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Rodriguez v. Commonwealth

United States District Court, E.D. Pennsylvania

August 12, 2014

HERBERTO RODRIGUEZ,
v.
COMMONWEALTH OF PENNSYLVANIA, et al.

MEMORANDUM RE PETITION FOR WRIT OF HABEAS CORPUS

MICHAEL BAYLSON, District Judge.

I. Introduction

Petitioner Herberto Rodriguez, proceeding pro se, filed a Petition for Writ of Habeas Corpus ("the Petition") under 28 U.S.C. § 2254. ECF 1. Rodriguez is incarcerated in a state correctional institution in Pittsburgh, Pennsylvania pursuant to his conviction for first-degree murder, possession of an instrument of crime, and violations of the Uniform Firearms Act.

After a jury trial in the Court of Common Pleas of Philadelphia, the trial court sentenced Rodriguez to life in prison on the murder conviction and an aggregate sentence of six to twelve years on the remaining convictions. The Superior Court of Pennsylvania affirmed in part and vacated in part the judgment of sentence on November 17, 2005. The Superior Court partially vacated the judgment of sentence so the trial court could correct a clerical error in Rodriguez's sentence. Commonwealth v. Rodriguez, Case No. 1616 EDA 2004, slip op. at 7-8 (Pa.Super. Ct. Nov. 17, 2005). On March 21, 2006, the Supreme Court of Pennsylvania denied Rodriguez's request for review. Commonwealth v. Rodriguez, Case No. 725 EAL 2005 (Pa. Mar. 21, 2006). Rodriguez did not file a petition for writ of certiorari with the Supreme Court of the United States.

On October 10, 2006, Rodriguez filed a pro se petition for state collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 P.S. § 9541 et seq. Rodriguez's court-appointed counsel filed a "no merit" letter with the PCRA court and moved to withdraw from the case. On December 18, 2008, the PCRA court dismissed the petition as meritless. Commonwealth v. Brooks, Case No. CP-51-CR-1109321-2002 (C.P. Phila. Dec. 18, 2008). Rodriguez did not appeal the PCRA court's order.

On June 7, 2012, petitioner filed a second pro se PCRA petition. On June 25, 2013, the PCRA court dismissed that petition as untimely. Petitioner appealed to the Superior Court of Pennsylvania. On April 28, 2014, the Superior Court affirmed the dismissal of the petition. Commonwealth v. Rodriguez, Case No. 2242 EDA 2013 (Pa.Super. Ct. Apr. 28, 2014). Rodriguez filed a petition for Allowance of Appeal to the Supreme Court of Pennsylvania on May 5, 2014.

It seems that Rodriguez first attempted to file a federal habeas petition on August 23, 2013. This petition was dismissed without prejudice after Rodriguez failed to fill out an in forma pauperis application or pay the filing fee. Rodriguez v. Copazga, et al., Case No. 13-4942 (E.D. Pa. April 1, 2014). Rodriguez filed the instant habeas petition on November 14, 2013, which was placed on the docket on November 18, 2013. ECF 3. Rodriguez seeks release from prison and an award of thirty million dollars. Respondents filed a response to the petition on February 1, 2014. ECF 9. Rodriguez filed a statement in reply to Respondents' response-styled as a "Motion for Reconsideration"-in which he admits that his habeas petition is untimely but asks that the limitation period be equitably tolled. Rodriguez explains he is entitled to equitable tolling because (1) prison officials denied him access to his legal materials from November 18, 2008 through January 10, 2012 and (2) he is innocent. ECF 10. He requests a hearing to present evidence supporting his claim of innocence.

This Court referred the matter to Magistrate Judge Thomas J. Rueter for a Report and Recommendation ("R & R") on the merits of the petition. On March 12, 2014, Judge Rueter filed an R & R recommending that the petition be dismissed as time-barred under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). ECF 11. Judge Rueter concluded that because Rodriguez had filed his petition on November 14, 2013-more than seven years after his conviction became final on June 19, 2006-his petition was untimely. Judge Rueter further determined that Rodriguez was not entitled to statutory or equitable tolling because, even assuming prison officials denied him access to his legal materials through January 2012, Rodriguez did not diligently pursue his rights after receiving his legal materials after January 2012. Judge Rueter also determined that the AEDPA deadline should not be equitably tolled based on Rodriguez's claim of actual innocence because Rodriguez had not presented any new reliable evidence of his innocence. Finally, Judge Rueter recommended that Rodriguez's request for an evidentiary hearing be denied because Rodriguez's request did not rely on the limited circumstances permitting an evidentiary hearing in 28 U.S.C. § 2254(e)(2)(A) and (B).

On May 28, 2014, Rodriguez filed objections to Judge Rueter's R & R. ECF 23.

II. Objection: Statutory Tolling Based on Pending State Court Appeal[1]

Rodriguez objects to Judge Rueter's determination that his petition is not entitled to statutory tolling. Rodriguez argues that he is entitled to statutory tolling because his second PCRA petition is on appeal. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a "properly filed" petition for collateral relief is pending is not counted toward the one-year statute of limitations). Rodriguez's conviction and sentence became final on June 19, 2006. At that point, the AEDPA statute of limitations began to run. Rodriguez filed his first PCRA petition on October 10, 2006, 113 days into the AEDPA limitations period. While the PCRA petition was adjudicated, the AEDPA limitations period was tolled. After his first PCRA petition was dismissed on December 18, 2008, the AEDPA statute of limitations resumed on January 17, 2009-after the thirty-day period for appealing the PCRA court's order to the Superior Court of Pennsylvania. See Pa. R. App. P. 903; Swartz v. Meyers, 204 F.3d 417, 420 (3d. Cir 2000) (holding that the AEDPA statute of limitations is tolled between a ruling on a PCRA petition and a timely appeal). The AEDPA statute of limitations period expired on June 18, 2009. Rodriguez first attempted to file a federal habeas petition on August 23, 2013-over four years beyond the limitations period.

Rodriguez argues that his second PCRA petition, filed on June 7, 2012, tolls the AEDPA limitations period. However, as Judge Rueter pointed out in his R & R, a PCRA petition cannot toll an already expired AEDPA statute of limitations. Dade v. DiGuglielmo, Case No. 08-217, 2008 WL 2510593, at *4 (E.D. Pa. June 19, 2008); see also Fried v. Horn, Case No. 02-8314, 2003 WL 23142179, at *3 (E.D. Pa. Aug. 11, 2003) ("The section 2244 tolling provisions can only pause a clock that has not yet fully run'; they cannot restart the clock at zero.'" quoting Blasi v. Atty. Gen. of Commonwealth of Pa., 30 F.Supp.2d 481, 485 (M.D. Pa. 1998)). Moreover, Rodriguez's second PCRA petition is not eligible for statutory tolling because, as the PCRA court dismissed it as untimely, it was not "properly filed" according to AEDPA's statute of limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 412-17 (2005) (observing that an untimely petition would not be deemed "properly filed" when not in compliance with a jurisdiction's time limits upon delivery); Melvin v. Commonwealth, Case No. 10-159, 2011 WL 39050, at *1 n.2 (E.D. Pa. Jan. 4, 2011) ("Federal courts must defer to the State courts when they specifically rule that a petition is untimely as a matter of State law.").

Accordingly, Rodriguez's petition is not eligible for statutory tolling.

III. Objection: Equitable Tolling Based on Interference ...


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