KENNEDY v. THE DISTRICT ATTORNEY OF THE COUNTY OF CHESTER et al
OPINION. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 11/30/17. 12/1/17 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
THE DISTRICT ATTORNEY OF
THE COUNTY OF CHESTER; and
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA;
Report and Recommendation, ECF No. 9 – Adopted
Joseph F. Leeson, Jr.
United States District Judge
November 30, 2017
Shamon Kennedy filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 challenging his 2009 conviction for aggravated assault, conspiracy to commit aggravated
assault, firearms not to be carried without a license, persons not to possess, use, manufacture,
control, sell, or transfer firearms, and five counts of recklessly endangering another person. ECF
No. 1. Kennedy later filed an amended petition. 1 ECF No. 2. United States Magistrate Judge
Linda K. Caracappa issued a Report and Recommendation (R&R) recommending that the habeas
corpus petition be dismissed as untimely. ECF No. 9. Kennedy timely filed objections to the
R&R. ECF No. 10. After de novo review and for the reasons set forth below, the R&R is adopted
and the habeas petition is dismissed as untimely.
The amended petition is identical to the first petition, except that it is unsigned and
undated and contains additional exhibits.
FACTUAL AND PROCEDURAL HISTORY
The Court adopts the factual and procedural history as summarized by Magistrate Judge
Caracappa in the R&R. In his Objections, Kennedy takes issue with the R&R because it lists four
grounds for relief instead of the six in his petition. Pet’r’s Objs. 1-2. Kennedy does in fact
present six claims in his habeas petition: (1) that the prosecutor committed misconduct by crossexamining him at trial about a previous federal conviction; (2) that the trial court committed
error by allowing the prosecution to ask about his federal conviction; (3) that
trial counsel was ineffective for not filing a motion in limine to prevent the prosecution from
asking about his federal conviction; (4) that trial counsel was ineffective for not requesting
a mistrial and cautionary instruction concerning his federal conviction; (5) that trial counsel was
ineffective for not asking additional questions of a witness for the defense; (6) that trial counsel
was ineffective for not asking Kennedy specific questions about seeing a co-conspirator with two
guns before the incident. This Court concludes that the R&R otherwise accurately summarizes
the facts and procedural history of the case.
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) (2009).
This Court has considered Kennedy’s Objections to the R&R and conducted a de novo
review of his habeas corpus petition. Magistrate Judge Caracappa correctly concluded that
Kennedy did not file his habeas petition within a year after his conviction became final, taking
into account statutory tolling for his properly filed first PCRA petition; the Court makes no
separate findings or conclusions in this regard. See Hill, 655 F. App’x. at 147. Kennedy does not
dispute these conclusions in his Objections, but argues instead that the alternative statute of
limitations calculation in 28 U.S.C. § 2254(d)(1)(B) applies or, in the alternative, equitable
tolling should save his claim. Neither of these arguments justifies extending the limitations
period beyond May 18, 2014, and Kennedy’s petition is untimely.
As Magistrate Judge Caracappa recognized, applying statutory tolling for the period
when his properly filed first PCRA petition was pending, Kennedy had thirty-two days to file a
habeas petition after the Pennsylvania Supreme Court denied his petition for allowance of appeal
on April 16, 2014, such that the statute of limitations expired on May 18, 2014. Kennedy argues
that the statute of limitations should begin to run instead on May 7, 2015, when he received the
order from the PCRA court denying his second PCRA petition as untimely, and run until May 7,
2016. He contends that, because of his incarceration in federal prison without access to
Pennsylvania legal materials, he “was denied the opportunity of going through the post
conviction process aware of how the procedural rules work to inform him of when to file, his
option to file a federal habeas and what the deadline would of [sic] been for the federal habeas
the way other state prisoners are afforded that access.” Pet. 28-29. If he had had access to “state
procedural rules and laws,” Kennedy argues, he would have filed a timely state PCRA petition
and “known he had a federal habeas option and the deadline for it to be filed.” Id. at 29. In short,
Kennedy argues that this Court should accept his petition because of his unfamiliarity with the
Pennsylvania collateral relief rules and the availability of habeas relief.
Kennedy’s lack of familiarity with Pennsylvania collateral relief procedure does not
entitle him to the alternative calculation of the statute of limitations under 28 U.S.C. §
2254(d)(1)(B). This alternative calculation allows the one-year statute of limitations clock to run
from “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.” 28 U.S.C. § 2254(d)(1)(B). Kennedy argues that his
incarceration in federal prison without access to Pennsylvania legal materials impeded his ability
to file his habeas petition, and that this “impediment” was removed on May 7, 2015, when he
received the order from the PCRA court denying his second PCRA petition as untimely. Pet. 28.
Kennedy’s reliance on his lack of access to Pennsylvania legal materials while in federal
prison is misplaced, because the issue before this Court is the timeliness of his federal habeas
petition, not his Pennsylvania PCRA petitions. And Kennedy’s own habeas petition casts doubt
on his argument that he first became aware of the one-year habeas deadline on May 7, 2015. In a
letter to the PCRA court dated November 21, 2012, discussing communication issues between
his PCRA counsel and him, Kennedy writes: “I am in a situation where effective representation
is especially needed by PCRA counsel because I am currently acting as a pro se litigant on my
Federal 2255 petition and struggling to meet the one year statute of limitations deadline.” Pet’r’s
Ex. Q, ECF No. 2 at 161. Thus, Kennedy knew of the one-year statute of limitations for habeas
corpus as of late November 2012—and still waited over three years to file his petition.
But even accepting at face value his argument that he truly did not know about the oneyear deadline until May 7, 2015, his own ignorance of the federal deadline does not establish a
state-created impediment. Nor did his uncertainty about the timeliness of his PCRA petitions and
the proper procedure in Pennsylvania courts impede Kennedy from filing a habeas petition.
Previous courts have recognized that limited access to legal resources in prison is not a statecreated impediment. See, e.g., Otero v. Warden, SCI Dallas, No. CV 16-4643, 2017 WL
2469616, at *2 (E.D. Pa. June 7, 2017) (finding that prison’s delay in providing a recent
Supreme Court decision was “a reality of prisoners’ limited access to library materials rather
than a state-created impediment”). Lest these rules be considered overly harsh, the Third Circuit
Court of Appeals has recognized a petitioner’s ability to file a “protective habeas” petition and
ask the federal court to stay and abey the habeas proceeding until the petitioner exhausts state
claims, and has encouraged petitioners to do so. See Darden v. Sobina, 477 Fed. App’x. 912, 918
(3d Cir. 2012) (quoting Pace v. DiGugliemo, 544 U.S. 408, 416 (2005)). See also Fisher v.
McGinley, No. CV 14-5478, 2016 WL 6995045, at *1 (E.D. Pa. Nov. 29, 2016) (holding that
petitioner’s concern about exhausting state remedies did not prevent filing of habeas petition).
Kennedy has not shown that the alternative statute of limitations in 28 U.S.C. § 2254(d)(1)(B)
applies to his petition.
Nor does Kennedy’s claimed ignorance of the applicable law entitle him to equitable
tolling of the statute of limitations. Equitable tolling requires a petitioner to show (1) that he has
been pursuing his rights diligently and (2) that an extraordinary circumstance prevented him
from filing his petition on time. Holland v. Florida, 560 U.S. 631, 649 (2010). Kennedy argues
that this Court should apply equitable tolling during the period that he did not have access to
procedural rules and laws while in prison, such that the one-year limitations period should expire
May 7, 2016. However, as Magistrate Judge Caracappa correctly recognized, lack of legal
knowledge concerning applicable deadlines does not entitle a petitioner to equitable tolling. See
Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013) (observing that “reasonable diligence”
inquiry applies to pro se petitioners and lack of legal knowledge does not alone justify equitable
tolling); Fisher, 2016 WL 6995045, at *1 (noting that petitioner’s claim that he had “no clue”
about the federal limitations period and required more time “to discover the exigencies of habeas
corpus” did not justify equitable tolling). Kennedy has not shown extraordinary circumstances
that prevented him from complying with the one-year timeline or that he exercised reasonable
diligence. Therefore, he is not entitled to equitable tolling.
Magistrate Judge Caracappa correctly concludes that the instant petition for writ of
habeas corpus is untimely. This Court therefore adopts the findings and conclusions in the
Report and Recommendation and follows the recommendation to deny the habeas petition as
untimely. There is no basis to issue a certificate of appealability.
A separate Order will be issued.
BY THE COURT:
/s/ Joseph F. Leeson, Jr.___________
JOSEPH F. LEESON, JR.
United States District Judge
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