PULANCO v. SOUTHERS et al

Filing 12

ORDER THAT THE REPORT AND RECOMMENDATIONS IS APPROVED AND ADOPTED. THE PETITION FOR A WRIT OF HA BEAS CORPUS IS DENIED. A CERTIFICATE OF APPEALABILITY IS NOT GRANTED, ETC.. SIGNED BY HONORABLE LEGROME D. DAVIS ON 9/11/12. 9/13/12 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HENRY PULANCO
Plaintiff,
v.
RICHARD SOUTHERS, et al.,
Defendants.

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CIVIL ACTION

NO. 12-566

ORDER
AND NOW, this 11th day of September 2012, upon careful and independent
consideration of the pleadings and record herein, and after review of the Report and
Recommendation of United States Magistrate Judge Thomas J. Rueter (“R&R”) (Doc No. 10)
and Petitioner’s Objections to the Report and Recommendations (Doc. No. 11), it is hereby
ORDERED as follows:
1.

The Report and Recommendation is APPROVED and ADOPTED.

2.

The petition for a writ of habeas corpus is DENIED.

3.

A certificate of appealability is not granted.

On February 2, 2012, Henry Pulanco (“petitioner”) filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, enacted as part of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Magistrate Judge Rueter recommends that the petition
be dismissed as barred by the one-year statute of limitations. Magistrate Judge Rueter’s analysis
of petitioner’s claims is both legally correct and supported by the factual record. As such, the
Court will approve of and adopt the R&R with the following discussion.
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Under AEDPA, a habeas petition must be filed no later than one year from the date on
which the judgment became final. 28 U.S.C. § 2254(d)(1)(A). A judgment is final upon the “the
conclusion of direct review or the expiration of the time for seeking such review.” Id.
For purposes of the AEDPA statute of limitations, petitioner’s conviction became final on
October 24, 2006. Petitioner had one year from that date; i.e., October 24, 2007, to file a habeas
petition. He did not file the instant petition until February 2, 2012. Magistrate Judge Rueter
correctly concluded that the instant petition was not subject to statutory or equitable tolling.
Therefore, the petition will be dismissed as untimely.
A.

Statutory Tolling

Under 28 U.S.C. § 2254(d)(2), the one year statute of limitations is tolled when a State
post-conviction proceeding is properly filed and pending in a State court. Here, the AEDPA
statute of limitations was tolled from September 21, 2006 until March 30, 2010, while
petitioner’s first, timely petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. Ann. § 9541 et seq. (Response App’x at 112) was pending in the state courts. The
AEDPA statute of limitations expired one year later on March 30, 2011.
Petitioner filed a second PCRA petition on December 16, 2010, which was dismissed as
untimely. Commonwealth v. Pulanco, No. 503 MDA 2011 (Pa. Super. Ct. Oct. 24, 2011). An
untimely PCRA petition is not “properly filed” within the meaning of the AEDPA statute of
limitations, and thus does not toll the AEDPA statute of limitations. Pace v. DiGuglielmo, 544
U.S. 408, 412-17 (3d. Cir. 2005). The instant petition was filed on February 2, 2012, more than
ten months after the AEDPA statute of limitations expired on March 30, 2011. Magistrate Judge

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Rueter correctly concluded that the habeas petition deadline is untimely and not subject to
statutory tolling.
B.

Equitable Tolling

The AEDPA statute of limitations is subject to equitable tolling if petitioner shows: “‘(1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2554, 2562 (2010)
(quoting Pace, 544 U.S. at 418). Petitioner offers no explanation for the late filing of the instant
habeas petition, nor alleges any extraordinary circumstance that prevented him from timely filing.
The Third Circuit also recognizes equitable tolling for habeas petitions where the state
has actively misled the petitioner or the petitioner has timely asserted his rights but in a wrong
forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). There is simply no claim by
petitioner that the Commonwealth of Pennsylvania misled him or that he timely asserts his rights
in the wrong forum.
In his objection, petitioner suggests that he is nonetheless entitled to equitable tolling
based on actual innocence. Pet’s Obj. at 1. The Third Circuit, however, has “yet to hold that the
AEDPA statute of limitations can be equitably tolled based on the basis of actual innocence.”
Horning v. Lavan, 197 F.App’x 90, 93 (3d Cir. 2006) (not precedential). Moreover, despite
petitioner’s objections to the contrary, he has failed to show that he exercised reasonable
diligence in pursuing a habeas claim of actual innocence. Thus, Magistrate Judge Rueter
correctly noted that even if the court did permit equitable tolling on the basis of actual innocence,
petitioner’s claim would fail because he did not meet the “extremely high standard” of proving

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actual innocence for AEDPA purposes. R&R at 8. For all these reasons, the principles of
equitable tolling do not toll the AEDPA statute of limitations with respect to the instant habeas
petition.
BY THE COURT:
/s/ Legrome D. Davis
LEGROME D. DAVIS, J.

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