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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)
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Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Larry N. STROMBERG, Petitioner,
v.
David A. VARANO, et al., Respondents.
Civil Action No. 09–401.
July 11, 2012.
Robert A. Mancini, Fountainville, PA, for Petitioner.
Susan Elizabeth Affronti, Philadelphia District Attys.
Office, Philadelphia, PA, for Respondents.
On May 1, 1996, Petitioner was arrested and charged
with two counts of murder, FN2 one count of burglary,FN3
possession of an instrument of crime (“PIC”),FN4 contempt
of court, and criminal trespass.FN5 The charges were filed
after Petitioner was identified as having stabbed and killed
his estranged wife and her mother. Before she died as a
result of her wounds, Petitioner's mother-in-law identified
Petitioner as her attacker. On June 6, 1997, Petitioner was
found guilty by a jury in the Philadelphia County Court of
Common Pleas. He was sentenced to life in prison for both
the first and second degree murder convictions, and 120 to
240 months for the burglary conviction. No penalty was
imposed for the remaining convictions.
FN2. 18 Pa.C.S.A. § 2502.
FN3. 18 Pa.C.S.A. § 3502.
MEMORANDUM OPINION
RUFE, District Judge.
*1 Before the Court are Petitioner Larry Stromberg's
Objections to the Report and Recommendation of United
States Magistrate Judge Henry S. Perkin. Judge Perkin
recommends that the Petition be denied as time-barred.
Despite Petitioner's assertions to the contrary, Petitioner
has failed to show extraordinary circumstances and
reasonable diligence to justify the application of equitable
tolling to his claims. Consequently, after a careful and
independent review of the state court record and the filings
in this case, the Court will overrule Petitioner's Objections
and deny the Petition without an evidentiary hearing.
I. BACKGROUNDFN1
FN1. The Report and Recommendation (“R &
R”) describes in detail the facts and procedural
history underlying the Petition, and is accurate
and consistent with the record in this case. The
Court adopts the factual background and
procedural history as contained in the R & R.
Petitioner, however, for the first time asserts
additional facts in his Objections to the R & R.
The Court has chosen to address these additional
facts in this Opinion.
FN4. 18 Pa.C.S.A. § 907.
FN5. 18 Pa.C.S.A. § 3503.
Petitioner appealed to the Superior Court of
Pennsylvania. On March 25, 1999, the Superior Court
affirmed the judgment of sentence. Petitioner's appeal to
the Pennsylvania Supreme Court was denied on December
1, 1999.
Approximately nine years later, on December 8, 2008,
Petitioner filed a “Motion for Post Conviction Collateral
Relief,” in this Court, but did so on a Pennsylvania state
court form. The Court dismissed the motion and ordered
that, should Petitioner wish to file a habeas corpus
petition, he should do so on the District Court's standard
form, which was provided to him.FN6 Petitioner followed
the Court's instruction and the current Petition was filed on
January 16, 2009.
FN6. Civ. A. No. 08–5692, Doc. No. 2.
On March 20, 2009, Petitioner filed a pro se petition
pursuant to the Pennsylvania Post–Conviction Relief Act
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(“PCRA”) in the Philadelphia County Court of Common
Pleas. On May 15, 2009, upon application of Petitioner's
PCRA counsel, this Court stayed the federal proceedings
pending disposition of the PCRA petition. On March 1,
2010, the PCRA court dismissed the PCRA petition as
time-barred. Petitioner filed a notice of appeal with the
Pennsylvania Superior Court, but the appeal was later
withdrawn. On November 16, 2010, this Court lifted the
stay of the federal proceedings after receiving a letter from
Petitioner informing the Court that his PCRA appeal had
been discontinued. The Petition was then referred to
Magistrate Judge Perkin for a report and recommendation
(“R & R”).
Nicholas Mamallis, in which Mr. Mamallis states that
“[s]ometime over a year ago,” Petitioner's mother
informed him “that she had paid an attorney named Neil
Jokelson $8,000–$10,000 in 2000 to represent Petitioner
following his conviction.” Mr. Mamallis contacted Mr.
Jokelson, who confirmed he had received the money but
did not pursue the case; Mr. Jokelson allegedly refunded
about half the amount paid.FN8 Petitioner asserts that
although the Petition is time-barred, he is entitled to
equitable tolling based on Mr. Jokelson's alleged failure to
pursue his case.
Petitioner claims that on November 12, 2008, nearly
eight years after his conviction became final, he sent a
letter to his trial counsel asking him if a plea offer of
40–80 years had been made by prosecutors prior to his
trial. Trial counsel responded: “I think you are correct it
was 40–80 years.” Petitioner now asserts that he was never
informed that an offer was made, and argues that trial
counsel's failure to communicate the offer to him deprived
him of his Sixth Amendment right to effective assistance
of counsel. This ineffective assistance of counsel claim
forms the basis of the Petition. FN7 Judge Perkin found that
the Petition was time-barred and that neither statutory nor
equitable tolling applied to render the Petition timely. He
therefore recommended that the Petition be denied.
II. LEGAL STANDARD
FN7. Respondents have represented to both this
Court and the PCRA court that trial counsel
retracted this statement upon further reflection
and that no such offer was made.
FN8. Doc. No. 42–2, Ex. A.
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”),FN9 applies to an application for a writ of
habeas corpus on behalf of a person “in custody in
violation of the Constitution or laws or treaties of the
United States” pursuant to a state court judgment.FN10
Where a habeas petition, such as the one in this case, is
referred to a magistrate judge for report and
recommendation pursuant to 28 U.S.C. § 636(b)(1), a
district court judge conducts a de novo review “of those
portions of the report or specified proposed findings or
recommendations to which objection is made” and “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” FN11
FN9. 28 U.S.C. § 2254.
FN10. 28 U.S.C. § 2254(a).
FN11. 28 U.S.C. § 636(b)(1)(C).
*2 Petitioner has filed counseled Objections to the R
& R. In his Objections, Petitioner asserts, for the first
time, that he hired an attorney in 2000 to represent him in
his post-conviction appeals and that the attorney
continually assured Petitioner that he was “working on his
case.” Petitioner states it was not until 2008 that he
discovered his attorney had not filed a PCRA or habeas
petition on his behalf. It was only then that he began
pursuing his claims on his own.
In support of this assertion, counsel has attached to
the Objections a Declaration of Petitioner's uncle,
A federal court may not grant habeas relief if the
claims were “adjudicated on the merits in State court”
unless the state court decision “was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States” or “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” FN12
FN12. 28 U.S.C. § 2254(d).
III. DISCUSSION
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A. The Court Need Not Consider Petitioner's New
Arguments
The Court is not required to consider the new
arguments raised, for the first time, in Petitioner's
Objections to the R & R. While a court “may ... receive
further evidence” following a magistrate judge's report and
recommendation, FN13 Local Rule 72.1(IV)(c) provides that
“[a]ll issues and evidence shall be presented to the
magistrate judges, and unless the interest of justice
requires it, new issues and evidence shall not be raised
after the filing of the Magistrate's Report and
Recommendation if they could have been presented to the
magistrate judge.” “[T]he issue of how to properly treat an
issue raised anew in a habeas petitioner's objections to a
magistrate judge's report is one that has not yet reached
[the Third Circuit] [C]ourt of [A]ppeals[;]” however,
“[t]he majority of district courts in [the Third] [C]ircuit, as
well as other circuit courts, that have addressed this issue
have concluded that such issues are not properly before
the court, and thus are not to be addressed.” FN14 Petitioner,
in his Objections, raises new issues and evidence not
previously raised in his post-conviction proceedings.
Because these new issues could have been brought before
Magistrate Judge Perkin, the Court finds that the “interest
of justice” does not require that the Court consider these
new issues.
FN13. 28 U.S.C. § 636(b)(1)(C) (emphasis
added).
FN14. Ramos v. Kyler, No. 03–2051, 2004 WL
828363, at *4 (E.D.Pa. Apr.12, 2004) (citing
McClure v. Wilson, No. 02–1206, 2003 WL
23194654, at *2 (E.D.Pa. Feb.4, 2003)); see
Hammond v. Brooks, No. 04–5783, 2009 WL
1507564, at *6 n. 5 (E.D.Pa. May 29, 2009) (“In
addition to timeliness, it is generally accepted
that a habeas court can refuse to hear claims that
were not raised before the magistrate judge.”
(citing Kirk v. Meyer, 279 F.Supp.2d 617, 619
(E.D.Pa.2003))); Jimenez v. Barnhart, 46 F.
App'x 684, 684 (3d Cir.2002) (“[B]ecause
Appellant raised the argument that she is entitled
to a closed period of disability for the first time
in her objections to the Magistrate Judge's
Report and Recommendations, and not in her
opening brief, we deem this argument waived.”);
see also Madol v. Dan Nelson Auto. Grp., 372
F.3d 997, 1000 (8th Cir.2004) (noting plaintiffs
were barred from bringing new arguments before
magistrate judge); Heston v. Comm'r of Soc.
Sec., 245 F.3d 528, 535 (6th Cir.2001)
(“[P]arties may not raise new arguments or issues
at the district court stage that were not presented
to the Magistrate Judge.” (citing Murr v. United
States, 200 F.3d 895, 902 n. 1 (6th Cir.2000)));
Marshall v. Chater, 75 F.3d 1421, 1426 (10th
Cir.1996) (“Issues raised for the first time in
objections to the magistrate judge's
recommendation are deemed waived.” (citing
Paterson–Leitch Co. v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985, 990–91 (1st
Cir.1988))). But see United States v. George,
971 F.2d 1113, 1118 (4th Cir.1992) (“We
believe that as part of its obligation to determine
de novo any issue to which proper objection is
made, a district court is required to consider all
arguments directed to that issue, regardless of
whether they were raised before the
magistrate.”).
*3 In their initial response to the Petition,
Respondents noted that the Petition might be time-barred,
yet Petitioner did not address the issue or otherwise argue
that he was entitled to equitable tolling. Petitioner offers
no explanation for presenting the issue for the first time in
his Objections. Furthermore, the “new evidence”
concerning Petitioner's reliance on Mr. Jokelson's
responsibility for pursuing Petitioner's claims does not
help his case. Surely, Petitioner knew of his own reliance
on Mr. Jokelson's error before filing his Petition and could
have presented the information to Magistrate Judge
Perkin.
Petitioner's failure to bring an equitable tolling argument
and to present this additional evidence to Magistrate Judge
Perkin waives the issue and this Court need not consider
it.
B. Petitioner Has Not Shown Extraordinary
Circumstances To Warrant Equitable Tolling
Even if the Court were to consider Petitioner's new
argument and the new evidence he presents, Petitioner
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does not effectively lay out a claim warranting equitable
tolling.
Under AEDPA, a petition for a writ of habeas corpus
is subject to a one-year statute of limitations.FN15 However,
the limitations period may be tolled in appropriate cases
where enforcing the statute of limitations would be
unfair.FN16 Generally, tolling will be permitted where
plaintiff can show “that he has been pursuing his rights
diligently, and ... that some extraordinary circumstance
stood in his way and prevented timely filing.” FN17 The
Third Circuit has enumerated three specific circumstances
where equitable tolling may be appropriate: “(1) [if] the
defendant has actively misled the plaintiff, (2) if the
plaintiff has in some extraordinary way been prevented
from asserting his rights, or (3) if the plaintiff has timely
asserted his rights mistakenly in the wrong forum.” FN18
FN15. See 28 U.S.C. § 2244(d)(1) (“A 1–year
period of limitations shall apply to an application
for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State
court.”).
FN16. See Holland v. Florida, ––– U.S. ––––,
––––, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130
(2010) (“Now, like all 11 Courts of Appeals that
have considered the question, we hold that §
2244(d) is subject to equitable tolling in
appropriate cases.”).
FN17. Id. at 2562 (citing Pace v. DiGuglielmo,
544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d
669 (2005) (internal quotation marks omitted)).
FN18. Butler v. Walsh, ––– F.Supp.2d ––––, No.
11–2355, 2012 WL 677973, at *4 (E.D.Pa.
Mar.1, 2012) (quoting United States v. Midgley,
142 F.3d 174, 179 (3d Cir.1998)).
While “[m]ere excusable neglect” FN19 does not
warrant equitable tolling, serious attorney misconduct may
constitute “extraordinary” circumstances.FN20 Additionally,
although attorney malfeasance may constitute
extraordinary circumstances, attorney malfeasance alone
is not enough to warrant equitable tolling.FN21 “[D]istrict
courts [are also required] to examine the petitioner's due
diligence in pursuing the matter under the specific
circumstances he faced.” FN22 “Due diligence does not
require ‘the maximum feasible diligence,’ but it does
require reasonable diligence in the circumstances.” FN23
FN19. Miller v. N.J. State Dept. of Corr., 145
F.3d 616, 619 (3d Cir.1998) (citing Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 96, 111
S.Ct. 453, 112 L.Ed.2d 435 (1990).
FN20. Holland, 130 S.Ct. at 2564; see Cristin v.
Wolfe, 168 F. App'x 508, 511 (3d Cir.2006)
(“Generally, an attorney's delinquency is
chargeable to a client and is not a basis for
equitable tolling.”).
FN21. Schlueter v. Varner, 384 F.3d 69, 77 (3d
Cir.2004) (“[A] finding that attorney
malfeasance is an extraordinary circumstance,
without more, is not sufficient to warrant
equitable tolling.”).
FN22. Id. (citing Spitsyn v. Moore, 345 F.3d
796, 802 (9th Cir.2003)); see also Satterfield v.
Johnson, 434 F.3d 185, 196 (3d Cir.2006)
(“Even if [Petitioner]'s filing in the wrong court
constituted an extraordinary circumstance, he
would not be eligible for equitable tolling
because of his lack of diligence in pursuing his
petition.”).
FN23. Schlueter, 384 F.3d at 74 (citing Moore v.
Knight, 368 F.3d 936, 940 (7th Cir.2004)).
Petitioner has not established extraordinary
circumstances, or shown that he was reasonably diligent in
pursuing his claim so as to warrant equitable tolling.
Petitioner bases his claim for equitable tolling on the
alleged fact that the attorney he hired to pursue his claims
assured Petitioner he was working on the case over a
period of eight years, when in fact the attorney never filed
for any relief. Petitioner claims that this inaction by his
attorney, coupled with the attorney's assurances to the
contrary, amount to “serious attorney negligence.”
Petitioner further states that he relied on these assurances
because he was heavily medicated at the time.FN24
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FN24. Petitioner alludes to being heavily
medicated as the cause for his reliance on his
attorney's assurances. To the extent that
Petitioner mentions this to support his
extraordinary circumstances argument or to
excuse his lack of reasonable diligence, it is not
determinative. Petitioner has failed to make a
factual showing of mental incapacity. Therefore,
he is not entitled to extraordinary circumstances
or any other deference based on his medicated
state. See Lawrence v. Florida, 549 U.S. 327,
337, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007)
(finding that an argument of mental incapacity so
as to justify reliance on counsel does not amount
to extraordinary circumstances where there is no
factual showing of mental incapacity).
*4 However, the Third Circuit has recognized that
there is a stark difference between a plaintiff who is
“misled by what the attorney say[s] he ha [s] done,” and a
plaintiff who is misled “by what [his attorney] said he
would do.” FN25 When an attorney represents his intent to
file something on his client's behalf, but does not
ultimately do so, it does not necessarily give rise to
extraordinary circumstances.FN26 Petitioner, in this case,
simply asserts that his attorney assured him that he was
working on the case, but does not assert any act of
“affirmative misrepresentation,” so as to prove
extraordinary circumstances.FN27 Petitioner does not
provide any information concerning discussions with his
attorney or any details of what his attorney said, other than
stating that the attorney provided assurances. Petitioner
has not established that his attorney's malfeasance was
more than mere negligence.
FN25. Schlueter, 384 F.3d at 76.
FN26. See id. (finding that where an attorney
told his client that he anticipated filing a PCRA
petition, but did not do so, was not an
extraordinary circumstance).
FN27. Id. (stating that where an attorney falsely
states to his client that he has filed a claim on his
behalf, equitable tolling might be warranted
(citing Seitzinger v. Reading Hosp. & Med. Ctr.,
165 F.3d 236, 239 (3d Cir.1999))).
Moreover, Petitioner has failed to offer any proof in
support of his claims that he was misled by his attorney.
The only evidence Petitioner has submitted in support of
his claim that he was misled by his an attorney is the
declaration of Mr. Mamallis. Even if the Court accepts this
declaration as true, it establishes only that an attorney was
retained. It does not establish that the attorney repeatedly
assured Petitioner that he was working on his case. Thus,
the declaration does not establish that Petitioner's failure
to actively pursue post-conviction remedies for eight years
was a result of counsel's repeated untruthful assurances
and does not support Petitioner's claim that his own eight
years of inactivity should be excused by the Court. FN28
FN28. Furthermore, Mr. Mamallis's averment
that an attorney was retained in 2000 is based on
statements made by Petitioner's mother, not on
Mr. Mamallis's personal knowledge of this fact.
It is therefore not admissible to prove that an
attorney was, in fact, retained in 2000. See
generally Fed.R.Evid. 801, 802.
Furthermore, notwithstanding alleged malfeasance of
Petitioner's attorney, Petitioner himself failed to exercise
reasonable diligence in pursuit of his post-conviction
remedies. Therefore, even if Petitioner established
attorney malfeasance, Petitioner is not entitled to equitable
tolling because he has failed to show that “he has been
pursuing his rights diligently.” FN29
FN29. Holland, 130 S.Ct. at 2562 (citing Pace,
544 U.S. at 418).
Petitioner relies heavily on Holland v. Florida,FN30
where attorney misconduct did amount to extraordinary
circumstances. However, Holland is distinguishable from
the case at hand, because of the diligence Holland
exercised. Holland repeatedly wrote to his attorney, often
without any response, in an attempt to obtain information
on the status of his case. FN31 After realizing counsel's
indifference to his case, Holland attempted to pursue the
matter on his own. On several occasions, Holland
requested that the Florida Supreme Court remove his
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court-appointed attorney from the case due to lack of
communication.FN32 Holland also wrote to the Clerk of the
Florida Supreme Court attempting to get status updates
after his attorney failed to respond,FN33 and filed
complaints with the Florida Bar Association regarding his
attorney's conduct.FN34 Albeit late, Holland also attempted
to file his own pro se habeas petition in an effort to
preserve his rights.FN35
FN30. ––– U.S. ––––, 130 S.Ct. 2549, 177
L.Ed.2d 130 (2010).
FN31. Id. at 2555–59.
FN32. Id. at 2555.
FN33. Id. at 2556.
FN34. Id. at 2559.
FN35. Id. at 2557.
*5 Here, Petitioner has failed to show a similar level
of diligence. FN36 Petitioner does not describe any attempts
he made to preserve his rights other than occasional
contact with his attorney. Petitioner could have learned,
through the exercise of reasonable diligence, that his
attorney had not actually filed anything on his behalf.
Instead, eight years passed before Petitioner took any
affirmative steps to pursue the matter on his own. FN37
FN36. Compare Seitzinger, 165 F.3d at 237–38
(finding equitable tolling appropriate where “a
diligent client persistently questioned the lawyer
as to whether he had filed the complaint in time,
and he affirmatively misrepresented to her that
he had.”), with Schlueter, 384 F.3d at 77–78
(finding that a delay in filing a habeas petition
which was the alleged result of the attorney's
failure to file a PCRA, despite the attorney's
representation that he would do so, did not
warrant equitable tolling because the petitioner
did not take “affirmative steps to ensure the
timely filing of a PCRA petition,” and also did
not “attempt to ascertain ... whether [the
attorney], in fact, had filed a PCRA petition.”).
FN37. In Martinez v. Ryan, ––– U.S. ––––, 132
S.Ct. 1309, 182 L.Ed.2d 272 (2012), the
Supreme Court held that where state law requires
“claims of ineffective assistance of trial counsel
... be raised in an initial-review collateral
proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial
claim of ineffective assistance at trials if, in the
initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was
ineffective.” Id. at 1320. 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 ADEPA's
statute of limitations or to prove the merits of his
case. As discussed above, Petitioner's claims here
are barred by ADEPA's one-year statute of
limitation and Petitioner is not entitled to
equitable tolling.
IV. CONCLUSION
In sum, the Petition is time-barred. The Court need
not consider new arguments and evidence that Petitioner
presents in his Objections, which he failed to raise before
Magistrate Judge Perkin, and even if it did, Petitioner is
not entitled to equitable tolling. Accordingly, the Court
will overrule Petitioner's Objections, approve and adopt
the Report and Recommendation, and deny the Petition.
Since Petitioner has not made a substantial showing of the
denial of a constitutional right, a certificate of
appealability shall not issue.FN38
FN38. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,
146 L.Ed.2d 542 (2000). Pursuant to Local
Appellate Rule 22.2, at the time of a final order
denying a habeas petition, a district judge is
required to determine whether a certificate of
appealability (“COA”) should issue. A COA
should not be issued unless “reasonable jurists
could debate whether ... the petition should have
been resolved in a different manner or that the
issues presented were adequate to deserve
encouragement to proceed further.” Id. (internal
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quotation marks omitted).
An appropriate Order follows.
E.D.Pa.,2012.
Stromberg v. Varano
Not Reported in F.Supp.2d, 2012 WL 2849266 (E.D.Pa.)
END OF DOCUMENT
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