BORELLI v. MAHALLY et al

Filing 37

ORDER THAT THE REPORT AND RECOMMENDATION (ECF NO. 30) IS APPROVED AND ADOPTED; THE OBJECTIONS TO THE R&R ARE WITHOUT MERIT AND ARE OVERRULED; PETITIONER'S PETITION FOR A WRIT OF HABEAS CORPUS AS IT RELATES TO PETITIONER'S CONVICTIONS IN CP- 06-CR-2479-2006 (ECF NO. 1) IS DENIED; PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING IS DENIED; AND NO PROBABLE CAUSE EXISTS TO ISSUE A CERTIFICATE OF APPEALABILITY; THE CLERK OF COURT IS DIRECTED TO MARK THIS MATTER CLOSED.. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 6/28/18. 6/28/18 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
PETER FRANK BORELLI

CIVIL ACTION

Petitioner, pro se

N0.14-4842
v.

LAWREN CE MAHALLY
Respondent

ORDER
AND NOW, this 28 1h day of June 2018, upon consideration of the state court record and the
pleadings herein, including, inter alia, the pro se petition for writ of habeas corpus filed by Petitioner
Peter Frank Borelli ("Petitioner") pursuant to 28 U.S.C. § 2254 (the "Petition"), [ECF 1]; Respondent's
response to the petition for writ of habeas corpus and exhibits thereto, [ECF 21, 22]; the Report and
Recommendation issued on February 29, 2016 (the "R&R"), by the Honorable Thomas J. Reuter,

United States Magistrate Judge (the "Magistrate Judge"), [ECF 30], which recommended that the
Petition be denied as it relates to Petitioner's convictions for criminal conspiracy to commit firstdegree murder of Harvey Harris and related charges (No. CP-06-CR-2479-2006 (C.P. Berks Cty.));
and Petitioner's prose objections to the R&R, [ECF 34], it is hereby ORDERED that:
1.

The R&R is APPROVED and ADOPTED; 1

2.

The objections to the R&R are without merit and are OVERRULED; 2

Petitioner's pro se petition for writ of habeas corpus sought habeas relief with respect to two separate
convictions from two different juries in the Court of Common Pleas for Berks County, Pennsylvania. In the first
criminal case, No. CP-06-CR-2476-2006, Petitioner was found guilty of criminal conspiracy to commit firstdegree murder of Harvey Harris, possession with intent to deliver a controlled substance, criminal conspiracy to
deliver a controlled substance, and two counts of corrupt organizations. In the second criminal case, No. CP-06CR-3664-2005, Petitioner was found guilty of murder in the first degree of Jamar O'Bryant, criminal conspiracy
to commit first-degree murder, two counts of corrupt organizations, criminal conspiracy to deliver a controlled
substance, manufacture/delivery/possession with intent to deliver a controlled substance, and the criminal use of
a communication facility. The Magistrate Judge issued separate R&Rs for each of these state court criminal
cases, [ECF 29, 30], and Petitioner filed separate objections to each R&R. [ECF 34, 35]. Likewise, this Court
will address each state court criminal case separately. This Order addresses only the R&R and objections related
to CP-06-CR-2479-2006. [ECF 30, 34].
2

In the CP-06-CR-2479-2006 matter, Petitioner was sentenced on January 7, 2010. Petitioner did not
appeal the conviction and sentence, and thus, the conviction and sentence became final on February 6, 2010.

ENT'D JUN 2 8 2018

3.

Petitioner's petition for a writ of habeas corpus as it relates to Petitioner's convictions
in No. CP-06-CR-2479-2006, [ECF I], is DENIED;

See Pa. R. App. P. 903(a) (requiring that notice of appeal "be filed within 30 days after the entry of the order
from which the appeal is taken."). On March 15, 201 l, more than one year after Petitioner's conviction became
final, Petitioner filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"). On
August 24, 2012, the PCRA Court denied the PCRA petition as untimely. On November 22, 2013, the Superior
Court affirmed the dismissal of the PCRA petition, and on July 16, 2014, the Pennsylvania Supreme Court
denied Petitioner's petition for allowance of appeal. On August 14, 2014, Petitioner filed his federal habeas
petition. In his Petition, Petitioner asserts six ineffective assistance of counsel claims. [ECF 1 at 1-1 O]. In the
R&R, the Magistrate Judge found that Petitioner's federal habeas petition was untimely because it was filed
more than one year after Petitioner's conviction and sentence became final on February 6, 2010. [ECF 30 at 45]. The Magistrate Judge concluded that Petitioner was not entitled to statutory tolling because his PCRA
petition was denied as untimely and, thus, was not "properly filed" so as to trigger statutory tolling. (Id. at 5-6).
The Magistrate Judge likewise concluded that Petitioner was not entitled to equitable tolling because he had not
shown that he exercised reasonable diligence in pursuing his federal habeas claims. (Id. at 6-8). On May 16,
2016, Petitioner filed timely objections to the R&R. [ECF 34).
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposes a one year period of
limitations for habeas corpus petitions. Relevant to this case, the time period began to run on "the date on
which the judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review." 28 U.S.C. § 2244(d)(l)(A). However, the one-year limitations period is statutorily tolled for 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." 28 U.S.C. § 2244(d)(2). The one-year limitations period is also
subject to equitable tolling if a petitioner can show "'(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, 560
U.S. 631,649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,418 (2005)). Equitable tolling is available
"only when the principle of equity would make the rigid application of a limitation period unfair." Merritt v.
Blaine, 326 F.3d 157, 168 (3d Cir. 2003) (internal quotations omitted). Courts should apply this doctrine
sparingly. LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005). The petitioner bears the burden of proving both
requirements. Pace, 544 U.S. at 418; Urcinoli v. Cathe!, 546 F.3d 269,273 (3d Cir. 2008).
As noted, the Magistrate Judge found the Petition to be untimely and concluded that Petitioner was not
entitled to statutory or equitable tolling. [ECF 30 at 5-8]. Petitioner does not object to the finding of
untimeliness, and concedes that he is not entitled to statutory tolling. [ECF 34 at 8-9]. Petitioner objects to the
Magistrate Judge's finding that he is not entitled to equitable tolling, and argues that he is entitled to equitable
tolling because on June 25, 2010, he filed a petition in the Court of Common Pleas for Berks County,
Pennsylvania, pursuant to 28 U.S.C. § 224l(c)(3) and 42 U.S.C. § 1983, which complained of several
constitutional violations. (Id. at 9-11 ). Petitioner argues that this filing was a timely assertion of his rights filed
in the wrong forum, which entitles him to equitable tolling. (Id. at 11 ). Petitioner is mistaken. It is clear that
Petitioner's June 25, 2010 pleading sought monetary damages, not habeas relief, against the Commonwealth of
Pennsylvania, the Department of Corrections, and the Pennsylvania State Police. [ECF 21 at 26 n.50]. Thus,
Petitioner did not file a timely petition seeking federal habeas relief in the wrong forum, he instead filed a civil
action seeking monetary damages. Such a filing does not entitle Petitioner to equitable tolling. Petitioner filed
his federal habeas petition over three years after the expiration of the one-year limitations period on February 6,
2011, and his single, unrelated, filing in state court does not show that Petitioner pursued his federal habeas
rights diligently, or that some extraordinary circumstance prevented the timely filing of a federal habeas
petition. In sum, Petitioner has not shown that he is entitled to equitable tolling. Accordingly, the R&R is
adopted and approved as it relates to CP-06-CR-2479-2006, and Petitioner's objections are overruled.

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. . --- ...
4.

Petitioner's request for an evidentiary hearing is DENIED; 3 and

5.

No probable cause exists to issue a certificate of appealability. 4

The Clerk of Court is directed to mark this matter CLOSED. 5

It is well-settled that a district court is not required to hold an evidentiary hearing on a prisoner's habeas
claims. Palmer v. Hendricks, 592 F.3d 386, 392-93 (3d Cir. 2010). Any decision to hold an evidentiary hearing
is discretionary with the district judge. Schriro v. Landrigan, 550 U.S. 465, 468 (2007). However, a federal
habeas court is barred from holding an evidentiary hearing unless the petitioner was either diligent in his
attempt to develop a factual basis for his claim in the state court proceedings or he satisfies the criteria set forth
in the Anti-Terrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2554(e)(2); Palmer, 592 F.3d 386,
392 (3d Cir. 2010). In determining whether to hold an evidentiary hearing, a federal habeas court should
"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, 550 U.S. at 474. "[I]f the record refutes the
applicant's factual allegations or otherwise precludes [habeas] relief, a district court is not required to hold an
evidentiary hearing." Id. at 474. In this matter, an evidentiary hearing would not alter this Court's
determination that Petitioner's habeas claims are procedurally defaulted and/or without merit. As such, no
evidentiary hearing is necessary.
4

A district court may issue a certificate of appealability only upon "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c). A petitioner must "demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S.
473, 484 (2000); Lambert v. Blackwell, 387 F.3d 210,230 (3d Cir. 2004). For the reasons set forth herein, this
Court concludes that no probable cause exists to issue such a certificate in this action because Petitioner has not
made a substantial showing of the denial of any constitutional right. Petitioner has not demonstrated that
reasonable jurists would find this Court's assessment "debatable or wrong." Slack, 529 U.S. at 484.
Accordingly, there is no basis for the issuance of a certificate of appealability.
Contemporaneously with the filing of this Order, this Court entered an Order adopting the R&R and
overruling Petitioner's objections to the R&R that addressed Petitioner's habeas claims related to No. CP-06CR-3664-2005. With this Order, all of Petitioner's habeas claims have been adjudicated, both R&Rs have been
adopted, and all of Petitioner's objections had been considered, and overruled. Accordingly, this matter may be
closed.

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