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Rizvi v. Warden

United States District Court, W.D. Pennsylvania

December 6, 2017

ANWAR RIZVI, Petitioner,
v.
ROBERT GILMORE WARDEN and THE DISTRICT ATTORNEY'S OFFICE, Respondents.

          MEMORANDUM OPINION [1]

          CYNTHIA REED EDDY UNITED STATES MAGISTRATE JUDGE.

         Presently before the Court is a counseled petition for a writ of habeas corpus filed on behalf of state prisoner Anwar Rizvi (“Petitioner”), in which he challenges the judgment of sentence imposed on him by the Court of Common Pleas of Allegheny County, Pennsylvania, on August 11, 2009. Respondents have filed their Answer to the Petition (ECF No. 14), in which they argue, inter alia, that the Petition is untimely and should be dismissed on that ground. After careful consideration of the parties' submissions, and for the reasons discussed below, the Petition will be dismissed as untimely pursuant to 28 U.S.C. § 2244(d) and a certificate of appealability will be denied.

         I. Procedural History[2]

         On August 11, 2009, Petitioner, Anwar Rizvi, was sentenced to 15 - 30 years incarceration after a jury convicted him of attempted homicide. He filed a direct appeal to the Pennsylvania Superior Court. Prior to the Superior Court's disposition of his direct appeal, Rizvi was transferred to a correctional institution in the Commonwealth of Virginia as part of an agreement between the Virginia Department of Corrections (“VA DOC”) and the Pennsylvania Department of Corrections (“PA DOC”), whereby Virginia agreed to house 1, 000 Pennsylvania male prisoners.

         On January 10, 2011, the Pennsylvania Superior Court affirmed Rizvi's judgment of sentence. He did not file a petition for appeal by allowance with the Pennsylvania Supreme Court. Accordingly, Rizvi's judgment of sentence became final on February 9, 2011. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking review).

         According to Rizvi, it was during the time that he was incarcerated in Virginia that he encountered difficulties with conducting legal research which made preparation of a timely PCRA petition and federal habeas petition impossible. He claims, inter alia, that the Virginia correctional facility in which he was housed contained an underequipped library that could only accommodate several inmate researchers at a time, impeding his ability to conduct meaningful conventional or computer-based research and that his ability to access the prison's legal resources and law library was limited, at best.

         By late February 2012, Rizvi returned to the PA DOC's custody and was housed at SCI-Graterford. On March 28, 2012, Rizvi filed a pro se motion entitled “Motion for Court Order to Permit Appellant a First PCRA Opinion Nunc Pro Tunc, ” which was properly construed by the court as a PCRA petition and counsel was appointed to represent Rizvi.[3] In this motion, Rizvi requested that the PCRA court confirm that it would apply equitable tolling principles and the PCRA's government interference exception to the statutory time-bar to find his petition timely. In his motion, Rizvi raised almost identical issues to the ones raised in the instant federal petition - that inadequacies within the VA DOC prison system made legal research and preparation of a timely appeal impossible.

         On October 17, 2012, court-appointed counsel filed a “no merit” letter advising the court that the petition had no arguable merit. Counsel also stated that while the petition was filed late, the delay was beyond Rivzi's control due to “mail delay” and because the court had granted Rivzi's nunc pro tunc motion, the petition had been timely filed. By Order of October 23, 2012, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition as meritless. On November 13, 2012, the PCRA court issued a summary final order dismissing the PCRA petition, but did not give any explanation as to why the petition was denied.

         On January 13, 2013, Rizvi filed a pro se notice of appeal to the Pennsylvania Superior Court, sixty-six days after the final order dismissing the PCRA petition was entered. By Order dated April 24, 2013, the PCRA court recommended that the appeal be quashed due to the Notice of Appeal being filed beyond the 30 day time period set forth in Pa.R.A.P. 903(a). On September 25, 2013, Chris Rand Eyster, a privately retained attorney, entered his appearance on Rizvi's behalf to represent him on appeal. The Superior Court affirmed the dismissal of the PCRA petition by Order dated June 16, 2014, finding that the dismissal was proper as the motion was an untimely first PCRA petition:

Additionally, a petitioner asserting a timeliness exception must file a petition within sixty (60) days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA petition is not filed within one year of the expiration of the direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner's PCRA claims.” Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).
Instantly, Appellant's judgment of sentence became final on February 9, 2011, upon expiration of the time to file a petition for allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113 (allowing thirty days to file petition for allowance of appeal). Appellant file his pro se motion on April 9, 2012, more than one (1) year after his judgment of sentence became final. Therefore, Appellant's petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Additionally, Appellant's PCRA petition fails to establish any cognizable exception to the PCRA timeliness requirements. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, the PCRA court properly dismissed the petition.

(ECF No. 1-18 at 4-5).

         Petitioner, through counsel, filed an application for reargument before the Superior Court en banc. This request was denied on August 19, 2014, and the following month, on September 17, 2014, counsel filed a petition for appeal by allowance (“PAA”) with the Pennsylvania Supreme Court. The PAA was denied on February 18, 2015.

         Almost a year later, on January 17, 2016, Petitioner, through present counsel, Craig M. Cooley, filed a second PCRA petition.[4]Rizvi argued that both equitable tolling principles and statutory exceptions to the time bar applied to except his otherwise patently untimely petition from the PCRA's timeliness requirements. The PCRA court issued a Rule 907 Notice of its intent to dismiss the second petition because it was untimely. Through counsel, Rizvi filed objections to the Notice, but on October 26, 2016, the PCRA court entered its final dismissal order.

         Thereafter, Attorney Cooley filed a timely notice of appeal to the Superior Court. By Opinion filed June 19, 2017, the Superior Court affirmed the dismissal of the PCRA petition, finding no error with the PCRA court's dismissal of the second petition as untimely, as the court was without jurisdiction to review the merits of the claims.

         On November 15, 2016, while the appeal of his second PCRA petition was pending, Petitioner, through Attorney Cooley, filed the instant federal habeas petition in this Court (ECF No. 1), with brief in support (ECF No. 3). Contemporaneously with filing the Petition, Rizvi requested and was granted a stay of the proceedings in this Court pending exhaustion of his state court remedies. On September 12, 2017, Attorney Cooley advised the Court that on June 19, 2017, the Superior Court affirmed the dismissal of the second PCRA ...


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