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 (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

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denied petitioner's second PCRA petition as
untimely.
Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Walter J. POSTLEY
v.
Gerald ROZUM, et al.
Civil Action No. 08–4479.
Dec. 30, 2009.
Walter J. Postley, Somerset, PA, pro se.
Ryan Dunlavey, Phila District Attorney, Philadelphia, PA,
for Gerald Rozum, et al.
ORDER
TIMOTHY J. SAVAGE, District Judge.
*1 AND NOW, this 30th day of December, 2009,
upon consideration of the Petition for Writ of Habeas
Corpus (Document No. 1), the Report and
Recommendation filed by United States Magistrate Judge
David R. Strawbridge and the petitioner's objections to the
Report and Recommendation, and after a thorough and
independent review of the record, it is ORDERED that:
1. The petitioner's objections are OVERRULED;
2. The Report and Recommendation of Magistrate
Judge Strawbridge is APPROVED and ADOPTEDFN1;
and
FN1. Magistrate Judge Strawbridge's report
reflects a thorough review of the record and a
thoughtful analysis of the issues raised.
Accordingly, there is no need to amplify, except
to consider a change in the procedural history
that has occurred since the report was issued. At
the time the Report and Recommendation was
issued, the petitioner's second PCRA petition
was still pending in the state court. However, on
December 2, 2009, Judge Sheila Woods–Skipper

Petitioner objects to Magistrate Judge
Strawbridge's conclusion that his petition was
untimely. He argues that the habeas limitations
period was tolled by the filing of his second
PCRA petition. In Pace v. DiGuglielmo, 544
U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d
669 (2005), the Supreme Court held that a
state post-conviction petition rejected by the
state court as untimely is not “properly filed”
and does not toll the statute of limitations
under 28 U.S.C. § 2244(d)(2). In Pace, the
petitioner claimed that this ruling was unfair,
because “a petitioner trying in good faith to
exhaust state remedies may litigate in state
court for years only to find out ... that he has
not properly filed, and thus that his federal
habeas petition is time barred.” Pace, 544 U.S.
at 416 (internal quotation marks omitted). The
Supreme Court explained that this situation
can be avoided “by filing a ‘protective’
petition in federal court and asking the federal
court to stay and abey the federal habeas
proceedings until state remedies are
exhausted.” Id. at 416. See Rhines v. Weber,
544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d
440 (2005). However, this device can only
operate to toll the limitations period if the
petition was filed within the applicable time
period. In this case, petitioner did not file his
habeas petition within that period. Because the
state court determined that petitioner's second
PCRA petition was untimely, the statute of
limitations under § 2244(d)(2) was not tolled.
3. The petition for writ of habeas corpus is DENIED.
4. There is no probable cause to issue a certificate of
appealability.
REPORT AND RECOMMENDATION

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DAVID R. STRAWBRIDGE, United States Magistrate
Judge.
Before the Court for Report and Recommendation is
the pro se petition of Walter J. Postley (“Postley” or
“Petitioner”) for the issuance of a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254. Petitioner is currently
incarcerated at the State Correctional Institution in
Somerset, Pennsylvania serving a sentence that arises out
of a prosecution in Philadelphia County. FN1 In his petition,
he claims he received ineffective assistance of counsel;
that the Commonwealth failed to meet its burden of proof;
and that the trial court erred with respect to the jury
instructions and what he contends was inaccurate
information included in a trial court opinion. In addition,
he asserts error regarding the dismissal of his PCRA
petition without a hearing. In light of the fact that a second
PCRA petition is still pending in the state courts, he also
asks that the Court stay further consideration of his habeas
petition until the conclusion of that collateral state court
process. For the reasons that follow, we find that his
claims are untimely and that a stay is not warranted. We
recommend that his request for a stay of proceedings be
denied and that his petition be dismissed.
FN1. We note that while Petitioner is currently
confined within the Western District of
Pennsylvania, which includes Somerset County,
see 28 U.S.C. § 118(c), venue is proper here in
that his confinement grew out of a prosecution
and conviction within the Eastern District of
Pennsylvania. See 28 U.S.C. § 2241(d).
I. FACTUAL
BACKGROUNDFN2

AND

PROCEDURAL

FN2. In preparing this Report, we have
considered Petitioner's form petition dated
September 8, 2008 (Doc. No. 1) (“Pet.”);
Respondents' Answer to Petition for Habeas
Relief, with appended exhibits, filed on April 6,
2009 (Doc. No. 7) (“Resp't Ans.”); and
Petitioner's Answer to Commonwealth's
Response to Petition for Writ of Habeas Corpus
submitted on June 2, 2009 (Doc. No. 10) (“Pet'r
Reply”). We have also considered the parties'
briefing with respect to the request for stay:
Postley's Motion for a Stay of Proceedings (Doc.

No. 11) (“Mot. for Stay”); Respondents'
Response in Opposition to Petitioner's Motion
for a Stay of Proceedings (Doc. No. 12); and
Petitioner's Response in Opposition to
Respondent's Response to Petitioner's Motion for
a Stay of Proceedings (Doc. No. 17).
We have not had the benefit of the original and
complete state court record, which is presently
in the custody of the state courts pending
disposition of Petitioner's second PCRA
petition. However, we have concluded that the
absence of the full state court record does not
preclude the disposition of the present petition.
The parties have provided us with copies of
the Common Pleas Court and Superior Court
opinions on both direct appeal and the first
PCRA action, as well as the PCRA petition
that Postley filed most recently that is still
being adjudicated in the state court. In
ad d ition, we have r eviewed the
publicly-available docket sheet maintained by
the Philadelphia Court of Common Pleas in
No. CP–51–CR–0707461–1999, portions of
which both parties also have appended to their
various filings. See http://ujsportal.pacourts.us/
DocketSheets/CPReport.aspx?
matterID=103960623 (last visited Nov. 20,
2009).
Postley was tried in October 2000 before a jury in the
Philadelphia Court of Common Pleas in connection with
a 1998 double murder. The testimony at trial showed that
Postley and two co-defendants charged in connection with
the crime, Tiarike Hodges and Brandon Baker, drove
together to a Philadelphia pizza parlor and that Hodges
and Postley then entered with their guns loaded. Hodges
shot one victim in the head, and Postley killed the other
with two shots to the back. Both Baker and Hodges
subsequently entered guilty pleas as to the charges brought
against them and Baker testified against Postley when
Postley alone was tried. On October 13, 2000, a jury
found him guilty of first degree murder (as to the victim he
shot), third degree murder (as to the victim Hodges shot),
criminal conspiracy, and possession of an instrument of
crime. The jury did not agree to impose the death penalty,

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and Postley was sentenced to life imprisonment for the
first-degree murder conviction. Following pre-sentence
investigations, the trial court judge, the Honorable Jane
Cutler Greenspan, sentenced him to a consecutive term of
imprisonment of 10–30 years on the third-degree murder
conviction, and concurrent terms of 10–20 years for
conspiracy and 2–5 years for the PIC conviction.
Commonwealth v. Postley, No. 0746 1/3
(Phila.Ct.Comm.Pl. Feb. 15, 2001) [Resp't Ans. at Ex. A].
*2 Postley appealed his conviction, raising a single
claim concerning the substitution of a juror that had
occurred during trial. The Superior Court affirmed the
conviction, Commonwealth v. Postley, No. 261 EDA
2001, slip op. at 3, 803 A.2d 796 (Pa.Super.Ct. Apr. 16,
2002) [Resp't Ans. at Ex. B], and, on October 10, 2002,
the Pennsylvania Supreme Court denied his request for
allocator. Commonwealth v. Postley, No. 213 EAL 2002,
809 A.2d 903 (Pa.2002) (table).FN3
FN3. There is no suggestion in the record or the
parties' submissions that Postley sought
certiorari in the United States Supreme Court.
On or about March 17, 2003,FN4 Petitioner filed a pro
se application for collateral relief pursuant to
Pennsylvania's Post Conviction Relief Act (“PCRA”), 42
Pa. Cons.Stat. Ann. § 9541 et seq. Counsel was appointed
and filed an amended PCRA petition,FN5 asserting that trial
counsel was ineffective in failing to object to allegedly
improper comments by the prosecutor during closing
argument. On December 29, 2003, after issuing a notice of
its intention to dismiss the case without a hearing, the
PCRA Court denied the petition on the merits.
Commonwealth v. Postley, No. 07461/3 July Term 1999
(Phila.Ct.Comm.Pl. Dec. 29, 2003) (Greenspan, J.) [Resp't
Ans. at Ex. C]. Postley waived his right to counsel and
pursued an appeal pro se. The Superior Court affirmed the
dismissal, Commonwealth v. Postley, 366 EDA 2004
(Pa.Super.Ct. May 15, 2007) [Resp't Ans. at Ex. D],FN6
and the Pennsylvania Supreme Court again denied
discretionary review. Commonwealth v. Postley, 320 EAL
2007, 932 A.2d 1287 (Pa. Oct. 3, 2007).
FN4. In referring to the filing date of a pro se
PCRA petition, we would ordinarily look for

evidence as to the date upon which the prisoner
handed the petition to prison officials for
mailing, which may be suggested by the date of
postmark and/or the date of any signature on the
petition. See also Commonwealth v. Castro, 766
A.2d 1283 (Pa.Super.Ct.2001) (applying the
prisoner mailbox rule to PCRA petition by
crediting the petitioner with having filed his
petition on date of postmark). Without the
benefit of the actual state court record, neither
the petition itself nor the envelope in which it
presumably was mailed are available to us.
The state court docket sheet lists the filing date
as March 17, 2003, and the Superior Court
referred to that date specifically as the filing
date in its opinion disposing of the PCRA
petition on appeal. Commonwealth v. Postley,
366 EDA 2004, slip. op. at 2 (Pa.Super.Ct.
May 15, 2007). The parties in this litigation
seem to have employed that date as well,
without suggesting in any way that it is
inaccurate. See, e.g., Resp't Ans. at 4 (referring
to filing date as March 17, 2003); Pet'r Reply
at 2 (failing, in procedural history discussion,
to indicate a filing date or to contest the
characterization of his PCRA petition having
been filed on March 17, 2003). Given that we
ultimately conclude, as explained infra, that
Postley's federal habeas petition is untimely by
more than a month, we do not believe that any
discrepancy by a few days in the filing of the
PCRA petition, e.g., the difference between
when Petitioner presumably handed his PCRA
petition to prison officials for mailing and the
date it reached its destination in the state court,
is of any consequence.
FN5. The state court docket sheet does not
reflect the filing of an amended petition, by
counsel or anyone else. The opinion of Judge
Greenspan (now Justice Greenspan) on behalf of
the PCRA Court of December 29, 2003,
however, refers to Attorney Sondra Rodriguez
having filed an amended petition on July 31,
2003. See Resp't Ans. at Ex. C, p. 1.

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FN6. The copy of the Superior Court opinion
provided by Respondents as Exhibit D to their
response to the petition is incomplete,
presumably due to a clerical error. The final page
included is clearly not the final page of the
memorandum opinion, as it leaves off with
“Following our review of the record, we agree
with the above analysis by the trial court, and for
the same reasons, find Postley's ineffectiveness”.
See Resp't Ans. at Ex. D (page 9 of 9). However,
the opening paragraph of the memorandum
opinion states conclusively, “We affirm.”, and
the reported decision in the table at 929 A.2d
245 confirms that the disposition was the
affirmance of the lower court's dismissal of the
petition. Therefore, the fact that the copy of the
opinion that was presented to us was incomplete
does not impede our review of this matter.
On or about December 3, 2007,FN7 Petitioner filed a
second pro se PCRA petition. In that petition, Postley
sought to raise 13 claims.FN8 (Doc. No. 12, Resp't Ex. E.)
According to the state court docket, that second PCRA
petition was assigned to Judge Greenspan and was in
“initial review status” on May 14, 2008. See
http://ujsportal.pa courts.us/DocketSheets/CPReport.aspx?
matterID=103960623 (last visited Nov. 20, 2009). The
docket does not reflect any further activity until August
14, 2009, when the Honorable Sheila Woods–Skipper
apparently filed a notice of her intention to dismiss the
petition pursuant to Rule 907 of the Pennsylvania Rules of
Criminal Procedure . FN9 See id. Postley filed his response
to that notice on September 3, 2009. See id. As confirmed
by the docket, then, Petitioner's second PCRA petition is
still pending in the state court.
FN7. This is the date on the state court docket
sheet and the date stamped on the copy of the
petition that the Respondents have provided. See
Doc. No. 12, at Resp't Ex. E (“DISTRICT
ATTORNEY'S COPY” of form stamped
“RECEIVED DEC 03 2007 PCRA UNIT”). The
petition form does not provide a place for the
petitioner to indicate either the date upon which
he executed it or the date upon which he handed

the petition to prison officials for mailing.
Ultimately, the precise date of this filing is of no
consequence.
FN8. One claim repeated the single claim
asserted in the prior PCRA action: that counsel
was ineffective for not objecting to the
prosecutor's closing statements. See PCRA Pet.
at p. 3a, Issue No. 5. Postley did not seek to raise
in the second PCRA petition the claim litigated
on direct appeal concerning the propriety of the
trial court's substitution of a particular juror.
FN9. We take judicial notice of the fact that
Judge Woods–Skipper is the supervising judge
of the trial court criminal division of the First
Judicial District and that Judge Greenspan left
the bench of the Philadelphia Court of Common
Pleas due to an appointment as a justice of the
Pennsylvania Supreme Court in July 2008.
On or about September 8, 2008, approximately nine
months after filing his second PCRA petition, Petitioner
filed the present pro se petition for writ of habeas
corpus.FN10 Petitioner raises five “issues” FN11 in his habeas
petition: (1) ineffective assistance of counsel relating to
trial counsel's failure “to raise the issue of conflicting
testimony by the Commonwealth[']s witness”; (2) trial
court error due to the trial court having “giv[en] its
opinion of first and third degree homicide”; (3) a failure
by the Commonwealth “to establish a prima facia [sic]
case against the petitioner,” apparently particularly with
respect to conspiracy but also as to “fir[ing] any weapon
or committ[ing] any crime”; (4) trial court error in its
opinion on direct appeal, in which Judge Greenspan
allegedly “stipulated to inaccurate information that was
not provided or testified to at trial”; and (5) trial court
error in dismissing the first PCRA petition without a
hearing in which Postley would have had the opportunity
to present evidence of and preserve the record as to trial
counsel's ineffectiveness. (Pet. at 9–9a.) FN12
FN10. Although the petition was docketed on
September 15, 2008, the federal court deems a
pro se petitioner's habeas petition filed at the
moment he delivers it to prison authorities for

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mailing. See Burns v. Morton, 134 F.3d 109, 113
(3d Cir.1998) (citing Houston v. Lack, 487 U.S.
266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)).
Petitioner dated the habeas petition September 8,
2008, and we will assume for purposes of this
Report that he presented it to prison authorities
on that date.
FN11. For reasons not apparent to us, Postley
obliterated that standard language of the habeas
form petition, replacing the phrases “Ground
one,” “Ground two,” etc. with “Issue One,”
“Issue Two,” etc. See Pet. at 9–10. In addition,
he amalgamates several claims in each “issue,”
for example, alleging the denial of the effective
assistance of counsel at all stages but only
providing information on a failure by trial
counsel to have taken a particular action. See,
e.g., Pet. at 9.
FN12. As to two of the “issues,” Postley does not
provide supporting facts as requested in the form
but instead asks us to “[r]efer to memorandum of
law.” (Pet. at 9.) He did not, however, provide a
memorandum of law with his petition, nor has he
filed one subsequently or sought leave to file one
prior to our preparation of this Report. See also
Resp't Ans. at 1, n. 1 (noting that “Petitioner has
not filed a memorandum of law explaining his
claims” and citing that as one reason, along with
the untimeliness of his petition, for Respondents'
reservation of argument on the procedural
propriety and merits of his claims); Pet'r Reply at
4 (suggesting that he “will file a Memorandum,
when the Commonwealth files a proper answer”
instead of “stalling”).
*3 In their answer filed on April 6, 2009,
Respondents contend that Postley's petition is untimely
and must be dismissed. See Resp't Ans. at 1–6. On June 2,
2009, Petitioner filed a response, pointing out an error
Respondents made regarding the date of a particular filing
and generally asserting that his habeas petition was timely
because his second PCRA petition was still pending in
state court and was tolling the statute of limitations. See
Pet'r Reply at 4. In addition, Postley filed a separate

motion to stay proceedings and has asked the Court to
hold his federal habeas petition in abeyance while he seeks
to exhaust any state court relief that may be available to
him through the pending second PCRA petition.FN13
Respondents oppose his motion, contending that Petitioner
has not alleged sufficient facts to satisfy the requirements
for a stay. They also contend that a stay would be futile
because no further relief is available to him under the
PCRA and due to the untimeliness of his habeas petition.
(Doc. No. 12.) Petitioner responded to Respondents' filing
on November 9, 2009, asserting that a stay is appropriate
because his petition is timely and because he is properly
pursuing PCRA claims in state court. The matter is ripe
for review.
FN13. Petitioner does not describe how the
pending second PCRA petition relates to the
present habeas petition in terms of an overlap of
claims. However, our review of the list of issues
appended to his second PCRA petition reveals
some commonality. Compare PCRA Pet. Issue #
13 with Hab. Pet. Issue One; PCRA Pet. Issue #
4 with Hab. Pet. Issue Two; PCRA Pet. Issue # 6
with Hab. Pet. Issue Three; PCRA Pet. Issue #
11 with Hab. Pet. Issue Four; PCRA Pet. Issue #
12 with Hab. Pet. Issue Five.
II. DISCUSSION
We first consider Postley's request for a stay of
proceedings in that his request, if granted, would not
permit our further evaluation of his petition until such time
as he had finished exhausting any available state court
remedies for those claims raised in his pending PCRA
petition. We then proceed to address the challenge made
by Respondents to the timeliness of Postley's habeas
petition.
A. Request for stay
In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528,
161 L.Ed.2d 440 (2005), the Supreme Court determined
that a district court need not dismiss a petition that it
determines contains both exhausted and unexhausted
claims. The Court approved of a “stay and abey”
procedure available in “limited circumstances,”
specifically, where there is “good cause for the petitioner's
failure to exhaust his claims first in the state court.” 544

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U.S. at 277. Rhines thus permits a federal court to stay
disposition as to exhausted claims contained in the habeas
petition and hold it in abeyance while the petitioner
completes the exhaustion process. Once the petitioner
fully exhausts his claims, the district court may then lift
the stay and review the petition in its entirety. Id. at
277–78.FN14
FN14. As Respondents note in passing, see Doc.
12 at 6, Rhines was decided in the case of a
“mixed petition,” that is, one containing both
exhausted and unexhausted claims. See Rose v.
Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982) (describing “mixed”
petitions). In a subsequent decision, Pace v.
DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161
L.Ed.2d 669 (2005), which did not involve a
mixed petition but rather a petition found to be
untimely, the Court discussed in dicta the manner
in which the stay and abey procedure might be
employed to avoid harsh results preventing
federal habeas review. See Pace, 544 U.S. at
416. The Court of Appeals for the Third Circuit
recently interpreted Pace as sanctioning the use
of the stay and abey procedure in a context
outside that of mixed petitions. In Heleva v.
Brooks, 581 F.3d 187 (3d Cir.2009), the court
held that the district court erred in assuming that
the stay and abey procedure would not be
available to a petition consisting of only
unexhausted claims, e.g., a petition that was not
“mixed.” Heleva, 581 F.3d at 191–92. The
dissent objected that the majority's holding
employed dicta from Pace to overrule, sub
silentio, the 1982 Rose v. Lundy decision that
had required dismissal of petitions containing
only unexhausted claims, expressing doubt that
this would have been the Supreme Court's
intention in Pace. See id. at 193–97 (Chagares,
J., dissenting).
Postley's federal petition is not “mixed,” as it
contains no claims yet presented to the
Superior Court but rather contains claims only
presented thus far to the PCRA Court in his
second PCRA petition. See note 13, supra. As
Respondents have not challenged the

availability of a Rhines stay on this basis,
however, and given that we agree with
Respondents that there are other bases upon
which to deny the requested stay regardless of
whether “stay and abey” is available for a
petition containing only unexhausted claims,
we need not assess how Heleva might apply in
the circumstances of this case.
In his papers requesting a stay, Postley fails to cite
any authority in support of his request or to even
acknowledge the standard he must meet to be given a stay.
See Doc. Nos. 11, 17. He argues only that a stay “is the
appropriate action to permit [him] to pursue and exhaust
these claims in the state court, and to permit him to return
to this court for habeas review.” (Doc. No. 17 at 3.) We
agree with Respondents that a stay is inappropriate in this
case in that Postley has not established good cause
justifying his failure to have presented his five
unexhausted claims either on direct appeal or in his first
PCRA petition.FN15 As previously explained, on direct
appeal, he raised only a claim as to the substitution of a
juror. He could have, but did not, raise an issue as to: the
trial court allegedly having “erred when it instructed the
jury by giving its opinion of first and third degree
homicide” (Pet. at 9, “Issue Two”); the Commonwealth
allegedly having “failed to establish a prima facia [sic]
case against the petitioner” (id., “Issue Three”); or the trial
court allegedly having “erred in [its] opinion on direct
appeal” by “stipulat[ing] to inaccurate information that
was not provided or testified to at trial” (id., “Issue Four”).
In his first PCRA petition, he raised only an issue as to the
alleged ineffectiveness of trial counsel for failure to have
objected to allegedly improper comments made by the
prosecutor during the trial's closing arguments.FN16 He
could have, but did not, assert that trial counsel was
ineffective for “fail[ing] to raise the issue of conflicting
testimony by the Commonwealth[']s witness,” (Pet. at 9,
“Issue One”), nor did he raise the issues concerning the
trial court or prosecutor's actions.FN17 Commonwealth v.
Postley, No. 366 EDA 2004 at 2 n. 3 (Pa.Super.Ct. May
15, 2007).
FN15. Put more precisely, perhaps, we would
speak of “four” claims that could have been
presented earlier. The fifth claim raised in

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Postley's habeas petition does not state a
cognizable claim for federal habeas corpus relief,
as it reflects only Petitioner's complaint that the
PCRA Court should not have dismissed his first
PCRA petition without first holding an
evidentiary hearing. Obviously such a claim
could not have been presented on direct appeal
or in the first PCRA action itself. However,
neither is it a claim upon which this Court may
grant habeas relief. See 28 U.S .C. § 2254(a)
(making habeas relief available “only on the
ground that [the petitioner] is in custody in
violation of the Constiutiton or laws or treaties of
the United States”). Postley's current
incarceration is not the result of a defect in the
PCRA process, nor does the PCRA process set
forth at 42 Pa. Cons.Stat. § 9541 et seq. create
any due process right in Postley to an evidentiary
hearing. See, e.g., Commonwealth v. Barbosa,
819 A.2d 81, 85 (Pa.Super.Ct.2003) (observing
that right to evidentiary hearing is not absolute
and that no hearing is necessary if PCRA Court
can determine from the record that no genuine
issues of material fact exist); Pa. R.Crim. Proc.
907(1) (providing that court may give notice of
intent to dismiss if it determines from the papers
that “no purpose would be served by any further
proceedings”).
FN16. As stated above, Postley initiated that
PCRA action pro se, but counsel was appointed
and apparently filed an amended petition. See
Commonwealth v. Postley, No. 07461/3, July
Term 1999, at 1 (Phila.Ct.Comm.Pl. Dec. 29,
2003). Judge Greenspan's opinion resolving the
first PCRA petition did not describe the claim(s)
set forth in the original pro se petition filed in
March 2003. She did, however, identify this
ineffectiveness claim as having been made by
appointed counsel in the amended PCRA petition
that she filed on July 31, 2003. Id.
While we do not have before us a copy of
Petitioner's pro se petition, we accept his
characterization, in the filings that he
submitted directly to this Court, that the only

ground for relief raised in the first PCRA
action was the ineffectiveness claim as to
trial/appeal counsel for failure to have
challenged the propriety of the prosecutor's
closing argument. See Pet. at 5–6, ¶ 11(a). To
the extent that Postley now claims that PCRA
counsel was ineffective in not raising certain
issues on PCRA review, we see no evidence
that counsel in any way prevented Petitioner
from raising these claims if he believed them
to have merit or even that counsel was advised
that Petitioner wished to bring those claims as
part of his PCRA petition.
FN17. It appears that Postley did seek to raise
additional claims that may correspond with
Issues Two and Three of his federal habeas
petition as part of the PCRA appeals process.
The Superior Court's memorandum opinion
resolving Postley's PCRA appeal refers to two
additional arguments that Postley sought to
make, apparently in his brief to the Superior
Court: that “the trial court abused its discretion
by failing to properly instruct the jury, and that
the verdict was against the weight of the
evidence[.]” Commonwealth v. Postley, No. 366
EDA 2004 at 2 n. 3 (Pa.Super.Ct. May 15,
2007). It is possible that these issues relate to
“Issue Two” of the federal habeas petition,
concerning trial court error in the jury
instructions “by giving its opinion of first and
third degree homicide” (Pet. at 9), and “Issue
Three,” concerning the alleged failure by the
Commonwealth “to establish a prima facia [sic]
case against the petitioner.” (Id.) The Superior
Court, however, found those claims to be waived
both because they were not included in the
PCRA petition and because Postley did not raise
them on direct appeal when they could have been
raised. See Postley, No. 366 EDA 2004 at 2 n. 3
(citing Commonwealth v. Lambert, 568 Pa. 346,
797 A.2d 232, 240–41 (Pa.2001), and waiver
provision of PCRA, 42 Pa. Cons.Stat. §
9544(b)).
*4 Within the second, pending PCRA petition are the

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two claims that were not considered by the Superior Court
on the earlier PCRA review, as well as the two other
substantive issues upon which Postley also seeks federal
habeas relief and a variety of other claims. Postley has not
suggested in any way that any of these claims are based
upon newlydiscovered evidence or a change in applicable
law, and they do not appear to be. Instead, the only
apparent excuse for the failure to have properly raised
these claims in the first PCRA action is that his appointed
PCRA counsel failed to raise them. See, e.g., Second
PCRA Pet., Doc. No. 12, Resp't Ex. E at p. 3a, “Issues to
be Raised on PCRA Petition,” ¶ 9 (“PCRA counsel was
ineffective for not arguing the Petitioner [']s claims in his
first PCRA, or in an amended petition.”); id. ¶ 10 (“PCRA
counsel was ineffective on Petitioner[']s appeal from
de[n]ial of Petitioner [']s PCRA, by not arguing issues that
Petitioner wished to have raised on his PCRA
petition.”).FN18 The implication of his contentions is that
PCRA counsel's failure to have raised these claims in the
first PCRA action constitutes sufficient cause, under
Rhines, for having failed to exhaust these claims before
initiating his federal habeas petition.
FN18. But see Commonwealth v. Postley, No.
366 EDA 2004, slip op. at 2 (Pa.Super.Ct. May
15, 2007) (noting that counsel filed an appellate
brief on behalf of Postley following dismissal of
his PCRA petition but that he subsequently
sought permission to proceed pro se and, after a
Grazier hearing, pursued his appeal without the
interference of counsel).
We disagree that the circumstances here would
constitute good cause to satisfy the Rhines standard.
Petitioner has presented no evidence that he even directed
PCRA counsel to raise these claims such that the failure to
have presented the claims may be laid solely at counsel's
feet—assuming this could even satisfy the “good cause”
requirement. See Second PCRA Pet., Doc. No. 12, Resp't
Ex. E, at p. 3a, ¶ 10 (indicating that these were issues that
Petitioner “wished to have raised on his PCRA petition”
but providing no allegation or corroboration of any
conveyance of that wish to counsel prior to the submission
of the amended petition in July 2003). The same is true as
to the claims that could have been brought prior to the
PCRA action, on direct appeal. Moreover, unlike the

circumstances of the first PCRA action, in which Postley
sought to waive counsel and proceed pro se on appeal to
the Superior Court, there is no evidence that Postley was
ever dissatisfied with the performance of his trial counsel
in the direct appeal or that he felt that counsel was not
being responsive to his requests to preserve certain issues.
Petitioner cannot avoid all responsibility for the issues that
were or were not presented to the courts in the various
stages of direct appeal and PCRA review.
We have no concern that resolving the “good cause”
question against Petitioner here would amount to
“trap[ping] the unwary pro se prisoner,” Rhines, 544 U.S.
at 279 (Stevens, J., concurring), or that it will otherwise
lead to an unjust result. The circumstances of events here
do not warrant use of the stay and abey procedure.FN19
Moreover, separate from the issue of good cause under
Rhines, this case does not present the district court with
the sort of situation Rhines sought to remedy. The purpose
of Rhines is to prevent an otherwise unexhausted and
reviewable claim from being barred from federal review.
There are no such concerns here because the claims
Petitioner has raised in his second, pending PCRA petition
do not appear to be reviewable under the AEDPA both
because they are already untimely, as discussed further
infra, and because they were also procedurally defaulted
in the state court. The PCRA provides that “[a]ny petition
filed under this subchapter ... shall be filed within one year
of the date the judgment becomes final.” 42 Pa. Cons.Stat.
§ 9545(b). As Petitioner's judgment became final 90 days
after the October 10, 2002 denial of his petition for
allowance of appeal in the Pennsylvania Supreme Court
on direct appeal—that is, on January 8, 2003—Petitioner
had only until January 8, 2004 to seek collateral relief
under the statute on this issue. The Pennsylvania Supreme
Court has stated that the PCRA's one-year statute of
limitations acts as a jurisdictional bar and is not subject to
equitable tolling. Commonwealth v. Fahy, 558 Pa. 313,
737 A.2d 214, 222 (Pa.1999). In addition, the PCRA
limitations period is not tolled during the pendency of a
PCRA petition.FN20 Accordingly, the pending PCRA
petition, filed on or about December 3, 2007, appears
unquestionably untimely, which in turn renders the claims
asserted there procedurally defaulted for purposes of
federal habeas review. See Coleman v. Thompson, 501
U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)

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(providing that claim is not reviewable in federal court if
review on the merits by the state court was barred by an
independent and adequate state procedural rule).FN21
FN19. We recognize that Petitioner apparently
did attempt at some point during the PCRA
appeal process, e.g., after the PCRA Court
dismissed his petition on December 29, 2003, to
bring these claims to the attention of the Superior
Court. This bypass of the lower court was not
permitted. See Commonwealth v. Postley, No
366 EDA 2004, slip op. at 2 n. 3 (Pa.Super.Ct.
May 15, 2007) (citing Commonwealth v.
Lambert, 568 Pa. 346, 797 A.2d 232, 240–41
(Pa.2001) for the proposition that claims not
included in the PCRA petition are waived). See
also Pa. R.A.P. 302(a) ( “Issues not raised before
the lower court are waived and cannot be raised
for the first time on appeal.”). Petitioner also
points out that he could not bring these issues
before the state court in a second PCRA petition
until the adjudication of his first PCRA petition
was concluded. See Doc. No. 17 at 2 (citing
Commonwealth v. Lark, 560 Pa. 487, 746 A.2d
585, 588 (Pa.2000), for the proposition that “a
subsequent PCRA petition cannot be filed until
the resolution of review of the pending PCRA
petition”). These circumstances, however, do not
establish good cause for the failure to have
properly presented the claims to the state court in
the review of the initial PCRA petition. He has
not offered any reason to believe he was
unaware, beginning in July 2003, of the identity
of the issues that his attorney was in fact
pursuing in the first PCRA petition and that he
was somehow prevented from including in the
initial PCRA review process consideration of
these additional claims.
FN20. The PCRA provides three exceptions to
the statute of limitations. See 42 Pa. Cons.Stat. §
9545(b)(1)(i)-(iii). There is no evidence that any
of them would apply here. Specifically, the
failure to raise the claims previously was not the
result of government interference; the facts upon
which the claims are predicated were not

unknown to Petitioner; and the claims do not
implicate new law. See id. See also id. §
9545(b)(4) (clarifying that the term “government
interference” “shall not include defense counsel,
whether appointed or retained”). Neither
Postley's PCRA petition submitted to the state
court in December 2007 nor his filings with this
Court suggest that these claims could not have
been discovered with the exercise of due
diligence and litigated earlier, and we see no
indication of any government interference
preventing him from having litigated all of these
claims properly before the PCRA court.
FN21. Petitioner has not raised facts that would
establish the cause and prejudice or fundamental
miscarriage of justice exceptions to the
procedural default rule here. See Coleman v.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991). To the extent that he
contends that claims were not properly presented
to the state court due to the error of PCRA
counsel, those contentions have simply not been
sufficiently supported or corroborated with any
documentation as to merit consideration for the
“cause” component. While the Supreme Court
has recognized that “in certain circumstances
counsel's ineffectiveness in failing properly to
preserve the claim for review in state court will
suffice” to establish cause, Edwards v.
Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587,
146 L.Ed.2d 518 (2000), those circumstances are
not present here. “Not just any deficiency in
counsel's performance will do ...; the assistance
must have been so ineffective as to violate the
Federal Constitution.” Id. The bare assertions
that Postley makes in his second PCRA petition
that PCRA counsel was “ineffective” in not
“arguing” these claims simply fail to meet this
high threshold.
*5 For the preceding reasons, we conclude that
Postley is not entitled to the stay and abey procedure
provided by Rhines and that the claims asserted in his
federal petition are unreviewable as procedurally defaulted
claims.

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B. Timeliness of Postley's Habeas Petition
Alternatively, and for the reasons set forth below, we
also conclude that Postley's habeas petition is untimely,
providing a further rationale for denying his request for a
stay of proceedings and requiring that the matter be
dismissed with prejudice.
1. Commencement of the limitation period
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) imposed a one-year period of
limitations for filing of an application of a writ of habeas
corpus. The statute now provides:
A 1–year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the 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
the 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 application was prevented from filing by 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)(1).
We first consider the date provided by Section
2244(d)(1)(A). As described above, the Pennsylvania
Supreme Court denied Postley's petition for allowance of
appeal on October 10, 2002. He was then allowed a
90–day period in which he could petition the United States
Supreme Court to review his case, see U.S. Sup.Ct. Rule

13, but he did not avail himself of that option. (Pet. at 5,
¶ 9(f).) As a result of his failure to seek certiorari,
Postley's conviction became final upon the expiration of
that period. Section 2244(d)(1) (A) thus dictates the
limitations period start date of January 8, 2003.FN22
FN22. Postley does not contend that any of the
other subsections of Section 2244(d)(1) are
applicable to his petition. Rather, the basis for
his assertion of timeliness concerns his
calculation of the statutory tolling to which he
believes he is entitled. See Pet'r Reply at 4
(“Therefore, the statute of limitations is still
tolling, and further, this Habeas Corpus Petition
is timely.”). We discuss that issue further, infra.
2. Statutory tolling
We next examine Postley's petition to determine
whether he is statutorily entitled to the benefit of tolling
the AEDPA limitations period and for what length of time.
Section 2244(d)(2) authorizes tolling of the limitations
period for the period of time “during which a properly
filed application for state post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2). Postley
initiated a PCRA action on or about March 17, 2003,FN23
which tolled the limitations period until October 3, 2007,
the date upon which the Pennsylvania Supreme Court
denied allocator and thereby ended the pendency of “state
post-conviction or other collateral review” of that petition.
See also Lawrence v. Florida, 549 U.S. 327, 331–36, 127
S.Ct. 1079, 166 L.Ed.2d 924 (2007) (confirming that
statutory tolling ends when state court review of
post-conviction proceeding is complete; period of time to
seek certiorari on post-conviction proceeding would not
toll limitations period). Postley had already used 68 days
of his limitations period prior to the filing of his PCRA
petition, thereby leaving him 297 days from October 4,
2007, or until July 27, 2008, to file his federal petition. He
did not do so until September 8, 2008.
FN23. See note 4, supra, for a discussion
regarding the date on which Postley initiated his
first PCRA action.
*6 Postley apparently believes that the timeliness of

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his federal petition is secure because he has a second
PCRA petition that has been pending since December
2007. That petition, however, appears untimely under the
state PCRA provisions concerning the state time bar, as
discussed above. Therefore, it cannot have any effect on
the limitations questions presented by the federal habeas
petition. See Pace v. DiGuglielmo, 544 U.S. 408, 414, 125
S.Ct. 1807, 161 L.Ed.2d 669 (2005) (holding that a PCRA
petition that is untimely is not “properly filed” for
purposes of the tolling provision in 28 U.S.C. §
2244(d)(2)). Postley's filing of an untimely PCRA petition
did not toll the statute of limitations for the filing of his
habeas petition. The limitations period expired on July 27,
2008. It is clear, therefore, that his petition is untimely
absent a valid claim that concerns of equity require that
the limitations period be tolled.
3. Equitable tolling
The Supreme Court has not squarely addressed the
question as to whether equitable tolling is applicable to the
AEDPA statute of limitations. See Pace v. DiGuglielmo,
544 U.S. 408, 418 n. 8, 125 S.Ct. 1807, 161 L.Ed.2d 669
(2005) (noting same). It has noted, however, that,
“[g]enerally, 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.” Id. at 418.
The Court suggested that it would not extend equitable
tolling in a case where the petitioner “s[a]t on his rights
for years before he filed his PCRA petition” or where “he
also sat on them for five more months after his PCRA
proceedings became final before deciding to seek relief in
federal court.” Id. With respect to what might satisfy the
“extraordinary circumstance” component, we note that the
Third Circuit has identified four narrow circumstances in
which equitable tolling may be proper: (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 him into believing that he had done
everything required of him. Jones v. Morton, 195 F.3d
153, 159 (3d Cir.1998).
Postley has alleged no facts, nor do any appear to be

available to him, that would present any one of these
situations to constitute an extraordinary circumstance. He
has offered no evidence that he was misled about the
limitations period or prevented from filing in federal court
prior to July 27, 2008 when the limitations period expired.
We cannot accept that he timely asserted his federal rights
mistakenly in the wrong forum when he filed his
December 2007 PCRA petition, as we think the distinction
between the forums is quite clear.FN24 We conclude that
Postley cannot claim the benefit of any period of equitable
tolling of the AEDPA limitations period. Therefore, he is
subject to the statutory provision and his petition must be
considered to be untimely.
FN24. There is no evidence that Petitioner
simply mailed his papers to the wrong court.
Rather, he appears to have submitted a petition
on the standard Pennsylvania PCRA petition
form to the state court; and he submitted his
habeas petition to this Court on the Court's
standard form for review of a state court
conviction.
III. CONCLUSION
*7 Petitioner's request for a stay of his federal habeas
petition cannot be granted because he has failed to show
the requisite good cause as to why he did not exhaust his
unexhausted claims before proceeding to federal court. In
addition, the petition in its entirety is untimely because it
was filed more than a month after the expiration of the
limitations period. The Court is thus precluded from
granting any relief on the petition pursuant to 28 U.S.C. §
2244(d)(1).
Pursuant to Local Appellate Rule 22.2 of the Rules of
the United States Court of Appeals for the Third Circuit,
at the time a final order denying a habeas petition is
issued, the district judge is required to make a
determination as to whether a certificate of appealability
(“COA”) should issue. Under 28 U.S.C. § 2253(c), a
habeas court may not issue a COA unless “the applicant
has made a substantial showing of the denial of a
constitutional right.” When a federal court denies a habeas
petition on procedural grounds without reaching the
underlying constitutional claims, a COA may not issue
unless the prisoner demonstrates that jurists of reason

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would find debatable both: (1) whether the petition states
a valid claim for the denial of a constitutional right; and
(2) whether the district court's procedural ruling was
correct. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.
1595, 146 L.Ed.2d 542 (2000). “Where a plain procedural
bar is present and the district court is correct to invoke it
to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing
the petition or that the petitioner should be allowed to
proceed further.” Id.
We do not believe a reasonable jurist would conclude
that the Court would be incorrect in dismissing Postley's
petition with prejudice. Accordingly, a COA should not
issue.
Therefore, we make the following:
RECOMMENDATION
AND NOW, this 27th day of November, 2009, IT IS
RESPECTFULLY RECOMMENDED that the petition for
writ of habeas corpus be dismissed and that Petitioner's
request to stay his petition 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.,2009.
Postley v. Rozum
Not Reported in F.Supp.2d, 2009 WL 5217074 (E.D.Pa.)
END OF DOCUMENT

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