YOUNG v. CLARK et al

Filing 15

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 11/14/17. 11/15/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
WILLIE MACK YOUNG,
:
Petitioner,
:
:
v.
:
:
ROBERT GILMORE,
:
Respondent.
:
____________________________________:

CIVIL ACTION

No. 16-6406

Goldberg, J.

November 14, 2017
MEMORANDUM OPINION

Currently pending before me is Petitioner Willie Mack Young’s Petition for Writ of
Habeas Corpus. On May 31, 2017, Chief United States Magistrate Judge Linda K. Caracappa
issued a Report and Recommendation recommending that the Petition be denied as untimely.
Although Petitioner did not file objections, he has submitted a “Declaration” vaguely alleging
“technical defects” concerning statutory and equitable tolling. Upon review of the entire record, I
find that Petitioner’s habeas claims are indeed time-barred.
I.

FACTUAL HISTORY
On April 18, 2011, Petitioner was charged with one count of aggravated assault and one

count of disorderly conduct after swinging a one-and-a-half foot knife at the victim. (Response to
Petition for Writ of Habeas Corpus (“Response”), Ex. A.) Following extensive pre-trial motion
practice, Petitioner’s case proceeded to a jury trial before the Honorable Dennis E. Reinaker,
President Judge of the Lancaster County Court of Common Pleas. (Id., Ex. a.) On May 15, 2012,
a jury found Petitioner guilty of the charges. (Id.) Petitioner was sentenced to not less than five
and not more than ten years’ incarceration. (Id., Ex. c.)

Following the withdrawal of trial counsel, Petitioner filed a pro se motion for postconviction collateral relief. (Id., Ex. f.) By agreement of the parties, post-conviction relief was
granted and Petitioner’s direct appeal rights were reinstated nunc pro tunc. (Id., Ex. h.) On
November 9, 2012, Petitioner’s appellate counsel filed a post-sentence motion. (Id., Ex. i.) The
trial court denied Petitioner’s appeal on December 26, 2012, and issued its memorandum opinion
on February 27, 2013. (Id., Exs. j and k.) Petitioner then filed a timely, counseled appeal to the
Pennsylvania Superior Court (id., Ex. l), which affirmed the judgment of sentence in a
memorandum opinion dated September 13, 2013.

(Id., Ex. m.)

On April 4, 2014, the

Pennsylvania Supreme Court denied Petitioner’s Petition for Allowance of Appeal. (Id., Ex. o.)
Petitioner filed a pro se motion for post-conviction collateral relief pursuant to the
Pennsylvania Post Conviction Relief Act (“PCRA”) on December 10, 2014. (Id., Ex. p.) The
state court appointed counsel and granted petitioner leave to file an amended petition. (Id., Ex. q.)
Shortly thereafter, counsel filed a no-merit letter and a motion to withdraw, which the state court
granted on May 11, 2015. (Id., Ex r.) On June 5, 2015, Petitioner filed a pro se request for a
hearing en banc, which the state court recharacterized as a notice of appeal. (Id., Exs. w, x.) The
Pennsylvania Superior Court dismissed Petitioner’s appeal on October 29, 2015, for failure to file
a brief. (Id., Ex. AA.)
On December 12, 2016, Petitioner filed the instant Petition for Writ of Habeas Corpus
alleging various claims of misconduct by the police, the Commonwealth, and the state court, as
well as claims of ineffective assistance of counsel. The case was referred to Chief United States
Magistrate Judge Linda K. Caracappa, who filed a Report and Recommendation (“R&R”) on May

2

31, 2017, recommending that the Petition be dismissed as untimely. On June 19, 2017, Petitioner
filed objections1 to the R&R. 2
II.

STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(B), a district court judge may refer a habeas petition to a

magistrate judge for proposed findings of fact and recommendations for disposition. When
objections to a Report and Recommendation have been filed, the district court must make a de
novo review of those portions of the report to which specific objections are made. 28 U.S.C.
§ 636(b)(1)(C), Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In performing this
review, the district 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).
III.

DISCUSSION
As set forth above, the R&R recommends that the Petition for Writ of Habeas Corpus be

denied as time-barred.

Petitioner now contends, without further explanation, that there are

“technical defects” regarding statutory and equitable tolling. While I find no merit to Petitioner’s
objections, I write to correct what I believe to be an error in calculating the expiration of the
statute of limitations.

1

Petitioner captioned his objections as a “Declaration.” Subsequently, he filed a Motion for
Leave to File an Amended Caption, seeking to re-style his “Declaration” as an “Answer.” While I
will grant that Motion, I will liberally read the Declaration/Answer to be Petitioner’s objections to
the R&R. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (holding that a document filed pro se is
“to be liberally construed” so as to do “substantial justice”) (citations omitted).
2

Under Local Rule of Civil Procedure 72.1(IV)(b), objections to a report and recommendation
are due fourteen (14) days after service of the report on the objecting party. Although Petitioner’s
objections were not filed in this Court until nineteen days after the Report and Recommendation,
Petitioner’s certificate of service reflects that he submitted the objections to prison authorities for
mailing on June 12, 2017. Under the “prisoner mailbox rule,” the objections are timely filed. See
Pabon v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011) (“The federal ‘prisoner mailbox rule’
provides that a document is deemed filed on the date it is given to prison officials for mailing.”).
3

The R&R correctly noted that petitioner had a strict one-year time limitation for filing his
habeas petition that began on “the date that the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review”—i.e., July 4, 2014. (R&R (quoting
28 U.S.C. § 2244(d)(1)(A) (1996).) In addition, the R&R properly found that the one-year statute
of limitations was tolled during the pendency of Petitioner’s properly-filed PCRA petition, which
was filed on December 10, 2014. The R&R, however, (1) incorrectly calculated the time between
the date that judgment became final and the date the PCRA petition was filed, and (2) improperly
determined the date that statutory tolling ended.
First, the R&R found that 164 days elapsed between July 4, 2014 (the date that judgment
became final on Petitioner’s direct appeal) and December 10, 2014 (the date Petitioner filed his
PCRA petition).3 A correct calculation reveals that only 159 days elapsed between those two
dates.
Second, the R&R found that statutory tolling ended and the federal statute of limitations
began running again on October 29, 2015, when Petitioner’s appeal of his PCRA petition was
dismissed by the Pennsylvania Superior Court for failure to file a brief. The United States Court
of Appeals for the Third Circuit, however, has expressly held that a PCRA petition remains
pending “during the time a prisoner has to seek review of the Pennsylvania Superior Court’s
decision [by filing a petition for allowance of appeal to the Pennsylvania Supreme Court] whether
or not review is actually sought” and, therefore, the statute of limitations for filing a habeas
petition is tolled during that time. Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000). The time
for petitioning the Pennsylvania Supreme Court for allowance of appeal is thirty days. Pa. R.

3

The R&R stated that when Petitioner’s one-year statute of limitations began to run again after
the period of statutory tolling ended, Petitioner had only 201 days left to file a timely federal
habeas petition (R&R at 5.) To reach that number, the R&R would have had to assume that 164
days out of the 365-day limitations period had already elapsed.
4

App. P. 1113(a). Accordingly, the Petitioner’s federal statute of limitations did not begin running
again until November 28, 2015—thirty days after the Pennsylvania Superior Court dismissed
Petitioner’s appeal of his PCRA petition.
Nonetheless, even with these corrections in the calculations, Petitioner’s habeas petition
remains untimely. As set forth above, 159 days of the one-year limitations period elapsed between
the date Petitioner’s conviction became final and the time Petitioner filed his PCRA petition. The
statute of limitations then continued to toll from December 10, 2014 to November 28, 2015, after
which Petitioner had 206 days left in which to file his habeas corpus petition, i.e. until June 21,
2016. He did not do so, however, until December 12, 2016, more than five months after the
federal deadline expired.
I also find no basis for equitable tolling. As noted in the R&R, equitable tolling applies in
three circumstances: (1) when a defendant has actively misled a petitioner; (2) when petitioner
has, in some extraordinary way, been prevented from asserting his rights; and (3) when a
petitioner has timely asserted his rights mistakenly in the wrong forum. (R&R at 5 (citing Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1998).) Petitioner’s objections make no specific equitable
tolling assertion. Rather, Petitioner baldly cites to the Pennsylvania Supreme Court case of
Commonwealth v. Burton, which held that the state public record presumption—that information
of public record cannot be considered “unknown” for purposes of proving the newly-discovered
facts exception to the time requirements of the PCRA—does not apply to a pro se prisoner. 158
A.3d 618 (Pa. 2017). Aside from the fact that Burton concerns only untimely state PCRA
petitions, not untimely federal habeas petitions, Petitioner has not identified any crucial facts that
became known to him after his federal statute of limitations expired. I can discern no other basis
on which to apply equitable tolling.

5

IV.

CONCLUSION
Having fully reviewed the parties’ submissions in this case, as well as the state court

record, I will adopt the R&R, as amended by this Memorandum, and dismiss the Petition for Writ
of Habeas Corpus as untimely. An appropriate Order follows.

6