Wise v. Rozum et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 42 38 37 . Signed by Honorable Malachy E Mannion on 10/28/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KENDALE L. WISE,

:

Petitioner

:

CIVIL ACTION NO. 3:12-1360

v.

:

(JUDGE MANNION)

GERALD L. ROZUM, et al.,

:

Respondents

:
MEMORANDUM

Petitioner, Kendale L. Wise, an inmate confined in the State Correctional
Institution, Somerset, Pennsylvania, filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. §2254. He attacks a conviction imposed by the
Court of Common Pleas for Dauphin County, Pennsylvania. (Doc. No. 1).
Following careful consideration of the parties’ submissions, and for the
reasons discussed below, the Court will grant Respondents’ motion to dismiss
the petition as untimely, see 28 U.S.C. §2244(d), and deny Petitioner’s motion
for a stay and abeyance.
I.

Background
Following a jury trial on September 12, 2001, Petitioner was found guilty

in the Court of Common Pleas of Dauphin County, of Criminal Attempted
Homicide and related charges. (See Doc. No. 1, Ex. A-1, Docket Sheet for
Case No. CP-22-CR-0001114-2001).
On November 29, 2001, Wise was sentenced to a nine (9) to eighteen
(18) year term of imprisonment. Id.
1

On June 6, 2002, Petitioner filed a notice of appeal to the Pennsylvania
Superior Court. Id.
On March 26, 2003, the Superior Court affirmed Petitioner’s judgment
of sentence. (Doc. No. 37, Ex. B, Docket Sheet for Case No. 976 MDA 2002).
On April 25, 2003, Wise filed for allowance of appeal to the Pennsylvania
Supreme Court, which was denied on August 6, 2003. Id. at 3.
On February 6, 2004, Petitioner filed a pro se petition for relief under the
Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§9541 et
seq. (Doc. No. 37, Ex. A, Docket Sheet for Case No. CP-22-CR-00011142001 at 5).
On October 27, 2004, the PCRA court dismissed Wise’s PCRA petition.
Id. at 7.
On November 18, 2004, Petitioner filed an appeal to the Pennsylvania
Superior Court. Id. at 8.
On December 13, 2005, the Pennsylvania Superior Court affirmed the
denial of Wise’s PCRA petition. (Doc. No. 37, Ex. C, Docket Sheet for Case
No. 1921 MDA 2004). Wise did not file a petition for allowance of appeal.
On July 13, 2012, Petitioner filed the instant petition for writ of habeas
corpus in which he claims that he is “deceitfully being placed in state custody
without due process of a formal entry of the written judgment of sentence.”
(Doc. No. 1, petition). After being granted an opportunity to file a partial answer
to the petition, (Doc. No. 12), and an enlargement of time within which to do
2

so, (Doc. No. 16), Respondents filed a response to the petition on October 1,
2012, (Doc. No. 17), and on October 2, 2012, filed a brief in support of their
partial answer, arguing that the petition should be dismissed as untimely.
(Doc. No. 18).
On October 26, 2012, in response to Respondents’ partial answer,
Petitioner filed a motion for leave to amend his petition. (Doc. No. 23). By
Order dated October 31, 2012, Petitioner’s motion to amend was granted
(Doc. No. 24), and on December 21, 2012, Petitioner filed an amended
petition for writ of habeas corpus. (Doc. No. 31). In his amended petition, Wise
no longer posits that he is being illegally detained due to lack of a proper
sentencing order, but rather raises claims of ineffective assistance of trial,
appellate and PCRA counsel. Id. Petitioner believes he is entitled to pursue
these claims pursuant to the United States Supreme Court’s recent decision
in Martinez v. Ryan, 132 S.Ct. 1309 (2012). Id.
By Order dated May 21, 2013, this Court directed Respondents to file a
response to the amended petition. (Doc. No. 34). On June 6, 2013,
Respondents filed a motion to dismiss the amended petition as untimely. (Doc.
No. 37). In response, Petitioner filed a “Modified Application for Writ of Habeas
Corpus,” (Doc. No. 40), and a Motion for Stay and Abeyance, (Doc. No. 42),
requesting this Court stay the instant proceedings, while he awaits the receipt
of photos requested from the Dauphin County Clerk of Court, which he
believes will provide him with support for his “Brady Violation” and “a ground
3

for appeal cognizable under Pennsylvania Statutes (Governmental
Interference, Newly Discovered Evidence & Miscarriage of Justice)”. Id.

II.

Discussion
A.

Petition is Statutorily Time-Barred.

A district court is authorized to “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 (2006).
A petition for writ of habeas corpus is the exclusive federal remedy for a state
prisoner challenging the “very fact or duration” of his confinement and seeking
“immediate release or a speedier release from that imprisonment.” Preiser v.
Rodriguez, 411 U.S. 475, 498-99 (1973); Leamer v. Fauver, 288 F.3d 532,
542-44 (3d Cir. 2002). A district court may only entertain a claim raised under
§2254 that is filed within the one-year statute of limitations. 28 U.S.C.
§2244(d)(1); Wilson v. Beard, 426 F.3d 653, 659 (3d Cir. 2005). The one-year
period, as relevant here, runs from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review” in a discretionary appeal to the state or United States Supreme
Court.1

28

U.S.C.

§2244(d)(1)(A) ;

Capreol

v.

1

For prisoners whose convictions became final prior to the April 24, 1996,
4

United States, 166 F.3d 565, 575, 577 (3d Cir. 1999).
The statute of limitations is calculated with respect to each claim raised
in the habeas petition.2 Fielder, 379 F.3d at 121-22. The statute of limitations

effective date of the statute of limitations, the one-year period starting on the
date on which judgment became final extended through April 23, 1997. Burns
v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Section 2244(d)(1) provides three additional time triggers and directs a
court to calculate the one-year period from the latest of the four periods. See
28 U.S.C. §2244(d)(1)(B) (applicable where a state impeded the petitioner’s
petition), (C) (applicable where the Supreme Court has recognized a new,
retroactive right), (D) (applicable where through due diligence, the petitioner
could have discovered the factual predicate of his claim). But the triggers are
considered seriatim, and the court will only consider the next trigger if the prior
trigger is not applicable; §2244 (d)(1)(A) is the default trigger applicable in
most cases. Fielder v. Varner, 379 F.3d 113, 116 (3d Cir. 2004), cert. denied,
543 U.S. 1067 (2005); see Caldwell v. Wilson, No. Civ. 04-1683, slip op. at *3
(W.D. Pa. Oct. 28, 2005) (“Although a habeas respondent has the burden of
affirmatively pleading [§2254's] statute of limitations, it is appropriate, where
the habeas petitioner has been put on notice of a statute of limitations
defense, to place some burden on him to show why the date his conviction
became final or the date the grace period started to run should not be used to
calculate the running of the statute of limitations.”) (internal citations and
footnote omitted); Land v. Carroll, 402 F.Supp.2d 514, 517 (D.Del. 2005)
(“[The petitioner] does not allege, nor can the court discern, any facts
triggering the application of §§2244(d)(1)(B),(C), or (D). Accordingly, the oneyear period of limitations began to run when petitioner's conviction became
final under §2244(d)(1)(A).”).
2

Section 2244(d)(1) provides that the statute of limitations “shall apply to
an application for writ of habeas corpus.” There is debate whether this requires
a court to calculate the statute of limitations with respect to the petition as a
whole or each claim within the petition. Cf. Walker v. Crosby, 341 F.3d 1240,
1243 (11th Cir. 2003) (“The statute provides a single statute of limitations, with
a single filing date, to be applied to the application as a whole”) with Fielder,
5

is tolled while “a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending.”3
Id. §2244(d)(1)(2); Wilson, 426 F.3d at 659; Merritt, 326 F.3d at 161-62. It is
also equitably tolled where something “extraordinary” prevented the petitioner
from raising his rights and the petitioner diligently pursued his rights, but
equitable tolling should be used “sparingly.”4 Pace, 544 U.S. 408, 125 S.Ct. at

379 F.3d at 121-22; see Khan v. United States, 414 F.Supp.2d 210 (E.D.N.Y.
2006) (collecting cases and discussing split). In obiter dictum, the Supreme
Court has indicated a different approach: §2244(d)(1) “provides one means of
calculating the limitation with regard to the ‘application’ as a whole,
§2244(d)(1)(A) . . . , but three others that require claim-by-claim
consideration.” Pace v. DeGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1813 n.6
(2005). The court notes the importance of the Supreme Court’s dictum, see
IFC Interconsult, AG v. Safeguard Int’l Partners, LLC, 438 F.3d 298, 311 (3d
Cir. 2006) (“[W]e pay due homage to the Supreme Court's well-considered
dicta as pharoi that guide our rulings.”), but applies the Third Circuit’s
precedent because it remains binding on this court.
3

“‘[A]n application is ‘properly filed’ when its delivery and acceptance’”
comply with state procedural rules. Merritt v. Blaine, 326 F.3d 157, 162 (3d Cir.
2003), cert. denied, 540 U.S. 921 (quoting Artuz v. Bennett, 531 U.S. 4, 8
(2000)) (emphasis in original). Any decision by a state court finding an appeal
or petition to be untimely is dispositive of the issue for the district court. Id. at
165-66.
4

The Third Circuit has identified three circumstances in which equitable
tolling is warranted: the respondent “actively misled” the petitioner; the
petitioner was in some extraordinary manner prevented from asserting his
rights; or, the petitioner mistakenly, but timely, asserted his rights in an
incorrect forum. Fahd v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing Jones
v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)).
6

1814; Branson v. Vaughan, 398 F.3d 225, 230 (3d Cir. 2005), cert. denied,
126 S.Ct. 473 (2005); Merritt, 326 F.3d at 168.
On August 6, 2003, the Pennsylvania Supreme Court denied Wise’s
petition for allocator and, because he did not file a petition for certiorari in the
United States Supreme Court, his judgement became final at the expiration of
the ninety-day period to file the petition for certiorari. See Morris vs. Horn, 187
F.3d 333, 337 and n.1(3d Cir. 1999). Thus, his judgment of sentence was final
on or about November 4, 2003 and the clock for filing a federal habeas petition
began running. Wise had until November 4, 2004, to file a timely habeas
corpus petition.
Pursuant to 28 U.S.C. §2244(d)(2), when Wise filed his timely PCRA
petition on February 6, 2004, the AEDPA’s filing period was statutorily tolled
with approximately 271 days of the one (1) year filing period remaining. See
Harris, 209 F.3d at 328. Petitioner’s PCRA petition was pending until
December 13, 2005, when the Superior Court affirmed the denial of that
petition. Because Wise did not seek relief from the Pennsylvania Supreme
Court, his judgment of sentence became final on January 12, 2006, thirty days
after the Pennsylvania Superior Court affirmed the judgment of sentence, and
the time for filing a petition for allowance of appeal with the Pennsylvania
Supreme Court expired. See 28 U.S.C. §2244(d)(1)(A); Pa. R. App. P. 1113;
42 Pa.C.S.A. §9545(b)(3). Accordingly, the remaining 271 days of the oneyear limit for Petitioner to timely file a federal petition for writ of habeas corpus
7

began on January 13, 2006 and expired on October 10, 2006. The instant
petition was not filed until July 13, 2012, almost six years after the limitations
period expired. Thus, the petition for habeas corpus relief is barred by the
statute of limitations.
B.

Statutory or Equitable Tolling

Because the AEDPA's one-year statute of limitations is subject to both
statutory and equitable tolling, the Court must examine whether the instant
petition may be considered timely filed under either concept. 28 U.S.C.
§2244(d)(enumerating statutory tolling provisions); Merritt v. Blaine, 326 F.3d
157, 161 (3d Cir.), cert. denied, 540 U.S. 921 (2003) (holding AEDPA’s time
limit is subject to the doctrine of equitable tolling, a judicially crafted
exception).
1.

Statutory Tolling.

Petitioner is not entitled to a new, extended deadline for the AEDPA's
limitation period pursuant to 28 U.S.C. §2244(d)(1). First, Petitioner does not
allege nor is there evidence to demonstrate that state action prevented the
timely filing of his habeas action. 28 U.S.C. §2244(d)(1)(B). Second, the
claims alleged in the Petition do not rely on a new rule of federal constitutional
law of retroactive application. 28 U.S.C. §2244(d) (1)(C). Finally, Petitioner has
not made a showing that the factual predicate of his claims was not
discoverable through the exercise of due diligence long ago. 28 U.S.C.
§2244(d)(1)(D).
8

Petitioner asserts that Martinez v. Ryan, 132 S.Ct. 1309 (2012) entitles
him to a finding of timeliness. Following Martinez, an error by a prisoner’s
post-conviction counsel during his initial state collateral review proceeding can
qualify as “cause” to excuse the procedural default of a claim of trial counsel
ineffectiveness claim if: (1) state law required the prisoner to wait until
post-conviction review to raise Strickland claims; (2) the prisoner's underlying
Strickland claim is “substantial;” and (3) the prisoner can establish that his
post-conviction counsel was ineffective under the Strickland standard. See
Martinez, 132 S.Ct. at 1315, 1318–1319. For several reasons, Martinez does
not render the instant petition, or any of its claims, timely for Section
2244(d)(1)(C) purposes. See Fielder v. Varner, 379 F.3d 113, 122 (3d
Cir.2004)(timeliness of federal habeas petition is determined on a
claim-by-claim basis, such that timeliness of one claim cannot render others
timely merely by association).
Initially, the Court notes that Martinez did not announce a new federal
constitutional rule of law and does not discuss retroactivity. Id. at 1315
(expressly declining to decide constitutional questions). See also Adams v.
Thaler, 679 F.3d 312 (5th Cir. Apr. 25, 2012)(rejecting similar new rule
contention: “Martinez does not provide a basis for authorization under
§2244(b)(2)(A), as the Court’s decision was an ‘equitable ruling’ that did not
establish ‘a new rule of constitutional law.’ ”) (citing Martinez, 132 S.Ct. at
1319).
9

Second, as noted by Respondents, Martinez does not recognize a new
time-bar excuse, but only a limited and equitable excuse for procedural
default. See Vogt v. Coleman, 2012 WL 2930871 (W.D. Pa.)(“Martinez did not
provide that post-conviction counsel’s ineffectiveness could establish an
exception to or equitable tolling of AEDPA’s one-year statute of limitations for
filing a federal habeas corpus petition”); Gale v. Wetzel, 2012 WL 5467540 at
*9-10 (M.D.Pa.); and Darrington v. PA Dept. of Corrections, 2012 WL 7150493
at *4 (M.D.Pa.)(both holding that Martinez is not an exception to the one year
time limit of the AEDPA). As such, Martinez does not render Petitioner’s
habeas petition timely pursuant to 28 U.S.C. §2244(d)(1)(C) (claims alleged
in Petition do not rely on new rule of federal constitutional law of retroactive
application) or 28 U.S.C. §2244(d)(1)(D) (Petitioner has not shown that factual
predicate of claims was not discoverable through exercise of due diligence
long ago). Because Martinez did not purport to describe a constitutional right,
let alone make it retroactively applicable, the alternate start date under Section
2244(d)(1(C) cannot apply to render the petition timely filed.
With respect to Petitioner’s PCRA filing, as noted above, the limitations
period will be statutorily tolled for the time during which a “properly filed”
application for state post-conviction or other collateral review is pending. See
28 U.S.C. §2244(d)(2). However, if a PCRA petition is not timely filed, it is not
considered properly filed in order to toll the AEDPA one-year statutory time
period. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
10

Petitioner’s PCRA petition, filed on February 6, 2004, was timely filed
within the one year statutory period, and statutorily tolled the clock with
approximately 271 days remaining before expiration. However, because Wise
did not seek relief from the Pennsylvania Supreme Court, his judgment of
sentence became final on January 12, 2006, thirty days after the Pennsylvania
Superior Court affirmed the judgment of sentence, and the remaining 271 days
of the one-year statutory period resumed. The present petition was filed on
July 13, 2012, almost six years after the period of limitation expired. As such,
it is statutorily time-barred.
2.

Equitable Tolling.

We must next examine whether the AEDPA statute of limitations should
be equitably tolled to consider the petition timely filed. Robinson v. Johnson,
313 F.3d 128, 134 (3d Cir.2002), cert. denied, 540 U.S. 826, 124 S.Ct. 48, 157
L.Ed.2d 49 (2003)(citing Miller v. New Jersey State Dep’t of Corr., 145 F.3d
616, 617–618 (3d Cir.1998). The limitation period may be tolled when the
principles of equity would make the rigid application of a limitation period
unfair. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560 (2010)(“Now,
like all 11 Courts of Appeals that have considered the question, we hold that
§2254(d) is subject to equitable tolling in appropriate cases.”); Satterfield v.
Johnson, 434 F.3d 185, 195 (3d Cir.2006); Jones v. Morton, 195 F.3d 153,
159 (3d Cir.1999).
To be entitled to equitable tolling, [Petitioner] must show “ ‘(1) that he
11

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 2562 (quoting Pace, 544 U.S. at 418); Lawrence v. Florida, 549 U.S. 327,
(2007) (quoting id.). Courts must be sparing in their use of equitable tolling.
Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999). In
fact, the United States Court of Appeals for the Third Circuit has held that
equitable tolling is proper “only in the rare situation where [it] is demanded by
sound legal principles as well as the interests of justice.” United States v.
Midgley, 142 F.3d 174, 179 (3d Cir.1998).
To the extent that Petitioner believes that he is entitled to equitable
tolling under Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court
does not state in Martinez that a blanket allegation of the ineffectiveness of
PCRA counsel can constitute a basis for equitable tolling of the habeas statute
of limitations. The Martinez decision did not allow for equitable tolling of the
AEDPA deadlines. See Capers v. Walsh, 2012 WL 5389513, at *4 (E.D. Pa.
Oct. 5, 2012)(citing Martinez, 132 S.Ct. at 132 S.Ct. at 1315 (limiting decision
to issue of whether there was cause for prisoner’s procedural default on
collateral review); Kingsberry v. Maryland, 2012 WL 2031991, at *1 (D.Md.
June 4, 2012) (“Martinez did not address equitable tolling in the context of
ineffective assistance of counsel and provides no relief here.”); and Peeples
v. Citta, 2012 WL 1344819, at *6 n. 10 (D.N.J. Apr.16, 2012) (Martinez does
not provide a basis for equitable tolling). See also Vogt v. Coleman, 2012 WL
12

2930871, at *4 (W.D. Pa. July 18, 2012) (collecting cases) and Stromberg v.
Varano, 2012 WL 2849266, at *5 n. 37 (E.D. Pa. July 11, 2012)( “Martinez is
not controlling in this case because the Court denied the petition as
time-barred, not procedurally defaulted. Furthermore, the consideration of
procedurally defaulted claims does not alleviate a petitioner’s burden to
overcome [the one-year] statute of limitations or to prove the merits of his
case”). Martinez does not excuse Petitioner’s failure to seek federal review of
his claims in a timely fashion.
Petitioner does not identify any other possible basis for equitable tolling.
None of the circumstances which warrant equitable tolling apply in this case
to render the instant Petition timely because Petitioner did not act promptly to
preserve his rights in this Court. Fahd, 240 F.3d at 244. Thus, he has failed to
allege that some extraordinary circumstance prevented him from asserting his
rights in a timely habeas corpus petition and has failed to demonstrate that he
exercised reasonable diligence in investigating and bringing his claims. Merritt,
326 F.3d at 168.
In determining whether extraordinary circumstances exist to warrant the
application of equitable tolling, this Court must also examine Petitioner’s due
diligence in pursuing the matter under the specific circumstances he faced.
Traub v. Folio, No. 04–386, 2004 WL 2252115, at *2 (E.D.Pa. Oct.5, 2004)
(citing Schleuter v. Varner, 384 F.3d 69 (3d Cir.2004)) (affirming dismissal of
habeas petition as time barred and not entitled to equitable tolling because
13

lengthy periods of time had elapsed following his conviction before he sought
relief). It is Petitioner’s burden to show that he acted with reasonable diligence
and that extraordinary circumstances caused his petition to be untimely. Id.
Under the circumstances of this case, Wise fails to allege any steps that he
took to timely file the instant federal habeas petition and was somehow
prevented from timely filing. As such, Petitioner did not act in a reasonably
diligent fashion. Accordingly, the Petition is time-barred.
C.

Stay and Abeyance.

On September 6, 2013, Petitioner filed a motion for stay and abeyance,
seeking a stay of the instant petition, (Doc. No. 42), based on the reasoning
set forth in his July 18, 2013 “Modified Application for Writ of Habeas Corpus”
(Doc. No. 40). Petitioner states that “in the aforementioned petition, the
applicant raised, inter alia, a ‘Brady Violation’ alleging that the attorney for the
Commonwealth withheld photographic exhibits from the applicant’s counsel
prior to trial” and that “the Clerk of Courts of Dauphin County aided in the
‘Brady Violation’ by not entering the existence or location of the photographs
into the trial court docket after the photograph’s were used as exhibits.” (Doc.
No. 42, Motion for Stay and Abeyance). Petitioner further states that he
contacted the Clerk of Court and requested an estimate of the costs to have
copies furnished, and that “upon reception of the copies, the petition will have
a ground for appeal cognizable under Pennsylvania Statutes, (Governmental
Interference, Newly Discovered Evidence & Miscarriage of Justice).” Id. As
14

such, Petitioner requests this Court “cease all action under the current docket
and allow the exhausting of all state remedies by the applicant.” Id.
Pursuant to the Post Conviction Relief Act, any PCRA petition, including
second or subsequent petitions, must be filed within one year of the date
petitioner’s judgment of sentence became final, unless an exception to the
time limitation is pled and proved. 42 Pa.C.S. §9545(b) (1). To meet the
narrow exceptions to the time-bar, petitioner must demonstrate to the state
court one of the following: governmental interference, newly discovered
evidence, or a newly recognized, retroactive constitutional right. Id.
In his modified petition, Wise argues that he meets the governmental
interference exception to the post-conviction time bar. In support, Petitioner
claims that “on four occasions [he] has attempted to obtain copies of the
photographic exhibits entered into the trial court record”, and that the Clerk of
Court, a government official, failed to respond to his requests. (Doc. No. 40).
Whether Petitioner succeeds on his governmental interference exception
to the time-bar is a matter for the state court to decide. However, the state
court’s eventual ruling on this does not affect our review of Petitioner’s motion
for stay.
The stay and abeyance procedure holds a federal habeas petition
pending exhaustion of state remedies by the petitioner. Rhines v. Weber, 544
U.S. 269 (2005). While granting a stay and abeyance is an available
procedure, it is not a preferred course of action. Id. Because a “stay and
15

abeyance” procedure, if used too frequently, can undermine the policies
favoring prompt and orderly resolution of state habeas petitions, the Supreme
Court held that “stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to exhaust his
claims first in state court.” Rhines, 544 U.S. at 277. However, the Supreme
Court also did not limit the authority to grant a stay to specific scenarios;
rather, the district court must determine whether the petitioner “satisfied the
three requirements for a stay as laid out in Rhines: good cause, potentially
meritorious claims, and a lack of intentionally dilatory litigation tactics.” Heleva
v. Brooks, 581 F.3d 187, 192 (3d Cir.2009).
The Court does not believe a stay of the instant habeas petition is
warranted here because the petition is untimely. In discussing the
circumstances in which a stay is appropriate, both the Supreme Court and the
Third Circuit have noted the timeliness of the habeas petition. See Rhines, 544
U.S. at 275; Crews v. Horn, 360 F.3d 146, 150 (2004). Moreover, motions for
stay have been denied where the habeas petition ultimately was found to be
untimely. Postley v. Rozum, 2009 WL 5217074, at *5 (E.D.Pa. Dec.30, 2009),
Jones v. Piazza, 2007 WL 789597, *4 (E.D.Pa. Mar.13, 2007), Frazier v.
Stickman, 389 F.Supp 2d 623, 627 (E.D.Pa. Aug.19, 2005) (refusing to grant
a stay where the AEDPA limitations period expired before the pending PCRA
petition was filed). Based on the foregoing, a stay-and-abeyance is
inappropriate in the instant case. While a stay of the habeas petition is not
16

warranted, Petitioner would not be precluded from filing a subsequent habeas
petition should some equitable tolling exception actually existed to overcome
the AEDPA statute of limitations.
D.

Certificate of Appealability.

When a district court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claims, a certificate of
appealability should issue only if (1) the petition states a valid claim for the
denial of a constitutional right, and (2) reasonable jurists would find it
debatable whether the district court was correct in its procedural ruling. Slack
v. McDaniel, 529 U.S. 473, 484 (2000). In this case, reasonable jurists could
not disagree that the instant petition is time-barred. It is statutorily barred, and
neither statutory nor equitable tolling apply to the petition.
E.

Conclusion

In light of the foregoing, Respondents’ motion to dismiss the petition as
untimely will be GRANTED. Petitioner’s motion for stay and abeyance will be
DENIED, and the case will be CLOSED. An appropriate order will follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: October 28, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-1360-01.wpd

17