United States District Court, E.D. Pennsylvania
S. Diamond, J.
petitioner Gary McWhorter alleges due process violations
based on “perjured testimony.” (Doc. No. 1); 28
U.S.C. § 2254. I referred his Petition to Magistrate
Judge Marilyn Heffley, who recommended denying relief as
time-barred. (Doc. No. 10.) McWhorter has filed pro
se objections, and the Government has responded. (Doc.
Nos. 14, 16.) On June 6, 2019, I remanded Judge Heffley's
Report so that she could review the state court record-which
was previously unavailable-and overruled McWhorter's
objections without prejudice. (Doc. No. 17.)
26, 2019, after reviewing the state court record, Judge
Heffley again recommended that I deny McWhorter's
Petition as untimely. (Doc. No. 18.) McWhorter did not renew
his objections. (Doc. No. 20.) Accordingly, I must
“satisfy [myself] that there is no clear error on the
face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b) Advisory Committee
Notes; see also Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987) (the district court must “afford
some level of review” when no objections have been
made). In an abundance of caution, however, I will also
address McWhorter's earlier objection to Judge
Heffley's initial ruling (which has not changed) that his
claim for relief is time-barred. (Doc. No. 14.)
reviewed the Report, I see no error, clear or otherwise:
McWhorter's Petition is plainly time-barred. McWhorter
filed the instant Petition on August 29, 2018, challenging
his 1983 state conviction for first-degree murder and
possession of an instrument of a crime. (See
generally § 2254 Pet., Doc. No. 1; see
also Crim. Docket, Commonwealth v. McWhorter,
No. CP- 51-0715901-1982 (Phila. Ct. Com. Pl.).) The
Pennsylvania Supreme Court rejected McWhorter's direct
appeal on October 29, 1986. Commonwealth v.
McWhorter, 522 A.2d 1105 (Pa. 1986) (Table). On August
13, 2014, McWhorter filed his first PCRA petition; the PCRA
Court denied relief on June 10, 2016, the Superior Court
affirmed, and McWhorter did not seek allocatur.
(See Crim. Docket at 4-6); see also Commonwealth
v. McWhorter, No. 1895 EDA 2016, 2017 WL 4535678, at *1
(Pa. Super. Ct. Oct. 11, 2017). On January 3, 2018, McWhorter
filed a second PCRA petition to restore his appellate rights.
(Crim. Docket at 7.) The PCRA Court granted this second
petition after an evidentiary hearing, and McWhorter appealed
his first PCRA petition to the Pennsylvania Supreme Court.
(Crim. Docket at 10-11.) That appeal remains pending. See
Commonwealth v. McWhorter, No. 349 EAL 2019 (Pa.)
had a one-year grace period from the April 24, 1996 enactment
date of the Antiterrorism and Effective Death Penalty Act to
seek habeas relief. See 28 U.S.C. §
2244(d)(1)(A)-(D); Douglas v. Horn, 359 F.3d 257,
261 (3d Cir. 2004) (“[Petitioner's] conviction
became ‘final' before the AEDPA came into effect on
April 24, 1996, and thus his one-year period for filing a
habeas petition began running on that date.”);
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998)
(establishing a one-year grace period). The one-year clock is
tolled while a petitioner's “properly filed
application for state post-conviction” review is
pending. 28 U.S.C. § 2244(d)(2). An untimely PCRA
petition, however, is not considered properly filed. See
Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005); see
also Perry v. DiGuglielmo, No. 06-1560, 2008 WL 564981,
at *7 (W.D. Pa. Feb. 29, 2008) (a “PCRA petition must
be filed before the limitations period runs out, otherwise
there is nothing left to be tolled”).
habeas petition is thus untimely. I agree with Judge
Heffley that he is not eligible for statutory tolling because
his PCRA petitions were also untimely. See Long v.
Wilson, 393 F.3d 390, 395 (3d Cir. 2004) (filing of
untimely PCRA petition did not statutorily toll the
limitations clock); Johnson v. Hendricks, 314 F.3d
159, 161-62 (3d Cir. 2002) (“§ 2254(d)(2)'s
tolling provision excludes time during which a properly filed
state post-conviction [petition] is pending but does not
reset the date from which the one-year limitations period
begins to run.”). McWhorter also presents no grounds
that warrant equitable tolling. See Holland v.
Florida, 560 U.S. 631, 649 (2010) (“[A]
‘petitioner' is entitled to equitable tolling'
only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way' and prevented timely
filing.” (quoting Pace, 544 U.S. at 418)).
agree with Judge Heffley that McWhorter is not entitled to a
new time clock based on newly-discovered evidence.
See 28 U.S.C. § 2244(d)(1)(D) (petition timely
because it was filed within one year of “[t]he date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due
diligence”). McWhorter argues that on July 3, 2014, he
discovered new evidence, suggesting that the
Commonwealth's key witness, Regina Smith, committed
perjury. (See § 2254 Pet. 17; Pet'r's
Br. 5, Doc. No. 1.) In rejecting this claim in denying PCRA
relief, the Superior Court well explained that there was
nothing “new” about it. See McWhorter,
2017 WL 4535678, at *2 (“Smith's credibility and
potential perjury were exhaustively explored not only at
trial, but also in a post-trial hearing . . . . This newly
discovered statement from Jackson is merely another conduit
for the same claim of perjury.”). In any event, as
Judge Heffley correctly observes, because McWhorter first
raised this “new evidence” over four years after
its discovery, the perjured testimony claim remains
time-barred. See 2244(d)(1)(D).
I agree with Judge Heffley that there is no need to stay this
Petition-which includes the same claim raised in
McWhorter's first PCRA petition-pending McWhorter's
appeal to the Pennsylvania Supreme Court. See Ellington
v. Overmyer, No. 14-00019, 2017 WL 4800473, at *5 (M.D.
Pa. Oct. 3, 2017) (“In Pennsylvania, a federal claim is
deemed exhausted once it is presented to the Superior Court
of Pennsylvania-either on direct appeal from a state criminal
conviction or on appeal from a PCRA Court's denial of
post-conviction relief-because the Pennsylvania Supreme Court
is not considered an ‘available' state court
remedy.” (citing Lambert v. Blackwell, 387
F.3d 210, 233 (3d Cir. 2004)); see also Postley v.
Rozum, No. 08-4479, 2009 WL 5217074, at *5-6 (E.D. Pa.
Dec. 30, 2009) (denying stay request for time-barred
habeas petition despite pending PCRA appeal).
these circumstances, I will adopt Judge Heffley's Report
and Recommendation and deny McWhorter's request for
NOW, this 14th day of August, 2019, upon careful and
independent consideration of Gary McWhorter's pro
se Petition for Writ of Habeas Corpus (Doc. No.
1), Respondents' Response to Petition for Writ of
Habeas Corpus (Doc. No. 9), Judge Heffley's Report
and Recommendation (Doc. No. 18), to which there are no
objections (Doc. No. 20), and all available state court
records, it is hereby ORDERED that:
1. The Report and Recommendation (Doc. No. 18) is
APPROVED and ADOPTED;
2. The Petition for Writ of Habeas Corpus (Doc. No. 1) is
DISMISSED with prejudice;
3. A Certificate of Appealability shall NOT
ISSUE. See 28 U.S.C. § 2253(c)(1)(A);
Slack v. McDaniel, 52 ...