United States District Court, E.D. Pennsylvania
OPINION REPORT AND RECOMMENDATION, ECF NO. 9 -
F. Leeson, Jr. United States District Judge.
Kennedy filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 challenging his 2009 conviction for
aggravated assault, conspiracy to commit aggravated assault,
firearms not to be carried without a license, persons not to
possess, use, manufacture, control, sell, or transfer
firearms, and five counts of recklessly endangering another
person. ECF No. 1. Kennedy later filed an amended
petition. ECF No. 2. United States Magistrate Judge
Linda K. Caracappa issued a Report and Recommendation
(R&R) recommending that the habeas corpus petition be
dismissed as untimely. ECF No. 9. Kennedy timely filed
objections to the R&R. ECF No. 10. After de novo review
and for the reasons set forth below, the R&R is adopted
and the habeas petition is dismissed as untimely.
FACTUAL AND PROCEDURAL HISTORY
Court adopts the factual and procedural history as summarized
by Magistrate Judge Caracappa in the R&R. In his
Objections, Kennedy takes issue with the R&R because it
lists four grounds for relief instead of the six in his
petition. Pet'r's Objs. 1-2. Kennedy does in fact
present six claims in his habeas petition: (1) that the
prosecutor committed misconduct by cross-examining him at
trial about a previous federal conviction; (2) that the trial
court committed error by allowing the prosecution to ask
about his federal conviction; (3) that trial counsel was
ineffective for not filing a motion in limine to prevent the
prosecution from asking about his federal conviction; (4)
that trial counsel was ineffective for not requesting a
mistrial and cautionary instruction concerning his federal
conviction; (5) that trial counsel was ineffective for not
asking additional questions of a witness for the defense; (6)
that trial counsel was ineffective for not asking Kennedy
specific questions about seeing a co-conspirator with two
guns before the incident. This Court concludes that the
R&R otherwise accurately summarizes the facts and
procedural history of the case.
STANDARD OF REVIEW
objections to a report and recommendation have been filed
under 28 U.S.C. § 636(b)(1)(C), the district court must
make a de novo review of those portions of the report to
which specific objections are made. Sample v.
Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989);
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984)
(“providing a complete de novo determination where only
a general objection to the report is offered would undermine
the efficiency the magistrate system was meant to contribute
to the judicial process”). “District Courts,
however, are not required to make any separate findings or
conclusions when reviewing a Magistrate Judge's
recommendation de novo under 28 U.S.C. § 636(b).”
Hill v. Barnacle, 655 F. App'x. 142, 147 (3d
Cir. 2016). The district court “may accept, reject, or
modify, in whole or in part, the findings and
recommendations” contained in the report. 28 U.S.C.
§ 636(b)(1)(C) (2009).
Court has considered Kennedy's Objections to the R&R
and conducted a de novo review of his habeas corpus petition.
Magistrate Judge Caracappa correctly concluded that Kennedy
did not file his habeas petition within a year after his
conviction became final, taking into account statutory
tolling for his properly filed first PCRA petition; the Court
makes no separate findings or conclusions in this regard.
See Hill, 655 F. App'x. at 147. Kennedy does not
dispute these conclusions in his Objections, but argues
instead that the alternative statute of limitations
calculation in 28 U.S.C. § 2254(d)(1)(B) applies or, in
the alternative, equitable tolling should save his claim.
Neither of these arguments justifies extending the
limitations period beyond May 18, 2014, and Kennedy's
petition is untimely.
Magistrate Judge Caracappa recognized, applying statutory
tolling for the period when his properly filed first PCRA
petition was pending, Kennedy had thirty-two days to file a
habeas petition after the Pennsylvania Supreme Court denied
his petition for allowance of appeal on April 16, 2014, such
that the statute of limitations expired on May 18, 2014.
Kennedy argues that the statute of limitations should begin
to run instead on May 7, 2015, when he received the order
from the PCRA court denying his second PCRA petition as
untimely, and run until May 7, 2016. He contends that,
because of his incarceration in federal prison without access
to Pennsylvania legal materials, he “was denied the
opportunity of going through the post conviction process
aware of how the procedural rules work to inform him of when
to file, his option to file a federal habeas and what the
deadline would of [sic] been for the federal habeas the way
other state prisoners are afforded that access.” Pet.
28-29. If he had had access to “state procedural rules
and laws, ” Kennedy argues, he would have filed a
timely state PCRA petition and “known he had a federal
habeas option and the deadline for it to be filed.”
Id. at 29. In short, Kennedy argues that this Court
should accept his petition because of his unfamiliarity with
the Pennsylvania collateral relief rules and the availability
of habeas relief.
lack of familiarity with Pennsylvania collateral relief
procedure does not entitle him to the alternative calculation
of the statute of limitations under 28 U.S.C. §
2254(d)(1)(B). This alternative calculation allows the
one-year statute of limitations clock to run from “the
date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented
from filing by such State action.” 28 U.S.C. §
2254(d)(1)(B). Kennedy argues that his incarceration in
federal prison without access to Pennsylvania legal materials
impeded his ability to file his habeas petition, and that
this “impediment” was removed on May 7, 2015,
when he received the order from the PCRA court denying his
second PCRA petition as untimely. Pet. 28.
reliance on his lack of access to Pennsylvania legal
materials while in federal prison is misplaced, because the
issue before this Court is the timeliness of his federal
habeas petition, not his Pennsylvania PCRA petitions. And
Kennedy's own habeas petition casts doubt on his argument
that he first became aware of the one-year habeas deadline on
May 7, 2015. In a letter to the PCRA court dated November 21,
2012, discussing communication issues between his PCRA
counsel and him, Kennedy writes: “I am in a situation
where effective representation is especially needed by PCRA
counsel because I am currently acting as a pro se litigant on
my Federal 2255 petition and struggling to meet the one year
statute of limitations deadline.” Pet'r's Ex.
Q, ECF No. 2 at 161. Thus, Kennedy knew of the one-year
statute of limitations for habeas corpus as of late November
2012-and still waited over three years to file his petition.
even accepting at face value his argument that he truly did
not know about the one-year deadline until May 7, 2015, his
own ignorance of the federal deadline does not establish a
state-created impediment. Nor did his uncertainty about the
timeliness of his PCRA petitions and the proper procedure in
Pennsylvania courts impede Kennedy from filing a habeas
petition. Previous courts have recognized that limited access
to legal resources in prison is not a state-created
impediment. See, e.g., Otero v. Warden, SCI
Dallas, No. CV 16-4643, 2017 WL 2469616, at *2 (E.D. Pa.
June 7, 2017) (finding that prison's delay in providing a
recent Supreme Court decision was “a reality of
prisoners' limited access to library materials rather
than a state-created impediment”). Lest these rules be
considered overly harsh, the Third Circuit Court of Appeals
has recognized a petitioner's ability to file a
“protective habeas” petition and ask the federal
court to stay and abey the habeas proceeding until the
petitioner exhausts state claims, and has encouraged
petitioners to do so. See Darden v. Sobina, 477 Fed.
App'x. 912, 918 (3d Cir. 2012) (quoting Pace v.
DiGugliemo, 544 U.S. 408, 416 (2005)). See also
Fisher v. McGinley, No. CV 14-5478, 2016 WL 6995045, at
*1 (E.D. Pa. Nov. 29, 2016) (holding that petitioner's
concern about exhausting state remedies did not prevent
filing of habeas petition). Kennedy has not shown that the
alternative statute of limitations in 28 U.S.C. §
2254(d)(1)(B) applies to his petition.
does Kennedy's claimed ignorance of the applicable law
entitle him to equitable tolling of the statute of
limitations. Equitable tolling requires a petitioner to show
(1) that he has been pursuing his rights diligently and (2)
that an extraordinary circumstance prevented him from filing
his petition on time. Holland v. Florida, 560 U.S.
631, 649 (2010). Kennedy argues that this Court should apply
equitable tolling during the period that he did not have
access to procedural rules and laws while in prison, such
that the one-year limitations period should expire May 7,
2016. However, as Magistrate Judge Caracappa correctly
recognized, lack of legal knowledge concerning applicable
deadlines does not entitle a petitioner to equitable tolling.
See Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir.
2013) (observing that “reasonable diligence”
inquiry applies to pro se petitioners and lack of legal
knowledge does not alone justify equitable tolling);
Fisher, 2016 WL 6995045, at *1 (noting that
petitioner's claim that he had “no clue”
about the federal limitations period and required more time