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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)
Page 1
Not Reported in F.Supp.2d, 2004 WL 2252115 (E.D.Pa.)
(Cite as: 2004 WL 2252115 (E.D.Pa.))
Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Boyman TRAUB
v.
Louis S. FOLIO, et al
No. Civ.A.04-CV-386.
Oct. 5, 2004.
Boyman Traub, Waynesburg, PA, Plaintiff Pro Se.
Thomas W. Dolgenos, District Attorney's Office,
Philadelphia, PA, for Defendant.
MEMORANDUM
BAYLSON, J.
I. Introduction
*1 Petitioner Boyman Traub filed a pro se Petition for
Habeas Corpus in this Court on January 28, 2004 and this
Court referred the case to Magistrate Judge Thomas J.
Rueter (“the Magistrate Judge”) on February 2, 2004. On
April 13, 2004 the Magistrate Judge issued a Report and
Recommendation (“R & R”) pursuant to 28 U.S.C. §
636(b)(1)(c) suggesting that this Court dismiss the Petition
as time-barred by the one-year statute of limitations for the
filing of a habeas corpus petition. On September 10, 2004,
Petitioner filed objections to the R & R. On September 20,
2004, the Government filed a Response. Upon
independent and thorough consideration of the
administrative record and all filings in this Court,
Petitioner's objections are overruled and the
recommendations by the Magistrate Judge are accepted.
II. Background and Procedural History
A summary of the background and procedural history
follows.
* March 3, 1994
Petitioner is convicted of murder, robbery, and related
offenses in the Court of Common Pleas for Philadelphia
County. Petitioner was sentenced to a mandatory life
sentence.
* July 29, 1996
Petitioner filed a pro se motion under the Post
Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann.
§§ 9541, et seq., seeking to have his direct appeal rights
reinstated nunc pro tunc.
* August 27, 1998
The State Court reinstated Petitioner's direct appeal
rights.
* December 7, 1999
Pennsylvania Superior Court affirmed Petitioner's
conviction.
* January 6, 2000
30 days after Superior Court's decision and conviction
becomes final. No timely request for review filed by
Petitioner. Statute of Limitations begins to run for filing of
habeas petition.
* February 11, 2000
Petitioner claims to receive first Notice of
Pennsylvania Superior Court's decision affirming
conviction. Petitioner claims a 60 day mail delay and
cause for the statute to be equitably tolled.
* March 2000
Petitioner filed a Petition for Allowance of Appeal
nunc pro tunc.
* August 10, 2000
Petitioner's appeal denied.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
Not Reported in F.Supp.2d, 2004 WL 2252115 (E.D.Pa.)
(Cite as: 2004 WL 2252115 (E.D.Pa.))
conclusion of direct review or the expiration of
the time for seeking such review.”
* January 6, 2001
End of Statute of Limitations for filing habeas corpus
petition.
* March 7, 2001
Alternate end of Statute of Limitations if equitably tolled
for 60 days.
* March 27, 2001
Petitioner filed second PCRA.
* September 26, 2002
Petitioner's second PCRA is dismissed. Petitioner did
not appeal the decision to the Superior Court.
*2 While it is true that before the statute of limitations
expired, Petitioner filed a Petition for Allowance of
Appeal in March 2000; the Magistrate Judge pointed out
that under controlling Third Circuit case law, a Petition for
Allowance of Appeal nunc pro tunc does not toll the
statute of limitations. See Douglas v. Horn, 359 F.3d 257,
262 (3d Cir.2004) (noting that time during which nunc pro
tunc request for allowance of appeal is pending does not
toll statute of limitation). However, the one-year statute of
limitations is tolled during the time a properly filed PCRA
petition is filed in the state courts. See 28 U.S.C. §
2244(d)(2). In this case, Petitioner's second PCRA
petition, filed March 27, 2001, did not toll the statute of
limitations because it was filed after the habeas statute of
limitations expired on January 6, 2001. Thus, this habeas
petition, filed January 28, 2004, is time-barred under 28
U.S.C. § 2244(d).
* January 28, 2004
Petitioner filed the present habeas petition.
* March 31, 2004
The Government filed a response to the petition
arguing it should be dismissed as untimely because it was
not filed within the one-year statute of limitations as
required by 28 U.S.C. § 2244.
III. Summary of Magistrate Judge's Report and
Recommendation
The Magistrate Judge concluded in his R & R that this
habeas corpus petition should be dismissed as time-barred.
This conclusion is based upon the determination that the
statute of limitations started to run on January 6, 2000,
thirty days after the Pennsylvania Superior Court affirmed
Petitioner's conviction. As a result, Petitioner had until
January 6, 2001 to comply with the one-year statute of
limitations specified in 28 U.S.C. § 2244(d)(1) FN1 in order
to file a timely habeas petition. (R & R at 4).
FN1. 28 U.S.C. § 2244(d)(1)(A) provides that
the statute of limitations runs from “the date on
which the judgment became final by the
The Magistrate Judge further concluded that
Petitioner has not alleged any facts to warrant the statute
of limitations be equitably tolled. Under controlling Third
Circuit precedent, the federal habeas statute of limitations
is subject to equitable tolling in only extraordinary
circumstances. See Miller v. New Jersey State Dep't of
Corrections, 145 F.3d 616, 618 (3d Cir., 1998). The Third
Circuit has defined extraordinary circumstances to exist
only when:
1. The state has actively misled the petitioner;
2. The petitioner has in some extraordinary way been
prevented from asserting his rights; or
3. The petitioner has timely asserted his rights but in
a wrong forum.
See Jones v. Morton, 195 F.3d 153, 159 (3d
Cir.1999). The Magistrate Judge determined that the mail
delay claimed by Petitioner did not fall into any of these
categories. In his Objections, Petitioner contends that he
was prevented from asserting his rights due to the prison
mailroom's mishandling of his legal correspondence from
December 7, 1999 until February 11, 2000. The
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
Not Reported in F.Supp.2d, 2004 WL 2252115 (E.D.Pa.)
(Cite as: 2004 WL 2252115 (E.D.Pa.))
Magistrate Judge concluded that this alleged mistake does
not constitute the extraordinary circumstances required for
equitable tolling.
tolling of the statute of limitations, his petition would still
be time-barred.
An appropriate order follows.
In determining whether extraordinary circumstances
exist, the district court must examine Petitioner's due
diligence in pursuing the matter under the specific
circumstances he faced. See Schlueter v. Varner, 2004 WL
2035180 at *21 (3d Cir. June 25, 2004) (affirming district
court's dismissal of inmate's habeas corpus petition as time
barred and not entitled to equitable tolling since lengthy
periods of time had elapsed following his conviction
before he sought relief). The Petitioner must also show
that he acted with reasonable diligence, and that the
extraordinary circumstances caused his petition to be
untimely. Id. With this standard in mind, the court notes
that even though the alleged delay may have affected
Petitioner's ability to file a timely appeal to the Superior
Court, it had no effect on Petitioner's ability to file a
timely PCRA or habeas petition. Petitioner offers no
reason for his thirteen month delay in filing his second
PCRA after being notified that the Superior Court
affirmed his conviction. Petitioner also waited sixteen
months to file this habeas petition after his second PCRA
petition was denied. These delays indicate a lack of
reasonable diligence on Petitioner's part. Because the
circumstances did not cause this petition to be untimely,
Petitioner was not prevented in an extraordinary way from
asserting his rights and is, therefore, not entitled to
equitable tolling of the statute of limitations.
ORDER
AND NOW, this __________ day of ____________,
2004, upon careful and independent consideration of the
pleadings and record herein, and after review of the
Report and Recommendation of the United States
Magistrate Judge Thomas J. Rueter pursuant to 28 U.S.C.
§ 636(b)(1)(c), it is hereby
ORDERED
1. The Report and Recommendation is APPROVED
and ADOPTED;
2. The petition for writ of habeas corpus is
DISMISSED;
3. A certificate of appealability is not granted; and
4. The Petitioner's objections to the Report and
Recommendation are OVERRULED.
E.D.Pa.,2004.
Traub v. Folio
Not Reported in F.Supp.2d, 2004 WL 2252115 (E.D.Pa.)
END OF DOCUMENT
*3 Even if Petitioner were entitled to equitable tolling
for 60 days due to the mail delay, the statute of limitations
for filing his habeas petition would be extended only until
March 7, 2001. Petitioner would still be time-barred
because he did not file his second PCRA petition until
March 27, 2001.
IV. Conclusion
Because Petitioner did not file his habeas petition
within the one-year statute of limitations period required
by 28 U.S.C. § 2244, he is not entitled to equitable tolling,
and his habeas petition is dismissed as time-barred. Even
if the court decided that Petitioner has articulated
extraordinary circumstances to warrant the equitable
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?