244.
Moreover, even where extraordinary circumstances exist, "[i]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing." Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003)(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Considering the above in conjunction with the petitioner's claims, the court finds that the fact that no apparent investigation of the intersection or vehicle in question was conducted because the petitioner and his counsel mistakenly believed that they would be successful on their post-conviction petition is of no consequence, as such mistakes do not rise to the level of extraordinary circumstances in order to effectuate equitable tolling.
Moreover, the same issue with respect to whether the officers could have observed the petitioner through the tinted windows of his vehicle was raised by the petitioner in relation to his motion to suppress back in 2002. In considering the claim, the court stated:
We did give [petitioner] an opportunity to present that issue to the Court at a later date and the testimony we heard was that indeed the front windows could be seen through. This issue was also raised at trial and clearly the police officers in this case testified that they were able to see inside the vehicle. We believe the police officers could see into the vehicle and we believe that the jury believed that as well. Accordingly, this issue is without merit. (Doc. No. 1, Ex. 1, p. 3). In light of the fact that the petitioner saw this as an issue back in 2002 and, in fact, raised the issue before the court at his suppression hearing, it is hard to conceive that the petitioner acted with due diligence when he failed to conduct a factual investigation into the matter until over five years later. Moreover, even if the petitioner were justified in waiting until April of 2007 to attempt to conduct an investigation of the scene and vehicle, no explanation is provided as to why it took over one year to determine that a stop light had been installed at the intersection in question and the petitioner's vehicle had been sold by the Commonwealth and then to file the instant petition. Even if these circumstances were extraordinary as counsel argues, as discussed above, there comes a point where the causal connection between the circumstances and the failure to timely file is broken.
The petitioner has failed to establish that he acted with due diligence in bringing his claims, or that any extraordinary circumstances prevented him from timely doing so. As such, equitable tolling should not be applied in the petitioner's case.
On the basis of the foregoing, IT IS RECOMMENDED THAT: the petition for writ of habeas corpus, (Doc. No. 1), be DISMISSED.
MALACHY E. MANNION United States Magistrate Judge