COLLINS v. WETZEL et al

Filing 17

OPINION SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 8/4/17. 8/8/17 ENTERED AND COPIES E-MAILED.(er, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
_______________________________________
GEORGE COLLINS,
Petitioner,

:
:
:
v.
:
:
JOHN WETZEL, SECRETARY OF PA
:
DEPARTMENT OF CORRECTIONS;
:
DISTRICT ATTORNEY OF THE
:
COUNTY OF PHILADELPHIA;
:
and ATTORNEY GENERAL OF THE
:
STATE OF PENNSYLVANIA,
:
Respondents.
:
_______________________________________

No. 2:14-cv-05013

OPINION
Report and Recommendation, ECF No. 13 - Adopted

Joseph F. Leeson, Jr.
United States District Judge

I.

August 4, 2017

INTRODUCTION
George Collins, through counsel, filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 alleging, inter alia, ineffective assistance of PCRA 1 counsel for failing to timely
file a PCRA petition that would have alleged trial counsel’s ineffectiveness. Magistrate Judge
Lynne A. Sitarski has issued a Report and Recommendation (“R&R”) recommending that the
habeas corpus petition be dismissed as untimely. Collins timely filed objections thereto, arguing
that he should have been afforded an evidentiary hearing and that he is entitled to equitable
tolling. After de novo review and for the reasons set forth below, the R&R is adopted and the
habeas petition is dismissed as untimely.

1

Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541- 9551 (“PCRA”).
1

II.

PROCEDURAL HISTORY
Following a jury trial in the Court of Common Pleas of Philadelphia County, Collins was

found guilty of burglary, three counts of robbery, and three counts of theft by unlawful taking.
See Commonwealth v. Collins, CP-51-CR-0313021-2002 (Phila. Cty. C. P. filed April 3, 2002). 2
On May 5, 2003, he was sentenced to an aggregate term of twenty-five to fifty years of
imprisonment. The Pennsylvania Superior Court affirmed the judgment of sentence on June 3,
2008. Collins did not file a petition for allowance of appeal. Collins was represented by Willie
Lee Nattiel, Esquire, at trial and by Jules Epstein, Esquire, for post-trial motions and on appeal.
On August 27, 2009, Collins, through counsel Bernard Siegel, filed a PCRA petition. On
December 6, 2010, the PCRA court issued notice of its intent to dismiss, to which the parties
responded. The case was continued several times due to counsel’s illness and in August 2011,
Burton Rose, newly retained counsel, entered his appearance and filed for leave to file an
amended PCRA petition, along with the amended petition. The PCRA court granted leave to
amend on August 19, 2011. The Commonwealth thereafter renewed its motion to dismiss and,
on August 28, 2012, 3 the PCRA court dismissed the petition after addressing the merits of the
ineffectiveness claims. On August 2, 2013, the Pennsylvania Superior Court affirmed the
dismissal of the PCRA petition based on its untimeliness, without addressing the merits. The
Pennsylvania Supreme Court denied a petition for allowance of appeal on March 25, 2014.
Collins did not seek certiorari.
The instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on
August 27, 2014, by Burton Rose, Esquire.

2

This Court has obtained and reviewed the state court record.
The R&R mistakenly states that the PCRA court dismissed the petition on July 17, 2013,
but then correctly cites the Order dated August 28, 2012. See R&R 3, ECF No. 13.
3

2

III.

STANDARD OF REVIEW
When objections to a report and recommendation have been filed under 28 U.S.C. §

636(b)(1)(C), the district court must make a de novo review of those portions of the report to
which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989);
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (“providing a complete de novo determination
where only a general objection to the report is offered would undermine the efficiency the
magistrate system was meant to contribute to the judicial process”). “District Courts, however,
are not required to make any separate findings or conclusions when reviewing a Magistrate
Judge’s recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App’x.
142, 147 (3d Cir. 2016). The district “court may accept, reject, or modify, in whole or in part,
the findings and recommendations” contained in the report. 28 U.S.C. § 636(b)(1)(C).
IV.

ANALYSIS
A.

Collins’s PCRA petition and the instant habeas petition were untimely filed.

Pennsylvania’s Post Conviction Relief Act dictates that “[a]ny petition under this
subchapter, including a second or subsequent petition, shall be filed within one year of the date
the judgment becomes final.” 42 Pa. Cons. Stat. Ann. § 9545(b)(1). Similarly, there is a oneyear period of limitation for a person in custody pursuant to the judgment of a State to file an
application for writ of habeas corpus in federal court. See 28 U.S.C. § 2244(d)(1). Section 2244
provides that the one-year period of limitations shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) 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 removed, if
the applicant was prevented from filing by such State action;
(C) 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; or
3

(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
Id. “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.” 28 U.S.C. § 2244(d)(2).
Collins’s sentence became final on July 3, 2008, after the time for him to petition for
allowance of appeal expired. See Pa. R.A.P. 1113 (“[A] petition for allowance of appeal shall be
filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of
the Superior Court.”); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (holding that the
judgment became final by the conclusion of direct review or the expiration of time for seeking
such review). He thus had until July 3, 2009, to timely file a PCRA petition or a federal habeas
petition. But, Collins waited until August 27, 2009, to seek post-conviction relief in the state
court. 4 The state court, as well as Magistrate Judge Sitarski, correctly concluded that the PCRA
petition was untimely filed. Collins is therefore not entitled to statutory tolling and the instant
federal habeas petition was filed more than five years too late. 5
B.

Collins is not entitled to equitable tolling.

The period of limitation may be “subject to equitable tolling in appropriate cases.”
Holland v. Florida, 560 U.S. 631, 645 (2010). “[E]quitable tolling is proper only when the
‘principles of equity would make [the] rigid application [of a limitation period] unfair.’” Miller
v. New Jersey State Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quoting Shendock v.
Director, Office of Workers’ Compensation Programs, 893 F.2d 1458, 1462 (3d Cir. 1990)).
“Generally, this will occur when the petitioner has in some extraordinary way . . . been prevented
4

PCRA counsel mistakenly calculated the filing deadline as September 2, 2009.
Collins does not object to the Magistrate Judge’s calculation of the limitations period or
denial of statutory tolling.
5

4

from asserting his or her rights. The petitioner must show that he or she exercised reasonable
diligence in investigating and bringing [the] claims.” Id. (internal quotations omitted).
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). “Extraordinary
circumstances” may involve an attorney’s failure to satisfy professional standards of care, but “a
simple ‘miscalculation’ that leads a lawyer to miss a filing deadline, does not warrant equitable
tolling.” Holland, 560 U.S. at 649-51.
Collins objects to the Magistrate Judge’s conclusion that he is not entitled to equitable
tolling based on the alleged abandonment by Bernard Siegel, who served as original PCRA
counsel. See generally Objs. 1-7, ECF No. 14. Collins also argues that the filings Attorney
Siegel made in response to the Commonwealth’s motion to dismiss, which the Magistrate Judge
cited in deciding that counsel did not abandon Collins, are irrelevant because they were
submitted after August 3, 2009, when the untimely PCRA petition was filed. Collins asserts that
“the only relevant time frame in this case was between February 2009 and the end of July 2009” 6
and, further, that there is no proof counsel ever notified him of the filings. Collins contends that
this is not a case of garden variety neglect, as the Magistrate Judge implies, but that Attorney
Siegel, who was suffering from terminal cancer, failed to research the applicable time bar law or
to communicate with Collins or his family. He asserts that this conduct was egregious.
After applying de novo review, this Court finds that Magistrate Judge Sitarski, who
discussed the deadline to file a timely PCRA petition, did not err in considering Attorney
Siegel’s conduct after this date in deciding whether his actions were egregious. Contrary to
6

Attorney Siegel was retained on February 12, 2009, and the deadline to file a PCRA
petition was July 3, 2009, which is a period of less than five months.
5

Collins’s assertion that this conduct is irrelevant, because the court must distinguish garden
variety neglect, such as missing a filing deadline due to miscalculation, from more serious
instances of attorney misconduct that may justify equitable tolling, see Holland, 560 U.S. at 65152, the court may consider counsel’s conduct even after the deadline was missed, see Howell v.
Crews, No. 4:04-cv-299, 2013 U.S. Dist. LEXIS 28398, at *7-9 (N.D. Fla. Mar. 1, 2013)
(considering the fact that counsel was preparing the postconviction appeal both before and after
expiration of the AEDPA deadline in deciding that the petitioner failed to establish that counsel’s
conduct amounted to extraordinary circumstances for purposes of equitable tolling). This
conduct includes the following: on August 27, 2009, Attorney Siegel filed the PCRA petition; on
September 8, 2010, Attorney Siegel filed a Response to the Commonwealth’s Motion to Dismiss,
arguing that the PCRA petition was timely filed; on November 1, 2010, Attorney Siegel filed a
More Specific Response to Commonwealth’s Motion to Dismiss, again asserting that the petition
was timely filed; and on December 28, 2010, Attorney Siegel filed a Response to the court’s
notice of intent to dismiss and a request for a hearing on the PCRA petition.
Additionally, on August 26, 2009, Attorney Siegel wrote a letter to Collins’s sister,
Celeste, enclosing a copy of the PCRA petition. 7 Attorney Siegel stated that he spoke with
Collins “on the telephone right after I started this letter, so he is aware of what has been done.”
Collins’s assertion in his objections that “there is no proof that Attorney Siegel ever notified the
Petitioner that he was filing anything on the Petitioner’s behalf,” is therefore without merit. 8
Nevertheless, because this fact may be disputed, this Court will not consider the alleged

7

This letter, dated August 26, 2009, was attached to Collins’s state court Application for
Leave of Court to Amend PCRA Petition filed on August 3, 2011.
8
To the extent Collins asserts that Attorney Siegel did not notify him that he was filing
anything in response to the Commonwealth’s motion to dismiss the PCRA petition as untimely,
this claim is accepted as true for purposes of this Opinion.
6

communication in determining whether Attorney Siegel abandoned Collins. 9
Even without the communication on or about August 26, 2009, the Court agrees with
Magistrate Judge Sitarski that counsel’s subsequent filings in the state court establish that
Attorney Siegel did not abandon Collins. See Maples v. Thomas, 565 U.S. 266, 281 (2012)
(explaining that when an attorney abandons his client, he has severed the principal-agent
relationship and no longer acts, or fails to act, as the client’s representative).
Collins asserts that this is a case like Holland because Attorney Siegel did not
communicate with him. However, in Holland, a capital case, the Court concluded that the
“attorney’s conduct constituted far more than ‘garden variety’ or ‘excusable neglect’” as he
“failed to communicate with his client over a period of years, despite various pleas.” Holland v.
Florida, 560 U.S. 631, 652 (2010) (emphasis added) (finding that an attorney’s failure to timely
file a habeas petition and being unaware of the date on which the limitations period expired
“might suggest simple negligence”). In contrast, Collins’s alleged abandonment is limited to a
period of no more than six months. 10 See Howell, 2013 U.S. Dist. LEXIS 28398, at *7-8
(concluding that counsel’s failure to communicate with her client for “almost seven months,”
9

As will be discussed in greater detail below, because Mr. Siegel is now deceased, an
evidentiary hearing would not resolve such a factual dispute. See United States v. Borrome, No.
97-224, 2000 U.S. Dist. LEXIS 3524, at *6-8 (E.D. Pa. Mar. 15, 2000) (concluding that because
defense counsel was deceased, there was no need for an evidentiary hearing and the court “must
accept the truth of Petitioner’s factual allegations unless they are clearly frivolous”).
10
Collins argues that “the only relevant time frame in this case was between February 2009
and the end of July 2009.” Regardless, even if this Court were to also consider the lack of
communication after July 2009, the result would not change because, inter alia, Attorney Siegel
did not mislead Collins into believing that the PCRA petition was timely filed and Collins did
not act with due diligence to protect his rights. See Skelton v. Ricci, No. 09-234, No. 09-234,
2011 U.S. Dist. LEXIS 40211, at *24-29 (D.N.J. Apr. 13, 2011) (rejecting the equitable tolling
claim based on attorney abandonment because the petitioner was aware of the filing deadline and
aside from his repeated attempts to contact counsel for confirmation that the petition was filed,
he made no affirmative steps to protect his rights and “there was no affirmative lie or
communication by any of the assigned counsel to [the petitioner] that his PCR[A] petition had
been filed;” rather, “[t]here simply was no communication at all by his assigned attorneys”).
7

while preparing the postconviction appeal, did not rise to the level of extraordinary
circumstances under Holland and Maples, and that counsel missed the filing deadline due to
neglect in miscalculating the deadline).
The Holland court also determined that counsel failed to timely inform Holland that the
court had decided his case. See Holland, 560 U.S. at 652. But here, while Attorney Siegel may
not have informed Collins of the Commonwealth’s motion to dismiss or the motions counsel was
filing on Collins’s behalf arguing that the PCRA petition was timely, the court issued no
decisions on the PCRA petition until after Attorney Siegel was no longer involved in the case.
This case is also distinguishable from Holland because the attorney in that case
“apparently did not do the research necessary to find out the proper filing date, despite Holland’s
letters that went so far as to identify the applicable legal rules.” Id. In the instant action,
however, counsel’s untimely filing was not based on a complete lack of research or the failure to
act after being made aware of specific legal rules identifying the correct filing deadline; rather, it
was based on a misunderstanding of state law. See Pet.’s Resp. Notice Pa. R. Crim. P. 907 (filed
Dec. 28, 2010); Pet. Resp. Com.’s Mot. Dismiss (filed Nov. 1, 2010). In his state court briefing,
Attorney Siegel, citing the relevant state statute, asserted that the PCRA petition was timely filed
based on Pennsylvania Supreme Court Administrative Order No. 218, which changed procedural
law in 2000 by allowing petitioners to bypass state supreme court review in direct appeals and
PCRA appeals for exhaustion purposes. Counsel quoted language from Order No. 218 that he
argued supported his position that Collins’s sentence became final ninety days after the
Pennsylvania Superior Court affirmed the judgment of sentence, which is the amount of time an
appellant has to seek certiorari in the United States Supreme Court from the state’s highest court,
instead of thirty days later when the time for him to file a petition for allowance of appeal in the

8

Pennsylvania Supreme Court expired. However, as the Pennsylvania Superior Court and
Magistrate Judge Sitarski explained, this calculation was erroneous because an appellant cannot
seek discretionary review with the United States Supreme Court without first petitioning for an
allowance of appeal with the Pennsylvania Supreme Court. Regardless, this error was not
“extraordinary” so as to warrant equitable tolling. See Lawrence v. Florida, 549 U.S. 327, 33637 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling,
particularly in the postconviction context where prisoners have no constitutional right to
counsel.”); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (“In non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not been found to rise to the
‘extraordinary’ circumstances required for equitable tolling.”); Fisher v. McGinley, No. 14-5478,
2016 U.S. Dist. LEXIS 164863, at *5-8 (E.D. Pa. Nov. 29, 2016) (finding that allegations that
PCRA counsel (1) waited almost a year after the Pennsylvania Superior Court denied the
petitioner’s PCRA appeal, and only after the petitioner sought the Supreme Court’s intervention,
before filing a petition for allowance of appeal; (2) failed to respond to repeated written inquiries
from the petitioner; and (3) failed to notify the petitioner of the Pennsylvania Supreme Court’s
denial of his petition for allowance of appeal, “still [fell] short of the abandonment found to
constitute an extraordinary circumstance in other cases”).
Of note, Collins’s current counsel, Burton Rose, advanced the same argument (that in
light of Administrative Order No. 218 Collins had ninety days after the Superior Court affirmed
judgment to file a PCRA petition “notwithstanding the Commonwealth’s reference to Rule 13”)
to the PCRA court in his Application for Leave of Court to Amend PCRA Petition. See Pet.’s
App. Leave Amend PCRA Pet. (filed Aug. 3, 2011) (stating that “the argument presented ... by
initial PCRA counsel is legally correct”). The attorney abandonment claim was presented only

9

as an alternative argument in the event the court decided that the PCRA petition was untimely.
Collins’s present argument, that Attorney Siegel’s conduct in “fail[ing] to research the applicable
time bar law (especially Rule 13(1) of the United States Supreme Court)” does not involve
garden variety excusable neglect, see Objs. 3-4, is therefore unpersuasive.
For all the reasons stated, Collins’s objection to Magistrate Judge Sitarski’s determination
that Attorney Siegel did not abandon him is overruled.
C.

Collins did not diligently pursue his claim.

Regardless of whether Attorney Siegel’s conduct constituted extraordinary
circumstances, Collins did not diligently pursue his claim. As correctly explained in the R&R,
after the Pennsylvania Supreme Court denied a petition for allowance of appeal, Collins waited
more than five months before filing the instant petition for writ of habeas corpus. See Pace, 544
U.S. at 419 (concluding that the petitioner did not demonstrate the requisite diligence to entitle
him to equitable tolling because “not only did petitioner sit on his rights for years before he filed
his PCRA petition, but he also sat on them for five more months after his PCRA proceedings
became final before deciding to seek relief in federal court”).
Collins compares his case to Holland, but in that matter the Court found that the
petitioner was reasonably diligent because in addition to contacting his attorney, “he also
repeatedly contacted the state courts, their clerks, and the Florida State Bar Association in an
effort to have [his attorney]--the central impediment to the pursuit of his legal remedy--removed
from his case” and “the very day that [the petitioner] discovered that his AEDPA clock had
expired due to [his attorney’s] failings, [the petitioner] prepared his own habeas petition pro se
and promptly filed it with the District Court.” Holland, 560 U.S. at 653 (emphasis in original).
In contrast, although Collins reached out to Attorney Siegel multiple times between February

10

2009 and June 2009 about the approaching PCRA deadline, he did not contact the court during
this time. He also failed to contact the courts after learning in 2010 11 that his PCRA petition was
being challenged as untimely. Further, he waited months, not days, before filing a federal habeas
petition after his PCRA petition was denied in the state courts. Collins has therefore failed to
establish that he has been pursuing his rights diligently.
Moreover, if Attorney Siegel had been correct that the deadline to file a PCRA petition
was September 2, 2009, which would have also meant that the deadline to file a federal habeas
petition was September 2, 2009, he waited until six days before that deadline, until August 27,
2009, to file the petition. That means that if the PCRA petition was timely filed, Collins had
only six days after the PCRA petition was dismissed to seek federal habeas relief, until June
30, 2014. 12 But, the instant habeas petition was not filed until August 27, 2014. Thus, even if
this Court were to accept that September 2, 2009, was the filing deadline and to equitably toll the
time during which the PCRA petition was pending (from August 27, 2009, through June 23,
2014), Collins’s federal habeas petition would nevertheless be untimely.
D.

Martinez v. Ryan is not applicable.

Collins also objects to the Magistrate Judge’s failure to discuss Martinez v. Ryan, 566
U.S. 1 (2012). 13 However, Martinez is not controlling in this case because the instant petition is
being dismissed as time-barred, not as procedurally defaulted. See Stromberg v. Varano, No. 0911

A letter written by Collins’s sister on November 29, 2010, confirms that she and Collins
knew the PCRA petition was being challenged as untimely no later than November 29, 2010.
See Third letter, ECF No. 12.
12
The Pennsylvania Supreme Court denied the petition for allowance of appeal on March
25, 2014, and Collins failed to file a petition for writ of certiorari by June 23, 2014.
13
Martinez held, “[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.” Martinez, 566 U.S. at 17.
11

401, 2012 U.S. Dist. LEXIS 95877, at *18-19 (E.D. Pa. July 10, 2012) (holding that “the
consideration of procedurally defaulted claims does not alleviate a petitioner’s burden to
overcome ADEPA’s statute of limitations or to prove the merits of his case”). In the context of
procedural default, the federal court considers whether it “may excuse a petitioner’s failure to
comply with a state court’s procedural rules, notwithstanding the state court’s determination that
its own rules had been violated.” Holland, 560 U.S. at 650. “Equitable tolling, by contrast, asks
whether federal courts may excuse a petitioner’s failure to comply with federal timing rules, an
inquiry that does not implicate a state court’s interpretation of state law.” Id. Accordingly,
Martinez has no bearing on the Court’s decision as to whether Collins is entitled to equitable
tolling. See DeShields v. Kerestes, No. 3:13-CV-1965, 2014 U.S. Dist. LEXIS 81238, at *15 n.1
(M.D. Pa. June 12, 2014) (citing McGrue v. Kerestes, No. 13-4018, 2014 U.S. Dist. LEXIS
73826, *9 (E.D. Pa. 2014) (“The Martinez decision impacts cases where claims are otherwise
procedurally defaulted, but has no bearing on a petitioner’s obligation to file a federal petition
within the federal limitations period.”), adopted by 2014 U.S. Dist. LEXIS 73019 (E.D. Pa. May
29, 2014)). This objection is therefore without merit.
E.

An evidentiary hearing would not be productive.

Finally, Collins argues that it was error not to schedule an evidentiary hearing because it
“remov[ed] any opportunity on Petitioner’s part to establish that counsel was retained by the
family and was expected to file a timely PCRA petition by Petitioner, that Petitioner received no
timely[14] notice that the Petition was being challenged as untimely by the Commonwealth and
that counsel’s fatal illness prevented him from meeting his obligations to the Petitioner.” Objs.

14

This Court accepts as true that Collins was not immediately notified that his PCRA
petition was being considered untimely. However, he was aware of this issue no later than
November 29, 2010. See Third letter.
12

4. “In deciding whether to grant an evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true,
would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474
(2007). For purposes of this Opinion, the Court accepts that Attorney Siegel was retained by
Collins’s family and expected to file a timely PCRA petition, and that Collins did not have
timely notice that the PCRA petition was being challenged as untimely. The Court also accepts
that Collins and his sister attempted to communicate with Attorney Siegel numerous times to no
avail. Thus, an evidentiary hearing to elicit testimony on these points is not necessary. As to
whether Attorney Siegel’s illness prevented him from meeting his obligations to Collins, this
Court finds that an evidentiary hearing would not be helpful because Attorney Siegel is now
deceased and could not explain his actions. See Ragan v. Wetzel, No. 00-2092, 2014 U.S. Dist.
LEXIS 185399, at *63 (E.D. Pa. Sept. 29, 2014) (concluding that “trial counsel is deceased so an
evidentiary hearing would not be beneficial in determining whether trial counsel had a
reasonable strategy for not objecting”). To the extent that Collins would like to subpoena
Attorney Siegel’s medical records, there is no dispute that counsel had a serious illness.
However, as discussed above, this illness did not prevent him from making numerous filings on
Collins’s behalf between August 2009 and December 2010. These filings indicate that Attorney
Siegel mistakenly believed he filed the PCRA petition on time, which is garden variety neglect,
and not that he delayed filing based on his illness or misconduct. As he is now deceased, an
evidentiary hearing could not resolve any factual disputes in this regard. See Young v. Gipson,
163 F. Supp. 3d 647, 749 (N.D. Cal. Sept. 11, 2015) (finding that “to the extent disputes remain
about [a juror’s] credibility, a hearing would not resolve them” and therefore “was no longer
possible”). The request for a hearing is therefore denied. See Schriro, 550 U.S. at 473 (holding

13

that the decision to grant an evidentiary hearing is generally left to the sound discretion of district
courts); Borrome, 2000 U.S. Dist. LEXIS 3524, at *6-7 (concluding that because defense counsel
was deceased, an evidentiary hearing “would be an unproductive use of judicial resources” ).
V.

CONCLUSION
After applying de novo review, this Court concludes that Magistrate Judge Sitarski

correctly determined that the instant petition for writ of habeas corpus is untimely and that no
equitable exceptions to the period of limitations apply. This Court therefore adopts the
recommendation to dismiss the habeas petition as untimely, and concludes that there is no basis
for the issuance of a certificate of appealability15 because jurists of reason would not find it
debatable that Collins’s petition is time-barred, and is not subject to equitable tolling.
A separate Order will be issued.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.___________
JOSEPH F. LEESON, JR.
United States District Judge

15

“When, as here, the district court denies relief on procedural grounds, the petitioner
seeking a COA must show both ‘that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.’” Gonzalez v.
Thaler, 132 S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
14