HENRY v. FOLINO et al

Filing 12

REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE HENRY S. PERKIN THAT THE INSTANT PETITION FOR WRIT OF HABEAS CORPUS BE DENIED WITH PREJUDICE AND DISMISSED WITHOUT AN EVIDENTIARY HEARING. OBJECTIONS TO R&R DUE BY 7/8/2009. SIGNED BY MAGISTRATE JUDGE HENRY S. PERKIN ON 6/15/09. 6/17/09 ENTERED AND COPIES MAILED.(ky, ) Modified on 6/23/2009 (ky, ).

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________ : KWAME KHARY HENRY, : CIVIL ACTION : Petitioner : : v. : NO. 09-0400 : LOUIS FOLINO, et al., : : Respondents : ______________________________: ORDER AND NOW, this day of , 2009, upon

careful and independent consideration of the Petition for Writ of Habeas Corpus, the Response thereto, and after review of the Report and Recommendation ("R&R") of United States Magistrate Judge Henry S. Perkin dated June 15, 2009, IT IS HEREBY ORDERED that: 1. 2. the R&R is APPROVED and ADOPTED; the Petition for Writ of Habeas Corpus is DENIED

with prejudice and DISMISSED without an evidentiary hearing; and 3. there is no probable cause to issue a

certificate of appealability. BY THE COURT:

______________________________ CYNTHIA M. RUFE, J.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________ : KWAME KHARY HENRY, : CIVIL ACTION : Petitioner : : v. : NO. 09-0400 : LOUIS FOLINO, et al., : : Respondents : ______________________________: HENRY S. PERKIN UNITED STATES MAGISTRATE JUDGE REPORT AND RECOMMENDATION Presently before the Court is a Petition for Writ of Habeas Corpus filed by the Petitioner, Kwame Khary Henry ("Petitioner"), pursuant to 28 U.S.C. section 2254. Petitioner

is currently incarcerated in the State Correctional Institution in Waynesburg, Pennsylvania. For the reasons that follow, it is

recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing. I. PROCEDURAL HISTORY.1 On June 30, 1999, following a jury trial before the Honorable Robert E. Simpson, Jr. in the Court of Common Pleas of Northampton County, Petitioner was found guilty of murder in the first degree, kidnaping, aggravated assault, and conspiracy to commit murder with regard to the brutal killing of a thirteen-

This information is taken from the Petition for Writ of Habeas C o r p u s , the Response thereto, and the attachments to those pleadings.

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year-old girl in Northampton County.2
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The jury imposed a life

The state courts set forth the following relevant facts: O n August 10, 1996, the severely decomposed body of a t h i r t e e n - y e a r - o l d female was found in a concrete and s t o n e building on the grounds of Easton Cemetery in N o r t h a m p t o n County. The building is known as the " D e a d House." An autopsy revealed that the girl had d i e d of homicidal violence, and an entomological e v a l u a t i o n of insects that had invaded the body showed t h a t the girl died near the end of July, 1996. Through dental records, it was determined that the d e c e a s e d was thirteen year-old Richezza Williams, a r u n a w a y from New York. Through interviews with the v i c t i m ' s friends, police learned details of her last d a y alive. D u r i n g an evening in late July, 1996, Kathleen Sagusti w a s talking with the victim at her home in Easton when t h r e e men, [Petitioner], Stanley "Wildman" Obas, and C o r e y "Lemon" Maeweather, entered the home. The three w e r e members of a drug dealing organization known as t h e "Cash Money Brothers." The men accused the victim o f stealing money and drugs from them. After hitting h e r repeatedly, they dragged her to the basement of t h e home. Sagusti could hear the victim crying and p l e a d i n g with the men to stop. [ P e t i t i o n e r ] and Maeweather returned upstairs and c o l l e c t e d various household items, including a c o r k s c r e w . The two men returned to the basement. Sagusti heard the victim sobbing the words "Oh God, n o " repeatedly. A f t e r a short time, the men emerged from the basement w i t h a large box. The three men took the box in the d i r e c t i o n of the Dead House, which was a short d i s t a n c e from Sagusti's house, and then disappeared. A week later, the victim's body was found. Sagusti c a m e forward and informed the Easton Police Department a b o u t the incident in her home. M a e w e a t h e r was arrested. He pleaded guilty to c r i m i n a l homicide, conspiracy to commit criminal h o m i c i d e , kidnaping, and conspiracy to commit k i d n a p i n g . After a bench degree of guilt hearing, M a e w e a t h e r was found guilty of first degree murder, a n d he was sentenced to life imprisonment, to a c o n c u r r e n t term of twenty to forty years for c o n s p i r a c y to commit murder, and to a consecutive term o f ten to twenty years for kidnaping . . . . [ P e t i t i o n e r ] fled the United States. After several y e a r s , he was located in Trinidad. [Petitioner] was e x t r a d i t e d to the United States and tried. A jury f o u n d him guilty of first degree murder, aggravated

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sentence on the first degree murder verdict and Judge Simpson imposed consecutive sentences of ten to twenty years on the kidnaping and conspiracy verdicts. Petitioner filed a direct appeal from the judgment of sentence in the Superior Court of Pennsylvania. On May 21, 2001,

the Superior Court denied Petitioner's direct appeal and affirmed the judgment of sentence. (Pa. Super. 2001). Commonwealth v. Henry, 778 A.2d 1243

Petitioner did not timely file a petition for

allowance of appeal to the Supreme Court of Pennsylvania. Nonetheless, on July 5, 2001, Petitioner filed a motion with the Pennsylvania Supreme Court for allowance of appeal nunc pro tunc, which was denied on September 17, 2001. Response, Ex. 1a.

On April 9, 2002, Petitioner filed a pro se petition for collateral review under the Pennsylvania Post Conviction Relief Act ("PCRA") alleging ineffective assistance of trial counsel. Counsel was appointed and filed a brief in support of The trial court held an evidentiary hearing on

the petition.

October 15, 2002, and denied relief by order and opinion dated November 21, 2002. Thereafter, Petitioner appealed to the The Superior Court determined that

Pennsylvania Superior Court.

the issues contained in the PCRA petition were meritless, and affirmed the PCRA court's denial on December 19, 2003.

assault, kidnaping, and conspiracy to commit homicide. Response, Ex. 1 at 1-2.

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Commonwealth v. Henry, 844 A.2d 1281 (Pa. Super. 1993)(table); Response, Ex. 3. Petitioner filed a petition for allowance of

appeal in the Pennsylvania Supreme Court, which was denied July 22, 2004. Commonwealth v. Henry, 856 A.2d 832 (Pa. 2004). On December 4, 2003, Petitioner filed a second petition for collateral review pursuant to the PCRA. An issue framing

hearing was held on January 21, 2005, during which the PCRA court granted the Commonwealth's motion to dismiss the second PCRA petition as time barred and allowed counsel to withdraw. Response, Ex. 5 at 3. On February 25, 2005, Petitioner pro se

filed a motion for leave of court to amend his PCRA petition. Id. Petitioner's motion for leave to amend was denied by the Id. In so doing, the

PCRA court on March 9, 2005 as untimely.

PCRA court explained that his motion for leave to amend did not contain any assertions of fact which, if proven, would have constituted a statutory exception to the jurisdictional time bar. Id. Petitioner appealed to the Superior Court who affirmed the Response, Ex. 6.

PCRA court's denial on November 3, 2005. Petitioner did not seek further review.

Petitioner signed the instant habeas Petition on January 20, 2009, and it was docketed by the Clerk of Court on January 28, 2009. Pursuant to the prison mailbox rule, this

Court will consider the date of filing as January 20, 2009. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1997)(motion is

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deemed timely filed on date petitioner gave petition to prison officials to mail). The case was assigned to the Honorable Cynthia M. Rufe, who referred it for preparation of a Report and Recommendation on February 6, 2009. On February 18, 2009, Judge Rufe appointed Following this

Peter A. Levin, Esquire to represent Petitioner.

appointment, the undersigned issued an Order permitting counsel for Petitioner to file an amended petition.3 On March 24, 2009,

Respondents filed a Response to the Petition for Writ of Habeas Corpus. Respondents contend that the Petition is time-barred,

and that the case should be dismissed with prejudice and without an evidentiary hearing. On June 3, 2009, counsel for Petitioner

advised this Court that, after reviewing the state court record, he did not intend to file an amended petition. II. A. DISCUSSION. The Federal Habeas Corpus Petition at Issue is Statutorily Time-Barred. Petitioner's case must be decided pursuant to the terms of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which was enacted April 24, 1996. Stat. 1214. Pub.L. 104-132, 110

Section 104(2) of the AEDPA amended 42 U.S.C.

More specifically, on April 2, 2009 the undersigned entered an O r d e r permitting counsel for Petitioner to file an Amended Petition for Writ o f Habeas Corpus and brief in support thereof on or before May 4, 2009. On M a y 1, 2009, by way of motion, counsel for Petitioner sought an extension of t i m e in which to file an amended petition. By Order of the undersigned dated M a y 7, 2009, this Court granted counsel for Petitioner's motion and directed t h a t any amended petition was to be filed on or before June 3, 2009.

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section 2254, the statute under which this Petition was filed, requires that federal courts give greater deference to a state court's legal determinations. The AEDPA also amended 28 U.S.C.

section 2244, to require that a strict one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court.4 However, if direct review of a criminal conviction ended

prior to the AEDPA's effective date, a prisoner has one year subsequent to the April 24, 1996 effective date to properly file a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3d Cir.

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28 U.S.C. section 2244 requires that: ( d ) ( 1 ) A 1-year period of limitation shall apply to a n application for a writ of habeas corpus by a person i n custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) the date on which the judgment became f i n a l by the conclusion of direct review o r the expiration of the time for seeking s u c h review; (B) the date on which the impediment to f i l i n g an application created by state a c t i o n in violation of the Constitution or l a w s of the United States is removed, if t h e applicant was prevented from filing by s u c h State action; (C) the date on which the constitutional r i g h t asserted was initially recognized by t h e Supreme Court, if the right has been n e w l y recognized by the Supreme Court and m a d e retroactively applicable to cases on c o l l a t e r a l review; or ( D ) the date on which the factual p r e d i c a t e of the claim or claims presented c o u l d have been discovered through the e x e r c i s e of due diligence.

28 U.S.C. § 2244(d)(1).

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1998).

In this case, the applicable starting point to examine

the limitation period is the latest date on which the judgment of sentence became final, either by the conclusion of direct review or the expiration of the time for seeking such review. U.S.C. § 2244(d)(1). Petitioner's judgment of sentence became final on June 20, 2001, when his time for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired.5 See 28 See 28

U.S.C. § 2244(d)(1)(A); 42 Pa. C.S.A. § 9545(b)(3); Pa. R.A.P. 1113(a) (stating notice of appeal must be filed within 30 days of order sought to be appealed). As a result, the one-year time

limit for Petitioner to timely file a federal Petition for Writ of Habeas Corpus began on June 20, 2001. Accordingly,

Petitioner had until June 20, 2002 to timely file the instant Petition. Petitioner executed his federal habeas corpus Petition Because the Petition in this case was

on January 20, 2009.6

filed almost seven years after the limitation period expired, it is statutorily time-barred.

Although Petitioner filed a motion with the Pennsylvania Supreme C o u r t for allowance of appeal nunc pro tunc on July 5, 2001, this motion was d e n i e d by the Pennsylvania Supreme Court on September 17, 2001. Response, Ex. 1a.
6 As indicated above, we consider that date to be the date of filing i n accordance with the prison mailbox rule. Burns, 134 F.3d at 113.

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B.

The Federal Habeas Corpus Petition at Issue is Not Eligible for Statutory or Equitable Tolling. The AEDPA's one-year statute of limitations is subject

to both statutory and equitable tolling.

28 U.S.C. § 2244(d)

(enumerating statutory tolling provisions); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.), cert. denied, 540 U.S. 921 (2003) (holding AEDPA's time limit is subject to the doctrine of equitable tolling, a judicially crafted exception). 1. Statutory Tolling

We note initially that Petitioner is not entitled to a new, extended deadline for the AEDPA's limitation period pursuant to 28 U.S.C. § 2244(d)(1). Petitioner does not allege, nor is

there evidence to demonstrate that state action prevented the timely filing of his habeas action. 28 U.S.C. § 2244(d)(1)(B).

Although Petitioner makes claims in his Petition relating to the failure to provide transcripts prior to the filing deadline, these claims of governmental interference are made within the context of his PCRA filings, not his federal habeas corpus filings.7 Second, the claims alleged in the Petition do not

rely on a new rule of federal constitutional law of retroactive application. 28 U.S.C. § 2244(d)(1)(C). Finally, Petitioner has

not made a showing that the factual predicate of his claims was not discoverable through the exercise of due diligence long ago.

7 This claim of governmental interference is more fully addressed b e l o w in the equitable tolling section.

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28 U.S.C. § 2244(d)(1)(D). With respect to Petitioner's PCRA filings, we note that the limitation period will be statutorily tolled for the time during which a "properly filed" application for state postconviction or other collateral review is pending. § 2244(d)(2). See 28 U.S.C.

However, if a PCRA petition is untimely, it is not

considered properly filed in order to toll the AEDPA one-year statutory time period. (2005). Petitioner's first PCRA petition was filed on April 9, 2002, during the running of the one-year habeas clock. Because Pace v. DiGuglielmo, 544 U.S. 408, 417

293 days of the one-year time period had elapsed, the clock was tolled with 72 days remaining before expiration. On July 22,

2004, Petitioner's PCRA petition was no longer pending when the Pennsylvania Supreme Court denied his petition for allowance of appeal from the Superior Court's dismissal of his PCRA petition. Commonwealth v. Henry, 856 A.2d 832 (Pa. 2004). As a result, the

one-year statutory period resumed on July 22, 2004, and expired 72 days later on October 2, 2004. Petitioner's subsequent PCRA petition did not toll the statute of limitations because it was not timely filed. Untimely

PCRA petitions do not toll the one-year statute of limitations pursuant to AEDPA. Pace, 544 U.S. at 417. The present Petition

was filed more than four years after the period of limitation

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expired.

It is statutorily time-barred. 2. Equitable Tolling

This Court must next examine whether the AEDPA statute of limitations should be equitably tolled to consider the Petition timely filed. Robinson v. Johnson, 313 F.3d 128, 134

(3d Cir. 2002), cert. denied, 540 U.S. 826 (2003)(citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir. 1998)(citation omitted). The limitation period will be

equitably tolled when the principles of equity would make the rigid application of a limitation period unfair. Satterfield v.

Johnson, 434 F.3d 185, 195 (3d Cir. 2006); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). Courts must be sparing in their use of equitable tolling. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, In fact, the United States Court of Appeals

239 (3d Cir. 1999).

for the Third Circuit has held that equitable tolling is proper "only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice." United States

v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)(citation omitted). "The two general requirements for equitable tolling: (1) that `the Petitioner has in some extraordinary way been prevented from asserting his or her rights;' and (2) that the petitioner has shown that `he or she exercised reasonable diligence in investigating and bringing [the] claims.'" Merritt v. Blaine,

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326 F.3d 157, 168 (3d Cir. 2003), citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). sufficient. Mere excusable neglect is not

Miller, 145 F.3d at 618 (quoting New Castle County

v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) and citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). The Third Circuit has set forth the following three circumstances in which equitable tolling is permitted: (1) if the [Respondent] has actively misled the [Petitioner]; (2) if the [Petitioner] has in some extraordinary way been prevented from asserting his rights, or (3) if the [Petitioner] has timely asserted his rights mistakenly in the wrong forum. Fahy v. Horn,

240 F.3d 239, 244 (3d Cir. 2001), cert. denied, 534 U.S. 944 (2001)(citing Jones, 195 F.3d at 159 (citations omitted)). "In

non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy, 240 F.3d at 244. The habeas petitioner bears the burden of

demonstrating both his entitlement to equitable tolling and his due diligence. Pace, 544 U.S. at 418; Cooper v. Price, 82

Fed.Appx. 258, 260 (3d Cir. 2003); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982); United States v. Soto, 159 F.Supp.2d 39, 45 (E.D. Pa. 2001) (Van Antwerpen, J.).

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In this case, we note at the outset, that Petitioner has failed to allege that some extraordinary circumstance prevented him from asserting his rights in a timely habeas corpus petition and has failed to demonstrate that he exercised reasonable diligence in investigating and bringing his claims. Merritt, 326 F.3d at 168. Petitioner filed his first federal

habeas corpus petition approximately nine and a half years after he was convicted. Nonetheless, it appears, although it is not

explicitly stated in his Petition, that Petitioner seeks the benefit of equitable tolling based on his alleged failure to obtain transcripts in conjunction with the filing of his second PCRA petition. With respect to his alleged claim of governmental interference, Petitioner contends that he was denied transcripts, and that this denial ultimately prevented him from developing a factual or legal basis for claims he made in his second PCRA petition. See Petition, p. 9. Petitioner's allegation that he

was denied transcripts, however, is unspecified and unaccompanied by any explanation or support.8 As noted above, a habeas

On PCRA review of his second petition, the court analyzed this c l a i m as follows: . . . [Petitioner's] second petition for PCRA filed on D e c e m b e r 3, 2004 was not timely pursuant to 42 P a . C . S . A . § 9545(b)(1). At the conference on January 2 1 , 2005, the District Attorney moved to dismiss the p e t i t i o n for lack of jurisdiction. [Petitioner] a s s e r t s an exception to the timeliness requirement by c l a i m i n g that he was not provided with transcripts of h i s trial. [Petitioner] argues that the alleged

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petitioner bears the burden of demonstrating his entitlement to equitable tolling. Pace, 544 U.S. at 418. Because Petitioner

has failed to provide any support for this allegation, we conclude that it is not a proper basis to permit equitable tolling.9 Moreover, we note that in determining whether

failure to provide him with transcripts of the trial i s government interference with the presentation of h i s claims. [Petitioner] asserts that he could not h a v e been aware of the existence of various issues b e c a u s e of the failure to provide him with the t r a n s c r i p t s . [Petitioner] also asserts that the f a i l u r e to provide him with transcripts is a c o n s t i t u t i o n a l violation. [ P e t i t i o n e r ] ' s attorney conceded there was no merit to [ P e t i t i o n e r ] ' s assertions. The transcripts of the t r i a l were filed in the Criminal Division Office of N o r t h a m p t o n County on October 6, 1999. There is no e v i d e n c e that the [Petitioner]'s attorneys were denied a c c e s s to the transcripts of the trial. A criminal d e f e n d a n t has no constitutional right to a personal c o p y of the trial transcript. Thomas v. Cannon, 1994 W L 323080 (E.D.Pa. 1994), citing Gay v. Watkins, 579 F . S u p p . 1019 (E.D.Pa. 1984). See also Sullivan v. S o k o l s k i , 1994 WL 105526 (E.D.Pa. 1994). This c o n s t i t u t i o n a l right is fulfilled by having a full set o f accurate transcripts available to his lawyer. Cannon, supra. Further there is no right to trial t r a n s c r i p t s prior to filing the PCRA petition. Com. V . Crider, 735 A.2d 730 (Pa.Super. 1999). R e s p o n s e , Ex. 5 at 2-3. Petitioner appealed to the Pennsylvania Superior C o u r t and they affirmed the PCRA court's denial of his second PCRA petition on N o v e m b e r 3, 2005. Response, Ex. 6. See Bacon v. Carroll, No. 06-cv-519, 2007 WL 2727168, at *3 ( D . D e l . Sept. 17, 2007) (petitioner's "conclusory and unsupported statement r e g a r d i n g counsel's alleged failure to help him obtain the trial transcripts" i n s u f f i c i e n t to permit equitable tolling); Molina v. Hendricks, No. 0 4 - c v - 4 1 9 1 , 2006 WL 1286215, at *5 (D.N.J. May 5, 2006) (equitable tolling u n a v a i l a b l e where petitioner "has asserted no more than a bare allegation" in s u p p o r t of demand therefore); Collingwood v. Snyder, No. 00-cv-783, 2002 WL 1 4 4 6 7 0 2 , at *4 (D.Del. June 28, 2002) (no equitable tolling based on p r i s o n e r ' s claim that his "legal stuff" was stolen absent explanation why d o c u m e n t s were needed to prepare applications for either state or federal h a b e a s relief).
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extraordinary circumstances exist to warrant the application of equitable tolling, this Court must also examine Petitioner's due diligence in pursuing the matter under the specific circumstances he faced. Traub v. Folio, No. 04-386, 2004 WL 2252115, at *2

(E.D. Pa. Oct. 5, 2004) (citing Schleuter v. Varner, 384 F.3d 69 (3d Cir. 2004))(affirming dismissal of habeas petition as time barred and not entitled to equitable tolling because lengthy periods of time had elapsed following his conviction before he sought relief). It is Petitioner's burden to show that he acted

with reasonable diligence and that extraordinary circumstances caused his petition to be untimely. Id. Under the circumstances of this case, Petitioner did not act in a reasonably diligent fashion because a reasonably diligent petitioner would have acted promptly to preserve his rights not only in the state court, but also in this Court. Petitioner fails to allege any steps that he took to timely file the instant federal habeas petition. None of the circumstances

which warrant equitable tolling apply in this case to render the instant Petition timely. Fahy, 240 F.3d at 244. Accordingly,

the Petition is statutorily time-barred. C. Certificate of Appealability. When a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability should issue only if (1)

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the petition states a valid claim for the denial of a constitutional right, and (2) reasonable jurists would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

In this case, reasonable jurists could not disagree that the instant Petition is time-barred. It is statutorily barred, and

neither statutory nor equitable tolling apply to this Petition. For all of the above reasons, I make the following:

RECOMMENDATION AND NOW, this 15th day of June, 2009, IT IS RESPECTFULLY RECOMMENDED that the instant Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability. The Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to timely

file objections may constitute a waiver of any appellate rights.

BY THE COURT:

/s/ Henry S. Perkin HENRY S. PERKIN UNITED STATES MAGISTRATE JUDGE 15