The opinion of the court was delivered by: Juan R. Sanchez, J.
Jose Santiago, acting in concert with others, drove a vehicle from which a rear passenger fired several shots toward a rival drug dealer standing on a street corner. The intended target of the drive-by shooting, Afon Singleton, was unharmed; however, an innocent bystander was fatally shot as she sat on the steps of her home, and another person was seriously injured. Following a September 1993 trial at which three eyewitnesses, including Singleton, identified Santiago as the driver of the vehicle involved in the shooting, Santiago was convicted of first degree murder and sentenced to life imprisonment plus two concurrent five-to-ten-year terms. He is currently serving a life sentence in the State Correctional Institution at Forest in Marienville, Pennsylvania.
On February 5, 2010, Santiago filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2254, alleging his trial counsel was ineffective for failing to investigate and present an alibi defense, he was denied his right to appeal following the dismissal of his initial PCRA petition, and he was denied the right to present after-discovered exculpatory evidence that Singleton had recanted his trial testimony. The Government argues the petition should be dismissed because it is untimely.
On November 18, 2010, United States Magistrate Judge Arnold C. Rapoport issued a Report and Recommendation (Report) recommending Santiago's petition be dismissed as time-barred. After reviewing Magistrate Judge Rapoport's Report and Santiago's 39 pages of objections, I agree Santiago's habeas petition should be dismissed without a hearing and without issuance of a certificate of appealability. Therefore, for the reasons discussed below, Santiago's objections to the Report will be overruled and the Report will be approved and adopted.
A federal habeas petition by a prisoner in state custody is subject to
a one-year statute of limitations, which runs from "the date on which
the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review," unless one of three
alternative start dates applies. 28 U.S.C. § 2244(d)(1)(A).*fn1
In his Report, Magistrate Judge Rapoport found Santiago's
conviction became final, and the statute of limitations began to run,
on or about May 16, 1996, when the time for filing a petition for
certiorari in the United States Supreme Court expired after the
Pennsylvania Supreme Court denied his direct appeal on February 15,
1996.*fn2 The statute of limitations continued to run
for 235 days until Santiago filed his first PCRA petition in state
court on January 6, 1997, thereby tolling the federal limitations
period with a total of 130 days remaining.
See 28 U.S.C. § 2244(d)(2) (providing for statutory tolling of the federal limitations period during "[t]he 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"). The PCRA court dismissed Santiago's first PCRA petition by order of July 30, 1998, and the dismissal became final 30 days later, on August 29, 1998, when Santiago failed to file a timely appeal. The federal limitations period thereafter began to run again and expired 130 days later, on January 6, 1999. Although Santiago made further efforts to obtain post-conviction relief in state court, the earliest of these filings-a motion for allowance of appeal nunc pro tunc-was not submitted until August 11, 1999, by which time the federal limitations period had already expired months earlier.*fn3
Because Santiago's habeas petition includes a claim based on allegedly after-discovered exculpatory evidence (i.e., Singleton's recantation of his trial testimony), the Magistrate Judge considered whether this claim is subject to a later accrual date pursuant to § 2244(d)(1)(D), which delays the running of the federal limitations period until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," but concluded this alternative start date does not apply. Noting § 2244(d)(1)(D) provides a later accrual date "only 'if vital facts could not have been known,'" Report 11 (citations omitted), the Magistrate Judge found "the vital fact undergirding [Santiago's] claim" was the fact Singleton had lied at trial, not the fact he later recanted his trial testimony, id. at 12. In affirming the dismissal of Santiago's fourth PCRA petition,*fn4 the Superior Court found Santiago must have known about Singleton's alleged perjury at the time of his trial, but made no effort in the intervening 14 years to refute Singleton's testimony, and had therefore failed to exercise due diligence in pursuing his claim:
Here, if appellant was not involved in the shooting, he would have been aware that Singleton and the other two Commonwealth witnesses were falsely testifying when they identified him at trial as the driver. However, appellant did not allege that he made any efforts in the nearly fourteen years following his trial to refute this testimony or to contact Singleton to see if he was willing to come forward with the present information. Nor did appellant offer any explanation as to why Singleton did not come forward until now. Thus there was no basis for the trial court to conclude that appellant proved "facts" which were "unknown" to him or that he exercised "due diligence."
Commonwealth v. Santiago, No. 1460 EDA 2008, Mem. 7-8 (Pa. Super. Ct.
Dec. 15, 2008). Concluding these factual findings by the Superior
Court are entitled to a presumption of correctness pursuant to 28
U.S.C. § 2254(e)(1), which Santiago failed to rebut,*fn5
the Magistrate Judge held the state court's findings regarding Santiago's knowledge of Singleton's
perjury and failure to exercise due diligence "eliminate his ability
to rely upon [§ 2244(d)(1)(D)]." Report at 10.
Although Santiago objects to the Magistrate Judge's application of the presumption of correctness to the Superior Court's findings regarding Santiago's knowledge of Singleton's false testimony and lack of diligence, he offers no evidence to rebut these findings apart from the assertion he "could not attempt to contact a State witness about coming forward to recant his testimony." Pet'r's Objections 25. Moreover, the Third Circuit Court of Appeals' recent decision in Sistrunk v. Rozum, 674 F.3d 181 (3d Cir. 2012), confirms the Magistrate Judge's sound analysis. Like Santiago, the petitioner in Sistrunk filed a PCRA petition years after his conviction became final based on newly discovered recantation evidence: a letter from a witness who had identified the petitioner as the perpetrator in a shooting, in which the witness admitted to perjuring himself, claiming police investigators had coerced him into giving false testimony. Id. at 185. The petitioner thereafter filed a federal habeas petition based on the same recantation evidence. The PCRA court dismissed the state court petition as untimely, finding the petitioner had known of the recanting witness's perjury at the time of his testimony but had not acted on this information for 12 years, and the district court likewise dismissed the federal habeas petition as untimely. Id. at 189-90. The Third Circuit affirmed the dismissal, holding the recantation letter did not constitute new evidence for purposes of § 2244(d)(1)(D) because the PCRA court had found the petitioner knew "the vital facts underlying . . . the [recantation] letter"-i.e., that the recanting witness had perjured himself-long before filing his federal habeas petition, and this finding by the state court was binding on the federal courts. Id. at 188-89.
The same is true here. As the Magistrate Judge concluded, the state court having found Santiago would have been aware Singleton's testimony was false at the time of trial, but failed to show he made any efforts to refute this testimony in the 14 years following his trial, it is apparent Santiago knew the vital facts underlying Singleton's recantation affidavit years before filing the instant habeas petition. Thus, as in Sistrunk, "[b]ecause evidence that is 'previously known, but only newly available' does not constitute 'newly discovered evidence,'" id. at 189 (citation omitted), the Singleton affidavit is not new evidence and does not provide a basis to delay the running of the statute of limitations pursuant to § 2244(d)(1)(D).*fn6
The Magistrate Judge also found Santiago has not established a basis for equitable tolling of the statute of limitations, as he failed to "allege circumstances which prevented him in some extraordinary way from timely pursuing his right to habeas relief for fifteen years." Report 13-14.
In his objections, Santiago argues the federal limitations period should be equitably tolled while he was pursuing reinstatement of his direct appeal rights with respect to the dismissal of his first PCRA petition through his motion for leave to appeal nunc pro tunc and his second and third PCRA petitions, i.e., from January 6, 1997, to August 29, 2006.*fn7 See Pet'r's Objections 4-19. Even if Santiago were entitled to equitable (or statutory) tolling during this entire period, however, his federal habeas petition would still be untimely because the one-year limitations period (which had only 130 days remaining by the time Santiago filed his first PCRA petition) would have expired on January 6, 2007, more than three years before the instant habeas petition was filed.*fn8 While Santiago does not argue equitable tolling applies during the pendency of his fourth PCRA petition, instead relying on statutory tolling and the alternative start date in § 2244(d)(1)(D), I note Santiago's failure to make any efforts to develop his claim despite his knowledge of Singleton's perjury would be fatal to any such argument. See Sistrunk, 674 F.3d at 190 (holding petitioner had not shown he pursued his rights diligently where he knew of witness's perjury but did nothing about it for 12 years).
Finally, insofar as Santiago relies on his assertion of actual
innocence to support equitable tolling, he has not made the showing
necessary to support equitable tolling on this basis.*fn9
"Proving actual innocence based on new evidence requires the
petitioner to demonstrate (1) new evidence (2) that is reliable and
(3) so probative of innocence that no reasonable juror would have
convicted the petitioner." Id. at 191 (citing Schlup v. Delo, 513 U.S.
298, 324, 327 (1995)). As discussed above, the Singleton affidavit is
not new evidence. Moreover, the affidavit is also not reliable, having
been submitted after an inordinate passage of time and from an affiant
who admits to having lied previously. See id. (finding a recantation
letter unreliable where the letter came "nearly a decade too tardy
from another prisoner, who is related to [petitioner] and admits to
having lied once before"); Teagle v. DiGuglielmo, 336 F. App'x 209,
213 (3d Cir. 2009) (characterizing affidavit admitting the bulk of
witness's trial testimony was perjury as "suspicious and untrustworthy
evidence" that "does not, in the absence of additional corroborating
evidence or circumstances, meet the standard of reliability
contemplated by Schlup"). As the Superior Court found in affirming the
dismissal of Santiago's fourth PCRA petition, the affidavit also "does
not purport to exonerate [Santiago], but merely asserts that the