STROMBERG v. VARANO et al

Filing 44

MEMORANDUM OPINION, FILED. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 7/10/12. 7/11/12 ENTERED AND COPIES E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
:
LARRY N. STROMBERG,
:
Petitioner,
:
CIVIL ACTION
v.
:
:
NO. 09-401
DAVID A. VARANO, et al.,
:
Respondents.
:
__________________________________________:
MEMORANDUM OPINION
RUFE, J.

July 10, 2012

Before the Court are Petitioner Larry Stromberg’s Objections to the Report and
Recommendation of United States Magistrate Judge Henry S. Perkin. Judge Perkin recommends
that the Petition be denied as time-barred. Despite Petitioner’s assertions to the contrary,
Petitioner has failed to show extraordinary circumstances and reasonable diligence to justify the
application of equitable tolling to his claims. Consequently, after a careful and independent
review of the state court record and the filings in this case, the Court will overrule Petitioner’s
Objections and deny the Petition without an evidentiary hearing.
I. BACKGROUND1
On May 1, 1996, Petitioner was arrested and charged with two counts of murder,2 one
count of burglary,3 possession of an instrument of crime (“PIC”),4 contempt of court, and

1

The Report and Recommendation (“R&R”) describes in detail the facts and procedural history underlying
the Petition, and is accurate and consistent with the record in this case. The Court adopts the factual background and
procedural history as contained in the R&R. Petitioner, however, for the first time asserts additional facts in his
Objections to the R&R. The Court has chosen to address these additional facts in this Opinion.
2

18 Pa. C.S.A. § 2502.

3

18 Pa. C.S.A. § 3502.

4

18 Pa. C.S.A. § 907.

criminal trespass.5 The charges were filed after Petitioner was identified as having stabbed and
killed his estranged wife and her mother. Before she died as a result of her wounds, Petitioner’s
mother-in-law identified Petitioner as her attacker. On June 6, 1997, Petitioner was found guilty
by a jury in the Philadelphia County Court of Common Pleas. He was sentenced to life in prison
for both the first and second degree murder convictions, and 120 to 240 months for the burglary
conviction. No penalty was imposed for the remaining convictions.
Petitioner appealed to the Superior Court of Pennsylvania. On March 25, 1999, the
Superior Court affirmed the judgment of sentence. Petitioner’s appeal to the Pennsylvania
Supreme Court was denied on December 1, 1999.
Approximately nine years later, on December 8, 2008, Petitioner filed a “Motion for Post
Conviction Collateral Relief,” in this Court, but did so on a Pennsylvania state court form. The
Court dismissed the motion and ordered that, should Petitioner wish to file a habeas corpus
petition, he should do so on the District Court’s standard form, which was provided to him.6
Petitioner followed the Court’s instruction and the current Petition was filed on January 16, 2009.
On March 20, 2009, Petitioner filed a pro se petition pursuant to the Pennsylvania PostConviction Relief Act (“PCRA”) in the Philadelphia County Court of Common Pleas. On May
15, 2009, upon application of Petitioner’s PCRA counsel, this Court stayed the federal
proceedings pending disposition of the PCRA petition. On March 1, 2010, the PCRA court
dismissed the PCRA petition as time-barred. Petitioner filed a notice of appeal with the
Pennsylvania Superior Court, but the appeal was later withdrawn. On November 16, 2010, this

5

18 Pa. C.S.A. § 3503.

6

Civ. A. No. 08-5692, Doc. No. 2.

2

Court lifted the stay of the federal proceedings after receiving a letter from Petitioner informing
the Court that his PCRA appeal had been discontinued. The Petition was then referred to
Magistrate Judge Perkin for a report and recommendation (“R&R”).
Petitioner claims that on November 12, 2008, nearly eight years after his conviction
became final, he sent a letter to his trial counsel asking him if a plea offer of 40-80 years had
been made by prosecutors prior to his trial. Trial counsel responded: “I think you are correct it
was 40-80 years.” Petitioner now asserts that he was never informed that an offer was made, and
argues that trial counsel’s failure to communicate the offer to him deprived him of his Sixth
Amendment right to effective assistance of counsel. This ineffective assistance of counsel claim
forms the basis of the Petition.7 Judge Perkin found that the Petition was time-barred and that
neither statutory nor equitable tolling applied to render the Petition timely. He therefore
recommended that the Petition be denied.
Petitioner has filed counseled Objections to the R&R. In his Objections, Petitioner
asserts, for the first time, that he hired an attorney in 2000 to represent him in his post-conviction
appeals and that the attorney continually assured Petitioner that he was “working on his case.”
Petitioner states it was not until 2008 that he discovered his attorney had not filed a PCRA or
habeas petition on his behalf. It was only then that he began pursuing his claims on his own.
In support of this assertion, counsel has attached to the Objections a Declaration of
Petitioner’s uncle, Nicholas Mamallis, in which Mr. Mamallis states that “[s]ometime over a year
ago,” Petitioner’s mother informed him “that she had paid an attorney named Neil Jokelson

7

Respondents have represented to both this Court and the PCRA court that trial counsel retracted this

statement upon further reflection and that no such offer was made.

3

$8,000-$10,000 in 2000 to represent Petitioner following his conviction.” Mr. Mamallis
contacted Mr. Jokelson, who confirmed he had received the money but did not pursue the case;
Mr. Jokelson allegedly refunded about half the amount paid.8 Petitioner asserts that although the
Petition is time-barred, he is entitled to equitable tolling based on Mr. Jokelson’s alleged failure
to pursue his case.
II. LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),9 applies to an
application for a writ of habeas corpus on behalf of a person “in custody in violation of the
Constitution or laws or treaties of the United States” pursuant to a state court judgment.10 Where
a habeas petition, such as the one in this case, is referred to a magistrate judge for report and
recommendation pursuant to 28 U.S.C. § 636(b)(1), a district court judge conducts a de novo
review “of those portions of the report or specified proposed findings or recommendations to
which objection is made” and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”11
A federal court may not grant habeas relief if the claims were “adjudicated on the merits
in State court” unless the state court decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the evidence

8

Doc. No. 42-2, Ex. A.

9

28 U.S.C. § 2254.

10

28 U.S.C. § 2254(a).

11

28 U.S.C. § 636(b)(1)(C).

4

presented in the State court proceeding.”12
III. DISCUSSION
A.

The Court Need Not Consider Petitioner’s New Arguments
The Court is not required to consider the new arguments raised, for the first time, in

Petitioner’s Objections to the R&R. While a court “may . . . receive further evidence”
following a magistrate judge’s report and recommendation,13 Local Rule 72.1(IV)(c) provides
that “[a]ll issues and evidence shall be presented to the magistrate judges, and unless the interest
of justice requires it, new issues and evidence shall not be raised after the filing of the
Magistrate’s Report and Recommendation if they could have been presented to the magistrate
judge.” “[T]he issue of how to properly treat an issue raised anew in a habeas petitioner’s
objections to a magistrate judge’s report is one that has not yet reached [the Third Circuit]
[C]ourt of [A]ppeals[;]” however, “[t]he majority of district courts in [the Third] [C]ircuit, as
well as other circuit courts, that have addressed this issue have concluded that such issues are not
properly before the court, and thus are not to be addressed.”14 Petitioner, in his Objections, raises

12

28 U.S.C. § 2254(d).

13

28 U.S.C. § 636(b)(1)(C) (emphasis added).

14

Ramos v. Kyler, No. 03-2051, 2004 W L 828363, at *4 (E.D. Pa. Apr. 12, 2004) (citing McClure v.
W ilson, No. 02–1206, 2003 W L 23194654, at *2 (E.D. Pa. Feb. 4, 2003)); see Hammond v. Brooks, No. 04-5783,
2009 W L 1507564, at *6 n.5 (E.D. Pa. May 29, 2009) (“In addition to timeliness, it is generally accepted that a
habeas court can refuse to hear claims that were not raised before the magistrate judge.” (citing Kirk v. Meyer, 279
F. Supp. 2d 617, 619 (E.D. Pa. 2003))); Jimenez v. Barnhart, 46 F. App’x 684, 684 (3d Cir. 2002) (“[B]ecause
Appellant raised the argument that she is entitled to a closed period of disability for the first time in her objections to
the Magistrate Judge’s Report and Recommendations, and not in her opening brief, we deem this argument
waived.”); see also Madol v. Dan Nelson Auto. Grp., 372 F.3d 997, 1000 (8th Cir. 2004) (noting plaintiffs were
barred from bringing new arguments before magistrate judge); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001) (“[P]arties may not raise new arguments or issues at the district court stage that were not presented to
the Magistrate Judge.” (citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000))); Marshall v. Chater, 75
F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” (citing Paterson-Leitch Co. v. Mass. Mun. W holesale Elec. Co., 840 F.2d

5

new issues and evidence not previously raised in his post-conviction proceedings. Because these
new issues could have been brought before Magistrate Judge Perkin, the Court finds that the
“interest of justice” does not require that the Court consider these new issues.
In their initial response to the Petition, Respondents noted that the Petition might be timebarred, yet Petitioner did not address the issue or otherwise argue that he was entitled to equitable
tolling. Petitioner offers no explanation for presenting the issue for the first time in his
Objections. Furthermore, the “new evidence” concerning Petitioner’s reliance on Mr. Jokelson’s
responsibility for pursuing Petitioner’s claims does not help his case. Surely, Petitioner knew of
his own reliance on Mr. Jokelson’s error before filing his Petition and could have presented the
information to Magistrate Judge Perkin.
Petitioner’s failure to bring an equitable tolling argument and to present this additional
evidence to Magistrate Judge Perkin waives the issue and this Court need not consider it.
B.

Petitioner Has Not Shown Extraordinary Circumstances To Warrant Equitable
Tolling
Even if the Court were to consider Petitioner’s new argument and the new evidence he

presents, Petitioner does not effectively lay out a claim warranting equitable tolling.
Under AEDPA, a petition for a writ of habeas corpus is subject to a one-year statute of
limitations.15 However, the limitations period may be tolled in appropriate cases where enforcing

985, 990-91 (1st Cir.1988))). But see United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992) (“W e believe
that as part of its obligation to determine de novo any issue to which proper objection is made, a district court is
required to consider all arguments directed to that issue, regardless of whether they were raised before the
magistrate.”).
15

See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitations shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.”).

6

the statute of limitations would be unfair.16 Generally, tolling will be permitted where plaintiff
can show “that he has been pursuing his rights diligently, and . . . that some extraordinary
circumstance stood in his way and prevented timely filing.”17 The Third Circuit has enumerated
three specific circumstances where equitable tolling may be appropriate: “(1) [if] the defendant
has actively misled the plaintiff, (2) if the plaintiff has in some extraordinary way been prevented
from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the
wrong forum.”18
While “[m]ere excusable neglect”19 does not warrant equitable tolling, serious attorney
misconduct may constitute “extraordinary” circumstances.20 Additionally, although attorney
malfeasance may constitute extraordinary circumstances, attorney malfeasance alone is not
enough to warrant equitable tolling.21 “[D]istrict courts [are also required] to examine the
petitioner’s due diligence in pursuing the matter under the specific circumstances he faced.”22

16

See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (“Now, like all 11 Courts of Appeals that have
considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”).
17

Id. at 2562 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (internal quotation marks omitted)).

18

Butler v. W alsh, ___ F. Supp. 2d ___, No. 11–2355, 2012 W L 677973, at *4 (E.D. Pa. Mar. 1, 2012)
(quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)).
19

Miller v. N.J. State Dept. of Corr., 145 F.3d 616, 619 (3d Cir. 1998) (citing Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990).
20

Holland, 130 S. Ct. at 2564; see Cristin v. W olfe, 168 F. App’x 508, 511 (3d Cir. 2006) (“Generally, an
attorney’s delinquency is chargeable to a client and is not a basis for equitable tolling.”).
21

Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004) (“[A] finding that attorney malfeasance is an
extraordinary circumstance, without more, is not sufficient to warrant equitable tolling.”).
22

Id. (citing Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003)); see also Satterfield v. Johnson, 434
F.3d 185, 196 (3d Cir. 2006) (“Even if [Petitioner]’s filing in the wrong court constituted an extraordinary
circumstance, he would not be eligible for equitable tolling because of his lack of diligence in pursuing his
petition.”).

7

“Due diligence does not require ‘the maximum feasible diligence,’ but it does require reasonable
diligence in the circumstances.”23
Petitioner has not established extraordinary circumstances, or shown that he was
reasonably diligent in pursuing his claim so as to warrant equitable tolling. Petitioner bases his
claim for equitable tolling on the alleged fact that the attorney he hired to pursue his claims
assured Petitioner he was working on the case over a period of eight years, when in fact the
attorney never filed for any relief. Petitioner claims that this inaction by his attorney, coupled
with the attorney’s assurances to the contrary, amount to “serious attorney negligence.”
Petitioner further states that he relied on these assurances because he was heavily medicated at
the time.24
However, the Third Circuit has recognized that there is a stark difference between a
plaintiff who is “misled by what the attorney say[s] he ha[s] done,” and a plaintiff who is misled
“by what [his attorney] said he would do.”25 When an attorney represents his intent to file
something on his client’s behalf, but does not ultimately do so, it does not necessarily give rise to
extraordinary circumstances.26 Petitioner, in this case, simply asserts that his attorney assured

23

Schlueter, 384 F.3d at 74 (citing Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004)).

24

Petitioner alludes to being heavily medicated as the cause for his reliance on his attorney’s assurances.
To the extent that Petitioner mentions this to support his extraordinary circumstances argument or to excuse his lack
of reasonable diligence, it is not determinative. Petitioner has failed to make a factual showing of mental incapacity.
Therefore, he is not entitled to extraordinary circumstances or any other deference based on his medicated state. See
Lawrence v. Florida, 549 U.S. 327, 337 (2007) (finding that an argument of mental incapacity so as to justify
reliance on counsel does not amount to extraordinary circumstances where there is no factual showing of mental
incapacity).
25

Schlueter, 384 F.3d at 76.

26

See id. (finding that where an attorney told his client that he anticipated filing a PCRA petition, but did
not do so, was not an extraordinary circumstance).

8

him that he was working on the case, but does not assert any act of “affirmative
misrepresentation,” so as to prove extraordinary circumstances.27 Petitioner does not provide any
information concerning discussions with his attorney or any details of what his attorney said,
other than stating that the attorney provided assurances. Petitioner has not established that his
attorney’s malfeasance was more than mere negligence.
Moreover, Petitioner has failed to offer any proof in support of his claims that he was
misled by his attorney. The only evidence Petitioner has submitted in support of his claim that he
was misled by his an attorney is the declaration of Mr. Mamallis. Even if the Court accepts this
declaration as true, it establishes only that an attorney was retained. It does not establish that the
attorney repeatedly assured Petitioner that he was working on his case. Thus, the declaration
does not establish that Petitioner’s failure to actively pursue post-conviction remedies for eight
years was a result of counsel’s repeated untruthful assurances and does not support Petitioner’s
claim that his own eight years of inactivity should be excused by the Court.28
Furthermore, notwithstanding alleged malfeasance of Petitioner’s attorney, Petitioner
himself failed to exercise reasonable diligence in pursuit of his post-conviction remedies.
Therefore, even if Petitioner established attorney malfeasance, Petitioner is not entitled to
equitable tolling because he has failed to show that “he has been pursuing his rights diligently.”29

27

Id. (stating that where an attorney falsely states to his client that he has filed a claim on his behalf,
equitable tolling might be warranted (citing Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.
1999))).
28

Furthermore, Mr. Mamallis’s averment that an attorney was retained in 2000 is based on statements
made by Petitioner’s mother, not on Mr. Mamallis’s personal knowledge of this fact. It is therefore not admissible to
prove that an attorney was, in fact, retained in 2000. See generally Fed. R. Evid. 801, 802.
29

Holland, 130 S. Ct. at 2562 (citing Pace, 544 U.S. at 418).

9

Petitioner relies heavily on Holland v. Florida,30 where attorney misconduct did amount to
extraordinary circumstances. However, Holland is distinguishable from the case at hand,
because of the diligence Holland exercised. Holland repeatedly wrote to his attorney, often
without any response, in an attempt to obtain information on the status of his case.31 After
realizing counsel’s indifference to his case, Holland attempted to pursue the matter on his own.
On several occasions, Holland requested that the Florida Supreme Court remove his courtappointed attorney from the case due to lack of communication.32 Holland also wrote to the
Clerk of the Florida Supreme Court attempting to get status updates after his attorney failed to
respond,33 and filed complaints with the Florida Bar Association regarding his attorney’s
conduct.34 Albeit late, Holland also attempted to file his own pro se habeas petition in an effort
to preserve his rights.35
Here, Petitioner has failed to show a similar level of diligence.36 Petitioner does not
describe any attempts he made to preserve his rights other than occasional contact with his

30

130 S. Ct. 2549 (2010).

31

Id. at 2555-59.

32

Id. at 2555.

33

Id. at 2556.

34

Id. at 2559.

35

Id. at 2557.

36

Compare Seitzinger, 165 F.3d at 237-38 (finding equitable tolling appropriate where “a diligent client
persistently questioned the lawyer as to whether he had filed the complaint in time, and he affirmatively
misrepresented to her that he had.”), with Schlueter, 384 F.3d at 77-78 (finding that a delay in filing a habeas petition
which was the alleged result of the attorney’s failure to file a PCRA, despite the attorney’s representation that he
would do so, did not warrant equitable tolling because the petitioner did not take “affirmative steps to ensure the
timely filing of a PCRA petition,” and also did not “attempt to ascertain . . . whether [the attorney], in fact, had filed
a PCRA petition.”).

10

attorney. Petitioner could have learned, through the exercise of reasonable diligence, that his
attorney had not actually filed anything on his behalf. Instead, eight years passed before
Petitioner took any affirmative steps to pursue the matter on his own.37
IV. CONCLUSION
In sum, the Petition is time-barred. The Court need not consider new arguments and
evidence that Petitioner presents in his Objections, which he failed to raise before Magistrate
Judge Perkin, and even if it did, Petitioner is not entitled to equitable tolling. Accordingly, the
Court will overrule Petitioner’s Objections, approve and adopt the Report and Recommendation,
and deny the Petition. Since Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability shall not issue.38
An appropriate Order follows.

37

In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court held that where state law requires
“claims of ineffective assistance of trial counsel . . . be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trials if, in the
initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 1320.
Martinez is not controlling in this case because the Court denied the Petition as time-barred, not procedurally
defaulted. Furthermore, the consideration of procedurally defaulted claims does not alleviate a petitioner’s burden to
overcome ADEPA’s statute of limitations or to prove the merits of his case. As discussed above, Petitioner’s claims
here are barred by ADEPA’s one-year statute of limitation and Petitioner is not entitled to equitable tolling.
38

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Pursuant to Local Appellate
Rule 22.2, at the time of a final order denying a habeas petition, a district judge is required to determine whether a
certificate of appealability (“COA”) should issue. A COA should not be issued unless “reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Id. (internal quotation marks omitted).

11