United States District Court, E.D. Pennsylvania
TIMOTHY J. SAVAGE, District Judge.
Six years after his petition for a writ of habeas corpus was dismissed as untimely, petitioner Tyzahae Davenport ("Davenport"), a state prisoner, has filed a motion pursuant to Federal Rules of Civil Procedure 60(b) and 60(d) challenging the dismissal. He argues that the dismissal was erroneous because his habeas petition attacking his 1998 conviction was entitled to both statutory tolling based on a claim that his counsel was ineffective in violation of Roe v. Flores-Ortega, 528 U.S. 470 (2000), and equitable tolling based on a claim of actual innocence "embedded" in the habeas petition.
Although Davenport's Rule 60 motion, on its face, challenges the ruling that his habeas petition was time-barred, his ineffective assistance of counsel claim asserts a new ground for relief. Consequently, it is a successive habeas claim under AEDPA. His "actual innocence" claim is without merit. Therefore, we shall deny his motion.
State Court Proceedings
On April 14, 1998, Davenport was convicted of two counts of second degree murder and aggravated assault; three counts of simple assault; and one count each of arson, conspiracy and reckless endangerment in the Court of Common Pleas, Philadelphia County. On May 28, 1998, he was sentenced to two consecutive life prison terms and a concurrent term of five to ten years.
On January 12, 1999, the Pennsylvania Superior Court dismissed Davenport's appeal for failure to file a brief. Four months later, he filed a petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46, seeking reinstatement of his appellate rights. The PCRA court allowed him to file an appeal nunc pro tunc. After considering his appeal, the Pennsylvania Superior Court affirmed his conviction on June 20, 2000. See Com. v. Davenport, 760 A.2d 424 (Pa.Super. Ct. 2000) (table). Davenport did not seek allocatur from the Pennsylvania Supreme Court within thirty days of the Superior Court's affirmance of his conviction. On September 13, 2000, three months later, he filed a petition for allowance of appeal in the Pennsylvania Supreme Court. The petition was denied on December 14, 2000.
On or about August 12, 2002, Davenport filed a second PCRA petition which was denied as untimely on April 3, 2003. The Superior Court affirmed on October 3, 2003. See Com. v. Davenport, 839 A.2d 1151 (Pa.Super. Ct. 2003) (table). On April 21, 2004, the Pennsylvania Supreme Court denied Davenport's petition for allowance of appeal. See Com. v. Davenport, 848 A.2d 927 (Pa. 2004) (table).
Federal Court Proceedings
On October 31, 2006, Davenport filed his first habeas petition pursuant to 28 U.S.C. § 2254. In it, he alleged: (1) trial counsel was ineffective for failing to file an appellate brief; (2) trial counsel was ineffective for failing to call his co-defendant who could have exonerated him; (3) trial counsel was ineffective for failing to move for the trial judge's recusal; (4) appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness as an issue on appeal; and (5) the evidence was insufficient.
Magistrate Judge David Strawbridge issued a Report and Recommendation ("R&R"). He recommended that Davenport's habeas petition be dismissed as untimely because it was filed after AEDPA's one-year limitations period had expired. See 28 U.S.C. § 2244(d)(1). Judge Strawbridge determined that Davenport's petition was not entitled to statutory or equitable tolling. Davenport did not file objections to Judge Strawbridge's R&R. On August 28, 2007, approving and adopting the R&R, we dismissed the petition.
Nearly nineteen months later, on March 13, 2009, Davenport filed a second petition for a writ of habeas corpus. See Davenport v. Com. of Pa., No. 09-1155 (E.D. Pa. 2009). Because he did not seek leave to file the petition, we transferred it to the Third Circuit Court of Appeals. On June 16, 2010, the Third Circuit denied Davenport leave to file a second habeas petition.
On November 5, 2013, six years after we dismissed his first habeas petition and more than three years after the Third Circuit denied him leave to file a second one, Davenport filed this action, labeled "Independent Action for Relief From Final Order, or in the Alternative Motion for Relief from Final Order Pursuant to Rule 60 F.R.Civ.P." In the motion, Davenport argues that it was error to dismiss his petition as untimely. He claims that he was entitled to statutory tolling pursuant to 28 U.S.C. §§ 2244(d)(1)(B) and (C) because his ineffective assistance of counsel claim rests on a retroactive application of a United States Supreme Court decision. He relies upon Roe v. Flores-Ortega, 528 U.S. 470 (2000), which held that, in the context of an appeal as of right, counsel is deficient when he does not consult with his client about an appeal where he has reason to believe "a rational defendant would want to appeal" or the ...