WITHERSPOON v. COMMONWEALTH OF PENNSYLVANIA et al
MEMORANDUM OPINION THAT THE COURT FINDS THAT THE PETTION IS TIME-BARRED. ACCORDINGLY, THE COURT WILL APPROVE AND ADOPT THE R & R, OVERRULE PETITIONER'S OBJECTIONS, AND DENY THE PETITION. SINCE PETITIONER HAS NOT MADE A SUBSTANTIAL SHOWING OF T HE DENIAL OF A CONSTITUTIONAL RIGHT, A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 5/28/13. 5/29/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, MAILED AND E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GILES W. WITHERSPOON,
PENNSYLVANIA, et al.,
MAY 28, 2013
Before the Court are Petitioner Giles Witherspoon’s pro se Objections to the Amended
Report and Recommendation (“R&R”)1 filed by United States Magistrate Judge Thomas J.
Reuter. Petitioner objects to Judge Reuter’s recommendation that the habeas Petition be
dismissed as barred by the one-year limitations period that applies to habeas petitions filed
pursuant to 28 U.S.C. § 2554 and to the finding that equitable tolling does not toll the limitations
period in this case. For the reasons that follow, the Court will overrule Petitioner’s Objections,
approve and adopt the R&R, and dismiss the Petition.
On October 5, 2001, a jury sitting in the Court of Common Pleas of Delaware County
found Petitioner guilty of rape, kidnapping, aggravated assault, and simple assault. Petitioner
was thereafter sentenced to an aggregate term of imprisonment of 13 ½ years to 27 years
followed by 5 years of probation. On January 2, 2002, Petitioner filed an appeal to the
About a week after Judge Reuter filed a Report and Recommendation in this case, Petitioner filed a
“Traverse” in reply to Respondent’s response to the Petition. See Doc. No. 13. After considering the content of this
reply, Judge Reuter filed an amended R&R, to which Petitioner has filed objections. See Doc. Nos. 15, 16.
Petitioner does not object to the R&R’s statement of the background in this case. Finding the R&R’s
background section complete and consistent with the record in this case, the Court adopts the R&R in this respect
without objection. The Court recounts herein only the background necessary to provide context for its decision.
Pennsylvania Superior Court, which affirmed his sentence on April 8, 2003. The Pennsylvania
Supreme Court denied Petitioner’s petition for allowance of appeal on September 30, 2003.
On June 2, 2004, Petitioner filed a pro se petition pursuant to Pennsylvania’s Post
Conviction Relief Act (“PCRA”).3 The Delaware County Court of Common Pleas apparently
never received the petition, and on April 14, 2005, after receiving no response to his February
23, 2005 letter inquiring as to the status of his first PCRA petition, Petitioner filed a second
PCRA petition, which the PCRA dismissed as untimely on April 5, 2006. Petitioner appealed.
On appeal, Petitioner presented evidence in the form of cash slips for legal mail sent on
June 2, 2004, and letters he wrote to the PCRA court inquiring as to the status of his first PCRA
petition. The Superior Court credited this evidence as supporting Petitioner’s position that he
timely-filed his PCRA petition on June 2, 2004, and on May 14, 2007, remanded the case to the
PCRA court for an evidentiary hearing. Upon remand, the PCRA court determined that the
petition was timely, but denied the petition on its merits on December 30, 2010.
On January 1, 2011, before filing an appeal to the Superior Court, Petitioner filed an
“Application for Leave to File Original Process and a Petition for Extraordinary Relief” with the
Pennsylvania Supreme Court. On March 17, 2011, he filed an appeal of the PCRA court’s
decision on remand, only later to file a notice of his intent to withdraw the appeal, which resulted
in the Superior Court discontinuing the appeal on March 31, 2011.4 On August 3, 2011, the
Pennsylvania Supreme Court denied Petitioner’s petition for extraordinary relief, and Petitioner
filed a writ of certiorari to the Supreme Court, which was denied on January 9, 2012. Petitioner
42 Pa. Cons. Stat. Ann. § 9541, et seq.
The Superior Court’s Notice of Discontinuance of Action is dated March 23, 2011; however, a certified
copy of the Notice was sent to the PCRA court on March 31, 2011. Use of either date does not change the
conclusion that the Petition is time-barred, but the Court uses the later date, because it is more favorable to
filed the instant Petition in the United States District Court for the Middle District of
Pennsylvania on February 3, 2012;5 the Petition was later transferred to this Court.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),6 “a
district court shall entertain an application for writ of habeas corpus [filed on] behalf of a person
in custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.”7 Where, as here, the
habeas petition is referred to a magistrate judge for a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B), a district court 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
Despite Petitioner’s conclusory statements to the contrary, it appears that Petitioner’s
calculations concerning the timeliness of his Petition are consistent with the R&R’s findings.10
As the Magistrate Judge noted, the Middle District docket reflects a February 9, 2012 docketing date.
However, the Court uses a February 3, 2012 date pursuant to the “mail box rule”, which applies to petitions filed by
pro se inmates and uses the date the petition was executed as the operative date. Burns v. Morton, 134 F.3d 109 113
(3d Cir. 1998).
28 U.S.C. § 2254.
28 U.S.C. § 2254(a).
28 U.S.C. § 636(b)(1).
Petitioner does not specifically object to the R&R’s findings; rather, his Objections are duplicative of his
brief filed in support of his Petition. The Court therefore addresses the portion of Petitioner’s “objections” which
relate to and disagree with the findings of the R&R.
See, e.g., Pet’r’s Objections (Doc. No. 15) at 5 (“The Pennsylvania Supreme Court denied Petitioner’s
direct appeal Petition for Allowance of Appeal on September 30, 2003. Since the Petitioner did not petition the
United States Supreme Court for certiorari, his judgement [sic] of sentence became final 90 days later, on December
Petitioner, however, clearly disagrees with the R&R’s conclusion that equitable tolling does not
apply in this case. According to Petitioner, “due diligence and extraordinary circumstances 
justify tolling” in his case.11
Calculation of the Limitations Period
AEDPA imposes a one-year limitations period on the filing of a habeas petition pursuant
to 28 U.S.C. § 2554.12 Pursuant to § 2244(d)(1)(A), the one-year limitations period runs from
“the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.”13 “The time during which a properly filed
application for State post-conviction 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
Here, it is undisputed that Petitioner’s conviction became final on December 29, 2003 (90
days following the Pennsylvania Supreme Court’s denial of Petitioner’s request for review when
the time for seeking certiorari in the United States Supreme Court expired).15 The one-year
limitations period runs from this date.16 Petitioner filed his PCRA petition 156 days later, on
June 2, 2004. The limitations period was then tolled until March 31, 2011, while Petitioner’s
29, 2003. One hundred and fifty-six (156) days later, the petitioner filed his first Pro se PCRA Petition. At that time,
two hundred and nine (209) days remained on Petitioner's federal habeas limitations period.”).
Doc. No. 15 at 14.
Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013) (citing 28 U.S.C. §
28 U.S.C. § 2244(d)(1)(A). It is undisputed that none of the alternative start dates allowed under §
2244(d)(1) are applicable here.
28 U.S.C. § 2244(d)(2).
See Pet’r’s Objections, Doc. No. 15 at 6; R&R, Doc. No. 14 at 5.
28 U.S.C. § 2244(d)(1)(A).
PCRA petition was pending in state court.17 The limitations period restarted on April 1, 2011,
and expired 209 (365 days less the 156 that had elapsed before the period was statutorily tolled)
days later on October 27, 2011. The instant Petition, dated February 3, 2012,18 was filed 99 days
after the limitations period expired. It is therefore time-barred in the absence of equitable tolling.
ADEPA’s limitations period may be tolled in appropriate cases where enforcing the
statute of limitations would be unfair.19 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.”20 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.”21 In determining whether equitable tolling should apply in a particular case,
“district courts [are required] to examine the petitioner’s due diligence in pursuing the matter
under the specific circumstances he faced.” 22 “Due diligence does not require ‘the maximum
feasible diligence,’ but it does require reasonable diligence in the circumstances.”23
28 U.S.C. § 2244(d)(2).
See footnote 4, supra.
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.”).
Id. at 2562 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (internal quotation marks omitted)).
Butler v. Walsh, 846 F. Supp. 2d 324, 330 (E.D. Pa. 2012) (quoting United States v. Midgley, 142 F.3d
174, 179 (3d Cir. 1998)).
Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir. 2004) (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.”).
Here, Petitioner asserts he is entitled to equitable tolling because of the PCRA court’s
“inordinate delay” and his due diligence in pursing his state court remedies. While the state
court proceedings were protracted, the limitations period was tolled during this time and thus, the
PCRA court’s delay is not the cause of Petitioner’s failure to timely file the instant Petition.
Additionally, Petitioner’s diligence in state court does not excuse his failure to exercise
reasonable diligence in pursuing his federal habeas claims. Moreover, Petitioner does not claim
that he was actively misled by Respondents or the state courts and nor does he contend that this
misrepresentation delayed the filing of the Petition; he merely cites delay in his state court
proceedings and his diligence in pursing such proceedings as cause for equitable tolling. Given
the particular circumstances of this case, including Petitioner’s failure to provide an explanation
as to why he waited 10 months after the Superior Court discontinued his appeal (and more than
three months after the limitations period expired) to file the Petition, the Court finds no basis for
For the foregoing reasons, the Court finds that the Petition is time-barred. Accordingly,
the Court will approve and adopt the R&R, overrule Petitioner’s Objections, and deny the
Schlueter, 384 F.3d at 74 (citing Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004)).
The pendency of Petitioner’s January 1, 2011 Petition for Extraordinary Relief does not affect the
Court’s analysis because Petitioner does not argue that he relied on the pendency of the petition staying the
limitations period and that this reliance caused his delay in filing the instant Petition. Additionally, even if the Court
were to address the habeas Petition on its merits, Petitioner is not entitled to relief. There is no evidence of judicial
or prosecutorial misconduct in this case nor is there evidence that Petitioner’s state court proceedings were
protracted deliberately. Petitioner’s guilty verdict reflects the jury crediting the victim’s statement of events at issue
and discrediting Petitioner’s version of those same events.
Petition. Since Petitioner has not made a substantial showing of the denial of a constitutional
right, a certificate of appealability shall not issue.25
An appropriate Order follows.
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.” Slack, 529 U.S. at 484 (internal quotation marks omitted).
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