MCCLURE v. KERESTES et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 3/1/16. 3/2/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN KERESTES, et al.
Juan R. Sánchez, J.
March 1, 2016
Eugene McClure raises objections to the Report and Recommendation of United States
Magistrate Judge Timothy R. Rice recommending McClure’s Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody be denied as untimely. McClure’s
objections to the Report and Recommendation raise no issues that would cause this Court to
disturb Judge Rice’s conclusion. Further, upon independent review of the record, and de novo
review of McClure’s objections, the Court agrees that McClure’s petition was untimely and
neither statutory tolling nor equitable tolling operate to make McClure’s petition timely. The
Court will therefore overrule McClure’s objections, adopt the Report and Recommendation, and
deny McClure’s petition.
On November 10, 1989, McClure was convicted by jury trial of second-degree murder,
kidnapping, burglary, and conspiracy, and was thereafter sentenced to life imprisonment for the
murder conviction and an aggregate sentence of 10-20 years imprisonment for the remaining
convictions, to run concurrently with the life imprisonment term. On January 17, 1996, the
Pennsylvania Superior Court affirmed McClure’s sentence. McClure did not seek further review.
In October 1997, McClure filed his first petition pursuant to Pennsylvania’s Post
Conviction Relief Act (PCRA), which was denied as untimely. McClure appealed, but the appeal
was dismissed for failure to file a brief. McClure filed a second PCRA petition in June 2006,
which was also denied as untimely, and McClure did not appeal. McClure filed a third PCRA
petition in May 2012, which was denied as untimely, and his appeals from this denial to the
Superior Court of Pennsylvania and the Supreme Court of Pennsylvania were denied. See
Commonwealth v. McClure, 112 A.3d 651 (Pa. 2015); Commonwealth v. McClure, No. 3111
EDA 2013, 2014 WL 10790100 (Pa. Super. Ct. Oct. 22, 2014). On January 4, 2013, McClure
filed the instant habeas petition, alleging numerous grounds for relief, including (1) ineffective
assistance of counsel against both his trial and post-conviction counsel, (2) denial of a fair trial,
and (3) due process violations.
The Antiterrorism and Effective Death Penalty Act (AEDPA), effective April 24, 1996,
imposes a one-year limitations period for a person in custody to petition for a writ of habeas
corpus, which begins running 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.” 28 U.S.C.
§ 2244(d)(1)(A).1 Judgment in McClure’s case became final on February 16, 1996, thirty days
after the Superior Court affirmed McClure’s sentence on January 17, 1996. See Gonzalez v.
Thaler, 132 S. Ct. 641, 656 (2012) (“[W]ith respect to a state prisoner who does not seek review
in a State’s highest court, the judgment becomes ‘final’ under § 2244(d)(1)(A) when the time for
seeking such review expires.”); see also Pa. R. App. P. 1113(a) (“[A] petition for allowance of
While § 2244(d)(1) provides alternative start dates for the limitations period, none apply.
Although McClure does not argue in his objections that a different section of § 2244(d)(1)
applies, he does so in his habeas petition. In the petition, McClure contends § 2244(d)(1)(C)
applies, as the Supreme Court announced a new, retroactive constitutional right in Martinez v.
Ryan, 132 S. Ct. 1309 (2012). See 28 U.S.C. § 2244(d)(1)(C) (running the limitations period on
“the date on which the constitutional right asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review”). However, “Martinez did not announce a new
constitutional rule or right for criminal defendants, but rather an equitable rule prescribing and
expanding the opportunity for review of their Sixth Amendment claims.” Cox v. Horn, 757 F.3d
113, 124 (3d Cir. 2014). As Judge Rice concluded, Section 2244(d)(1)(C) is therefore
appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of
the order of the Superior Court . . . .”). Because McClure’s conviction became final before
AEDPA was enacted, however, the one year limitations period did not begin to run until April
24, 1996—the day AEDPA was enacted. See Douglas v. Horn, 359 F.3d 257, 261 (3d Cir. 2004)
(recognizing when a habeas petitioner’s conviction became “‘final’ before the AEDPA came into
effect on April 24, 1996, . . . his one-year period for filing a habeas petition began running on
that date”). McClure’s habeas petition, therefore, “would have been due by April 23, 1997,
absent any tolling of the one-year clock.” Id.
McClure objects to Judge Rice’s finding that neither statutory tolling nor equitable tolling
operate to excuse McClure’s delay in raising his claims. Statutory tolling applies during the time
“which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Statutory tolling
is inapposite here, however, as McClure filed his first PCRA petition in October 1997, after the
statute of limitations had run on April 23, 1997.
Furthermore, McClure is not entitled to equitable tolling. Equitable tolling applies “when
the principles of equity would make the rigid application of a limitation period unfair, such as
when a state prisoner faces extraordinary circumstances that prevent him from filing a timely
habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate
and bring his claims.” LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005) (emphasis in
original). “Generally, such a situation arises if (1) 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.” Urcinoli v. Cathel,
546 F.3d 269, 272 (3d Cir. 2008) (quotation marks omitted). But “excusable neglect is not
sufficient.” LaCava, 398 F.3d at 275-76.
In his objections, McClure asserts the Supreme Court decision Martinez v. Ryan, 132 S.
Ct. 1309 (2012), is an extraordinary circumstance triggering equitable tolling. But district courts
have routinely found the decision does not constitute extraordinary circumstances triggering
equitable tolling of the limitations period. See, e.g., Stokes v. Dist. Att’y of Cty. of Phila., No. 985182, 2013 WL 331338, at *1-2 (E.D. Pa. Jan 29, 2013); cf. Cox, 757 F.3d at 120 (finding the
Martinez decision, without more, was not an extraordinary circumstance warranting reopening a
“long-since-dismissed habeas petition” pursuant to Rule 60(b)). In any event, Martinez is
inapplicable here. See Martinez, 132 S. Ct. at 1320 (holding “[w]here, under state law, claims of
ineffective assistance of trial counsel must 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 trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective”); see also Norris v. Brooks, 794 F.3d 401, 405 (3d
Cir. 2015) (“Martinez made very clear that . . . [the decision] applies only to attorney error
causing procedural default during initial-review collateral proceedings . . . .”). Because
Martinez’s limited application does not reach this case, as it “did not . . . establish an exception
to or equitable tolling of AEDPA’s one-year statute of limitations for filing a federal habeas
corpus petition,” Vogt v. Coleman, No. 08-530, 2012 WL 2930871, at *4 (W.D. Pa. July 18,
2012), equitable tolling does not apply.
Recommendation, and having determined each of those objections lacks merit, this Court will
overrule McClure’s objections and will adopt the Report and Recommendation.2 Because
McClure filed the instant habeas petition after the applicable limitations period had expired, and
neither statutory tolling nor equitable tolling apply to make his petition timely, his petition for
writ of habeas corpus will be denied with prejudice.
An appropriate order follows.
BY THE COURT:
/s/ Juan R. Sánchez
Juan R. Sánchez, J.
In his Report and Recommendation, the magistrate judge found McClure was not entitled to an
evidentiary hearing. Although McClure does not object to Judge Rice’s conclusion, the Court
notes its agreement. “[T]he decision to grant an evidentiary hearing is left to the sound discretion
of district courts,” Goldblum v. Klem, 510 F.3d 204, 220 (3d Cir. 2007) (citation and quotation
marks omitted), and the Court agrees McClure has “failed to forecast any evidence beyond that
already contains in the record that would help his cause, or otherwise to explain how his claim
would be advanced by an evidentiary hearing,” Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.
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