PORTALATIN v. WARDEN SCI CAMPHILL et al

Filing 7

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 06/05/2017. 06/05/2017 ENTERED AND COPIES MAILED TO PRO SE PETITIONER.(nds)

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

JORGE L. PORTALATIN,
Petitioner,
v.
WARDEN SCI CAMPHILL, et al.,
Respondents.

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CIVIL ACTION
NO. 14-3011

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

June 5, 2017

Jorge Portalatin (“Petitioner”) is a prisoner at the
State Correctional Institution in Camp Hill, Pennsylvania.
Petitioner filed a pro se application seeking relief through a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Magistrate
Judge Timothy R. Rice (“Judge Rice”), finding that Petitioner’s
claims were untimely and not subject to equitable tolling,
recommended that the Habeas Petition be dismissed with
prejudice. Petitioner filed objections. For the reasons that
follow, the Court will overrule Petitioner’s objections and deny
the Habeas Petition as untimely.

I.

BACKGROUND
On June 11, 2007, before the Court of Common Pleas of

Northampton County, Petitioner pled guilty to two counts of
endangering the welfare of children and one count of aggravated
indecent assault on a person under the age of 13. Report &
Recommendation at 1, ECF No. 3 [hereinafter R&R]. Several months
later, the court sentenced Petitioner to 10 to 24 years of
imprisonment. Id. Petitioner appealed to the Pennsylvania
Superior Court, but later discontinued this appeal. Id.
Petitioner then filed a petition for collateral relief
under Pennsylvania’s Post-Conviction Relief Act (“PCRA”). Id. On
September 24, 2009, the PCRA court denied the petition, id., and
the Superior Court affirmed, id. at 1-2.
On June 28, 2012, Petitioner filed a second PCRA
petition. Id. at 2. This petition was also dismissed, and the
dismissal was again affirmed by the Superior Court. Id. On
February 10, 2014, the Pennsylvania Supreme Court denied
Petitioner’s request for allocatur. Id.
Petitioner filed the instant Habeas Petition on
February 26, 2014. Id. Judge Rice issued a Report and
Recommendation (“R&R”) on June 18, 2014. ECF No. 3. On July 8,
2014, the Court, believing that Petitioner was not objecting to
the R&R, approved and adopted the R&R and dismissed the Habeas
Petitioner. ECF No. 5. Shortly thereafter, however, the Court
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received Petitioner’s Objections, ECF No. 4, and vacated its
Order dismissing the Petitioner, ECF No. 6. The Habeas Petition
is now again ripe for disposition.
II.

LEGAL STANDARD
The Court may refer an application for a writ of

habeas corpus to a U.S. Magistrate Judge for a report and
recommendation. 28 U.S.C. § 636(b)(1)(B). A prisoner may object
to the magistrate judge’s report and recommendation within
fourteen days after being served with a copy thereof. See
§ 636(b)(1); E.D. Pa. R. Civ. P. 72.1(IV)(b). The Court must
then “make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made.” § 636(b)(1). The Court does not review
general objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d
Cir. 2011) (“We have provided that § 636(b)(1) requires district
courts to review such objections de novo unless the objection is
not timely or not specific.” (internal quotation marks
omitted)). The Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
On habeas review, the Court must determine whether the
state court’s adjudication of the claims raised was (1) contrary
to, or an unreasonable application of, clearly established

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federal law, or (2) based on an unreasonable determination of
the facts in light of the evidence presented. See 28 U.S.C.
§ 2254(d).
III. DISCUSSION
The Habeas Petition asserts the following grounds for
relief: (1) his interpreter was never sworn in or examined by
the court as to the interpreter’s qualifications; (2) the
information failed to include sufficiently specific facts; (3)
the sentencing court failed to explain which of two identical
counts it withdrew; (4) Petitioner was denied fair notice of the
charges and protection from double jeopardy due to these
identical counts; (5) Petitioner was never read his Miranda
rights; (6) there was no interpreter at the sentencing hearing;
(7) another individual, who Petitioner seems to believe may have
been the actual perpetrator, failed a polygraph test regarding
sexual misconduct with children; (8) the sentencing judge
expressed bias toward Petitioner; (9) there was a lack of
probable cause to arrest Petitioner because he had passed his
polygraph test; (10) Petitioner’s sentencing occurred too many
days after his guilty plea; (11) Petitioner was manipulated due
to his inability to understand English; and (12) the criminal
information was never signed by an attorney for the
Commonwealth. ECF No. 1. Judge Rice recommended that all of

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these claims be denied as untimely.
A.

Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) provides a strict one-year deadline for the
filing of petitions under 28 U.S.C. § 2254. This statute of
limitations begins to 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)(1). However, there is a statutory tolling
period: “[t]he 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).
In this case, as Judge Rice determined, Petitioner had

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until October 24, 2011, to file a petition under 28 U.S.C.
§ 2254. See R&R at 4-5. But Petitioner did not file his Habeas
Petition until February 26, 2014 – more than two years after his
AEDPA deadline. Accordingly, the Habeas Petition is untimely.
Petitioner does not object to this conclusion.1
However, he does argue that equitable tolling should apply in
this case.
B.

Equitable Tolling
AEDPA’s one-year limitations period is subject to

equitable tolling. Holland v. Florida, 130 S. Ct. 2549, 2560
(2010); see also Alicia v. Karestas, No. 07-3183, 2008 WL
4108056, at *3 (E.D. Pa. Aug. 28, 2008) (Robreno, J.) (citing
Miller v. N.J. Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.
1998)). A petitioner qualifies for equitable tolling only if he
is able to prove: “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood
in his way’ and prevented timely filing.” Holland, 130 S. Ct. at

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For the most part, Petitioner simply reiterates the
alleged merits of his underlying claims. See, e.g., Objs. at 7,
ECF No. 4 (“The report and recommendation fails to even begin to
discredit petitioner[’]s grounds, or state that they had been
previously litigated or waived, instead they focus on his
petition being ‘untimely’ and completely ignore and turn a[]
blind eye to the obvious Constitutional violations.”). What
Petitioner does not understand is that a procedural bar like
untimeliness prevents the Court from reaching the merits of his
claims, unless an exception applies.
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2562 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Here, Petitioner contends that he should receive the
benefits of equitable tolling due to actual innocence. See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (“[A]ctual
innocence, if proved, serves as a gateway through which a
petitioner may pass [if] the impediment is . . . expiration of
the statute of limitations.”). However, he fails to “produce any
evidence or even articulate a theory of innocence.” R&R at 6.
Rather, Petitioner’s argument seems to be that he is innocent,
and that his constitutional rights were violated in the ways set
forth in his petition – not that he is innocent because of any
particular evidence of his innocence. In other words, Petitioner
mistakes potential evidence that his rights were violated for
evidence that he is innocent. This argument is insufficient to
establish his innocence for the purpose of overcoming the
procedural bar of untimeliness. See McQuiggin, 133 S. Ct. at
1935 (“To invoke the miscarriage of justice exception to AEDPA’s
statute of limitations, we repeat, a petitioner ‘must show that
it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.’” (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995))). Accordingly,
Petitioner has failed to show that his petition should be
subject to equitable tolling on the basis of actual innocence.

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Notably, though, Petitioner suggests2 two additional
reasons for equitable tolling: his alleged mental incompetence
and his inability to understand the English language. See Objs.
at 8, ECF No. 4. The Third Circuit has recognized that, under
certain circumstances, mental incompetence and inability to
understand English can both “constitute extraordinary
circumstances that trigger equitable tolling.” Pabon v. Mahanoy,
654 F.3d 385, 400 (3d Cir. 2011).
As to mental incompetence, a petitioner must show that
“the alleged mental incompetence [has] somehow [] affected the
petitioner’s ability to file a timely habeas petition.” Nara v.
Frank, 264 F.3d 310, 320 (3d Cir. 2001). Here, Petitioner
alleges only that he “is and has been on Social Security for his
mental issues, one of which is he had attended Special Education
in school.” Objs. at 6. Petitioner does not explain how these
allegations, if true, rendered him unable to file a timely
habeas petition. Rather, he simply contends that these issues
necessarily constitute extraordinary circumstances that are
sufficient to justify equitable tolling. But “mental
incompetence is not a per se reason to toll a statute of
limitations.” Nara, 264 F.3d at 320. There must be more, and

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“A document filed pro se is ‘to be liberally
construed.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
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Petitioner has not shown more. Accordingly, his alleged mental
incompetence does not provide a basis for equitable tolling.
And where a petitioner argues that his language
difficulties should trigger equitable tolling, he must show that
he is unable to read or understand English and that he was
denied access to translation or legal assistance while in
prison. See Pabon, 654 F.3d at 400. The relevant question is not
“whether the circumstance alleged to be extraordinary is unique
to the petitioner, but how severe an obstacle it creates with
respect to meeting AEDPA’s one-year deadline.” Id. at 401.
Here, Petitioner makes no argument regarding the
actions he took to protect his rights after he was imprisoned.
Rather, he argues only that his inability to understand English
led to the violation of his rights before and during his guilty
plea and sentencing, which is irrelevant for the purposes of
equitable tolling. Indeed, “Pabon does not apply when the
Petitioner fails to explain the efforts he made to get AEDPA
materials in his native language and does not indicate how
prison officials denied him access to such materials.” Almazan
v. Commonwealth of Pennsylvania, 80 F. Supp. 3d 602, 607 (E.D.
Pa. 2015) (Robreno, J.) (internal quotation marks omitted).3

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See, e.g., Cruz-Ventura v. United States, No. 13-7230,
2014 WL 5023441, at *2 (E.D. Pa. Oct. 7, 2014) (there was “no
indication that [Petitioner] lacked access to materials in
Spanish or that he was denied language assistance,” and he
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Therefore, Petitioner has failed to show that his inability to
understand English constituted extraordinary circumstances, such
that equitable tolling should apply.
Moreover, even if Petitioner could show extraordinary
circumstances, he must also demonstrate that he acted with
“reasonable diligence” in bringing his claims. See, e.g., Pabon,
654 F.3d at 402 (finding that petitioner had been reasonably
diligent where he had made “ten or more efforts” for assistance,
“both before and after the AEDPA deadline”); Ortega v. Vaughn,
No. 03-3693, 2004 WL 825309, at *6 (E.D. Pa. Apr. 15, 2004)
(finding no reasonable diligence where petitioner filed a second
untimely PCRA instead of a timely federal habeas petition);

“successfully met previous deadlines for direct appeals and for
a PCRA petition”); Santana v. Thomas, No. 13-5407, 2014 WL
2696502, at *5 (E.D. Pa. June 13, 2014) (Petitioner did not
“discuss any efforts he made to request AEDPA information or
research materials written in Spanish” and did not indicate how
prison officials or anyone else “thwarted his efforts to timely
file” his habeas petition); Mohammed v. Gavin, No. 13-2669, 2013
WL 6485904, at *5 (E.D. Pa. Dec. 10, 2013) (the state court
record did not indicate that “Petitioner ever required or even
requested the aid of an interpreter or translator during his
interactions with the police or the state courts,” and
Petitioner did not “discuss any efforts he made to request AEDPA
information or research materials written in his native
language”); Cruz-Hernandez v. Thomas, No. 11-2978, 2012 WL
2889664, at *7 (E.D. Pa. July 11, 2012) (Petitioner did not
allege “that he requested and was denied access to translation
or legal assistance” or that “his prison does not provide
Spanish materials,” and his “ability to write letters and file
legal documents, even if by proxy, in English, foreclose[d] the
argument that the language barrier, in isolation, prevented his
filing in a timely manner”).
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Santana v. Thomas, No. 13-5407, 2014 WL 2696502, at *5 (E.D. Pa.
June 13, 2014) (finding that no reasonable diligence existed
where petitioner “did not assert any diligence on his part to
file the instant Petition in a timely fashion”).
In the present case, Petitioner fails to offer any
evidence or even a bare claim that he was reasonably diligent in
pursuing his rights. He filed a second PCRA petition 248 days
after he would have needed to file a timely habeas petition,
then waited yet another year and a half before ultimately filing
his habeas petition. He offers no explanation or evidence of the
work he did to attempt to pursue and/or protect his rights in
the meantime, such as contacting prison officials for
assistance.
Therefore, the Court finds that Petitioner has failed
to establish that his petition should be subject to equitable
tolling, and will deny his § 2254 petition as untimely.
IV.

CERTIFICATE OF APPEALABILITY
A petitioner seeking a Certificate of Appealability

must demonstrate “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues

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presented are adequate to deserve encouragement to proceed
further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The

Court will not issue a certificate of appealability because
Petitioner has not made a substantial showing of the denial of
his constitutional rights. See Slack v. McDaniel, 529 U.S. 473,
484 (2000).
V.

CONCLUSION
For the foregoing reasons, the Court will approve and

adopt Judge Rice’s Report and Recommendation, overrule
Petitioner’s objections thereto, and deny the Petition for a
Writ of Habeas Corpus without an evidentiary hearing or
Certificate of Appealability.

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