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Vance Haskell v. Louis Folino

October 3, 2011

VANCE HASKELL, PETITIONER
v.
LOUIS FOLINO, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Baxter

MEMORANDUM OPINION

Magistrate Judge Susan Paradise Baxter*fn1

A. Relevant Procedural and Factual History

On June 17, 2010, Petitioner Vance Haskell filed the instant petition for writ of habeas corpus. ECF No. 4. Petitioner is a prisoner currently incarcerated within the state correctional system. Petitioner is attacking his state court convictions at docket numbers 731 and 1804 of 1998 by the Court of Common Pleas of Erie County, Pennsylvania. According to the pro se petition, Petitioner was convicted of First Degree Murder, Possession of an Instrument of Crime, and "Recklessly Endangering," and sentenced to a term of life in prison. As grounds for habeas relief, Petitioner claims that his trial and appellate counsel provided ineffective assistance in numerous ways.

Presently pending before this Court is Respondents‟ motion to dismiss based solely upon the statute of limitations. Pursuant to Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549 (2010) and Pabon v. SCI Mahanoy, ___ F.3d ___, 2011 WL 2685586 (3d Cir. July 12, 2011), this Court held an evidentiary hearing limited to the statute of limitations issue and appointed counsel, Thomas W. Patton, to represent Petitioner at that hearing.

B. Statute of Limitations

Respondents move for the dismissal of the petition based upon the one-year statute of limitations set forth in The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified in relevant part at 28 U.S.C. § 2244(d).*fn1 AEDPA requires that a state prisoner seeking federal habeas corpus relief file a petition in federal district court within one year after his state judgment of sentence becomes final. 28 U.S.C. § 2244(d)(1)(A).

Here, the state court record reflects that Petitioner was charged with Criminal Homicide/Murder, Firearms Not to be Carried Without a License, Possessing Instruments of Crime, two counts of Aggravated Assault, and Recklessly Endangering Another Person. Following a jury trial, Petitioner was convicted of all charges except one count of Aggravated Assault (which the Commonwealth withdrew). Petitioner was sentenced by the Honorable Ernest DiSantis on November 10, 1998 to a period of life imprisonment for murder plus a period of incarceration of fifteen to thirty months consecutive to the life imprisonment.

Petitioner filed a direct appeal to the Superior Court of Pennsylvania, which affirmed the lower court‟s judgment on August 23, 1999. The record further reflects that Petitioner did not file a timely petition for allocatur to the Pennsylvania Supreme Court.

Petitioner‟s state sentence became final on September 24, 1999 (thirty days after the time period in which Petitioner failed to seek appellate review). The statute of limitations commenced running on that date. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review); Kapral v. United States, 166 F.3d 565, 571 (3d Cir. 1999). So then, the statute of limitations within which to file a petition for writ of habeas corpus expired one-year later, on September 24, 2000*fn2 , making the instant petition (filed in June of 2010) untimely.

After determining that a petition is untimely filed, a Court must examine whether any statutory or equitable tolling principles apply in order to save the otherwise time-barred petition. See Holland, ___ U.S. at ___, 130 S.Ct. at 2560 ("[T]he AEDPA statute of limitations defense is not jurisdictional [and] does not set forth an inflexible rule requiring dismissal whenever its clock has run.") (internal citation omitted). Here, Petitioner argues that both statutory and equitable tolling principles apply to his case, and has produced evidence as to both types of tolling.

C. Findings of Fact

1) Statutory Tolling -- State Created Impediment

The state court record reflects that by the time Petitioner‟s direct appeal was denied by the Pennsylvania Superior Court on August 23, 1999, Petitioner had been transferred to Attica Correctional Facility in New York State. ECF No. 27, Transcript, pages 10-11. By letter dated September 1, 1999, Petitioner‟s appointed counsel notified Petitioner that the appeal had been denied. Portions of the letter read:

The Superior Court has decided that there is no basis upon which they can reverse the decision of the sentence of the lower Court. You are further advised that there appears to be nothing in the decision of the Court that would make any basis for petitioning the Supreme Court to review the decision of the Superior Court. Therefore, we will not be carrying the case further. There is a reported case holding that, if publicly funded counsel makes such a determination, there is no right to have publicly funded counsel file a "Petition for Allowance of Appeal." However, if you so desire, feel free to ask the Supreme Court, with your Petition, to appoint either me or other counsel.

A "Facts of Allocatur" sheet is enclosed. We will be returning your "Appellant Copy" transcripts to the Clerk of Court of Erie County. To obtain your transcripts, you should request the sentencing judge to order the Clerk of Courts to send your transcript to you. Make sure you count carefully, since some months have 31 days, and February has 28.

We are also enclosing information concerning the PCRA. I do not believe failure to Petition for Allowance of Appeal would result in any waiver for the PCRA. ECF No. 22-24, Hearing Exhibit 9.

By letter dated September 17, 1999, Petitioner sought further information and guidance from his appointed counsel:

I am submitting this letter to obtain a complete copy [sic] the on my appeal. Also, I wish to be provided with the appropriate forms to file a Petition for Allowance of Appeal.

Please be advised that the copy of the appeal decision I received did not include pages 1-3. After the cover page, the decision begins with page 4. Please provide me with a complete copy of the appeal decision.

Secondly, I am confined in New York Correctional Facility at Attica. I have absolutely no access whatsoever to any law books that would provide me with the necessary information regarding Pennsylvania‟s laws and Appellate Procedures in particular. I do not have any type of form to file in the Pennsylvania Supreme Court for a Petition for Allowance of Appeal. Nor, do I have access to the Rules of Appellate Procedure in order to obtain further information about requirements of the Petition. Also, I received the incomplete appeal decision with your latter on or about Sept 6, 1999. Therefore, how can I be expected to file papers within 30 days of the decision on August 23,1999?

At any rate, please provide me with the requested information so that I may pursue my case because I am in total darkness ...


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