Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Witherspoon v. Commonwealth

United States District Court, Third Circuit

May 28, 2013




Before the Court are Petitioner Giles Witherspoon’s pro se Objections to the Amended Report and Recommendation (“R&R”)[1] filed by United States Magistrate Judge Thomas J. Reuter. Petitioner objects to Judge Reuter’s recommendation that the habeas Petition be dismissed as barred by the one-year limitations period that applies to habeas petitions filed pursuant to 28 U.S.C. § 2554 and to the finding that equitable tolling does not toll the limitations period in this case. For the reasons that follow, the Court will overrule Petitioner’s Objections, approve and adopt the R&R, and dismiss the Petition.


On October 5, 2001, a jury sitting in the Court of Common Pleas of Delaware County found Petitioner guilty of rape, kidnapping, aggravated assault, and simple assault. Petitioner was thereafter sentenced to an aggregate term of imprisonment of 13 ½ years to 27 years followed by 5 years of probation. On January 2, 2002, Petitioner filed an appeal to the Pennsylvania Superior Court, which affirmed his sentence on April 8, 2003. The Pennsylvania Supreme Court denied Petitioner’s petition for allowance of appeal on September 30, 2003.

On June 2, 2004, Petitioner filed a pro se petition pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”).[3] The Delaware County Court of Common Pleas apparently never received the petition, and on April 14, 2005, after receiving no response to his February 23, 2005 letter inquiring as to the status of his first PCRA petition, Petitioner filed a second PCRA petition, which the PCRA dismissed as untimely on April 5, 2006. Petitioner appealed.

On appeal, Petitioner presented evidence in the form of cash slips for legal mail sent on June 2, 2004, and letters he wrote to the PCRA court inquiring as to the status of his first PCRA petition. The Superior Court credited this evidence as supporting Petitioner’s position that he timely-filed his PCRA petition on June 2, 2004, and on May 14, 2007, remanded the case to the PCRA court for an evidentiary hearing. Upon remand, the PCRA court determined that the petition was timely, but denied the petition on its merits on December 30, 2010.

On January 1, 2011, before filing an appeal to the Superior Court, Petitioner filed an “Application for Leave to File Original Process and a Petition for Extraordinary Relief” with the Pennsylvania Supreme Court. On March 17, 2011, he filed an appeal of the PCRA court’s decision on remand, only later to file a notice of his intent to withdraw the appeal, which resulted in the Superior Court discontinuing the appeal on March 31, 2011.[4] On August 3, 2011, the Pennsylvania Supreme Court denied Petitioner’s petition for extraordinary relief, and Petitioner filed a writ of certiorari to the Supreme Court, which was denied on January 9, 2012. Petitioner filed the instant Petition in the United States District Court for the Middle District of Pennsylvania on February 3, 2012;[5] the Petition was later transferred to this Court.

II. Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), [6] “a district court shall entertain an application for writ of habeas corpus [filed on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”[7] Where, as here, the habeas petition is referred to a magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), a district court conducts a de novo review of “those portions of the report or specified proposed findings or recommendations to which objection is made, ” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”[8]


Despite Petitioner’s conclusory statements to the contrary, it appears that Petitioner’s calculations concerning the timeliness of his Petition are consistent with the R&R’s findings.[10] Petitioner, however, clearly disagrees with the R&R’s conclusion that equitable tolling does not apply in this case. According to Petitioner, “due diligence and extraordinary circumstances [] justify tolling” in his case.[11]

A. Calculation of the Limitations Period

AEDPA imposes a one-year limitations period on the filing of a habeas petition pursuant to 28 U.S.C. § 2554.[12] Pursuant to § 2244(d)(1)(A), the one-year limitations period 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.”[13] “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.”[14]

Here, it is undisputed that Petitioner’s conviction became final on December 29, 2003 (90 days following the Pennsylvania Supreme Court’s denial of Petitioner’s request for review when the time for seeking certiorari in the United States Supreme Court expired).[15] The one-year limitations period runs from this date.[16] Petitioner filed his PCRA petition 156 days later, on June 2, 2004. The limitations period was then tolled until March 31, 2011, while Petitioner’s PCRA petition was pending in state court.[17] The limitations period restarted on April 1, 2011, and expired 209 (365 days less the 156 that had elapsed before the period was statutorily tolled) days later on October 27, 2011. The instant Petition, dated February 3, 2012, [18] was filed 99 days after the limitations period expired. It is therefore time-barred in the absence of equitable tolling.

B. Equitable Tolling

ADEPA’s limitations period may be tolled in appropriate cases where enforcing the statute of limitations would be unfair.[19] Generally, tolling will be permitted where plaintiff can show “that he has been pursuing his rights diligently, and . . . that some extraordinary circumstance stood in his way and prevented timely filing.”[20] The Third Circuit has enumerated three specific circumstances where equitable tolling may be appropriate: “(1) [if] the defendant has actively misled the plaintiff, (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.”[21] In determining whether equitable tolling should apply in a particular case, “district courts [are required] to examine the petitioner’s due diligence in pursuing the matter under the specific circumstances he faced.”[22] “Due diligence does not require ‘the maximum feasible diligence, ’ but it does require reasonable diligence in the circumstances.”[23]

Here, Petitioner asserts he is entitled to equitable tolling because of the PCRA court’s “inordinate delay” and his due diligence in pursing his state court remedies. While the state court proceedings were protracted, the limitations period was tolled during this time and thus, the PCRA court’s delay is not the cause of Petitioner’s failure to timely file the instant Petition. Additionally, Petitioner’s diligence in state court does not excuse his failure to exercise reasonable diligence in pursuing his federal habeas claims. Moreover, Petitioner does not claim that he was actively misled by Respondents or the state courts and nor does he contend that this misrepresentation delayed the filing of the Petition; he merely cites delay in his state court proceedings and his diligence in pursing such proceedings as cause for equitable tolling. Given the particular circumstances of this case, including Petitioner’s failure to provide an explanation as to why he waited 10 months after the Superior Court discontinued his appeal (and more than three months after the limitations period expired) to file the Petition, the Court finds no basis for equitable tolling.[24]

IV. Conclusion

For the foregoing reasons, the Court finds that the Petition is time-barred. Accordingly, the Court will approve and adopt the R&R, overrule Petitioner’s Objections, and deny the Petition. Since Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue.[25]

An appropriate Order follows.


AND NOW, this this 28th day of May 2013, after a careful and independent review of the Amended Report and Recommendation (Doc. No. 14), Petitioner’s Objections (Doc. Nos. 15, 16), and the entire record in this case, and for the reasons stated in the Opinion filed this day, it is hereby ORDERED as follows:

1. Petitioner’s Objections are OVERRULED;

2. The Amended Report and Recommendation is APPROVED and ADOPTED;

3. The Petition (Doc. No. 5) is DENIED; and

4. A Certificate of Appealability SHALL NOT ISSUE.

The Clerk of Court is directed to CLOSE this case.

It is so ORDERED.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.