WILKINS v. LANE et al
MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE MARK A. KEARNEY ON 9/29/17. 9/29/17 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
JAY LANE, et al.
September 29, 2017
Darnell Wilkins objects to United States Magistrate Judge Perkin's Report and
Recommendation denying his petition for habeas corpus relief. Judge Perkin's comprehensive
analysis addresses each of Mr. Wilkins' grounds for relief.
To ensure we address all of his
habeas petition's grounds and later objections, we fully reviewed the petition and objections to
Judge Perkin's detailed analysis.
Upon review, we overrule Mr. Wilkins' objections, adopt
Judge Perkin's Report and Recommendation and dismiss the petition for habeas relief finding no
basis to issue a certificate of appealability in the accompanying Order.
On March 17, 2008, Darnell Wilkins pled guilty to seven counts of robbery, one count of
aggravated assault, and eight counts of possession of an instrument of crime. 1 The state court
accepted Mr. Wilkins's guilty plea and sentenced him to a negotiated aggregate term of fifteen to
thirty years imprisonrnent.2 Mr. Wilkins did not move to withdraw his guilty plea or file a direct
appeal to the Pennsylvania Superior Court. 3
Mr. Wilkins instead filed a pro se petition for collateral review under the Pennsylvania
Post-Conviction Relief Act on July 12, 2010 alleging constitutional violations, ineffective
assistance of counsel, and an unlawfully induced guilty plea. 4 The court appointed counsel to
represent him, but the attorney filed a February 13, 2012 letter and moving to withdraw because
the claims lacked merit. 5 The PCRA court dismissed Mr. Wilkins' petition as frivolous on April
16, 2012. 6
Mr. Wilkins appealed the denial of his PCRA petition to the Pennsylvania Superior Court
on May 15, 2012. 7 Before submitting his brief, Mr. Wilkins filed a prose motion for discovery,
which the superior court denied on August 22, 2012. 8 He moved for reconsideration of the
discovery ruling, which the superior court denied. 9 Mr. Wilkins filed a pro se brief in the
superior court claiming the PCRA court abused its discretion in failing to consider his being
subject to an improper preliminary hearing and the trial court lacked jurisdiction to accept his
guilty plea. 10 Mr. Wilkins argued his mental incompetence prevented him from validly entering
a guilty plea and from timely filing a pro se direct appeal or PCRA petition.
The superior court
affirmed the PCRA court's denial of the PCRA petition finding his issues lacked merit, were
untimely, and did not meet the exceptions to the one-year statute of limitations.
Mr. Wilkins filed a May 13, 2016 Petition for leave to file a petition for allowance of
appeal nunc pro tunc. 13 The Pennsylvania Supreme Court declined to review the appeal on July
5, 2016. 14 He then filed a Petition for writ of habeas corpus ad subjiciendum in the Court of
Common Pleas of Philadelphia County on July 11, 2016 challenging the calculation of restitution
owed to the victims.
This petition is pending before the state court. 16
Mr. Wilkins filed a November 2, 2016 prose Petition for writ of habeas corpus alleging
1) violation of his appellate and PCRA rights; 2) he did not voluntarily, intelligently, or
knowingly enter his guilty plea because he suffers from a "mental health problem;" and 3) he
could not timely pursue an appeal or collateral review. 17 Mr. Wilkins alleged his "mental health
problem" prohibited his timely filing the habeas petition. 18
We referred this case to the Honorable Henry S. Perkin for a Report and
Recommendation. 19 Judge Perkin timely issued a July 28, 2017 Report and Recommendation
finding Mr. Wilkins's federal habeas corpus petition statutorily time-barred and ineligible for
either statutory or equitable tolling. 20 Judge Perkin recommended denial with prejudice of Mr.
Wilkins's petition and dismissal without an evidentiary hearing. 21
Mr. Wilkins now objects, moving for reconsideration and stay, to Judge Perkin's July 28,
201 7 comprehensive Report and Recommendation. 22 Mr. Wilkins argues (1) Judge Perkin
incorrectly found Mr. Wilkins did not demonstrate good cause to require the Commonwealth to
provide documents and discovery 23 needed to show the trial court lacked jurisdiction at the time
of his guilty plea because the Commonwealth did not establish a prima facie case against him, 24
(2) "he was denied due process because he never had a competency hearing or investigation into
his mental health and effects of the medication (i.e. thorzine) he was taking during his guilty
plea"25 , and (3) "his PCRA counsel wrongly advised him that he had one (1) year to file the
instant habeas petition from the date his PCRA Petition was appealed to the Pennsylvania
Supreme Court and denied. " 26
A. Mr. Wilkins's federal habeas petition is statutorily time-barred.
The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of
limitations to apply for a writ of habeas corpus challenging a state court judgment. 27 The
limitation period begins on "the date on which the judgment of sentence became final by the
conclusion of direct review or the expiration of time for seeking such review." 28 An exception
exists when direct review of a criminal conviction concluded before the April 24, 1996 effective
date of the Antiterrorism and Effective Death Penalty Act. 29 Such cases are permitted one year
from April 24, 1996 to file a habeas petition. 30 Our court of appeals considers "direct review" to
mean "review of the state's highest court."
Under Pa.R.A.P. 903, a party has thirty days to file
an appeal after the entry of an order. 32
Mr. Wilkins's judgment of sentence became final on April 17, 2008, thirty days after his
March 17, 2008 guilty plea and when his time for filing a notice of appeal with the Pennsylvania
Superior Court expired. 33 The one-year time limit for Mr. Wilkins to file a timely federal
Petition for writ of habeas corpus began on April 17, 2008 and concluded on April 17, 2009. Mr.
Wilkins filed his habeas petition on November 3, 2016, over seven years after the expiration of
the limitation period. 34
1. Mr. Wilkins's federal habeas petition is ineligible for statutory tolling.
We adopt and approve Judge Perkin's finding Mr. Wilkins is ineligible for an extended
deadline for the limitation period under 28 U.S.C. § 2244(d)(l). 35
2. Mr. Wilkins's federal habeas petition is ineligible for equitable tolling.
Judge Perkin found Mr. Wilkins's untimely petition is not eligible for equitable tolling.
We agree. Mr. Wilkins argues he is entitled to equitable tolling because his "mental health
problems[,] he was unable to file a timely PCRA petition," as well as a timely habeas petition. 36
The Supreme Court directs equitable tolling applies to the Antiterrorism and Effective
Death Penalty Act statute of limitations. 37 But equitable tolling is limited in its application. 38
"The two general requirements for equitable tolling [are]: (1) that 'the Petitioner has in some
extraordinary way been prevented from asserting his or her rights;' and (2) that the petitioner has
shown that 'he or she exercised reasonable diligence in investigating and bringing [the]
claims. "' 39 Our court of appeals allows three instances for equitable tolling: "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." 40
a. Mr. Wilkins's alleged mental incapacity does not entitle him to
Mr. Wilkins argues "he was denied due process because he never had a competency
hearing or investigation into his mental health and effects of the medication (i.e. thorzine) he was
taking during his guilty plea."41 Judge Perkin found Mr. Wilkins's alleged mental incapacity did
not hinder his ability to timely file his habeas petition. We agree.
Our court of appeals directs mental incompetency coupled with attorney abandonment
may be deemed an "extraordinary circumstance" to justify equitable tolling, but "mental
incompetence is not a per se reason to toll a statute of limitations." 42 For equitable tolling to be
appropriate, '"the alleged mental incompetence must somehow have affected the petitioner's
ability to file' a timely action." 43
The burden rests on the petitioner to demonstrate a
"particularized description of how [his] condition adversely affected [his] capacity to function
generally or in relationship to the pursuit of [his] rights" in order for equitable tolling for mental
illness to apply. 44 Mr. Wilkins's "alleged mental incompetence must somehow have affected
an undefined and expansive category" is not a basis for equitable tolling in and of itself. 46 Mr.
Wilkins must demonstrate his mental incompetence caused him "an inability to pursue [his] legal
rights, provided there is a nexus between [his] mental condition and [his] inability to file a timely
"[A] mental condition that burdens but does not prevent a prisoner from filing a timely
petition does not constitute 'extraordinary circumstances' justifying equitable tolling." 48 A
mental impairment "even rising to the level of insanity" may not be enough to warrant equitable
tolling. 49 Even the combination of a prose plaintiff with a mental incapacity is not enough for
equitable tolling. 50 The mental condition must have "made it impossible to file a petition on
Mr. Wilkins cannot conclusively claim his mental impairment prevented him from timely
filing without demonstrating his mental disability hindered him from submitting his habeas
petition on time. 52 In Champney v. Secretary Pennsylvania Department of Corrections, our court
of appeals defined the factors we must consider in determining if an individual's mental
incapacity prevented him from filing on time: "(l) [whether] the petitioner [was] adjudicated
incompetent and, if so, when did the adjudication occur in relation to the habeas statutory period;
(2) [whether] the petitioner [was] institutionalized for his mental impairment; (3) [whether] the
petitioner handled or assisted in other legal matters which required action during the federal
limitations period; and (4) [whether] the petitioner supported his allegations of impairment with
extrinsic evidence such as evaluations and/or medications." 53
Mr. Wilkins has not met the Champney factors. As Judge Perkin found, Mr. Wilkins has
not adduced evidence of being adjudicated incompetent or institutionalized for his alleged mental
He did not provide documents or medical evidence corroborating his alleged
mental impairments. He still does not provide medical records or documents corroborating a
specific diagnosis, his alleged thorzine prescription, or if the thorzine compromised his ability to
participate in the proceedings or timely file during the appeals process.
"[T]he use of
psychotropic medications can weigh against equitable tolling, because frequently the treatment
of mental illness with drugs will 'restore the patent to at least a reasonable approximation of
normal mentation and behavior[ ] and [w]hen ... illness is controlled [an individual] can work
and attend to his affairs, including the pursuit of any legal remedies that he may have. "' 54
Even if Mr. Wilkins provided medical evidence of his mental incompetence and
prescriptions, we still could not per se find his mental incapacity caused his late filing and
equitable tolling would not apply. 55 Relying on the Commonwealth's Response, Judge Perkin
found Mr. Wilkins's behavior throughout his appeals process indicates his alleged mental
impairment did not hinder him from timely filing his habeas petition. Judge Perkin described
Mr. Wilkins "as an active litigant during the entire period for which he seeks tolling. He filed
numerous pro se petitioners, briefs, and motions at all levels of Pennsylvania's judicial system
well before turning to this matter:
A pro se PCRA petition m March 2012, which invoked Holland for the
proposition that he was entitled to equitable tolling. Habeas Petition, pg. 20; Commonwealth v.
Darnell Wilkins, CP-51-0000782-2008, pg. 12-13.
A timely pro se appeal from the deial of PCRA relief and submitted: a) a motion
for discovery; b) an appellate brief; and c) a reply brief. See Exhibit B [to Response, Dkt. No.
A petition for allocator nunc pro tune in May 2016, still acting pro se.
Exhibit D [to Response, Dkt. No. 12].
In July 2016, a state habeas petition arguing to reduce his restitution payments.
See Exhibit E [to Response, Dkt. No. 12].
In short, petitioner actively prosecuted cases at all level of the Pennsylvania Courts from
July 2010 through July 2016.
He nevertheless neglected to file this habeas petition until
November of 2016. Such activity in state court shows that petitioner was able to file a habeas
petition well before this date, but simply ignored pursuing his federal rights for over seven years.
Such activity demonstrates that equitable tolling is not appropriate here. " 56
We accept Judge Perkin's finding Mr. Wilkins failed to demonstrate his mental
incapacity prevented him from timely filing his habeas petition.
b. Misinformation from his attorney regarding the filing deadline does
not entitle Mr. Wilkins to equitable tolling.
Mr. Wilkins argues his Post-Conviction Relief Act counsel improperly advised him he
had one year to file a habeas petition from the date the Pennsylvania Supreme Court denied his
Post-Conviction Relief Act Petition. 57
"There is no constitutional right to an attorney in state post-conviction proceedings." 58 A
plaintiff cannot bring a claim for constitutional ineffective assistance of counsel when no such
constitutional right exists. 59 "[A] petitioner 'must "bear the risk of attorney error.""' 60 In
Lawrence v. Florida, the plaintiff filed a federal habeas application over one hundred days after
the expiration of the one-year limitations period. 61 The plaintiff argued the "his counsel's
mistake in miscalculating the limitations period" caused the untimely filing and equitable tolling
should apply. 62 Our Supreme Court rejected this argument holding "[a]ttorney miscalculation is
simply not sufficient to warrant equitable tolling, particularly in the post-conviction context
where prisoners have no constitutional right to counsel." 63 The Court reasoned the plaintiffs
"argument would essentially equitably toll limitations periods for every person whose attorney
missed a deadline. " 64
Absent attorney error, a pro se petitioner's ignorance of the law does not provide a basis
for equitable tolling. 65 As the court in Lawrence rejected the petitioner's argument his attorney's
miscalculation of the deadline caused his untimely filing, we find Mr. Wilkins is not entitled to
equitable tolling because his attorney allegedly misinformed him of the deadline to file his
3. Mr. Wilkins failed to demonstrate good cause to compel the
Commonwealth to provide a copy of his guilty plea and preliminary
hearing transcripts and the issue is time barred.
Mr. Wilkins sought default judgment after the Commonwealth failed to provide him with
a copy of the guilty plea and preliminary hearing transcripts when responding to this present
petition. He objects to Judge Perkin's finding he did not demonstrate good cause to compel the
Commonwealth to provide these transcripts.
Under Rule 6 of the Rules Governing § 2254 cases, "[a] judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of Civil Procedure." 66 The
district court has discretion to permit discovery in a habeas proceeding.
"In order to establish
good cause a petitioner must point to specific evidence that might be discovered that would
support a constitutional claim." 68 "Bald assertions and conclusory allegations do not provide
sutlicient ground to warrant requiring the state to respond to discovery." 69 A petitioner's
discovery demands must be "specific, not merely speculative or conclusory." 70 In Taylor v.
Carol, the petitioner requested the court to order respondent to produce the grand jury minutes
and voir dire testimony transcripts to determine if the requisite twelve or more jurors indicted
him. 71 The court found he did not present "any specific evidence or allegations indicating there
is a possibility that he was indicted by less than twelve jurors, or that unqualified jurors were on
the jury" and determined "it appears that he is on a 'fishing expedition' to comb through files to
determine if he has a claim." 72
Mr. Wilkins argues "the trial court lacked jurisdiction to accept his guilty plea because
there was no preliminary hearing or competent evidence presented by the Commonwealth to
establish a prima facie case existed and there was no 'factual basis' placed on record for the
plea,[ ... ] and the fact that this Court did in fact order the Respondent to 'attach copies of the
pertinent records' to the Response to the Petition, the preliminary hearing record and the guilty
plea record are pertinent records which Respondent failed or refused to attach to the Response to
the Petition, and Petitioner showed "good cause" for discovery of same by asserting that the
preliminary hearing transcript and guilty plea transcript will show that [Mr. Wilkins] is entitled
to release from custody." 73
Judge Perkin found "this Court did not direct Respondents to provide Petitioner with any
documents or discovery" 74 and acknowledge the January 6, 2017 Order requesting all records,
including transcripts. 75 But, similar to the petitioner in Taylor's unsupported conclusion the
government failed to properly indict him, we find Mr. Wilkins failed to raise "specific evidence
or allegations" the trial court did not have jurisdiction to accept his guilty plea and the
Commonwealth failed to establish a prima facie case existed in support of Mr. Wilkins's guilty
plea. Mr. Wilkins conclusively asserts allegations without citing to specific evidence.
overrule his objection and adopt and approve Judge Perkin's finding Mr. Wilkins failed to
demonstrate good cause to compel discovery.
We also adopt and approve Judge Perkin's finding Mr. Wilkins's request for discovery is
time barred due to his untimely filing. 76
In the accompanying Order, we approve and adopt Judge Perkin's comprehensive Report
and Recommendation and dismiss Mr. Wilkins' petition for habeas corpus relief. We agree with
Judge Perkin the petition must be dismissed.
We further find no basis for a certificate of
ECF Doc. No. 7, State Court Dockets; Court of Common Pleas of Philadelphia County, CP-51CR-0000782-2008, CP-51-CR-0000745-2008, CP-51-0000703-2008.
Doc. No. 15 at 2.
ECF Doc. No. 7, State Court Documents; Court of Common Pleas of Philadelphia County, CP51-CR-0000745-2008, Comm. v. Wilkins, Darnell, Filed July 12, 2010.
ECF Doc. No. 7, State Court Documents; Court of Common Pleas of Philadelphia County, CP51-CR-0000745-2008, Comm. v. Wilkins, Darnell, PCRA - Finley Letter, Filed Feb. 13, 2012;
Court of Common Pleas of Philadelphia County, CP-51-CR-0000745-2008, Comm. v. Wilkins,
Darnell Motion to Withdraw as Counsel (Filed Feb. 13, 2012).
ECF Doc. No. 7, State Court Documents; Court of Common Pleas of Philadelphia County, CP51-CR-0000745-2008, Comm. v. Wilkins, Darnell, Order Denying PCRA Petition as Frivolous Attorney Relieved - Finley, April 16 2012.
ECF Doc. No. 7, State Court Documents; Court of Common Pleas of Philadelphia County, CP51-CR-0000745-2008, Comm. v. Wilkins, Darnell, Statement of Matters Complained on Appeal,
Filed May 15, 2012.
ECF Doc. No. 15 at 3.
ECF Doc. No. 7, State Court Docket; Superior Court of Pennsylvania, 1557 EDA 2012.
°Commonwealth v. Darnell Wilkins, 2013 WL 11276251 (Pa.Super. 2013).
ECF Doc. No. 7, State Court Docket; Supreme Court of Pennsylvania, 68 EM 2016.
Commonwealth v. Darnell Wilkins, 2016 Pa. LEXIS 1402 (Pa. July 5, 2016)(table).
ECF Doc. No. 1.
ECF Doc. No. 1at5-10.
ECF Doc. No. 1at14.
ECF Doc. No. 15.
Id. at 5-14.
Id. at 15.
ECF Doc. No. 19.
ECF Doc. No. 19 at 2.
Id. at 3.
Id. at 4.
28 U.S.C. § 2244 requires:
(d)(l) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The limitation
period 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
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(l).
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Kapral v. United States, 166 F.3d 565, 573 (3d Cir. 1999)(quoting Gendron v. United States,
154 F.3d 672, 674 (7th Cir. 1998)).
Pa.R.A.P. 903; See also ECF Doc. No. 15 at 7.
See ECF Doc. No. 1.
ECF Doc. No. 15 at 8.
ECF Doc. No. 1 at 14.
Hollandv. Florida, 560 U.S. 631, 645 (2010).
Sistrunkv. Rozum, 674 F.3d 181, 190 (3d Cir. 2012).
Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003)(citing Fahy v. Horn, 240 F.3d 239, 244 (3d
°Fahy, 240 F.3d at 244 (3d Cir.
2001)(citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir.
ECF Doc. No. 19 at 3.
Nara v. Frank, 264 F.3d 310, 319-320 (3d Cir. 2001)(citing Lake v. Arnold, 232 F.3d 360, 371
(3d Cir. 2000)).
Champney v. Secretary Penn. Dept. of Corrections, 469 Fed.Appx. 113, 177 (3d Cir.
2001)(quoting Nara, 264 F.3d at 320)).
Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010)(quoting Boos v. Runyon, 201 F.3d
178, 185 (2d Cir. 2000).
Champney, 469 Fed.Appx. at 177 (3d Cir. 2001)(citing Nara, 264 F.3d at 320).
United States v. Harris, 268 F.Supp.2d 500, 506 (E.D.Pa. 2003)(quoting Nara, 264 F.3d at
Hedges v. United States, 404 F.3d 744, 753 (3d Cir. 2005).
Heath v. Commonwealth, C.A. Nos. 06-4787, 07-1766, 07-3013, 2007 WL 2207776, at * 3
(E.D.Pa. July 27, 2007)(quoting Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003)).
Ross v. Varano, 712 F.3d 784, 803 (3d Cir. 2013).
Champney, 469 Fed. Appx. at 117 (3d Cir. 2001 )(citing Passmore v. Pennsylvania, No.
080705, 2008 WL 2518108, at *3 (M.D.Pa. 2008).
Boyd v. Gills, 2004 WL 2397296, at *3 (E.D.Pa. Oct. 25, 2004)(citing Miller v. Runyon, 77
F.3d 189, 192 (7th Cir. 1996)).
Boyd, 2004 WL 2397296, at *3(court found mental incompetence did not prohibit timely filing
even after review of petitioner's medical records and psychiatric evaluations); See also Harris,
268 F.Supp.2d at 506 (equitable tolling inapplicable even after petitioner corroborated
allegations of mental incompetence with expert testimony).
ECF Doc. No. 12 at 6-7; See also ECF Doc. No. 15 at 12-13.
ECF Doc. No. 19 at 4.
Coleman v. Thompson, 501 U.S. 722, 752 (l99l)(citingPennsylvania v. Finley, 481 U.S. 551
(1987); See also Murray v. Giarratano, 492 U.S. 1 (1989).
Coleman, 501 U.S. at 752 (citing Wainwright v. Torna, 455 U.S. 586 (1982)).
Hollandv. Florida, 560 U.S. 631, 651 (2010) (quoting Coleman, 501 U.S. at 752-753).
Lawrence v. Florida, 549 U.S. 327, 329 (2007)
Id. at 336.
Id. at 336-337.
Id. at 336.
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004)(citing Cross-Bey v. Gammon, 322
F.3d 1012, 1015 (8th Cir.2003)); See also United States v. Riggs, 314 F.3d 796, 799 (5th Cir.
2002); Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (equitable tolling did not apply when
Plaintiff failed to show attorney intentionally deceived him regarding the statute oflimitations)).
United States ex rel. Adonai-Adoni v. Prison Health Services, 2007 WL 2407281, at *1
(E.D.Pa. Aug. 20, 2007).
Adonai-Adoni, 2007 WL 2407281, at *1; See also Taylor v. Carroll, 2003 WL 22075693, at
* 1 (D.Del. Aug. 29, 2003).
Taylor, No. 03-07, 2003 WL 22075693, at *l.
Zettlemoyer v. Fu/comer, 923 F.2d 284, 301 (3d Cir. 1991)(citing Mayberry v. Petsock, 821
F.2d 179, 185 (3dCir. 1987)).
Taylor v. Carol, No. 03-07, 2003 WL 22075693, at *1 (citing Murphy v. Johnson, 205 F.3d
809 (5th Cir.2000)).
Id. at *2.
ECF Doc. No. 19 at 2-3.
ECF Doc. No. 14.
ECF Doc. No. 5.
ECF Doc. No. 14.
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