McCauley v. Lamas
Filing
44
MEMORANDUM and ORDER DISMISSING CASE. The above captioned petition for writ of habeas corpus is DISMISSEDas untimely under the statute of limitations. The Clerk of Court is directed to CLOSE this case. There is no basis for the issuance of a Certificate ofAppealability.Signed by Honorable William J. Nealon on 4/11/2016. (bg)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
EMERSON McCAULEY,
Petitioner
v.
MARIROSA LAMAS,
Respondent
: CIVIL ACTION NO. 3:CV-12-2386
:
: (Judge Nealon)
:
:
:
:
:
:
:
MEMORANDUM
Petitioner, Emerson McCauley, an inmate currently confined in the Rockview
State Correctional Institution, Bellefonte, Pennsylvania, filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. §2254. He attacks a conviction
imposed by the Court of Common Pleas for Juniata County, Pennsylvania. (Doc. 1).
A response (Doc. 32), supplemental response (37) and traverses (Docs. 34, 38)
having been filed, the petition is ripe for consideration. For the reasons that follow,
the Court will dismiss the petition as untimely.
I.
Background
A portion of the factual and procedural background of this case has been
extracted from the Pennsylvania Superior Court’s November 8, 2010 Memorandum
Opinion affirming the denial of McCauley’s post conviction relief act (PCRA)
petition. (See Doc. 31-15 at 2-5, Memorandum Opinion).
Appellant, Emerson Glenn McCauley, appeals from the order denying
his request for post conviction relief,1 based upon the results of the
DNA testing performed on evidence introduced by the Commonwealth
during the 1989 trial of appellant on charges of murder, kidnapping,
robbery, and rape. At the conclusion of that trial appellant was
convicted of one count of murder of the second degree, and sentenced
to a term of life imprisonment. We affirm the order of the trial court
denying the requested relief.
This case has been before this Court on two prior occasions, and we
need not here exhaustively recite the underlying facts. For present
purposes it is enough to recount that appellant was found to have
participated in heinous acts committed on June 25, 1977, when a
twenty-one year old woman, who had been on her way home from her
job in State College, Pennsylvania, was cruelly abducted, raped,
robbed and thrown off a bridge to her untimely death. At that time,
appellant was seventeen years old.
Due to the difficulties in identifying the victim’s assailants,2appellant
was not charged with these crimes for more than a decade, and the trial
in this case did not occur until 1989. The trial concluded on February
15, 1989, when the jury returned a verdict on a single charge of murder
1
Appellant’s claim for post conviction relief was filed pursuant to the Pennsylvania Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546.
2
At one point during the police investigation of this case, one prime suspect committed
suicide when he discovered that the police were seeking information regarding his participation in
the crime. The third suspect has yet to be arrested.
2
of the second degree.3 Appellant was thereafter sentenced to serve a
term of life imprisonment, and this Court affirmed this judgment of
sentence. Commonwealth v. McCauley, 588 A.2d 941 (Pa. Super.
1991), appeal denied, 529 Pa. 656, 604 A.2d 248 (1992).
(See Doc. 31-15 at 2-5, Memorandum Opinion).
On March 5, 1992, McCauley filed a pro se petition pursuant to
Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §9541 et seq.
(Doc. 31-6 at 2, PCRA Court Memorandum dated February 17, 1995). Following
the appointment of counsel (“PCRA counsel 1”), McCauley filed amendments to
his PCRA claims (“the first PCRA petition”). Id. Among the six main claims raised
at that time was the allegation that trial counsel rendered constitutionally defective
assistance because he failed to request DNA analysis of the semen, prostate gland
enzymes, and hair collected from the victim’s body. Id. By Memorandum dated
February 17, 1995, the PCRA Court dismissed Petitioner’s pro se and amended
motion for PCRA relief, without a hearing. Id.
By Memorandum Opinion dated December 15, 1995, the Pennsylvania
3
The Office of the Pennsylvania Attorney General prosecuted the case on behalf of the
Commonwealth, and presented evidence including (1) two inculpatory police-recorded statements
given by the appellant, (2) testimony of a jailhouse snitch who stated the appellant had provided him
details of the murder, (3) the grand jury testimony of a former girlfriend of appellant, who had
testified that appellant had confessed to her his participation in the crime, and (4) the testimony of a
“criminalist” who testified that a hair recovered from the victim’s body belonged to appellant.
3
Superior Court issued a non-precedential opinion that affirmed the denial of PCRA
relief. (Doc. 31-9 at 2-6, Superior Court Memorandum Opinion dated Dec. 15,
1995). The Court explicitly rejected McCauley’s two-fold argument, which was that
he was entitled to relief because: (1) DNA testing would have exonerated him of
rape; and (2) rape was an essential element of the second-degree murder count. Id.
In its opinion, the state Superior Court held that McCauley’s claim was meritless
because the jury did not have to believe that McCauley was guilty of rape in order
to properly find him guilty of second-degree murder. Id.
On July 9, 1996, McCauley filed a second pro se PCRA petition which
re-raised the ineffectiveness/DNA testing claim that had been litigated in
connection with the first PCRA petition and unequivocally rejected on the merits by
the state trial court and state Superior Court. Following the re-appointment of
PCRA counsel 1, McCauley filed an amendment to his second round of PCRA
claims, raising a total of 25 claims for relief from his judgment of sentence (“the
second PCRA petition”). However, PCRA counsel 1 also moved for permission to
withdraw on the grounds that the second PCRA petition both alleged that he had
been ineffective and failed to raise a claim that had not been waived and/or
previously litigated.
4
On February 26, 1997, the state trial court permitted PCRA counsel 1 to
withdraw and appointed new counsel (“PCRA counsel 2”). On October 28, 1998,
the state trial court appointed substitute counsel for PCRA counsel 2 (“PCRA
counsel 3”). On August 5, 2002, the state trial court appointed substitute counsel for
PCRA counsel 3 (“PCRA counsel 4”). (See Commonwealth v. McCauley, Docket
Number: CP-34-CR-0000141-1988, Criminal Docket Sheet). No additional
amendments to the second PCRA petition were ever filed. Id.
On January 9, 2004, prior to disposition of the second PCRA petition,
McCauley filed a counseled petition for DNA testing pursuant to 42 Pa.C.S.A.
§9543.1.4 (See Commonwealth v. McCauley, Docket Number: CP-34-CR0000141-1988, Criminal Docket Sheet). This petition sought actual DNA testing of
a single hair found by law enforcement officials on the calf of Ms. Frink after her
death and introduced into evidence at trial (“the single hair”). It also sought testing
of the semen removed from the victim’s vaginal cavity during the autopsy
4
This statutory provision, which became effective in September 2002, permits a convicted
and imprisoned defendant to apply for DNA testing of specific evidence that is related to the
prosecution that resulted in the conviction provided that certain prerequisites are met, including: (a)
an assertion by defendant that he is actually innocent of the offense for which he was convicted; (b)
a prima facie showing that the identity of or participation in the crime by the perpetrator was at issue
during the trial; and (c) a prima facie showing that the DNA testing requested would, assuming
exculpatory results, establish defendant’s actual innocence of the offense for which he was
convicted.
5
performed on Ms. Frink’s body that was not utilized at trial. Subsequently, the state
trial court granted PCRA counsel 4 permission to withdraw and appointed new
counsel (“PCRA counsel 5”). Id.
On December 12, 2005, at the request of the Commonwealth, the trial court
conducted a hearing on the availability of the hair and semen evidence for DNA
analysis. At the conclusion of the hearing, the court determined that: (1) the single
hair existed and would be made available for DNA testing; and (2) the semen
sample sought by McCauley was not available for testing.5
Pursuant to court order, the Commonwealth submitted the single hair along
with a DNA sample obtained from McCauley to DNA specialists within the
Pennsylvania State Police (“PSP”) for nuclear DNA comparative analysis. Id.
Following a determination by PSP forensic scientists that there was an insufficient
amount of DNA material to conduct nuclear DNA testing, the state trial court
ordered the Commonwealth to submit the single hair to Mitotyping Technologies in
5
In light of the state trial court’s prior holding, affirmed by the state Superior Court, that
DNA testing arguably relating to the rape of Ms. Frink could not undermine the compelling evidence
of McCauley’s participation in the kidnapping and robbery of Ms. Frink, and hence could not
undermine McCauley’s conviction for second-degree murder, its decision to require DNA testing at
this point is inexplicable. Indeed, the state trial court’s order for DNA testing of the hair contradicted
the clear mandate of 42 Pa.C.S.A. §9543.1, which requires as a prerequisite to DNA testing a prima
facie showing by the petitioner that the DNA testing requested would, assuming exculpatory results,
establish his actual innocence of the offense for which he was convicted.
6
State College, Pennsylvania (“Mitotyping”) for mitochondrial DNA comparative
analysis. That Order was complied with and Mitotyping issued a report on April 9,
2007 indicating that McCauley was excluded as the contributor of the single hair
admitted into evidence at trial (“the single hair DNA report”).
On May 1, 2007, the Commonwealth delivered by mail to PCRA counsel 5 a
copy of the single hair DNA report. Three months later, on August 1, 2007,
McCauley filed a pro se “notice of pleading” which requested relief from his
conviction and sentence based upon the single hair DNA report (“the fourth PCRA
petition”). (See Commonwealth v. McCauley, Docket Number: CP-34-CR0000141-1988, Criminal Docket Sheet). On August 20, 2007, PCRA counsel 5
filed a motion seeking permission to withdraw from representation of McCauley.
Id.
On October 4, 2007, the state trial court held a hearing on the motion to
withdraw. Id. On that same day, PCRA counsel 5 filed a PCRA petition that: (1)
sought relief for his client based on the allegation that he had rendered ineffective
representation by failing to file a PCRA claim within 60 days of the date that he
learned of the single hair DNA report, i.e. by July 1, 2007, as required by 42
Pa.C.S.A. §9543.1(f)(1); and (2) averred that he had failed to file such a petition in
7
a timely manner because he had been informally notified by a state trooper that the
PSP had independently decided to DNA test other materials obtained from the
crime scene beyond those identified by McCauley (“the fifth PCRA petition”). By
Order dated October 8, 2007, the state trial court granted PCRA counsel 5
permission to withdraw. (See Commonwealth v. McCauley, Docket Number: CP34-CR-0000141-1988, Criminal Docket Sheet). It also: (1) denied all pending
PCRA petitions on grounds of untimeliness; and (2) appointed new counsel for
McCauley (“PCRA counsel 6”).6 Id.
On December 4, 2007, PCRA counsel 6 filed a new PCRA petition alleging
that the information contained within the single hair DNA report entitled him to a
new trial and that the failure of PCRA counsel 5 to file a timely PCRA petition
making that claim constituted a violation of McCauley’s constitutional right to
effective assistance of counsel (“the sixth PCRA petition”). Id. On December 5,
2007, the Commonwealth delivered by mail to PCRA counsel 6 a copy of a report
issued by the PSP Bureau of Forensic Services (“PSPBFS”) dated June 28, 2007
which indicated that: (1) on the initiative of PSP, several additional items of
6
This appointment occurred notwithstanding the fact that McCauley had no legal right to
counsel in connection with a future sixth PCRA petition.
8
physical evidence that were not used at trial – two seminal stains collected from the
victim’s clothing and fingernail clippings obtained from the victim’s hands – had
been subjected to nuclear DNA comparative analysis; and (2)McCauley could be
excluded as a possible contributor to these items (“the first PSP DNA report”).
In response thereto, on December 17, 2007, PCRA counsel 6 filed a
supplement to the sixth PCRA petition which incorporated the additional
information obtained from the first PSP DNA report. (See Commonwealth v.
McCauley, Docket Number: CP-34-CR-0000141-1988, Criminal Docket Sheet).
On December 27, 2007, PCRA counsel 6 filed a second supplement to the sixth
PCRA petition which alleged that results of the first PSP DNA report constituted
newly-discovered evidence that entitled McCauley to a new trial separate and
distinct from his ineffectiveness claim in connection with the single hair DNA
report. Id.
On July 18, 2008, the Commonwealth delivered to PCRA counsel 6 by mail a
copy of a report issued by Mitotyping dated July 8, 2008 which indicated that: (1)
on the initiative of PSP, four hairs collected from the dress, jacket, and shoes of the
victim that had not been introduced at trial had been subjected to mitochondrial
DNA comparative analysis; and (2) McCauley could be excluded as a contributor to
9
these items (“the second PSP DNA report”). Subsequently, the state trial court
permitted McCauley to amend his pending PCRA claim of newly-discovered
evidence to encompass this additional information.
On August 22, 2008, the state trial court conducted a hearing on the claims of
ineffective assistance of counsel and newly-discovered evidence contained in the
sixth PCRA petition and its supplements. (See Commonwealth v. McCauley,
Docket Number: CP-34-CR-0000141-1988, Criminal Docket Sheet). Following the
filing of post-hearing briefs, the state trial court issued an opinion dated August 3,
2009 and an Order dated August 6, 2009, both entered on the docket on August 12,
2009, which denied the PCRA claims in their entirety. (Doc. 31-10 at 2-9, PCRA
Court’s Memorandum Opinion dated August 3, 2009). The trial court specifically
determined that McCauley was not entitled to relief because the information
contained within the single hair DNA report as well as the first and second PSP
DNA reports would not have changed the outcome of the trial, i.e. the jury would
still have found McCauley guilty of second-degree murder. Id. This determination
was entirely consistent with the state trial court’s similar determination contained
within its February 17, 1995 Opinion denying PCRA relief.
On August 17, 2009, McCauley appealed the denial of his fifth supplemented
10
PCRA petition to the state Superior Court. (Doc. 31-11 at 2-34; Doc. 31-12 at 1-34,
copy of McCauley’s appellant’s brief and (Doc. 31-12 at 2-26; Doc. 31-14 at 1-27,
copy of Commonwealth’s appellee’s brief).
On November 8, 2010, the Superior Court issued a non-precedential Opinion
affirming the denial of PCRA relief. (See Doc. 31-15 at 4-8, Pennsylvania Supeior
Court Memorandum Opinion dated Nov. 8, 2010). According to the Superior
Court:
Appellant, in the brief in support of his appeal, sets out four questions
for our review,7 which can aptly be condensed to two: (1) whether a
timely request for PCRA relief was filed once the results of the DNA
testing were known; and (2) whether the results of the DNA testing
constituted “exculpatory evidence that ... would have changed the
outcome of the trial if it had been introduced.”8
Id. In it’s Memorandum Opinion affirming the denial of Petitioner’s PCRA
petition, the Superior Court found the following:
Appellant’s primary argument focuses on the effect of the results
obtained from DNA testing of a single hair that had been found on the
7
While the trial court did not issue an order requesting the filing of a concise statement of
errors complained of on appeal, as suggested by Pa.R.A.P. 1925, it did issue a memorandum opinion
in support of its decision.
8
See: Section 9543(a)(2)(vi) of the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S.
§§9543(a)(2).
11
victim’s body.9 At trial the Commonwealth was permitted to introduce
the testimony of a “criminalist” who testified that the hair was “similar
in all respects” to that of appellant’s chest hair and “could have
originated from the chest of the accused.” N.T. February 13, 1989, pp.
659, 692. This testimony was apparently10 used by the Commonwealth
to emphasize appellant’s proximity to the victim shortly before her
death, and in turn was regarded as additional evidence of appellant’s
presence at the crime scene, as well as his participation in the rape.
Our consideration of appellant’s claim -- that he is entitled to a new
trial because the results of the DNA testing make clear that he did not
rape the victim -- are influenced by the following salient facts: first,
appellant was convicted of murder of the second degree, but the jury
did not single out the offense that was the predicate element of the
crime, and second, this Court, in considering appellant’s prior request
for PCRA relief, rejected appellant’s argument that “rape was an
essential element of the second degree murder count,” stating:
[T]he trial court quite properly never instructed the jury
that rape alone was an essential element of second degree
murder. Instead, it charged that the killing must have
been committed while the “defendant was engaged in or
an accomplice in the commission of…a robbery, a rape, or
a kidnapping.” As the lower court accurately stated,
sufficient evidence was introduced at trial to warrant a
finding that appellant was guilty of kidnapping and
robbing the victim. Therefore, in finding him guilty of
9
While Appellant also contends that the results of the additional testing of the victim’s
clothing is relevant, his argument concentrates on the effect of the Commonwealth’s introduction
into evidence of the testimony of the criminalist relating to the single foreign hair that was found on
the victim’s body.
10
Since neither the opening statements nor the closing arguments of the parties at trial were
transcribed, the record contains only the trial evidence. However, all parties to this appeal agree that
the Commonwealth at trial utilized this evidence in the manner portrayed.
12
second degree murder, it was not essential that the jury
believe that he had raped the victim.
Therefore, given that the record does not support the conclusion that
appellant’s conviction of murder of the second degree was solely
dependent upon his conviction of rape, and that the results of the DNA
testing did not rebut or refute the additional evidence that the
Commonwealth produced on the alternate predicate offenses of
kidnapping and robbery,11 we find…that there is no basis upon which
to conclude that the trial court erred in its decision that appellant failed
to demonstrate that the new evidence would have “changed the
outcome” of his trial.
(See Doc. 31-15 at 4-8, Memorandum Opinion). By Order dated November 1,
2011, the Pennsylvania State Supreme Court denied McCauley’s petition for
allowance of appeal. (Doc. 1 at 30, Order).
On July 25, 2012, McCauley filed another PCRA petition requesting a new
sentencing hearing in accordance with the United States Supreme Court’s Opinion
in Miller v. Albama, 567 U.S. ––––, ––––, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407
(2012), prohibiting an unconstitutional automatic life-without-parole sentences for
11
It bears further emphasis that the results of the DNA testing did not contradict or refute the
two incriminating statements given by appellant to the police in 1983, in which he acknowledged his
presence during the horrible events of that night, and admitted obtaining three hundred dollars at the
end of the night from the other suspects. Compare: Commonwealth v. Reese, 663 A.2d 206 (Pa.
Super. 1995) (Trial court granted new trial where newly obtained DNA evidence directly rebutted
the victim’s identification of the defendant, and victim’s identification was sole evidence that
supported the conviction, and this Court affirmed.).
13
juvenile murderers.12 See Comm of Pa v. McCauley, Docket Number: CP-34-CR0000141-1988). On October 31, 2012, the state trial court entered an Opinion
holding that the claim would be held in abeyance pending future litigation on the
question in the Pennsylvania and federal courts.
On May 29, 2013, the PCRA Court denied McCauley’s PCRA petition,
finding Petitioner was not entitled to relief pursuant to Miller. Id.
On June 4, 2013, Petitioner filed a counseled notice of appeal of that
determination to the Pennsylvania Superior Court, where the Court affirmed the
PCRA denial on August 1, 2014. Id.
On January 25, 2016, the United States Supreme Court decided Montgomery
v. Louisiana, No. 14–280, 2016 WL 280758 (U.S.2016), which effectively
determined that Miller v. Alabama, prohibiting under Eighth Amendment
mandatory life sentences without parole for juvenile offenders, announced a new
substantive constitutional rule that was retroactive on state collateral review.
Montgomery, supra.
On January 27, 2016, McCauley filed his eighth PCRA petition, which is
12
By Notice of Election dated December 19, 2012, Petitioner chose to have his petition ruled
on as filed. (See Doc. 10, Notice of Election). Petitioner’s Miller claim was not raised in above
captioned petition for writ of habeas corpus, and as such, is not before this Court for review.
14
currently pending before the PCRA court. See Comm of Pa v. McCauley, Docket
Number: CP-34-CR-0000141-1988).
II
Discussion
A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. §2254
must adhere to a statute of limitations that provides, in relevant part, as follows:
(d)(1) A one-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. 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 for seeking such review. . .
(d)(2) The 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 shall
not be counted toward any period of limitation under this
subsection.
28 U.S.C. §2244(d)(1)-(2); see generally, Jones v. Morton, 195 F.3d. 153, 157 (3d
Cir. 1999). Thus, under the plain terms of §2244(d)(1)(A), the period of time for
filing a habeas corpus petition begins to run when direct review processes are
concluded. See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)(“[T]he
AEDPA provides that upon conclusion of direct review of a judgment of
conviction, the one year period within which to file a federal habeas corpus petition
15
commences, but the running of the period is suspended for the period when state
post-conviction proceedings are pending in any state court.”)(emphasis in original);
Fields v. Johnson, 159 F.3d 914, 916 (5ht Cir. 1998)(per curiam); Hoggro v. Boone,
150 F.3d 1223, 1226 (10th Cir. 1998). It is not the conclusion of state postconviction collateral review processes that starts the running of the limitations
period. See Bunnell v. Yukins, No. 00-CV-73313, 2001 WL 278259, *2 (E.D.
Mich. Feb 14, 2001)(“Contrary to Petitioner’s assertion, the limitations period did
not begin to run anew after the completion of his post-conviction proceedings.”).
Where, as here, a prisoner’s conviction became final on direct review prior to the
effective date of the AEDPA (April 24, 1996), the limitations period began running
on April 24, 1996. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); see also
Harris, 209 F.3d at 328.
As indicated above, section 2244(d)(2) operates to exclude only the time
within which a “properly filed application” for post conviction relief is pending in
state court. Thus, when a petition or appeal has concluded and is no longer
pending, the one (1) year statute of limitations starts to run and the time is counted.
A “properly filed application” for post conviction relief under § 2244(d)(2) is one
submitted according to the state’s procedural requirements, such as rules governing
16
time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). The
Third Circuit Court of Appeals has defined “pending” as the time during which a
petitioner may seek discretionary state court review, whether or not such review is
sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000). “Pending,” however, does
not include the period during which a state prisoner may file a petition for writ of
certiorari in the United States Supreme Court from the denial of his state postconviction petition. Stokes v. District Attorney of the County of Philadelphia, No.
99-1493, 2001 WL 387516, at *2 (3d Cir., April 17, 2001). Likewise, the statute of
limitations is not tolled under §2244(d)(2) for the time during which a habeas
petition is pending in federal court. Jones, 195 F.3d at 158.
In this case, the Petitioner’s conviction became final on direct review prior to
the enactment of the AEDPA in April of 1996. Thus, the clock for filing a §2254
petition began on April 24, 1996, and he had until April 24, 1997, to file a timely
habeas corpus petition. Burns, 134 F.3d at 111. The instant petition was not filed
until November 29, 2012, more than fifteen years after the limitations period
expired. Thus, the petition for habeas corpus relief is clearly barred by the statute
of limitations.
Although the limitations period is tolled for the “time during which a
17
properly filed application for State post-conviction relief or other collateral review
with respect to the pertinent judgment or claim is pending,” see 28 U.S.C.
§2244(d)(2), none of McCauley’s PCRA filings qualify for tolling the limitations
period. McCauley’s first PCRA petition, affirmed by the Pennsylvania Superior
Court on December 15, 1995, was filed and disposed of prior to the commencement
of the April 24, 1996 one-year limitations period. His second PCRA petition,
although filed on July 9, 1996, within the one-year limitations period, was
dismissed as untimely13, by PCRA Court Order dated October 8, 2007, along with
all of McCauley’s other pending PCRA petitions pending at the time of the Court’s
October 8, 2007 Order. Petitioner’s sixth, seventh and eighth PCRA petitions, filed
on December 4, 2007, July 25, 2012 and January 27, 2016 respectively, in addition
to the two most recent PCRA filings not being a part of the instant action, all are
filed well after the expiration of the April 24, 1997 federal filing deadline. Thus,
the April 24, 1997 filing deadline was not tolled by any “properly-filed application
for state post-conviction or other collateral review.” See Pace v. DiGugliemo, 125
13
Even if this Court were to consider Petitioner’s July 9, 1996 PCRA petition to have tolled
the limitations period, with approximately 289 days of the one (1) year filing period remaining,
Petitioner’s PCRA petition was dismissed by the Superior Court on October 8, 2007. The instant
petition was not filed until November 29, 2012, over five years later.
18
S. Ct. 1807 (2005).14 Consequently, the petition for habeas corpus relief is barred
by the statute of limitations, and should be dismissed as untimely, unless the statute
of limitations is subject to equitable tolling.
A habeas petitioner may also be entitled to equitable tolling of the AEDPA
statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.2003), cert.
denied, 540 U.S. 921 (2003) (holding that AEDPA’s time limit is subject to the
doctrine of equitable tolling, a judicially crafted exception). However, the habeas
petitioner bears the burden of demonstrating his entitlement to equitable tolling and
his due diligence. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Cooper v. Price,
14
In Pace, 125 S. Ct. 1807 (2005), which involved Pennsylvania’s post-conviction review
statute, the nation’s High Court ruled that an untimely PCRA petition is not “properly filed” within
the meaning of 28 U.S.C. § 2244(d)(2) so as to suspend the running of the habeas corpus limitations
period. Id. at 1811. As the Third Circuit Court of Appeals has observed, “[a]n untimely state
petition for post-conviction relief cannot be ‘properly filed’ for purposes of §2244(d)(2).”
Satterfield v. Johnson, 434 F.3d 185, 194 (3d Cir. 2006) (citing Pace, 125 S. Ct. at 1811). The state
trial court determined that McCauly’s second PCRA petition, filed on July 9, 1996 and subsequent
petitions, filed prior to the Court’s October 8, 2007 decision, were untimely. This determination is
conclusive on the question of whether the state court applications were “properly filed” for purposes
of §2244(d)(2). See Evans v. Chavis, 126 S.Ct. 846, 850 (2006) (state court ruling that habeas
petitioner’s delay in seeking state court relief was unreasonable “‘would be the end of the matter’”)
(quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)); Pace, 125 S.Ct. at 1812 (“When a post
conviction petition is untimely under state law, ‘that is the end of the matter’ for purposes of
§2244(d)(2).”); Fountain v. Kyler, 420 F.3d 267, 272 n.3 (3d Cir. 2005) (“because the Superior
Court found [Fountain’s] second [PCRA] petition untimely, it was not ‘properly filed’ and thus did
not serve to toll the running of the statute of limitations”). As explained in Merritt v. Blaine, 326
F.3d 157, 168 (3d Cir. 2003), once the highest Pennsylvania court to address the matter rules that a
PCRA petition is untimely, “it would be an undue interference for a federal district court to decide
otherwise.”
19
82 Fed. Appx. 258, 260 (3d Cir.2003). Moreover, the federal habeas statute of
limitations is subject to equitable tolling only in extraordinary circumstances. See
Merritt, 326 F.3d at 161. Thus, while equitable tolling is permitted in state habeas
petitions under AEDPA, it is not favored. “Courts must be sparing in their use of
equitable tolling” and only permit equitable tolling where “principles of equity
would make rigid application of a limitation period unfair.” Sistrunk v. Rozum,
674 F.3d 181, 189 (3d Cir.2012).
In Merritt, the Third Circuit Court of Appeals set forth two general
requirements for equitable tolling: “(1) that the petitioner has in some extraordinary
way been prevented from asserting his or her rights; and (2) that the petitioner has
shown that he or she exercised reasonable diligence in investigating and bringing
the claims.” Merritt, 326 F.3d at 168 (internal citations and quotations omitted).
Mere excusable neglect is not sufficient. Miller v. New Jersey State Dep’t of
Corrections, 145 F.3d 616, 618–19 (3d Cir.1998). The Court of Appeals has
identified additional circumstances in which equitable tolling is warranted: (1) the
defendant has actively misled the plaintiff, (2) the plaintiff has in some
extraordinary way been prevented from asserting his rights, (3) the plaintiff has
timely asserted his rights mistakenly in the wrong forum, and (4) the claimant
20
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. See Yanes v. Nish, 2009 WL 1045884, *2
(M.D. Pa.2009) (Caldwell, J.) (citing Jones, 195 F.3d at 159).
In the present matter, Petitioner does not specifically argue that he is entitled
to equitable tolling and he presents no evidence to account for the delay in filing the
instant federal petition for writ of habeas corpus. Petitioner does not allege that he
has been actively misled by Respondents or the Court, and the record reflects no
basis for the argument.
Furthermore, it does not appear that Petitioner’s rights were prevented in an
extraordinary manner, he fails to allege that he exercised due diligence in
investigating and bringing his claim, and he has not alleged that he asserted his
rights in the wrong forum. As such, equitable tolling is inapplicable in this matter.
III.
Certificate of Appealability.
When a district court denies a habeas petition on procedural grounds without
reaching the underlying constitutional claims, a certificate of appealability should
issue only if (1) the petition states a valid claim for the denial of a constitutional
right, and (2) reasonable jurists would find it debatable whether the district court
21
was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In this case, reasonable jurists could not disagree that the instant petition is
time-barred. It is statutorily barred, and neither statutory nor equitable tolling apply
to the petition.
IV.
Conclusion
In light of the foregoing, the petition for writ of habeas corpus will be
DISMISSED, and the case will be CLOSED. An appropriate order will follow.
/s/ William J. Nealon
United States District Judge
Dated: April 11, 2016
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
EMERSON McCAULEY,
Petitioner
v.
MARIROSA LAMAS,
Respondent
: CIVIL ACTION NO. 3:CV-12-2386
:
: (Judge Nealon)
:
:
:
:
:
:
:
ORDER
AND NOW, THIS 11th DAY OF APRIL, 2016, for the reasons set forth in
the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1.
The above captioned petition for writ of habeas corpus is DISMISSED
as untimely under the statute of limitations. See 28 U.S.C. §2244(d).
2.
The Clerk of Court is directed to CLOSE this case.
3.
There is no basis for the issuance of a Certificate of
Appealability. See 28 U.S.C. §2253(c).
/s/ William J. Nealon
United States District Judge
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