Zguro v. Commonwealth of Pennsylvania Board of Probation and Parole et al

Filing 12

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 4/27/21. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LARRY T. ZGURO,
Petitioner,
v.

No. 1:20-CV-01300
(Judge Rambo)

THOMAS MCGINLEY, ET AL.,
Respondents.
MEMORANDUM OPINION
Petitioner Larry T. Zguro, a pre-trial detainee housed at the Dauphin County
Prison in Harrisburg, Pennsylvania, filed this petition for a writ of habeas corpus
under 28 U.S.C. § 2254, challenging his continued five month incarceration after
his maximum release date on a prior state court sentence. (Doc. 1.) Respondents
filed an answer raising as an affirmative defense the statute of limitations, arguing
that the petition is untimely. (Doc. 11.) Petitioner has filed no reply, and the time
for doing so has now expired. (See Doc. 9.) For the reasons discussed below, the
court will dismiss the petition as time-barred under 28 U.S.C. § 2244(d).
I.

BACKGROUND
Petitioner alleges that he was convicted of theft by unlawful taking on May

23, 2014, in the Court of Common Pleas of Dauphin County. (Doc. 1 at 1.) He
was sentenced to eighteen to thirty-six months’ imprisonment. (Id.) In the
petition, Petitioner alleges that he “was held 5 months and 8 days over my max
date” of February 28, 2017. (Id. at 5.) According to Petitioner, he received
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notification of his max release date by a Pennsylvania Board of Probation and
Parole (the “Parole Board”) decision dated August 3, 2017. (Id.) Petitioner filed
the instant habeas petition on July 30, 2020. (See Doc. 1.)
II.

DISCUSSION
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) outlines the

applicable statute of limitations for Petitioner’s habeas petition, and it provides, in
pertinent part:
(1) A 1-year period of limitations hall apply to an application for a
writ of habeas corpus by a person in custody pursuant to a 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 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
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).
In assessing a case involving a parole determination, courts have held that §
2244(d)(1) provides that the one-year AEDPA statute of limitations period applies
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to a habeas petition challenging an administrative parole decision. See McAleese v.
Brennan, 483 F.3d 206, 212–13 (3d Cir. 2007). See also Shelby v. Bartlett, 391
F.3d 1061, 1063 (9th Cir. 2004) (§ 2244 one-year limitations period applies to
habeas petition challenging administrative decision); Garrison v. Wilson, No. 06cv-3566, 2007 WL 2318156, at *4 (E.D. Pa. Aug.10, 2007) (“The one (1) year
limitations period found in § 2244(d)(1) applies to any challenge by a prisoner to
the denial of parole and to the calculation of his sentence.”).
The start date applicable in this situation is found in § 2244(d)(1)(D), which
provides that the statute of limitations shall run from “the date on which the factual
predicate of the claim or claims presented could have been discovered through the
exercise of due diligence.” See Cameron v. Kerestes, No. 13-cv-2159, 2014 WL
201078, at *4 (M.D. Pa. Jan. 16, 2014). In the typical circumstance, it is the denial
of parole that is the factual circumstance that triggers the statute of limitations to
run. See McAleese, 483 F.3d at 217 (“a parole denial . . . can, and in this case does,
constitute the ‘factual predicate’ of a habeas corpus claim under § 2254.”).
Petitioner’s circumstance differs from the typical circumstance in that he
appears not to be challenging the denial of his parole but the Board’s notification
on August 3, 2017, that his max release date should have been February 28, 2017.
Accordingly, the Court will consider the Board’s notification on August 3, 2017, as
the “factual predicate” of Petitioner’s claim, and Petitioner thus had one-year from

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that date to file a habeas corpus petition. Petitioner here did not file the petition
until July 30, 2020, which is almost two years after his statute of limitations ran on
or about August 3, 2018. The petition is thus untimely.
The Court must, however, determine whether equitable tolling may apply to
Petitioner’s untimely petition. In Holland v. Florida, 560 U.S. 631, 649–50
(2010), the Supreme Court held that AEDPA’s one-year limitations period is
subject to equitable tolling in appropriate cases, on a case-by-case basis. See Ross
v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). A litigant seeking equitable tolling
bears the burden of establishing two elements: “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). See also Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 89
(3d Cir. 2013).
The diligence required for equitable tolling is reasonable diligence, not
maximum, extreme, or exceptional diligence. Holland, 560 U.S. at 653. “This
obligation does not pertain solely to the filing of the federal habeas petition, rather
it is an obligation that exists during the period appellant is exhausting state court
remedies as well.” LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citation
omitted). See also Alicia v. Karestes, 389 F. App’x 118, 122 (3d Cir. 2010)
(holding that the “obligation to act diligently pertains to both the federal habeas

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claim and the period in which the petitioner exhausts state court remedies”).
Reasonable diligence is examined under a subjective test, and it must be
considered in light of the particular circumstances of the case. See Ross, 712 F.3d
at 799; Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (“Due diligence does
not require the maximum feasible diligence, but it does require diligence in the
circumstances.”).
The Court also must determine whether extraordinary circumstances exist to
warrant equitable tolling. “[G]arden variety claim[s] of excusable neglect” by a
petitioner’s attorney do not generally present an extraordinary circumstance
meriting equitable tolling. Holland, 560 U.S. at 651 (citations omitted). See also
Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). Rather, equitable tolling can
be triggered only when “the principles of equity would make the rigid application
of a limitation period unfair, such as when a state prisoner faces extraordinary
circumstances that prevent him from filing a timely habeas petition and the
prisoner has exercised reasonable diligence in attempting to investigate and bring
his claims.” LaCava, 398 F.3d at 275–276. See also Holland, 560 U.S. at 648–49
(relying on Pace, 544 U.S. at 418); Jenkins, 705 F.3d at 89 (holding that equitable
tolling should be applied sparingly, and only when the “principles of equity would
make the rigid application of a limitation period unfair”).

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Indeed, extraordinary circumstances have been found only where (a) the
respondent has actively misled the petitioner, (b) the petitioner has in some
extraordinary way been prevented from asserting his rights, (c) the petitioner has
timely asserted his rights mistakenly in the wrong forum, or (d) the court itself 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). Nevertheless, it must be
restated that, even where extraordinary circumstances do exist, “if 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 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)).
Respondents’ answer asserted the untimeliness of Petitioner’s federal habeas
petition. Petitioner had an opportunity to respond to the answer, but has failed to
file a reply and has not offered an explanation for the delay in bringing his federal
habeas petition which would allow this Court to consider equitable tolling.
Furthermore, the Court has reviewed Petitioner’s filings and finds no
circumstances which could potentially trigger equitable tolling. Thus, the Court
will dismiss the Petition as untimely.

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III.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken from a final order in a
proceeding under 28 U.S.C. § 2254. A certificate of appealability (“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, 327 (2003) (citation omitted), cited in United States v.
Williams, 536 F. App’x 169, 171 (3d Cir. 2013).
“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 it debatable whether this Court is correct in
its procedural ruling. No certificate of appealability shall issue.

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IV.

CONCLUSION
For the foregoing reasons, this Court will dismiss the petition as untimely filed

under 28 U.S.C. § 2244(d), and a certificate of appealability shall not issue.
An appropriate Order follows.

S/Sylvia H. Rambo
United States District Judge
Dated: April 27, 2021

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