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Nichols v. Coleman

March 16, 2010

LORENZO NICHOLS PETITIONER
v.
BRIAN COLEMAN, ET AL. RESPONDENTS



The opinion of the court was delivered by: Golden, J.

MEMORANDUM OPINION AND ORDER

On May 21, 2008, Petitioner filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his criminal convictions for various Pennsylvania offenses. On December 4, 2008, the United States Magistrate Judge filed a Report and Recommendation requesting that this Court dismiss as untimely Petitioner's application. (Doc. No. 20). Petitioner objects to the following three conclusions rendered by the Magistrate Judge:

(1) that Petitioner's January 15, 2006 attempt to file a PCRA petition did not toll the one-year limitation period, thereby rendering his May 21, 2008 habeas petition untimely pursuant to 28 U.S.C. § 2244(d)(2); (2) that Petitioner's May 12, 2006 petition for habeas corpus filed in the Pennsylvania Court of Common Pleas also did not toll the one-year limitation period; and (3) that Petitioner is not entitled to equitable tolling. The Court overrules Petitioner's first objection and approves of the Magistrate Judge's conclusion, but modifies his holding. The Court overrules Petitioner's remaining two objections and adopts the Magistrate Judge's findings. Accordingly, Petitioner's petition for a writ of habeas corpus is dismissed with prejudice.

STANDARD

Where a habeas petition has been referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), the court reviews de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). After completing such review, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

ANALYSIS

With some exceptions not applicable here, 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 . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Petitioner does not contest the fact that his conviction became final on August 31, 2004, which began the one-year limitation period.*fn1 (Report at 6). However, the limitation period was ultimately tolled until December 8, 2006 due to Petitioner's first November 24, 2004 PCRA petition. (Id.).*fn2 As a result, Petitioner's habeas deadline was September 14, 2007.*fn3 (Id. at 3 n.3, 6); see 28 U.S.C. § 2244(d)(2). Petitioner filed the habeas petition now before this Court on May 21, 2008, more than eight months after the deadline. (Report at 4 n.4).

A. January 15, 2006 PCRA Petition

Petitioner contends that his second January 15, 2006 PCRA petition tolled the one-year limitation period, leading to a habeas deadline well beyond September 14, 2007. (Report at 7-8; Pet'r Objections at 1-3). On approximately January 15, 2006-over 16 months after his conviction became final-Petitioner sent this PCRA filing via certified mail to the PCRA Unit at the Criminal Justice Center at 1301 Filbert Street in Philadelphia. (Pet'r. Objections, Attach. A). Petitioner wrote three letters to the Clerk of Quarter Sessions, dated February 20, 2006, April 9, 2006, and May 15, 2006, inquiring as to the status of his January 15, 2006 petition. (Pet'r Reply, Attach. 1). Petitioner never received notice that his PCRA submission was filed, (Pet'r Reply at 1), and it appears that this petition has never been acted upon by an adjudicatory body. For the reasons stated below, the Court concludes that the January 15, 2006 PCRA submission constituted a "filing" that was "pending" for the purposes of 28 U.S.C. § 2244(d)(2). However, this PCRA submission did not have a tolling effect on the one-year habeas deadline because it was untimely, and therefore improperly filed under Pennsylvania law.

"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)(2) (emphasis added). The U.S. Supreme Court has held that an "application is 'filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record." See Artuz v. Bennett, 531 U.S. 4, 8 (2000); see also Gale v. Vaughn, 83 F. App'x 472, 474-75 (3d Cir. 2003), cert. denied, 542 U.S. 909 (2004). A properly filed state petition is one that is "submitted according to the state's procedural requirements, such as the rule governing the time and place for filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).

The docket issued by the Administrative Office of Pennsylvania Courts ("AOPC") does not reflect a January 2006 PCRA filing (Resp't Resp. at 3 n.1; Resp't Ex. A at 9), and this filing is not present in the Quarter Sessions file (Report at 7). However, a copy of Petitioner's PCRA petition was sent to the District Attorney's Office and the District Attorney's copy bears the stamp "Received January 17, 2006 PCRA Unit." (Resp't Ex. G). More significantly, the docket issued by the Criminal Appeals/Post Trial Unit of the Court of Common Pleas at 1301 Filbert Street in Philadelphia-which is certified by the Clerk of the Appeals Unit-reflects this January 2006 filing in docket entry #18. (Pet'r Objections, Attach. D at 7-8). The Criminal Appeals/Post Trial Unit docket also reflects Petitioner's first November 24, 2004 PCRA petition, which was fully adjudicated by the Pennsylvania courts. (Id. at 7). Based on this evidence, the Court respectfully disagrees with the Magistrate Judge and concludes that, under Artuz, the January 15, 2006 PCRA submission constituted a "filing" that was "pending." Indeed, flexibility is required with pro se prisoner litigants, as such litigants have a limited ability to ensure that, after a petition is docketed, it is handled properly and given to the appropriate adjudicatory body. See Commonwealth v. Little, 716 A.2d 1287, 1289 (Pa. Super. Ct. 1998) (discussing the circumstances which hinder the effective monitoring of pro se petitions).

Even if Petitioner's January 15, 2006 PCRA petition was not docketed, this petition would still be considered "filed" pursuant to the prisoners mailbox rule. "Pennsylvania state courts apply a 'prisoners' mailbox rule,' under which a prisoner's PCRA petition is deemed filed on the date that the prisoner delivers it to the proper prison authority or to a prison mailbox." Perry v. Diguglielmo, 169 F. App'x 134, 135 n.3 (3d Cir. 2006) (citing Little, 716 A.2d at 1289), cert. denied, 549 U.S. 927 (2006). Ordinarily, "to avail himself of the prisoner mailbox rule, an incarcerated litigant must supply sufficient proof of the date of mailing." Douglas v. Beard, No. 00-4935, 2002 WL 550474, at *3 n.5 (E.D. Pa. Apr. 12, 2002) (quoting Thomas v. Elash, 781 A.2d 170, 177 (Pa. Super. Ct. 2001)), aff'd, 359 F.3d 257 (3d Cir. 2004). Petitioner has filed with the Court a U.S. Postal Service Certified Mail Receipt that indicates that his PCRA petition was delivered to the PCRA Unit in January 2006. (Pet'r Objections, Attach. A). As Petitioner has presented proof of the date of mailing, the Court concludes that Petitioner's PCRA submission was both "filed" on January 15, 2006 and "pending" after that date pursuant to the prisoners mailbox rule. See, e.g., Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir. 2005) (applying the mailbox rule to determine whether a state petition was "properly filed" and concluding that the application of this rule does not read the word "pending" out of 28 U.S.C. § 2244(d)(2)), cert. denied, 546 U.S. 816 (2005); Huizar v. Carey, 273 F.3d 1220, 1222-23 (9th Cir. 2001) ("A prisoner who delivers a document to prison authorities gets the benefit of the prison mailbox rule, so long as he diligently follows up once he has failed to receive a disposition from the court after a reasonable period of time"); Gracey v. United States, 131 F. App'x 180, 181 (11th Cir. 2005) (holding that, under the mailbox rule, "a pro se prisoner's § 2255 motion will be deemed filed on the date that the prisoner delivers the motion to prison authorities for mailing," even if the motion "is never received or filed by the court") (per curiam); Cross v. McDonough, No. 06-460, 2008 WL 817088, at *13 (N.D. Fla. Mar. 25, 2008) (holding that the mailbox rule still applied where the petitioner gave the state court filing to prison officials yet the state court had no record of the filing); Commonwealth v. Castro, 766 A.2d 1283, 1284-87 (Pa. Super. Ct. 2001) (holding that an inmate's PCRA petition is considered "filed" on date the petition is delivered by the inmate to the proper prison authorities or to the prison mailbox, rather than on date that the clerk of court dockets the petition); see also Brown v. Shannon, 322 F.3d 768, 771, 774 (3d Cir. 2003) (declining to address the certified question of whether petitioner's state court filing, which was never ruled on because it was lost as a result of mishandling by the trial court, may be considered "properly filed").

However, despite the Court's conclusion that Petitioner's January 15, 2006 petition constituted a "filing" that was "pending," the Court agrees with the Magistrate Judge's ultimate holding that this petition did not toll the one-year limitation period. First, this PCRA filing was untimely under Pennsylvania law and therefore was improperly filed. Any petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final." 42 Pa. Cons. Stat. Ann. § 9545(b) (emphasis added); see also Commonwealth v. Greer, 866 A.2d 433, 436 (Pa. Super. Ct. 2005) ("This timeliness requirement is applicable to all PCRA petitions, including second and subsequent ones."); Lines v. Larkins, 208 F.3d 153, 164-65 (3d Cir. 2000) (Under Pennsylvania law, "it is now clear that the one year limitation applies to all PCRA petitions including a second petition, no matter when the first was filed."), cert. denied, 531 U.S. 1082 (2001); Barr v. DiGuglielmo, No. 08-316, 2008 WL 2310621, at *3 (E.D. Pa. May 30, 2008) ("Pennsylvania's PCRA has a strict statute of limitations, with few exceptions."). A judgment becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." See 42 Pa. Cons. Stat. Ann. § 9545(b)(3). Petitioner's January 15, 2006 filing occurred well over one year after Petitioner's conviction became final on August 31, 2004. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005) ("When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).") (internal quotations omitted); Merritt v. Blaine, 326 F.3d 157, 166 (3d Cir. 2003), cert. denied, 540 U.S. 921 (2003); Young v. Lawler, No. 4171, 2008 WL 1984059, at *4 n.5 (E.D. Pa. May 2, 2008). None of the exceptions to the one-year rule apply under 42 Pa. Cons. Stat. Ann. § 9545(b), as these exceptions were properly addressed and dismissed by the Magistrate Judge in the context of 28 U.S.C. § 2244(d)(1)(B)-(D). (Report at 10-11).*fn4

Second, Petitioner's January 15, 2006 PCRA filing was improperly filed during the pendency of a prior PCRA petition. "[W]hen [a petitioner's] PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review." Young, 2008 WL 1984059, at *4 n.5 (quoting Commonwealth v. Breakiron, 781 A.2d 94, 99 (Pa. 2001)); see also Commonwealth v. Jones, 815 A.2d 598, 604-05 (Pa. 2002) ("A serial or subsequent PCRA petition may not be entertained while such an appeal is pending."); Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). At the time of Petitioner's January 15, 2006 petition, Petitioner's November 24, 2004 PCRA petition was still pending, and a final decision was not reached on this petition until November 8, 2006 when the Pennsylvania Superior Court dismissed Petitioner's appeal of the PCRA court's denial of ...


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