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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

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Not Reported in F.Supp.2d, 2007 WL 789597 (E.D.Pa.)
(Cite as: 2007 WL 789597 (E.D.Pa.))

Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Maurice JONES, Petitioner
v.
Joseph J. PIAZZA, The District Attorney of the County
of Philadelphia and the Attorney General of the State of
Pennsylvania, Respondents.
Civil Action No. 05-CV-05384.
March 13, 2007.
Maurice Jones, Coal Township, PA, pro se.
Thomas W. Dolgenos, District Attorney's Office,
Philadelphia, PA, for Respondents.
ORDER
JAMES KNOLL GARDNER, United States District
Judge.
*1 NOW, this 9th day of March, 2007, upon
consideration of the pro se Petition for Writ of Habeas
Corpus, which petition was filed in the United States
District Court for the Eastern District of Pennsylvania on
October 14, 2005 together with Petitioner's Memorandum
of Law in Support of Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C.A. § 2254 filed October 28, 2005;
upon consideration of the Response to Petition for Writ of
Habeas Corpus, which response was filed March 22, 2006
by respondents; upon consideration of Petitioner's Motion
Requesting a Stay on Petitioner's Application for Writ of
Habeas Corpus to Return to the State Courts to File a
PCRA Petition on Newly Discovered Evidence, which
motion was filed March 15, 2006; upon consideration of
the Response to Motion to Stay Proceedings Pending
Exhaustion of State Court Remedies, which response was
filed March 22, 2006 by respondents; upon consideration
of the Report and Recommendation of United States
Magistrate Judge Jacob P. Hart filed March 28, 2006;
upon consideration of the Petitioner's Objection to the

Magistrate's Report and Recommendation on Petitioner's
Application for a Writ of Habeas Corpus Under § 2254
filed August 16, 2006; it appearing that Magistrate Judge
Hart considered the merits of petitioner's motion to stay in
his Report and Recommendation; it further appearing that
my May 6, 2006 Order extended petitioner's deadline to
file objections to the Report and Recommendation until
June 5, 2006 and that petitioner failed to timely object to
Magistrate Judge Hart's Report and Recommendation; it
further appearing petitioner's objections merely restate the
issues raised in his underlying petition; it further appearing
that petitioner's petition for habeas corpus is time-barred
and without merit; it further appearing that, after de novo
review of this matter, Magistrate Judge Hart's Report and
Recommendation correctly determined the legal and
factual issues presented in the petition for habeas corpus
relief as well as petitioner's motion to stay the within
action,
IT IS ORDERED that the Report and
Recommendation of United States Magistrate Judge Jacob
P. Hart is approved and adopted.
IT IS FURTHER ORDERED that petitioner's
objections to the Report and Recommendation are
overruled.FN1
FN1. When objections are filed to a magistrate
judge's report and recommendation, I am
required to make a de novo determination of
those portions of the report, findings or
recommendations made by the magistrate judge
to which there are objections. 28 U.S.C. §
636(b)(1); Rule 72.1(IV)(b) of the Rules of Civil
Procedure for the United States District Court for
the Eastern District of Pennsylvania.
Furthermore, district judges have wide latitude
regarding how they treat recommendations of the
magistrate judge. See United States v. Raddatz,
447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424
(1980).
Indeed, by providing for a de novo
determination, rather than a de novo hearing,

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Not Reported in F.Supp.2d, 2007 WL 789597 (E.D.Pa.)
(Cite as: 2007 WL 789597 (E.D.Pa.))

Congress intended to permit a district judge, in
the exercise of the court's sound discretion, the
option of placing whatever reliance the court
chooses to place on the magistrate judge's
proposed findings and conclusions. I may
accept, reject or modify, in whole or in part
any of the findings or recommendations made
by the magistrate judge. Raddatz, supra.
As noted above, despite receiving an extension
of time to file objections to Magistrate Hart's
Report and Recommendation, petitioner's
objections were untimely filed and petitioner
failed to provide any explanation for the late
filing. Although a failure to timely file
objections is not a jurisdictional defect, such a
failure without justification provides sufficient
grounds to deny consideration of the
objections. Time limitations on filing
objections must be strictly observed. See
Gradison v. Moore, 786 F.2d 146, 148 (3d
Cir.1986).
However, in an abundance of caution, I have
considered petitioner's objections to the Report
and Recommendation and I conclude his
objections are nothing more than a restatement
of the underlying claims contained in his
petition for habeas corpus. Moreover, upon
review of the Report and Recommendation,
together with de novo review of this matter, I
conclude that the Report and Recommendation
correctly determines the legal issues raised by
petitioner.
Accordingly, I approve and adopt Magistrate
Judge Hart's Report and Recommendation,
including the denial of petitioner's motion to
stay this habeas corpus proceeding, and
overrule petitioner's objections.
IT IS FURTHER ORDERED that Petitioner's Motion
Requesting a Stay on Petitioner's Application for Writ of
Habeas Corpus to Return to the State Courts to File a
PCRA Petition on Newly Discovered Evidence is denied.

IT IS FURTHER ORDERED that the pro se petition
for habeas corpus relief is denied without a hearing.
IT IS FURTHER ORDERED that because petitioner
fails to demonstrate denial of a constitutional right, a
certificate of appealability is denied.
IT IS FURTHER ORDERED that the Clerk of Court
shall mark this matter as dismissed for statistical purposes.
ORDER
AND NOW, this _____ day of _____, 2006, upon
careful and independent consideration of the petition for
writ of habeas corpus, and after review of the Report and
Recommendation of United States Magistrate Judge Jacob
P. Hart, IT IS ORDERED that:
*2 1. The Report and Recommendation is
APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DISMISSED
AS UNTIMELY.
3. The Motion to Stay these proceedings is DENIED.
4. There is no basis for the issuance of a certificate of
appealability.
REPORT AND RECOMMENDATION
JACOB P. HART, United States Magistrate Judge.
This is a pro se petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254, by an individual currently
incarcerated at the State Correctional Institution at Coal
Township, Pennsylvania. For the reasons that follow, I
recommend that the petition be dismissed and that the
motion to stay the proceedings be denied.
FACTS AND PROCEDURAL HISTORY:
On November 16, 1990, after a jury trial before the
Honorable Ricardo Jackson, Jones was convicted of
thirteen counts of possession with intent to deliver a
controlled substance, and one count each of criminal
conspiracy and involvement in a corrupt organization.
After the start of the trial, Jones fled and the trial was
concluded in absentia. Although trial counsel filed
post-verdict motions, the motions were quashed due to

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Jones' fugitive status.
On October 24, 1991, Judge Jackson sentenced Jones
in absentia to an aggregate term of 54-108 years'
imprisonment (consecutive sentences of 3-6 years for each
count of possession with intent to deliver; 5-10 years for
conspiracy, and 10-20 years for corrupt organizations). On
September 11, 1998, Jones was captured and began
serving his sentence.
On December 2, 1999, Jones filed a “Petition to
Vacate Sentence and/or for Leave to File Reconsideration
of Sentence Nunc Pro Tunc and for Leave to Appeal Nunc
Pro Tunc.” Judge Jackson denied the motion.
On December 31, 1999, Jones filed a notice of appeal
from Judge Jackson's Order. On March 5, 2001, the
Superior Court dismissed the appeal because counsel
failed to file a brief. Commonwealth v. Jones, 294 EDA
2000. Jones then filed a Motion for Reconsideration,
which was denied on March 21, 2001. The Pennsylvania
Supreme Court denied allocatur on August 28, 2001.
Commonwealth v. Jones, 784 A.2d 115 (Pa.2001) (table).
On October 2, 2001, Jones filed a pro se petition pursuant
to Pennsylvania's Post Conviction Relief Act, (“PCRA”),
42 Pa.C.S.A. §§ 9541-9551, alleging ineffective assistance
of counsel and seeking the reinstatement of his appellate
rights nunc pro tunc. After appointing counsel and
considering an amended PCRA petition, the PCRA Court
dismissed the petition as untimely on February 11, 2003.
The Superior Court affirmed the PCRA Court's decision
on February 1, 2005. Commonwealth v. Jones, 865 EDA
2003. The Pennsylvania Supreme Court denied allocatur
on July 19, 2005. Commonwealth v. Jones, 91 EAL 2005.
On October 14, 2005, Jones filed this petition for habeas
corpus, claiming: (1) he was denied his right to a direct
appeal; (2) petitioner's sentence is illegal because he was
sentenced in absentia; (3) the evidence does not support
the conviction for corrupt organizations because he was
not engaged in a legitimate enterprise; (4) the consecutive
sentences imposed for the narcotics convictions were an
abuse of discretion; (5) ineffective assistance of appellate
counsel for failing to file a brief on appeal; (6) the trial
court misapplied Pennsylvania Rule of Criminal Procedure
1117(a).FN1

FN1. Jones seems to restate his second claim in
the claim numbered 6 in his petition.
DISCUSSION:
*3 In response to the petition, the District Attorney
argues that the petition is untimely. With the passage of
the Antiterrorism and Effective Death Penalty Act of
1996, (“AEDPA”), Congress enacted a one-year
limitations period for federal habeas corpus petitions. 28
U.S.C. § 2244(d). Ordinarily, the one-year period begins
to run from the date on which the judgment became final
in the state courts and is tolled only by a properly filed
PCRA petition. 28 U.S.C. § 2244(d)(1)(A) and (d)(2).
Here, Jones' conviction became final on November
23, 1991, when the time to file a direct appeal expired. See
Pa.R.App.P. 903(a) (requiring an appeal to be filed within
30 days of a lower court decision). However, the Third
Circuit has determined that application of the one-year
limitations period to convictions that became final prior to
the enactment of AEDPA would be impermissibly
retroactive. Therefore, Jones had one year from AEDPA's
enactment date, April 24, 1996, to file his habeas petition.
See Burns v. Morton, 134 F.3d 109, 110 (3d Cir.1998);
Wilson v. Beard, 426 F.3d 653, 663 (3d Cir.2005). At that
point, Jones was still a fugitive. He returned to custody on
September 11, 1998, after the habeas limitations period
had expired.
Although Jones argues that the time during which the
court considered his argument to have his direct appellate
rights reinstated should not count for the calculation of the
habeas limitations period, see Petitioner's Memorandum,
at 4, Jones waited more than a year after he returned to
custody to file any attack on his conviction.
Jones also argues that AEDPA's one-year did not
begin to run until November 26, 2001, and that the PCRA
petition he subsequently filed was timely, tolling the
running of § 2244's limitations period. See Petitioner's
Memorandum, at 4 n. 1. This argument seems to be based
on the mistaken belief that the “Petition to Vacate
Sentence and/or for Leave to File Reconsideration of
Sentence Nunc Pro Tunc and for Leave to Appeal Nunc
Pro Tunc,” somehow constituted a direct appeal. It did

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not. The trial court denied him leave to appeal nunc pro
tunc. The fact that Jones' retained counsel failed to file a
brief on appeal, causing the Superior Court to dismiss the
appeal of Judge Jackson's Order, does not transform his
request to appeal nunc pro tunc into the appeal he sought.
Because the PCRA petition, filed on October 2, 2001,
was filed after the habeas limitations period had already
run, it had absolutely no tolling effect. Moreover, the state
courts concluded that the petition filed on October 2,
2001, was, itself untimely. Thus, it could not serve to toll
the habeas limitations period, in any event. See Pace v.
DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d
669, 2005 WL 957194 *6 (Apr. 27, 2005) (“time limits ...
are filing conditions” and an untimely filed petition for
state post conviction relief does not statutorily toll the
limitations period).
The arguments presented by Jones in his
Memorandum could also be read to assert a claim for
equitable tolling of § 2244's limitations period. Equitable
tolling is appropriate “when the petitioner has ‘in some
extraordinary way ... been prevented from asserting his or
her rights.” Miller v. New Jersey State Department of
Corrections, 145 F.3d 616, 618 (3d Cir.1998). The Third
Circuit has found that equitable tolling is appropriate in
four narrow circumstances: (1) if the defendant has
actively misled the plaintiff; (2) if the plaintiff has in some
extraordinary way been prevented from asserting his
rights; (3) if the plaintiff has timely asserted his rights
mistakenly in the wrong forum; or (4) if the claimant
received inadequate notice of his right to file suit, a
motion for appointment of counsel is pending, or where
the court has misled the plaintiff into believing that he had
done everything required of him. Jones v. Morton, 195
F.3d 153, 159 (3d Cir.1999). However, equitable tolling
is to be invoked “only sparingly.” see United States v.
Midgley, 142 F.3d 174, 179 (3d Cir.1998). The Third
Circuit has found that the hallmark of equitable tolling is
reasonable diligence on behalf of the petitioner. See
Miller, at 618-619 (requiring the petitioner to establish
that he exercised reasonable diligence in investigating and
bringing his claims); Phillips v. Donnelly, 216 F.3d 508,
511 (noting petitioner had pursued his claims with
diligence and alacrity).

*4 Here, Jones' failure to timely file his habeas
petition is directly attributable to his flight. Clearly such
circumstances do not warrant equitable tolling because the
petitioner is author of his own demise. See Verikokidis v.
Galetka, 42 Fed.Appx. 311 (10th Cir.2002) (delay not
excused where petitioner's fugitive status contributed to
delay).
Finally, Jones has filed a Motion to Stay his habeas
proceedings, stating that he recently received “information
and a document that exposed the pervasive misconduct
and policies of illegal racial discrimination in jury
selection.” Motion for Stay, at ¶ 2. The Supreme Court has
recently concluded that a “stay and abey” procedure is
appropriate when the petitioner files a mixed petition.
When the district court concludes there was good cause
for the petitioner's failure to exhaust his claims in the state
court, the district court can stay the federal proceedings to
allow the petitioner to exhaust his unexhausted claims in
state court. Rhines v. Weber, 544 U.S. 269, 125 S.Ct.
1528, 161 L.Ed.2d 440 (2005).
One of the underpinnings of the Court's decision in Rhines
is the relationship of the total exhaustion rule with
AEDPA's strict one-year limitations period.
As a result of the interplay between AEDPA's 1-year
statute of limitations and [Rose v.] Lundy's dismissal
requirement, [ 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982) ] petitioners who come to federal
court with “mixed” petitions run the risk of forever
losing their opportunity for any federal review of their
unexhausted claims.
Rhines, at 1533. Thus, the “stay and abey” procedure
protects both the concerns of comity and finality by giving
the state courts the first opportunity to address the
unexhausted claims and preserving the exhausted claims
from an untimely fate if the court were to dismiss the
mixed petition.
Here, Jones has filed an untimely petition. There is
nothing to save from an untimely fate. If Jones has a newly
discovered claim, he will not be prejudiced by first
exhausting the claim in the state courts because the Post
Conviction Relief Act, like the habeas corpus statute,

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allows the petitioner to present a claim that is newly
discovered and could not have been discovered through
the exercise of reasonable diligence. See 42 Pa.C.S.A. §
9545(b) (1)(ii); 28 U.S.C. § 2244(d)(1)(D). The time
during which such a PCRA petition is pending, if timely
filed, see 42 Pa.C.S.A. § 9545(b)(2) (requiring a claim
based on newly discovered evidence to be filed within 60
days), would be tolled for purposes of calculating the
habeas limitations period. 28 U.S.C. § 2244(d)(2). Thus,
the concerns expressed in Rhines are not present here and
we will recommend that the petitioner's request to stay
these proceedings be denied.FN2
FN2. We also note that the Supreme Court
cautioned against staying consideration of a
petition if the unexhausted claim was plainly
meritless. Rhines, at 1535. Here, Jones has failed
to give us any indication what evidence he
recently discovered. Although the District
Attorney attempts to guess the basis for Jones'
new-found claim, on the record before us, we
have no way to make a determination of the
claim's merits.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 27th day of March, 2006, IT IS
RESPECTFULLY RECOMMENDED that the petition for
writ of habeas corpus be DISMISSED AS UNTIMELY.
IT IS FURTHER RECOMMENDED that the Motion to
Stay be DENIED. There has been no substantial showing
of the denial of a constitutional right requiring the
issuance of a certificate of appealability.
E.D.Pa.,2007.
Jones v. Piazza
Not Reported in F.Supp.2d, 2007 WL 789597 (E.D.Pa.)
END OF DOCUMENT

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