PRZYBYSZEWSKI v. COMMONWEALTH OF PENNSYLVANIA et al
ORDER THAT PETITIONER'S WRIT OF HABEAS CORPUS (DOC. NO. 1) IS DENIED; THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DOC. NO. 48) IS APPROVED AND ADOPTED; BECAUSE DEFT. HAS NOT MADE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT, THERE ARE NO GROUNDS ON WHICH TO ISSUE A CERTIFICATE OF APPEALABILITY; DEFT'S MISCELLANEOUS MOTIONS (DOC. NOS. 18, 40, 65, 69, 71) ARE DENIED AS MOOT; THE CLERK SHALL MARK THIS CASE CLOSED.. SIGNED BY HONORABLE PAUL S. DIAMOND ON 5/20/15. 5/21/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PENNSYLVANIA, et al.,
Civ. No. 14-974
Petitioner Theodore Przybyszewski, proceeding pro se, has objected to Magistrate
Judge Rueter’s Report and Recommendation dismissing Petitioner’s claims for § 2254
relief as time-barred. (Doc. Nos. 48, 50); 28 U.S.C. § 2254. For the following reasons, I
will overrule Petitioner’s objections, approve and adopt the Report, and dismiss the
Petition as time-barred and as a “mixed” Petition.
On September 9, 1987, Petitioner pled guilty in Pennsylvania state court to firstdegree murder and possession of an instrument of crime. He was twenty-four years old
when he committed those offenses. He received a sentence of life imprisonment after the
Commonwealth, in exchange for Petitioner pleading guilty, agreed not to seek the death
penalty. Petitioner has since initiated numerous collateral challenges in state court and
civil rights actions in this Court. (Doc. No. 48 at 1-2, 4 n.2); 42 U.S.C. § 1983.
On February 12, 2014, he filed the instant 240-page § 2254 Petition. (Doc. No.
14); 28 U.S.C. § 2254. Petitioner contends, inter alia, that: (1) he was incompetent when
he pled guilty; and (2) his sentence was unconstitutional under the holding of Miller v.
Alabama that a sentence of “mandatory life without parole for those under the age of
eighteen at the time of their crimes violates the Eighth Amendment.” 132 S. Ct. 2455,
I referred the Petition to Magistrate Judge Rueter for a Report and
Recommendation, and on February 25, 2015, Judge Rueter recommended dismissing the
Petition as time-barred by some seventeen years. (Doc. No. 48 at 6.)
One week earlier, on February 18, Petitioner filed a Notice of Appeal. (Doc. No.
43.) He did not indicate which order he was appealing, however.
On March 13, 2015, Petitioner objected to Judge Rueter’s Report in a 193-page
pro se filing, which he supplemented with hundreds of pages of exhibits. (Doc. Nos. 50,
52, 55-60.) He argues, in relevant part, that his Petition was timely because he could not
challenge his conviction until November 24, 2009, when he received medication that
controlled his purported mental illness. After filing his objections, on April 16, Petitioner
asked me to stay this matter pending the resolution of a state collateral proceeding. (Doc.
Standard of Review
In reviewing the Magistrate Judge’s Report, I must “make a de novo determination
of those portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1)(C). I may “accept, reject, or modify, in
whole or in part” the Magistrate Judge’s findings or recommendations. Id. As to those
portions to which no objections have been made, I must “satisfy [myself] that there is no
clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ.
P. 72(b) Advisory Committee Notes; see Henderson v. Carlson, 812 F.2d 874, 878 (3d
Cir. 1987) (explaining the district court’s responsibility “to afford some level of review”
when no objections have been made).
As I have discussed, Petitioner did not indicate which order he had appealed on
February 18, 2015. In any event, because neither Judge Rueter nor I had issued an
appealable order before February 18, I believe I retain jurisdiction over this matter. (See
Doc. Nos. 2, 4, 6, 9, 12, 13, 15, 22, 26, 28, 32, 34, 37 (orders extending deadlines,
amending case caption, waiving Petitioner’s obligation to file copies, staying
proceedings, referring the matter to Judge Rueter, and addressing Petitioner’s in forma
pauperis status)); see Mondrow v. Fountain House, 867 F.2d 798, 800 (3d Cir. 1989)
(“Unlike a timely notice of appeal, a premature notice of appeal does not divest the
district court of jurisdiction.”); United States v. Wilkes, 368 F. Supp. 2d 366, 367 (M.D.
Pa. 2005) (“[A] district court may continue to exercise authority over a case after the
filing of a notice of appeal . . . if the appeal is patently frivolous [or] relates to a nonappealable order or judgment.” (footnote omitted)).
Statute of Limitations
Because Petitioner’s conviction was final before AEDPA became effective on
April 24, 1996, Petitioner must have sought § 2254 relief by April 23, 1997. See Burns
v. Morton, 134 F.3d 109, 111 (3d Cir.1998) (AEDPA established a one-year “grace
period” for petitioners whose convictions became “final” before the AEDPA became
effective); Douglas v. Horn, 359 F.3d 257, 261 (3d Cir. 2004) (absent tolling, petitioner
in these circumstances must file by April 23, 1997).
To the extent Petitioner argues the limitations clock should have started when
Miller was decided on June 25, 2012, he is incorrect. See 28 U.S.C. § 2244(d)(1)(C)
(limitations clock starts 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”). The
Third Circuit is currently considering whether Miller applies retroactively. Songster v.
Beard, C.A. Case No. 12-3941.
Assuming, arguendo, Miller applies retroactively,
however, it is inapplicable here because Petitioner committed the instant offenses when
he was twenty-four years old. Accordingly, the limitations period does not start on the
date of the Miller decision. See Washington v. Wetzel, No. 13-3278, 2014 WL 982334,
at *2 (E.D. Pa. Mar. 13, 2014) (limitations clock did not start when Miller was decided
because petitioner “was twenty years old at the time he committed the murder”).
I also agree with Judge Rueter that Petitioner has not demonstrated the limitations
period was tolled until February 12, 2013—one year before he filed the instant Petition.
With respect to statutory tolling, although Petitioner filed PCRA proceedings between
April 23, 1997 and February 12, 2013, those proceedings were dismissed as untimely and
thus cannot toll the limitations period. See 28 U.S.C. § 2244(d)(2) (“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 subsection.” (emphasis added)); Merritt v. Blaine, 326
F.3d 157, 165 (3d Cir. 2003) (untimely PCRA petition not “properly filed” under
Moreover, Petitioner has not shown that his purported mental illness equitably
tolled the limitations period. See Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001),
overruled in part on other grounds, Carey v. Saffold, 536 U.S. 214 (2002) (mental illness
is an “extraordinary circumstance” warranting tolling where “the alleged mental
incompetence must somehow have affected the petitioner’s ability to file a timely habeas
petition”); United States v. Harris, 268 F. Supp. 2d 500, 506 (E.D. Pa. 2003) (“A mental
condition that burdens but does not prevent a prisoner from filing a timely habeas petition
does not constitute an extraordinary circumstance warranting equitable tolling.”). For
one, Petitioner alleges that he was competent to challenge his conviction on November
24, 2009—when medication “brought him back down to earth and reality”—but has not
explained why he failed to bring the instant Petition until some four-and-a-half years after
that date. (Doc. No. 48 at 2.) Moreover, he has not presented any record evidence of his
incompetence, and his filing of PCRA and § 1983 proceedings during the time of his
alleged mental infirmity suggests that his equitable tolling contentions are baseless. See
Sincavage v. Cameron, No. 11-7813, 2014 WL 1765246, at *7 (E.D. Pa. May 5, 2014)
(Mag. J.) (collecting cases holding that “[w]here a petitioner has filed other pleadings
during an alleged period of incompetency, courts are often unwilling to find that
equitable tolling is appropriate”). Accordingly, I am compelled to agree that the instant §
2254 Petition is untimely.
Petitioner acknowledges that some of his claims are pending in state court. (Doc.
No. 69.) Accordingly, I conclude in the alternative that his “mixed” Petition must be
dismissed. See Rose v. Lundy, 455 U.S. 509, 510 (1982) (“Because a rule requiring
exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that
a district court must dismiss such ‘mixed petitions,’ leaving the prisoner with the choice
of returning to state court to exhaust his claims or of amending or resubmitting the habeas
petition to present only exhausted claims to the district court.”).
AND NOW, this 20th day of May, 2015, it is hereby ORDERED that:
1. Petitioner’s Writ of Habeas Corpus (Doc. No. 1) is DENIED;
2. The Magistrate Judge’s Report and Recommendation (Doc. No. 48) is
APPROVED AND ADOPTED;
3. Because Defendant has not made a substantial showing of the denial of a
constitutional right, there are no grounds on which to issue a certificate of
4. Defendant’s Miscellaneous Motions (Doc. Nos. 18, 40, 65, 69, 71) are
DENIED as moot; and
5. The Clerk shall mark this case CLOSED.
IT IS SO ORDERED.
/s/ Paul S. Diamond
Paul S. Diamond, J.
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