United States District Court, E.D. Pennsylvania
E.K. PRATTER, UNITED STATES DISTRICT JUDGE
Diaz's September 23, 2019 letter to the Court suggests
that reviewing his trial transcripts has led him to believe
he has discovered new claims that-had he had access to his
trial transcripts prior to this calendar year-he would have
raised in his direct appeals or state post-conviction
proceedings. He asks the Court to "remand [him] back to
the lower courts so [he] can start [his] appeal process
over" now that he has "all the evidence." Doc.
Diaz has had difficulty obtaining his trial transcripts.
According to letters he has submitted to the Court since
first filing his habeas petition, Mr. Diaz (1) attempted for
four years to obtain his trial transcripts from his trial
lawyer, his post-conviction relief lawyer, and the
Philadelphia Clerk of Courts; and (2) received incomplete
transcripts after this Court ordered his trial transcripts
mailed to him on November 1, 2018. Doc. Nos. 11, 15. However,
following an additional request from Mr. Diaz, the Court
ordered that all missing pages from Mr. Diaz's trial
transcripts be mailed to him on November 15, 2018. Doc No.
receiving his full trial transcripts at that time, had Mr.
Diaz determined that there were additional claims he wanted
to add, he could have sought leave to amend. See Belle v.
Varner, No. CIV. A. 99-5667, 2001 WL 1021135, at *9
(E.D. Pa. Sept. 5, 2001) ("A motion to amend a habeas
petition is governed by the Federal Rules of Civil
Procedure.") (citing United States v. Duffus,
174 F, 3d 333, 336 (3d Cir. 1999)). If these additional
claims related back to his original petition and were fully
exhausted, the Court could have had discretion to grant such
a request. See Riley v. Taylor, 62 F.3d 86, 91 (3d
Cir. 1995) (reversing and remanding where district court
denied leave to amend and two new claims "appear[ed] to
be fully exhausted and not the subject of procedural
if Mr. Diaz's new claims were not fully exhausted, this
Court could not have considered them. See Rose v.
Lundy, 455 U.S. 509 (1982) (requiring district courts
dismiss "mixed petitions" that contain both
exhausted and unexhausted claims). Mr. Diaz would then have
been faced "with the choice of returning to state court
to exhaust his claims" or keeping his petition as
submitted, presenting "only exhausted claims to the
district court." Id. at 510.
Diaz pursued neither path. Instead, after the response to his
petition was filed on January 7, 2019, Doc. No. 17, and
Magistrate Judge Rueter submitted his Report and
Recommendation on March 1, 2019, Doc. No. 20, Mr. Diaz sent
his trial transcripts to a prospective attorney and they were
reportedly lost in the mail. Doc. No. 31. Mr. Diaz informed
the Court of this occurrence on May 29, 2019 and requested
another copy of the transcripts. Id. The Court
mailed another copy to Mr. Diaz and gave him 30 days from the
date of that Order to file any objections to Magistrate Judge
Rueter's Report and Recommendation. Doc. No. 30.
having received this new copy of his trial transcripts in
September of 2019, Mr. Diaz reports that this is the first
time he has actually read his transcripts and appears to ask
that he be permitted to raise new claims in state court. Doc.
No. 32. To do so, the Court would have to dismiss Mr.
Diaz's habeas petition. However, Mr. Diaz should be aware
that, unlike when he first received the full transcripts in
November of 2018, more than a year has passed since he filed
his habeas petition with the Court. Mr. Diaz's petition
is subject to a one-year period of limitation, which means
Mr. Diaz must file any application for a writ of habeas
corpus within one year of any of the dates described in 28
U.S.C. §§ 2244(d)(1)(A)-(D). Because Mr. Diaz filed
his petition more than a year ago, and understanding that
"the filing of a petition for habeas corpus in federal
court does not toll the statute of limitations,"
Rhines v. Weber, 544 U.S. 269, 274-75 (2005), if Mr.
Diaz's petition is dismissed (even because he has
requested remand), he will be time-barred from raising any of
the arguments from this petition in any subsequent habeas
petition. The exception to this rule-equitable tolling-may
well not apply in this case. See United States v.
Shabazz, No. CIV.A. 05-4717, 2006 WL 2854301, at *4
(E.D. Pa. Oct. 4, 2006) (finding that "a lack of legal
resources, including trial transcripts, does not constitute
an extraordinary situation" warranting equitable
tolling); Payne v. Digulielmo, No. CIV.A. 03-6765,
2004 WL 868221, at *3 (E.D. Pa. Apr. 21, 2004) (declining to
exercise equitable tolling where petitioner missing his
transcripts had "not identified any reason why he could
not file a habeas petition and amend it later after obtaining
his records"). These are matters that Mr. Diaz may need
to raise with counsel. The Court cannot advise him.
Diaz is the owner of his claims and may pursue them as he
sees fit. However, the Court encourages Mr. Diaz to seriously
consider whether it would be wise to abandon his current
claims to pursue supposed new ones (noting that proving the
claims are truly newly discovered typically carries with it a
very high burden for Mr. Diaz), or if he should use the
transcripts to file objections to Magistrate Judge
Rueter's Report and Recommendation at this time. If Mr.
Diaz wishes ...