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Saunders v. Asure

United States District Court, M.D. Pennsylvania

January 12, 2015

DONNA ASURE, et al., Respondents


WILLIAM W. CALDWELL, District Judge.

I. Introduction

Petitioner, Dajuan Saunders, an inmate at the state correctional institution in Waymart, Pennsylvania, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition challenges Saunders' conviction in the Court of Common Pleas of Lackawanna County, Pennsylvania, to a second offense of driving under the influence (DUI) of alcohol with the highest rate of blood alcohol content (BAC), at least.16% or higher. Petitioner pled guilty to the offense and was sentenced to one to five years of imprisonment.

Petitioner appears to raise new claims in his reply brief (Doc. 34) and in a document he has styled as a "supplemental response" (Doc. 36) to Respondents' answer. There is a one-year statute of limitations on filing a 2254 petition. See 28 U.S.C. § 2244(d)(1). We may raise the statute of limitations sua sponte. Day v. McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 1679-80, 164 L.Ed.2d 376 (2006). Because some or all of the claims presented for the first time in the reply brief and supplemental response may be barred by the statute of limitations, see Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 2566, 162 L.Ed.2d 582 (2005) (new ground for relief presented in an amended 2254 petition may be barred by the statute of limitations), we will provide Petitioner an opportunity to show that they are timely.

II. The Reply Brief and Supplemental Response Were Filed After the Statute of Limitations Expired, and Hence the Claims Presented Therein May Be Time-Barred

In relevant part, the one-year statute of limitations begins to run from the date the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review. See Wall v. Kholi, ___ U.S. ___, ___, 131 S.Ct. 1278, 1283, 179 L.Ed.2d 252 (2011) (citing 28 U.S.C. § 2244(d)(1)(A)); see also Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 1810, 161 L.Ed.2d 669 (2005). This language applies to the right to seek discretionary review in state appellate courts and means that the judgment does not become final until the time period for seeking such review expires, even if review is not sought. See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000).

On November 3, 2011, the trial court denied Petitioner's pro se motion for reconsideration of sentence. Petitioner did not appeal that order, so the conviction became final on December 5, 2011, the expiration of the time for taking an appeal. The limitations period therefore began running on December 5, 2011, and ran for thirty-one days until January 5, 2012, when Petitioner filed his first petition under the Pennsylvania Post Conviction Relief Act (PCRA). 42 Pa. Con. Stat. Ann. § 9541-9546. The limitations period stopped running on this date because it is tolled during the time "a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending...." 28 U.S.C. § 2244(d)(2); Swartz, supra, 204 F.3d at 419.

On February 14, 2013, the trial court denied the PCRA petition. Petitioner did not appeal that order. The limitations period thus began running again on March 15, 2013, the expiration of the time for taking an appeal because statutory tolling applies to the time period for seeking state-court appellate review from the denial of postconviction relief even if such review is not sought. Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 n.4 (3d Cir. 2013).

At that point, there were 335 days left in the limitations period so the deadline for filing a 2254 petition was February 13, 2014. Under the prison mailbox rule, the 2254 petition was filed on December 9, 2013, thereby making it timely. However, under the same rule, the reply brief was filed on November 3, 2014, and the supplemental response on December 14, 2014, making any new claims raised in those filings apparently untimely.[1]

Before dismissing these claims as untimely, we will allow Petitioner an opportunity to show that they are timely. See Day, 547 U.S. at 210, 126 S.Ct. at 1684. The limitations period is also subject to equitable tolling. Jenkins, supra, 705 F.3d at 88-89. For equitable tolling to apply, the petitioner must show two things: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoted case omitted). The determination is made on a case-by-case basis. Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013). Equitable tolling can occur in several circumstances. See Jenkins, 705 F.3d at 88-91; Urcinoli v. Cathel, 546 F.3d 269, 273 (3d Cir. 2008); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).

There is also an equitable exception to the statute of limitations established in McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). In McQuiggin, the Supreme Court held that a convincing claim of actual innocence overcomes the bar of the statute of limitations. Id. at ___, 133 S.Ct. at 1928. On an actual innocence claim, "a petitioner must demonstrate two things.... First, a petitioner must present new, reliable evidence that was not presented at trial. Schlup [v. Delo ], 513 U.S. [298, ] 324, 115 S.Ct. [851, ] 865, [130 L.Ed.2d 808 (1995]. Second, a petitioner must show by a preponderance of the evidence, "that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.' Id. at 327, 115 S.Ct. at 867." Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010). The court examines not just the new evidence but the old evidence as well. House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 2077, 165 L.Ed.2d 1 (2006). "[A]ctual innocence requires a showing of factual innocence, not mere legal insufficiency." Sweger v. Chesney, 294 F.3d 506, 523 (3d Cir. 2002).

Finally, another way of showing that the new claims are timely would be to establish under Fed.R.Civ.P. 15(c)(2) that they relate back to the claims raised in the 2254 petition. See Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2563, 163 L.Ed.2d 582 (2005). A claim will not relate back if "it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 650, 125 S.Ct. at 2566. The claim will relate back if there is "a common core of operative facts.'" Id. at 659, 125 S.Ct. at 2572.

III. The Original Claims and the New Claims

To assist Petitioner, we set forth our understanding of the claims set forth in the 2254 petition and those set forth in the ...

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