HOWARD v. KERESTES

Filing 9

ORDER THAT THE PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED; A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 7/24/12. 7/25/12 ENTERED AND COPIES MAILED TO PRO SE PETITIONER FROM CHAMBERS. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MITCHELL HOWARD,
Petitioner
v.
JOHN KERESTES,
Respondent.

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CIVIL ACTION NO. 10-7408

ORDER
AND NOW, this

24th

day of

July

, 2012, upon consideration of the pro se1

Petition for Writ of Habeas Corpus (ECF No. 1) filed by Mitchell Howard, and after careful and
independent review of the full record including the comprehensive Report and Recommendation
of Magistrate Judge L. Felipe Restrepo (R&R, ECF No. 5), and after consideration of Petitioner’s
pro se Objections to the Report and Recommendation (ECF No. 8), it is ORDERED as follows:

1.

Petitioner’s Objections to the Report and Recommendation are OVERRULED.

2.

The Report and Recommendation is APPROVED.

3.

The Petition For Writ Of Habeas Corpus is DISMISSED.2

1

Pro se pleadings are subject to a liberal review. Estelle v. Gamble, 429 U.S. 97, 106
(1976). A pro se complaint is to be held to “less stringent standards than formal pleadings drafted
by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
2

Petitioner entered a plead of guilty to robbery and firearms offenses in the Court of
Common Pleas of Delaware County on February 22, 2007. He was sentenced to an aggregate
term of fifteen to thirty years in prison. Petitioner did not appeal. His conviction became final
on March 26, 2007, when the period for appealing to the Superior Court expired. See
Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997) (conviction becomes final 30
days after sentence if no appeal is filed).
Petitioner filed a petition for collateral review under the Post-Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, on February 13, 2008. The petition was denied. The
Superior Court affirmed the denial, denying Petitioner’s final motion for re-argument, on January
27, 2010. Petitioner did not seek review in the Pennsylvania Supreme Court. On December 16,

4.

A certificate of appealability will not issue.3

IT IS SO ORDERED.
BY THE COURT:
/s/ R. BARCLAY SURRICK, J.

2010, Petitioner filed the instant Petition. See Houston v. Lack, 487 U.S. 266 (1988) (a
prisoner’s petition is deemed filed on the date he presents it to prison officials for delivery).
“A 1-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.” 28 U.S.C. § 2244(d)(1).
Generally, this period runs from the date when the state judgment becomes final. If state-level
collateral review is pending, the period is tolled. § 2244(d)(1)(A)-(2). If filing the petition was
impossible because of an impediment created by illegal state action, the subsequent recognition
of a new right by the United States Supreme Court, or the revelation of new facts which were
previously unavailable, the period runs from the first date on which the conditions which had
fostered such impossibility were no longer in effect. § 2244(d)(1)(B)-(D).
We agree with Magistrate Judge Restrepo that Petitioner’s claim is time-barred pursuant
to 28 U.S.C. § 2244(d). The 1-year period of limitations had run before Petitioner filed the
instant Petition. Accordingly, we confine our analysis to Petitioner’s Objections, which allege
that counsel’s ineffectiveness is the reason for the delayed filing. (Objections 1-2.)
There is no basis for statutory tolling. As the R&R notes, the PCRA review period tolled
the limitations period, but Petitioner failed to file his Petition within the requisite time after the
period began to run again. (R&R 6-7.) Petitioner alleges no impediment to filing that falls
within the exceptions in § 2244(d)(1).
We further agree that there is no basis for equitable tolling. Ҥ 2244(d) is subject to
equitable tolling in appropriate cases.” Holland v. Florida, 130 S.Ct. 2549, 2560 (2010).
However, a petitioner is “entitled to equitable tolling” only if he shows “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Pace, 544 U.S. 408, 418 (2005). “Mere excusable neglect is not sufficient.” Miller v. New
Jersey State Dep’t of Corrs., 145 F.3d 616, 619 (3d Cir. 1999).
Petitioner alleges that his PCRA counsel did not inform him of the time limit under §
2244. This does not constitute an “extraordinary circumstance.” “In non-capital cases, attorney
error . . . [has] not been found to rise to the ‘extraordinary’ circumstances” level. Fahy v. Horn,
240 F.3d 239, 244 (3d Cir. 2001).
Petitioner offers no basis for equitable tolling. Petitioner has shown neither diligent
pursuit of his rights nor an extraordinary circumstance. He cannot justify equitable tolling.
Since Petitioner’s claims are time-barred, we do not reach the merits.
3

A certificate of appealability only issues if reasonable jurists could disagree with the
Court’s disposition of this matter. Slack v. McDaniel, 529 U.S. 473, 484 (2000). No reasonable
jurist could disagree with our finding that this claim is time-barred.