BERRY v. SOBINA et al

Filing 11

REPORT AND RECOMMENDATIONS THAT THE PETITION FOR WRIT OF HABEAS CORPUS FILED PURSUANT TO 28 U.S.C. SECTION 2254 SHOULD BE DENIED WITH PREJUDICE AND DISMISSED WITHOUT AN EVIDENTIARY HEARING. IT IS FURTHER RECOMMENDED THAT PETITIONERS MOTION FOR RELIE F OF JUDGMENT SHOULD BE DENIED. THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY, ETC OBJECTIONS TO R&R DUE BY 9/18/2009. SIGNED BY MAGISTRATE JUDGE ARNOLD C. RAPOPORT ON 8/27/09. (Attachments: # 1 order) 8/28/09 ENTERED AND COPIES MAILED AND E-MAILED.(la, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________ : QUINCY K. BERRY, : CIVIL ACTION : Petitioner, : : v. : NO. 09-2094 : RAYMOND SOBINA, et al, : : Respondents. : ________________________________: ARNOLD C. RAPOPORT UNITED STATES MAGISTRATE JUDGE REPORT AND RECOMMENDATION Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Quincy K. Berry ("Petitioner"), pursuant to 28 U.S.C. section 2254. Petitioner

is currently incarcerated in the State Correctional Institution at Albion. 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 July 31, 1998, a jury in the Court of Common Pleas of Philadelphia County convicted Petitioner of two counts of robbery, two counts of attempted rape and possession of an instrument of a crime stemming from an incident in which

This information is taken from the Petition for Writ of Habeas Corpus, R e s p o n d e n t s ' Response, and the exhibits attached to those pleadings.

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Petitioner robbed a sixteen and a nineteen year old at gunpoint.2 On September 23, 1998, the Honorable Patricia McInerney sentenced Petitioner to four concurrent seven to fifteen year prison terms, followed by five years' probation. Petitioner appealed to the Pennsylvania Superior Court, and on August 3, 2000, the Superior Court affirmed his judgment of sentence. Super. 2000). Commonwealth v. Berry, 764 A.2d 1119 (table) (Pa. Petitioner sought allocatur from the Pennsylvania

Supreme Court, which was denied on November 17, 2000. Commonwealth v. Berry, 764 A.2d 1064 (Pa. Nov. 17, 2000). Petitioner's conviction became final on direct review when the time in which he could seek review to the United States Supreme Court expired on February 16, 2001. Petitioner filed a pro se petition under the Pennsylvania Post-Conviction Relief Act ("PCRA"), see 42 Pa. C.S.A. § 9541, on June 1, 2001.3
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Counsel was appointed to

The Superior Court's August 3, 2000 opinion stated the facts as

follows: On August 24, 1997, HW and RR were in a Philadelphia schoolyard w h e n HW saw [Petitioner] pointing a gun at them. HW was sixteen y e a r s old; RR was nineteen years old. [Petitioner] demanded HW a n d RR hand over their possessions, which included HW's jewelry; R R handed [Petitioner] $11. [Petitioner] then ordered HW and RR to r e m o v e their clothing and have sex. The victims removed their c l o t h i n g , then simulated intercourse. Commonwealth v. Berry, 764 A.2d 1119 (table) (Pa. Super. 2000)(unpublished memorandum). Petitioner's PCRA petition is stamped that it was received by the C o u r t on June 25, 2001. However, Petitioner failed to date the PCRA petition. Giving Petitioner the benefit of the doubt, we assume that he sent his p e t i t i o n for filing sometime in early June. Therefore, we use June 1, 2001,
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represent him and on January 23, 2002, counsel filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).4 petition. On April 8, 2002, the PCRA court dismissed the

Based upon a review of the Superior Court and state

court docket entries, it does not appear that Petitioner ever filed an appeal of the denial of his PCRA to the Superior Court.5 Petitioner signed his Petition for Writ of Habeas Corpus on April 27, 2009.6 On May 19, 2009, the Honorable R.

Barclay Surrick referred this matter to the undersigned for preparation of a Report and Recommendation. On August 20, 2009,

Respondents filed a Response to the Petition for Writ of Habeas

as the filing date of his PCRA petition. Pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), a p p o i n t e d counsel in a post-conviction proceeding may be given leave to w i t h d r a w upon the submission of a "no merit" letter that details the nature a n d extent of his review of the case, lists each issue the petitioner wished t o have reviewed, and explains his assessment that the case lacks merit. The c o u r t must also conduct an independent review of the record and must agree w i t h counsel that the petition is meritless before dismissing the petition. We note that a review of the Petition in this matter shows that P e t i t i o n e r is claiming that he appealed his PCRA denial to the Superior Court. See Pet., pp. 6-7. Petitioner claims that the Superior Court decided his a p p e a l in June of 2001. However, after a thorough review of the Superior C o u r t dockets, we believe Petitioner was mistaken in stating that he appealed h i s PCRA denial to the Superior Court. First, there is no record of such an a p p e a l in the Superior Court dockets. Second, Respondent could find no e v i d e n c e in the record that such an appeal was taken. See Response, p. 3, n. 3 . Third, Petitioner is claiming that he received a result on his alleged S u p e r i o r Court appeal in June of 2001, which is impossible, since the PCRA c o u r t did not even dismiss his PCRA petition until April of 2002. Based on t h i s , Petitioner apparently was incorrect in his assertion that the Superior C o u r t denied his appeal in June of 2001. For all of the above reasons, we find that Petitioner did not file an a p p e a l to the Superior Court of his PCRA denial. We note that Petitioner dated his Petition "April 2009." However, t h e Affidavit accompanying his Motion to Proceed In Forma Pauperis was e x e c u t e d on April 27, 2009.
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Corpus, contending that the Petition should be denied as untimely. II. DISCUSSION - Habeas Petition. A. 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.

section 2254, the statute under which this Petition was filed, and 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.7
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In this case, the applicable starting point to examine
28 U.S.C. section 2244 requires that:

( d ) ( 1 ) A 1-year period of limitation shall apply to an a p p l i c a t i o n for a writ of habeas corpus by a person in custody p u r s u a n t to the judgment of a State court. The limitation period s h a l l run from the latest of (A) the date on which the judgment became final by the c o n c l u s i o n of direct review or the expiration of the t i m e for seeking such review; (B) the date on which the impediment to filing an a p p l i c a t i o n created by state action in violation of t h e Constitution or laws of the United States is r e m o v e d , if the applicant was prevented from filing by s u c h State action; (C) the date on which the constitutional right a s s e r t e d was initially recognized by the Supreme C o u r t , if the right has been newly recognized by the

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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 conviction became final on direct review on February 16, 2001, after he failed to seek review by the United States Supreme Court and his time to seek such relief expired. See 28 U.S.C. § 2244(d)(1)(A); 42 Pa. C.S.A. § See 28

9545(b)(3); S. Ct. R. 13(1) (stating that Petitioners have ninety days in which to file a petition for writ of certiorari in the United States Supreme Court). Accordingly, the one-year time

limit for Petitioner to timely file a federal Petition for Writ of Habeas Corpus began on February 17, 2001, and Petitioner had until February 17, 2002, to timely file a federal Petition. There is an exception in the habeas statute for "[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28

Supreme Court and made retroactively applicable to c a s e s on collateral review; or ( D ) the date on which the factual predicate of the c l a i m or claims presented could have been discovered t h r o u g h the exercise of due diligence. 28 U.S.C. § 2244(d)(1). If direct review of a criminal conviction ended prior t o the AEDPA's effective date, a prisoner has one year subsequent to the April 2 4 , 1996 effective date to properly file a habeas action. Burns v. Morton, 1 3 4 F.3d 109, 111 (3d Cir. 1998).

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U.S.C. § 2244(d)(2).

On June 1, 2001, when Petitioner filed his

PCRA petition, approximately three and a half months of the AEDPA statute of limitations had run. Petitioner's PCRA petition, Thus,

filed on June 1, 2001, was pending until April 8, 2002.

the statute of limitations was tolled from June 1, 2001, until May 9, 2002, when the time for appealing the dismissal of Petitioner's PCRA petition to the Pennsylvania Superior Court ended. See Swartz v. Meyers, 204 F.3d 417, 418 (3d Cir.

2000)(holding PCRA petition is pending during time between lower court ruling on petition and expiration of time for seeking review, even though petitioner does not actually seek such review). Therefore, Petitioner had approximately eight and a

half months left on the AEDPA statute of limitations, or until approximately mid-January of 2003 in which to file his federal habeas Petition. Petitioner filed the instant Petition on April

27, 2009, over six years after the expiration of the AEDPA filing deadline. Thus, even with the benefit of statutory tolling, the

Petition is time-barred. Further, Petitioner has failed to present any competent evidence to prove that one of the exceptions contained in §2244(d)(1) allows Petitioner a later accrual date for the AEDPA limitations period. First, Petitioner does not allege that state

action in violation of the federal constitution prevented his timely filing of a habeas petition; therefore, section

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2244(d)(1)(B) does not apply.

Second, section 2244(d)(1)(C) also

does not apply, as Petitioner is not relying upon a new rule of retroactively applicable constitutional law. Lastly, Petitioner

does not claim that the facts underlying his claim could not have been discovered until a later time; therefore, section 2244(d)(1)(D), which deals with after-discovered "factual predicates," is inapplicable to this matter. Accordingly,

Petitioner is not entitled to a later start date under the AEDPA. B. The Federal Habeas Corpus Petition at Issue is Not Eligible for Equitable Tolling The AEDPA's one-year statute of limitations is also subject to equitable tolling. 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). The limitation period will be

equitably tolled when the principles of equity would make the rigid application of a limitation period unfair. Morton, 195 F.3d 153, 159 (3d Cir. 1999). This Court must 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. Jones v.

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). equitable tolling. Courts must be sparing in their use of

Seitzinger v. Reading Hosp. & Med. Ctr., 165 7

F.3d 236, 239 (3d Cir. 1999).

In fact, the United States Court

of Appeals 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 Petitioner "must show that he . . .

`exercised reasonable diligence in investigating and bringing [his] claims.' Mere excusable neglect is not sufficient."

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

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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.). Petitioner provides no reason for his delay in filing the instant Petition. unavailable to him. Therefore, equitable tolling is Davis v. Varner, No. 00-4349, 2001 WL

1417462, at *4-*5 (E.D. Pa. Nov. 8, 2001)(finding no equitable tolling where petitioner claimed he was prevented from filing timely habeas petition due to riot at correctional facility resulting in destruction of personal property and court records, non-receipt of replacement copy of post-conviction petition, and housing in restrictive unit without access to law library or legal assistant from 1989 until 1992)(citing New Castle County, 111 F.3d at 1126 (finding no equitable tolling where petitioner waited months to file habeas petition after end of alleged tolling event) and Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999)(same)). Further, under the circumstances of this case, Petitioner was not reasonably diligent because a reasonably diligent petitioner would have promptly acted to preserve his rights in this Court. It cannot be said that a petitioner who

does not seek habeas relief until over eight years after his conviction becomes final was reasonably diligent. Indeed,

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Petitioner fails to allege any steps that he took to timely file the instant federal habeas petition. argument fails. Thus, any equitable tolling

Holmes v. Vaughn, No. 01-2565, 2003 WL 23112383, The Petition is time-barred,

at *6-*7 (E.D. Pa. Nov. 25, 2003).

and must be denied with prejudice and dismissed without an evidentiary hearing. We also find that Petitioner has failed to make the threshold proffer necessary to justify the holding of an evidentiary hearing. See Zettlemoyer v. Fulcomer, 923 F.2d 284,

298 n.12 (3d Cir. 1991) (petitioner not entitled to evidentiary hearing based on "bald assertions and conclusory allegations"); Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (same), cert. denied, 484 U.S. 946 (1987); Brown, 669 F.2d at 158 (petitioner bears burden as to all factual and procedural requirements). See generally Pace, 544 U.S. at 418 (petitioner

bears burden of demonstrating both entitlement to equitable tolling and his due diligence).8

As discussed Respondents, even if Petitioner's Petition was not t i m e - b a r r e d , his claims are non-cognizable. Petitioner has presented four c l a i m s that appear to be based solely on state law: 1) that the trial court l a c k e d subject matter jurisdiction over his case; 2) that the trial judge is c i v i l l y liable to him; 3) that the record lacks proof that the judge took her o a t h of office and posted bond in accordance with the Pennsylvania c o n s t i t u t i o n . "Even if he could establish that actual errors occurred, he c a n n o t obtain habeas relief for errors of state law." See Response, p.5. In addition, Petitioner never raised any of these claims on direct a p p e a l or during his PCRA proceedings. The claims raised in the instant P e t i t i o n are therefore unexhausted. Because the time for exhausting his c l a i m s in state court has passed, Petitioner's claims contained in the instant P e t i t i o n are also procedurally defaulted. Ordinarily, federal habeas review is barred if petitioner has p r o c e d u r a l l y defaulted. Coleman v. Thompson, 501 U.S. 722 (1991). "Just as i n those cases in which a state prisoner fails to exhaust state remedies, a

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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) 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. The Petition is statutorily

time-barred, and must be denied with prejudice and dismissed without an evidentiary hearing. III. DISCUSSION - Motion for Relief from Judgment. Also pending in this matter is Petitioner's "Motion for Relief of Judgement" (Dkt. No. 2), filed with the Court on May

habeas petitioner who has failed to meet the State's procedural requirements f o r presenting his federal claims has deprived the state courts of an o p p o r t u n i t y to address those claims in the first instance." Id. at 731-732. The default will be excused if petitioner can demonstrate that a failure to c o n s i d e r his claims will result in a miscarriage of justice. Id. at 750. The U n i t e d States Supreme Court has repeatedly held that the scope of the m i s c a r r i a g e of justice exception is a narrow one. Sawyer v. Whitley, 505 U.S. 3 3 3 (1992); McCleskey v. Zant, 449 U.S. 46 (1991); Dugger v. Adams, 489 U.S. 4 0 1 (1989). This exception only applies when "a constitutional violation has p r o b a b l y resulted in the conviction of one who is actually innocent." Murray v . Carrier, 477 U.S. 478, 496 (1986). The Supreme Court has suggested that t h e test for actual innocence is whether there is "a fair probability that, in l i g h t of all the evidence, including that to have been . . . wrongly excluded o r to have become available only after trial, the trier of the fact would have e n t e r t a i n e d a reasonable doubt of his guilt." Kuhlmann v. Wilson, 477 U.S. 4 3 6 , 454-5 n.17 (1986). The claims Petitioner seeks to raise in his federal petition were not p r o p e r l y preserved in the state courts and the time for filing a new petition t o preserve them has lapsed. There is no basis to find that Petitioner is a c t u a l l y innocent, thus the failure to consider the issues on habeas review w i l l not result in a miscarriage of justice.

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13, 2009.

A review of this Motion reveals that is apparently a

Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b), as Petitioner cites this rule in his Motion. See Motion, pp. 3-4. In this Motion, Petitioner is claiming that

the trial court lacked subject matter jurisdiction over his case, that the trial judge is civilly liable to him, that the trial judge was not a legitimate judicial officer and that the prosecuting attorney was not a legitimate prosecutor. Motion, pp. 2-14. Rule 60(b) allows a party to seek relief from a final judgment under a limited set of circumstances, including fraud, mistake, and newly discovered evidence. 60(b).9 See Fed. R. Civ. P. See

The general premise behind the rule is "to strike a

proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done." Thompson v. Wydner, No. 05-6779, 2006 U.S. Dist. LEXIS 37176, at *3 (E.D. Pa. June 7, 2006)(DuBois, J.)(quoting Boughner v. Secretary of Health, Education and Welfare, 572 F.2d 976, 977 (3d

9 Rule 60(b) provides that on motion and upon such terms as are j u s t , the court may relieve a party or a party's legal representative from a f i n a l judgment order, or proceeding for the following reasons: (1) mistake, i n a d v e r t e n c e , surprise, or excusable neglect; (2) newly discovered evidence w h i c h by due diligence could not have been discovered in time to move for a n e w trial under Rule 59(b); (3) fraud (whether heretofore denominated i n t r i n s i c or extrinsic), misrepresentation, or other misconduct of an adverse p a r t y ; (4) the judgment is void; (5) the judgment has been satisfied, released o r discharged, or a prior judgment upon which it is based has been reversed or o t h e r w i s e vacated, or it is no longer equitable that the judgment should have p r o s p e c t i v e application; or (6) any other reason justifying relief from the o p e r a t i o n of the judgment. Fed. R. Civ. P. 60(b).

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Cir. 1978)).

The decision to grant or deny relief under Fed. R.

Civ. P. 60(b) lies in the "sound discretion of the trial court guided by accepted legal principles applied in light of all the relevant circumstances." Cir. 1981). Ross v. Meagan, 638 F.2d 646, 648 (3d

However, a motion under Rule 60(b) should only be

granted where extraordinary circumstances justify such relief. Urban Outfitters, Inc., et al, v. BCBG Max Azria Group, Inc., et al, No. 06-4003, 2008 U.S. Dist. LEXIS 7000, at * 30 (E.D. Pa. Jan. 31, 2008) (Baylson, J.), citing Plisco v. Union Railroad Co., 379 F.2d 15 (3d Cir. 1967) and Sawka v. Healtheast, 989 F.2d 138, 140 (3d Cir. 1993). A motion under Rule 60(b) must be made

within a "reasonable time" after the judgment, order, or proceeding was entered. Fed. R. Civ. P. 60(c)(1).

Initially, we consider the timeliness of Petitioner's motion. As discussed above, motions pursuant to Rule 60(b) must Fed. R. Civ. P. 60(c)(1).

be filed "within a reasonable time."

In this case, Petitioner filed his Motion over ten years after his conviction by a jury, and over eight years after his conviction became final on appeal. In the case of United States

v. Bohn, No. 92-61-02, 1999 U.S. Dist. LEXIS 18522, at *31 (E.D. Pa. November 9, 1999)(Van Antwerpen, J.), the Court determined that a Rule 60(b) motion filed approximately one year and seven months after the denial of permission to file a successive habeas petition was not filed within a reasonable amount of time.

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United States v. Bohn, 1999 U.S. Dist. LEXIS 18522, at *31-32 (citation omitted). See also Moolenaar v. Government of the

Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987)(stating that a Rule 60(b)(6) motion filed nearly two years after the district court's judgment was not made within a reasonable time). Given

the case law of this jurisdiction, therefore, Petitioner's Motion is clearly untimely, as it was filed well beyond what courts in this jurisdiction have found to be a "reasonable time." Therefore, Petitioner's Motion must be denied. Therefore, I make the following:

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RECOMMENDATION AND NOW, this 27th day of August, 2009, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. is FURTHER RECOMMENDED that Petitioner's Motion for Relief of Judgment (Dkt. No. 2) should be DENIED. There is no probable It

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 file

timely objections may constitute a waiver of any appellate rights.

BY THE COURT: /s/ Arnold C. Rapoport ARNOLD C. RAPOPORT United States Magistrate Judge

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