COLLIER v. MCVEY et al

Filing 8

ORDER THAT THE PETITIONER'S OBJECTIONS ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED. THERE IS NO BASIS FOR THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY. THE MOTION FOR APPOINTMENT OF COUNSEL IS DENIED. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 7/7/11. 7/7/11 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

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

WESLEY COLLIER
v.
CATHERINE C. McVEY

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CIVIL ACTION

NO. 11-1547

ORDER
AND NOW, this 7th day of July, 2011, upon careful and
independent consideration of the Petition for Writ of Habeas
Corpus (Docket No. 1), the petitioner’s Motion for Appointment of
Counsel (Docket No. 4), and the respondents’ Response, and after
review of the Report and Recommendation of United States
Magistrate Judge Arnold C. Rapoport and the petitioner’s
Objections thereto, IT IS HEREBY ORDERED that:
1.

The petitioner’s objections are OVERRULED.

2.

The Report and Recommendation is APPROVED and

ADOPTED.
3.

The Petition for Writ of Habeas Corpus is DENIED.

4.

There is no basis for the issuance of a

certificate of appealability.
5.

The Motion for Appointment of Counsel is DENIED.

The Report and Recommendation concludes that the
Petition for Writ of Habeas Corpus is time-barred under the

AEDPA’s one-year statute of limitations.

The Court agrees with

the Report’s conclusion that this petition is time-barred.

The

Court has reviewed the petitioner’s objections and none provides
a basis to toll the statute of limitations.
The petitioner asserts in his Objections to the Report
and Recommendation that the statute of limitations should be
tolled because (1) the court-appointed attorneys who represented
him in state court both on direct appeal and in post-conviction
proceedings never informed him of his right to file a federal
habeas petition or of the applicable deadline for doing so, which
provides a basis for statutory tolling under 28 U.S.C. §
2244(d)(1)(B), and (2) both the failure of his court-appointed
attorneys to advise him of the deadline for filing a habeas
petition and certain “physical and mental limitations” precluded
him from filing a timely habeas petition, entitling him to
equitable tolling.1
First, § 2244(d)(1)(B) extends the date on which the
one-year deadline begins to run until the date on which “the
impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is

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The petitioner’s remaining objections are aimed at
footnote 2 of the Report and Recommendation, which simply quotes
from the Superior Court’s July 26, 2004 opinion. The
petitioner’s objections to the substance of that opinion are not
relevant to this Court’s analysis of whether the habeas petition
should be denied, so the Court will not address them here.
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removed, if the applicant was prevented from filing by such State
action.”

The petitioner has neither identified a constitutional

or statutory violation by the state, nor described any way in
which the state has created any obstacle to his filing a petition
for federal habeas relief.

To the degree the petitioner suggests

that the state denied him counsel to inform him of the habeas
filing deadlines, this argument is without merit because there is
no constitutional or federal right to counsel in post-conviction
proceedings.

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).

Section 2244(d)(1)(B) does not apply here to delay the start date
under the AEDPA.
Second, a petitioner is entitled to equitable tolling
of the one-year limitation period only if he shows “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way” and prevented timely
filing.

Holland v. Florida, 130 S.Ct. 2549, 2562 (2010).

This

principle should be applied to toll the statute of limitations
“only in the rare situation where equitable tolling is demanded
by sound legal principles as well as the interests of justice.”
Schlueter v. Varner, 384 F.3d 69, 75-76 (3d Cir. 2004) (quoting
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)).

The United

States Court of Appeals for the Third Circuit has held that
equitable tolling is permitted where either: (1) the defendant or
the court actively misled the plaintiff; (2) the plaintiff has in

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some extraordinary way been prevented from asserting his rights;
or (3) the plaintiff has timely asserted his rights mistakenly in
the wrong forum.

Id.

The petitioner’s allegations that his court-appointed
attorneys failed to advise him of the applicable statute of
limitations for filing a federal habeas petition, even if true,
would not amount to “extraordinary circumstances” warranting
equitable tolling.

The petitioner has not argued that he was

actively misled or that he mistakenly asserted his rights in the
wrong forum.

The fact that his attorneys at the state level did

not inform him of the deadline for filing a federal habeas
petition does not mean that the petitioner was prevented, let
alone in some “extraordinary way,” from asserting his rights.
Furthermore, ordinary attorney error is not a sufficient basis
for tolling the one-year period of limitation.
F.3d at 76.

Schlueter, 384

The petitioner’s own mistaken belief that he was

within the one-year deadline is also not a ground for equitable
tolling.

See Jones, 195 F.3d at 160.
The petitioner’s assertion that he suffers from “severe

and chronic physical and mental limitations” that restrict his
ability to “focus, read and comprehend,” and which would
therefore have made it impossible to file his petition within the
one-year deadline, is also not a sufficient basis for equitable
tolling.

First, apart from the petitioner’s citation to an email

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in which the petitioner states that he is “laden with significant
and serious health problems,” the Court is not aware of any
evidence in the record that the petitioner suffers from such a
serious physical or mental defect as to impair his ability to
file a timely habeas petition.
petitioner’s contention.

Second, the record belies the

The petitioner was able to file both a

timely PCRA petition and an appeal of the dismissal of his PCRA
petition.

The petitioner’s vague contentions that he has

difficulty focusing and comprehending simply do not rise to the
level of “extraordinary” circumstances that would justify tolling
the statute of limitations.

Equitable tolling on the basis of a

petitioner’s mental or physical condition is generally limited to
exceptional circumstances where the condition renders the
petitioner incapable of pursuing his legal rights during the
period of limitation.

See Rhodes v. Senkowski 82 F.Supp.2d 160,

170 (S.D.N.Y. 2000) (collecting cases).

The Court finds that the

petitioner has failed to meet his burden on this issue because he
has not presented any evidence to show that he was unable to
pursue his legal rights throughout the entire one-year period due
to his physical and mental problems.
Accordingly, the Court approves and adopts the Report
and Recommendation.
denied.

The Petition for Writ of Habeas Corpus is

Because the Court agrees with the recommendation of the

Magistrate Judge, it will also deny the petitioner’s motion for

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appointment of counsel.

BY THE COURT:

/s/ Mary A. McLaughlin
MARY A. McLAUGHLIN, J.

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