Martin v. Link et al

Filing 17

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT C. MARTIN,
Petitioner,
v.
SUPERINTENDENT CYNTHIA
LINK, PA STATE
ATTORNEY GENERAL,
Respondents.

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1:15-cv-2242
Hon. John E. Jones III

MEMORANDUM
August 9, 2017
On November 23, 2015, Petitioner Robert C. Martin (“Martin”) filed the
instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his Court of Common Pleas of Potter County, Pennsylvania convictions for various
drug and weapons offenses. (Doc. 1; Doc. 10-2, p. 49). The petition is ripe for
disposition and, for the reasons set forth below, will be dismissed as untimely.
I.

State Court Procedural Background
The following background is taken from a Pennsylvania Superior Court

opinion dated June 30, 2015, which dismissed Martin’s second petition pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely:
Appellant entered open guilty pleas to a number of charges under the
above-captioned trial court docket numbers [CP-53-CR-00002372010 and CP-53-CR-0000238-2010]. The trial court sentenced
Appellant, and he appealed. This Court affirmed the judgment of
sentence on March 20, 2013. Commonwealth v. Martin, 69 A.3d 1298

(Pa. Super. 2013)( unpublished memorandum). Appellant did not
seek allowance of appeal with our Supreme Court.
On October 21, 2013, Appellant filed his first PCRA petition. The
PCRA court denied the petition, and this Court affirmed the court’s
order on September 17, 2014. Commonwealth v. Martin, 107 A.3d
230 (Pa. Super. 2014) (unpublished memorandum). Appellant did not
seek allowance of appeal with our Supreme Court.
On September 24, 2014, Appellant pro se filed another PCRA
petition. On October 2, 2014, the PCRA court issued notice pursuant
to Pa.R.Crim.P. 907 that it intended to dismiss the petition without
holding an evidentiary hearing because Appellant untimely filed his
petition. After Appellant responded to the court’s Rule 907 notice,
the court formally dismissed the petition as untimely on October 24,
2014.
Appellant with the aid of counsel, timely filed a notice of appeal.
(Doc. 10-3, pp. 40-41). On June 30, 2015, the Superior Court affirmed the PCRA
court’s dismissal of the petition as untimely. (Id. at 43-44). The Supreme Court of
Pennsylvania affirmed the dismissal on November 3, 2015. (Doc. 1, p. 16).
On November 23, 2015, Martin filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
II.

Discussion
The court shall “entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely
filed under the stringent standards set forth in the Anti-Terrorism and Effective
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Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996). See 28 U.S.C. § 2244(d) (1). Specifically, a state prisoner requesting
habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that
provides, in relevant part, as follows:
(1) 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;
...
(2) The time during which a properly filed application for State postconviction 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)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).
Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment
does not become final until appeals have been exhausted or the time for appeal has
expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
Martin was sentenced on August 30, 2011. (Doc. 10-2, p. 49). His direct
appeal proceedings concluded on March 20, 2013, when the Superior Court
affirmed the judgment of sentences. (Id. at 50). His conviction became final thirty
days later, when his time to file an appeal with the Supreme Court expired. The
one-year statute of limitations period commenced running as of that date and
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expired one year later. Hence, the present petition, filed on November 23, 2015, is
patently untimely.
The Court’s analysis does not end here; consideration of both statutory and
equitable tolling must be undertaken.
A.

Statutory Tolling

Section 2244(d)(2) tolls the one year statute of limitations with respect to 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 Third Circuit Court of Appeals has defined “pending” as
the time during which a petitioner may seek discretionary state court review,
whether or not such review is sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir.
2000).
Martin successfully tolled the statute of limitations on October 23, 2013,
when he timely pursued post conviction relief. (Doc. 10-2, p. 50). At that point,
approximately186 days of the one year limitations period had elapsed. The statute
remained tolled until the conclusion of his PCRA proceedings on September 17,
2014. He was required to file his petition in federal court within 179 days of the
conclusion of the PCRA proceedings. He failed to accomplish this in that he did
not file his petition in federal court until November 23, 2015, approximately 433
days after his initial PCRA proceedings concluded. Although, Martin filed a

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second PCRA petition on September 24, 2014, seeking relief pursuant to Alleyne v.
U.S., 122 S.Ct 2151 (2013), this filing failed to toll the statute of limitations
because the state court concluded that it was untimely. (Doc, 10-3, pp. 40-45).
This Court must defer to this finding. See Merritt v. Blaine, 326 F.3d 157, 165–67
(3d Cir. 2003). “[A] PCRA petition that is found to be untimely is not considered
‘properly filed’ for the purposes of § 2244(d)(2) and does not toll the limitations
period.” Pereira v. Wingard, No. 5:14–cv–6582, 2015 WL 4404920, at *4
(E.D.Pa. July 17, 2015) (citing Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005)).
See also Long v. Wilson, 393 F.3d 390, 395 (3d Cir. 2004) (petitioner’s untimely
PCRA petition did not statutorily toll the statute of limitations because, inter alia,
“the limitations period had already run when it was filed”). Thus, Martin’s second
PCRA petition does not provide a basis for further statutory tolling. His petition is
clearly untimely.
B.

Equitable Tolling

“Equitable tolling of the limitations period is to be used sparingly and only
in “extraordinary” and “rare” circumstances. See Satterfield v. Johnson, 434 F.3d
185, 195 (3d Cir. 2006); LaCava v. Kyler, 398 F.3d 271, 274-75 (3d Cir. 2005). It
is only in situations “when the principle of equity would make the rigid application
of a limitation period unfair” that the doctrine of equitable tolling is to be applied.
See Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). Generally, a litigant
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seeking equitable tolling must establish two elements: (1) that he has been
pursuing his rights diligently; and (2) that some extraordinary circumstance stood
in his way.” Pace, 544 at 418.
With respect to the diligent pursuit of rights, he must demonstrate that he
exercised reasonable diligence in investigating and bringing the claims. See
Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002). Mere excusable neglect is
not sufficient. See LaCava, 398 F.3d at 276. Moreover, “the party seeking
equitable tolling must have acted with reasonable diligence throughout the period
he seeks to toll.” Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (quoting
Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).
Extraordinary circumstances have been found where (1) the respondent has
actively misled the petitioner, (2) the petitioner has in some extraordinary way
been prevented from asserting his rights, (3) the petitioner has timely asserted his
rights mistakenly in the wrong forum, see Jones, 195 F.3d at 159, or (4) the court
has misled a party regarding the steps that the party needs to take to preserve a
claim, see Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Significantly,
even where extraordinary circumstances exist, “[i]f the person seeking equitable
tolling has not exercised reasonable diligence in attempting to file after the
extraordinary circumstances began, the link of causation between the extraordinary
circumstances and the failure to file is broken, and the extraordinary circumstances
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therefore did not prevent timely filing.” Brown v. Shannon, 322 F.3d 768, 773 (3d
Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Martin failed to exercise reasonable diligence throughout the limitations
period. He allowed approximately 186 days of the one year limitations period to
elapse before filing his PCRA petition. And, after his PCRA proceedings
concluded on September 17, 2014, rather than proceed to federal court, Martin
filed a second PCRA in the state court challenging the legality of his sentence
pursuant to Alleyne v. U.S., 133 S.Ct. 2151 (2013), a case decided by the United
States Supreme Court approximately 465 days earlier.
Regardless of whether he exercised reasonable diligence in bringing his
federal petition, he fails to demonstrate that extraordinary circumstances obstructed
his pursuit of relief in either state or federal court. There is no indication, and he
does not argue, that he was actively misled, that he was in some extraordinary way
prevented from asserting his rights, that he timely asserted his rights mistakenly in
the wrong forum, or that he was misled by the court regarding the steps that he
needed to take to preserve his claims. Hence, equitable tolling of the AEDPA
statute of limitations is not warranted in this case.
III.

Conclusion
For the reasons set forth above, the petition for writ of habeas corpus will be

dismissed as untimely.
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IV.

Certificate of appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made 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 presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
“When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of
reason would not find the procedural disposition of this case debatable.
Accordingly, no COA will issue.
An appropriate order will enter.

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