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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA E D W A R D SISTRUNK v. G E R A L D ROZUM, et al. : : : : : C IV IL ACTION N O . 06-5630 S U P P L E M E N T A L REPORT AND RECOMMENDATION E L IZ A B E T H T. HEY U N IT E D STATES MAGISTRATE JUDGE F e b ru a ry 24, 2009 T h is is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. 2254, on behalf of Edward Sistrunk ("Petitioner"), an individual currently incarcerated a t the State Correctional Institution in Somerset, Pennsylvania. On July 5, 2007, I filed a R ep o rt and Recommendation in which I recommended that the first of Petitioner's two c la im s be dismissed as time-barred and that the second claim be dismissed, without p re ju d ic e , as unexhausted.1 By Order-Memorandum dated October 31, 2007, the H o n o ra b le John R. Padova, United States District Court Judge for the Eastern District of P e n n s ylv a n ia , approved and adopted the Report as to Claim One, but sustained P e titio n e r's objections and stayed the petition with respect to Claim Two pending the sta te court's disposition of his pending post-conviction petition. Petitioner proceeded to e x h a u st his second claim in the state courts. Thereafter, on October 30, 2008, Judge As discussed more fully below, the petition presents two claims of actual in n o c e n ce based upon two pieces of alleged "newly-discovered" evidence (1) the c o n f es s io n of Damon Rodriguez (now deceased) to his brother Manuel Rodriguez, and ( 2 ) a letter from Gregory Anderson in which Anderson avers that he provided false tes tim o n y at Petitioner's preliminary hearing. Only the second claim is at issue in this S u p p le m e n ta l Report. 1 P a d o v a recommitted the matter to me for a Supplemental Report and Recommendation as to Claim Two. For the reasons that follow, I find that Claim Two is time-barred and th e re f o re recommend that the entire petition be dismissed as untimely filed. I. P R O C E D U R A L HISTORY 2 O n May 18, 1995, following a non-jury trial, the Honorable David N. Savitt, Court o f Common Pleas of Philadelphia County, convicted Petitioner of first degree murder, p o s s e ss in g an instrument of crime, two counts of recklessly endangering another person, a n d two counts of simple assault.3 Judge Savitt subsequently sentenced Petitioner to life im p riso n m e n t for murder, plus lesser sentences on the other counts to run concurrently w ith the life sentence. After allowing substitution of new counsel, Judge Savitt denied Petitioner's post-sentence motion for a new trial alleging ineffectiveness of trial counsel. Petitioner appealed to the Pennsylvania Superior Court, raising three claims of in e f fe c tiv e assistance of counsel. On July 19, 1996, the Superior Court affirmed the ju d g m e n t of sentence by memorandum opinion. Commonwealth v. Sistrunk, 3511 P H IL A 1995 (Pa. Super. July 19, 1996). Petitioner filed a petition for allowance of a p p e a l in the Pennsylvania Supreme Court, which was denied on December 11, 1996. Commonwealth v. Sistrunk, 686 A.2d 1310 (Pa. 1996) (table). Much of the following procedural history is contained in my original Report, but I in c lu d e it here in its entirety for purposes of convenience. T h e convictions stem from the shooting death of Julmaine Moody in Philadelphia o n July 23, 1993. 2 3 2 O n December 11, 1997, Petitioner filed a pro se application for collateral relief p u rs u a n t to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. 9541 et seq. Counsel was appointed and filed an amended PCRA petition, raising two claim s of ineffectiveness of appellate counsel for failing to challenge trial counsel's ef fe ctiv en ess. On May 20, 1999, following an evidentiary hearing, the PCRA Court d is m is s e d the petition, concluding that the issues had been previously litigated on direct a p p e al. Petitioner appealed to the Pennsylvania Superior Court, which affirmed the d is m is s a l in a memorandum opinion dated June 19, 2000. Commonwealth v. Sistrunk, 1 8 5 5 EDA 1999 (Pa. Super. 2000). O n June 26, 2002, Petitioner filed a second, counseled PCRA petition (followed by a n amended petition and an affidavit), arguing that he was entitled to a new trial or e v id e n tia ry hearing based upon newly-discovered evidence in the form of a confession m a d e by Damon Rodriguez (now deceased) to his brother Manuel Rodriguez. See R e s p o n s e , at Exhibit "E." On July 9, 2003, the PCRA Court dismissed the second PCRA p e titio n as untimely. Petitioner appealed to the Pennsylvania Superior Court, which a f f irm e d the dismissal by memorandum opinion dated January 26, 2005. Commonwealth v . Sistrunk, 2514 EDA 2003 (Pa. Super. 2005). On October 4, 2005, the Pennsylvania S u p r e m e Court denied discretionary review. Commonwealth v. Sistrunk. 872 A.2d 1275 (P a. 2005) (table). 3 O n August 18, 2006, Petitioner filed a third, counseled PCRA petition, arguing th a t he is actually innocent based upon newly-discovered evidence in the form of a letter rec eive d by Petitioner's counsel on June 22, 2006, from Petitioner's cousin, Gregory A n d e rs o n . In the letter, Mr. Anderson avers that he provided false testimony identifying P e titio n e r as the shooter at Petitioner's preliminary hearing. See Response, at Exhibit " E ." On July 12, 2007, the PCRA Court dismissed the third PCRA petition as untimely, ex p lain ing in a memorandum opinion that Petitioner failed to raise a viable claim of afterd is c o v e re d evidence pursuant to the PCRA. Commonwealth v. Sistrunk, C.P. 9401-1650, a t 4 (Phila. Ct. Com. Pl. Feb. 20, 2008) ("Third PCRA Opinion"). Petitioner appealed to th e Pennsylvania Superior Court, which recently affirmed the dismissal in a memorandum o p inion dated October 2, 2008. Commonwealth v. Sistrunk, 2131 EDA 2007 (Pa. Super. 2 0 0 8 ). He did not seek further review in the Pennsylvania Supreme Court. Meanwhile, on December 22, 2006, while the third PCRA petition was pending in th e state courts, Petitioner filed the present counseled petition for writ of habeas corpus, a rg u in g that he is actually innocent based upon two pieces of alleged "newly-discovered" e v id e n c e (1) the confession of Damon Rodriguez (now deceased) to his brother Manuel R o d rig u e z , and (2) the letter from Gregory Anderson in which Mr. Anderson avers that he p ro v id e d false testimony at Petitioner's preliminary hearing. In an Answer filed on April 5 , 2007, Respondents argued that the petition is time-barred under the Anti-Terrorism and E f f ec tiv e Death Penalty Act ("AEDPA") or, in the alternative, that the petition should be 4 d ism iss e d as a mixed petition because at that time the second claim was still pending in th e state courts. As previously noted, on July 5, 2007, I filed a Report recommending that P e titio n e r's first claim be dismissed as time-barred and the second claim be dismissed, w ith o u t prejudice, as unexhausted. On October 31, 2007, Judge Padova approved and a d o p te d the Report as to the first claim, but stayed the petition with respect to the second claim pending the state courts' disposition of the claim in Petitioner's pending third P C R A petition.4 F o llo w in g the Superior Court's October 2, 2008, decision affirming the dismissal o f the third PCRA petition as untimely, Petitioner notified Judge Padova that the second c laim had been exhausted. On October 31, 2008, Judge Padova recommitted the matter to m e for a Supplemental Report and Recommendation as to that claim. On February 5, 2 0 0 9 , Respondents filed a Supplemental Response arguing that Petitioner's second claim is untimely and procedurally defaulted. Petitioner has not submitted any further briefing. In doing so, Judge Padova relied on Rhines v. Weber, 544 U.S. 269 (2005), in w h ich the Supreme Court approved of a "stay and abey" procedure when the federal court is faced with a mixed petition (containing both exhausted and unexhausted claims) and th e re is good cause for the petitioner's failure to exhaust state court remedies. See S istrun k v. Rozum, No. 06-5630, at 9-10 (E.D. Pa. Oct. 31, 2007). As discussed more f u lly in Part II, infra at 12, the Rhines "stay and abey" procedure cannot transform a claim th a t is untimely as of the date a habeas petition is filed into a timely claim for purposes of h a b e a s review. 4 5 II. D IS C U S S IO N In Claim Two, Petitioner argues that he is actually innocent based upon newly- d is c o v e re d evidence in the form of a letter received by Petitioner's counsel on June 22, 2 0 0 6 , from Petitioner's cousin, Gregory Anderson, in which Mr. Anderson avers that he p ro v id e d false testimony at Petitioner's preliminary hearing.5 A s explained in my original Report in the context of Petitioner's first claim, the f e d era l courts cannot reach the merits of a claim without first being satisfied that the c la im is timely. Section 101 of AEDPA, effective April 24, 1996, amended federal h a b e as corpus law by imposing a one-year limitation period to an application for a writ of h a b e a s corpus filed by a person in state custody. 28 U.S.C.A. 2244(d)(1). Typically, th e AEDPA limitations period begins to run "on the date on which the judgment became f in a l by the conclusion of direct review or the expiration of the time for seeking such re v ie w ." 28 U.S.C.A. 2244(d)(1)(A). If this date were to apply to Petitioner's second claim , the claim (and thus the entire petition) would be time-barred. Petitioner's c o n v ic tio n became final on March 11, 1997, ninety days after the Pennsylvania Supreme C o u rt denied allocatur on direct appeal. See Kapral v. United States, 166 F.3d 565, 575 (3 d Cir. 1999)). Thus, Petitioner's federal habeas petition filed on December 22, 2006, w o u ld be more than seven years late. At the preliminary hearing, Mr. Anderson identified Petitioner as the driver of the c a r and as the person who shot Ms. Moody. Mr. Anderson did not testify at trial. 6 5 P e titio n e r does not present any argument regarding the timeliness of Claim Two, b u t rather asserts that Mr. Anderson's letter, which was received by counsel on June 22, 2 0 0 6 , "will support his assertion of innocence. . ." See Ptr.'s Memo at 13. Although not s ta te d as such, I will infer that Petitioner wishes to rely on a later start date for the running o f the limitations period based on receipt of the letter on June 22, 2006. See 28 U.S.C. 2 2 4 4 (d )(1 )(D ) (limitations period begins on "the date on which the factual predicate of th e claim or claims presented could have been discovered through the exercise of due d ilig e n c e " ). Petitioner is not entitled to the later, alternative AEDPA start date. In addressing th e issue of whether Mr. Anderson's letter constituted newly-discovered evidence, the P C R A court found that Petitioner knew about the alleged evidence in the letter that Mr. A n d e rs o n lied at Petitioner's preliminary hearing when he testified that Petitioner was the sh o o ter no later than the date of the preliminary hearing in January 1994. See Third P C R A Opinion, at 4 ("Clearly, if [Petitioner] was not the shooter, he knew no later than J a n u a ry 1994, the date of Anderson's preliminary hearing testimony, that Anderson was lyin g " ). Despite this knowledge, Petitioner never attempted to locate Mr. Anderson, but ra th e r "sat quietly for more than decade until Anderson came forward with his alleged re c an ta tio n ." Id. The Pennsylvania Superior Court agreed, concluding that Petitioner " f aile d to provide reasonable explanation why he could not, with reasonable diligence, h a v e discovered earlier than 2006 that his cousin lied at [the] preliminary hearing in 7 J a n u a ry 1994." Commonwealth v. Sistrunk, 2131 EDA 2007, at 2-3 (Pa. Super. 2008). Federal courts are bound by such state court determinations. See 28 U.S.C. 2254(e)(1) (" a determination of a factual issue made by a State court shall be presumed to be correct" a b se n t clear and convincing evidence to the contrary). Because the state courts found that th e factual predicate of Petitioner's claim was known to him in 1994, and that Petitioner d id not exercise reasonable diligence in the interim to investigate, the alternative start date p ro v id e d by section 2254(d)(1)(D) is not available. As a result, the AEDPA limitations period commenced on March 11, 1997, and P e titio n e r had until March 11, 1998, to bring this claim in a federal habeas petition. Petitioner did not file the present habeas petition until December 22, 2006. Consequently, u n le ss the statute of limitations period was tolled by statutory or equitable principles th ro u g h the date he filed his federal petition, Claim Two is untimely. Section 2244 provides that "the time during which a properly filed application for S tate post-conviction or other collateral review . . . is pending shall not be counted toward a n y period of limitation . . . ." 28 U.S.C. 2244(d)(2). Petitioner did not present Claim T w o to the state courts until his third PCRA petition, which was filed on August 18, 2 0 0 6 . Because the state courts ultimately found the third PCRA petition to be untimely, it c a n n o t toll the running of the AEDPA limitations period. See Pace v. DiGuglielmo, 544 U .S . 408 (2005) (holding time limits are "filing conditions" such that pendency of an u n tim e ly collateral appeal is not a basis for statutory tolling); Schlueter v. Varner, 384 8 F .3 d 69, 78 (3d Cir. 2004) (same); Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003) (s a m e ) . "When a postconviction petition is untimely under state law, that is the end of the m atter for purposes of section 2244(d)(2)." Pace, 544 U.S. at 414. Accordingly, statutory to llin g is not applicable as to Claim Two. Nor do I find that principles of equitable tolling apply in this case. The Third C irc u it has held that equitable tolling is proper only when the "principles of equity would m a k e [the] rigid application [of a limitation period] unfair." Miller v. New Jersey State D e p t. of Corrections, 145 F.3d 616, 618 (3d Cir. 1988) (citation omitted). In order to q u a lif y for equitable tolling, "[t]he petitioner must show that he or she `exercised re a so n a b le diligence in investigating and bringing [the] claims.' Mere excusable neglect is not sufficient." Id. at 618-19 (citations omitted).6 Our Circuit Court has identified four c irc u m sta n c e s in which equitable tolling is justified: (1) when the defendant has actively m is le d the plaintiff; (2) when the plaintiff has in some extraordinary way been prevented f ro m asserting his rights; (3) when the plaintiff has timely asserted his rights, but has m ista k e n ly done so in the wrong forum; or (4) when the plaintiff received inadequate n o tice of his right to file suit, a motion for appointment of counsel is pending, or where These standards are consistent with anticipated Supreme Court standards. For e x a m p le , in assuming without deciding that equitable tolling is available, the United S ta te s Supreme Court has stated that a litigant bears the burden of establishing two e le m e n ts : "(1) that he has been pursuing his rights diligently, and (2) that some e x tra o rd in a ry circumstances stood in his way." Lawrence v. Florida, 549 U.S. 327, 336 (2 0 0 7 ) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 9 6 th e court has misled the plaintiff into believing that he had done everything required of h im . Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citing United States v. Midgley, 1 4 2 F.3d 174, 179 (3d Cir. 1998); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 2 3 6 , 239-40 (3d Cir. 1999)). The court has cautioned, however, that equitable tolling is to b e invoked "only sparingly." See Midgley, 142 F.3d at 179. "In non-capital cases, a tto rn e y error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy v. Horn, 2 4 0 F.3d 239, 244 (3d Cir. 2001). H e re , Petitioner presents no arguments for the application of equitable tolling. Nevertheless, given the nature of Petitioner's second claim, he would presumably argue th a t the limitations period as to Claim Two should be equitably tolled on the ground that h e is actually innocent based on Mr. Anderson's letter to counsel. As explained in my o rig in a l Report, and in Judge Padova's Order-Memorandum, neither the United States S u p r e m e Court nor the Third Circuit has specifically held that the AEDPA statute of lim ita tio n s can be equitably tolled based on a claim of actual innocence. See McKeever v . Warden SCI-Graterford, 486 F.3d 81, 84 n.5 (3d Cir. 2007) (court yet to hold that A E D P A can be equitably tolled on basis of actual innocence); Horning v. Lavan, 197 F e d . Appx. 90, 93 (3d Cir. 2006) (same).7 Assuming without deciding the availability of In a non-precedential opinion, the Third Circuit held that equitable tolling was a p p ro p ria te where a petitioner demonstrated that he was "sentence[d] for a crime that in fa ct was not a crime." Black v. Dist. Att'y of Phila., 246 Fed. Appx. 795, 798 (3d Cir. 10 7 su c h an exception, the Third Circuit has determined in a non-precedential opinion that in o rd e r to be entitled to equitable tolling a petitioner "must show that he or she exercised re a so n a b le diligence in investigating and bringing [his] claims." Horning, 197 Fed. A p p x . at 94 (quoting Miller, 145 F.3d at 618-19). I do not find the instant matter to be one of "rare situation[s] where equitable to llin g is demanded by sound legal principals as well as the interests of justice." See Jo n e s, 195 F.3d at 159. As previously noted, the federal courts are bound by the state c o u rts ' determination that Petitioner was aware of the alleged newly-discovered evidence c o n tain e d in Mr. Anderson's letter at the time of Petitioner's preliminary hearing in J a n u a ry 1994, and that he waited more than twelve years without doing any investigation b e f o re raising the issue of his cousin's allegedly untruthful testimony. See Third PCRA O p in io n , at 4; Commonwealth v. Sistrunk, 2131 EDA 2007, at 2 (Pa. Super. 2008). This len g th y delay supports the conclusion that Petitioner failed to pursue his rights with re q u is ite due diligence. See Pace, 544 U.S. at 418. Moreover, as noted by the Superior C o u rt, Petitioner undermined his claim of actual innocence by previously conceding that 2007). Elsewhere, only the Fifth and Eighth Circuits have considered the issue of w h e th e r there is an actual innocence exception to the AEDPA time-bar. The Fifth Circuit h a s held that a claim of actual innocence is not grounds for equitable tolling, see Cousin v . Lensing, 310 F.3d 843, 859 (5th Cir. 2002). The Eighth Circuit has held that such g ro u n d s may exist, but that "a petitioner would have to show some action or inaction on th e part of the respondent that prevented him from discovering the relevant facts in a tim e ly fashion, or at the very least that a reasonably diligent petitioner could not have d isco v ere d these facts in time to file a petition within the period of limitations." Flanders v . Graves, 299 F.3d 974, 978 (8th Cir. 2002). 11 h e was the assailant and that he fired in the heat of the moment or in a mistaken belief th a t a passenger in the victim's vehicle was reaching for a weapon. See Commonwealth v . Sistrunk, 2131 EDA 2007, at 3 n.2 (Pa. Super. 2008). As a result, there is no basis to to ll the statute on this ground. T o the extent Petitioner would argue that Judge Padova's order staying the case p e n d in g the exhaustion of Claim Two somehow preserved the claim for purposes of f e d e ra l habeas review, such an argument must fail. The purpose of the "stay and abey" p ro c e d u re is to preserve for future review claims that would be rendered untimely in the fe d era l courts were it not for being placed in abeyance pending exhaustion of state court re m e d ie s. See Rhines, 544 U.S. at 275-78 (recognizing conflict between exhaustion r e q u ir e m e n t and AEDPA's one-year statute of limitations, and giving state courts first o p p o rtu n ity to address unexhausted claims while preserving exhausted claims for future re v ie w ). However, there is nothing in Rhines or its progeny to suggest that the "stay and ab ey" procedure was intended to create a "back door" to the review of claims that were u n tim e ly at the time of their original filing date. As a result, I am left with the fact that th e state courts found Petitioner's third PCRA petition to be untimely a conclusion that is binding on the federal courts. See Pace, 544 U.S. at 414. Because the state court d e te rm in a tio n rendered Petitioner's second claim untimely as of the date he filed the p re se n t federal habeas petition, the District Court's prior application of Rhines has no p ra c tic a l effect on the question of the timeliness of the claim. 12 I n sum, I conclude that Petitioner's second claim is time-barred.8 Because P e titio n e r's first claim has already been dismissed as untimely and the second claim is the o n ly claim remaining in the federal petition, I recommend that the entire petition be d is m is s e d as untimely filed. Therefore, I make the following: RECOMMENDATION A N D NOW, this 24th day of February, 2009, IT IS R E S P E C T F U L L Y RECOMMENDED that the petition for writ of habeas corpus be d is m is s e d as untimely filed. There has been no substantial showing of the denial of a c o n s titu tio n a l right requiring the issuance of a certificate of appealability. /s / ELIZABETH T. HEY ELIZABETH T. HEY U N IT E D STATES MAGISTRATE JUDGE Because I find that Claim Two is time-barred, I do not find it necessary to address R e sp o n d e n ts ' alternative argument that the claim is procedurally defaulted. 13 8

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