Tyler v. Smith et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 1/26/2017. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

BURKE LEE ANTHONY TYLER,
Petitioner,
v.
SUPT. BARRY SMITH, et al.,
Respondents.

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CIVIL NO. 3:17-CV-38
(Judge Kosik)

MEMORANDUM
Petitioner Burke Lee Anthony Tyler, an inmate incarcerated at the State
Correctional Institution (“SCI”) at Houtzdale, Pennsylvania, initiated this habeas
corpus action pursuant to 28 U.S.C. § 2254 on January 6, 2017. In the petition, he
challenges his Court of Common Pleas of York County, Pennsylvania conviction on
charges of robbery, terroristic threats, false identification, simple assault and theft by
deception. He pled guilty and received an aggregate sentence on October 14, 2014 of
six (6) to twelve (12) years in prison. Upon preliminary review of the petition
pursuant to 28 U.S.C. § 2254, see R. Governing § 2254 Cases R. 4, it appeared that
the petition may be barred by the statute of limitations, see United States v. Bendolph,
409 F.3d 155, 169 (3d Cir. 2005)(en banc)(holding that district courts may sua sponte
raise AEDPA’s one-year statute of limitations, provided that the petitioner is provided
with notice and an opportunity to respond) set forth in the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). On January 11, 2017, the parties were
notified that the petition appeared to be untimely, and Respondents were directed to
file a response concerning the timeliness of the petition and any applicable statutory
and/or equitable tolling of the AEDPA statute of limitations. Petitioner was also
afforded the opportunity to file a reply. (Doc. 4). On January 18, 2017, Respondents
filed a motion to dismiss the petition as untimely (Doc. 5) and a motion to stay a
response on the merits of the petition (Doc. 6). A motion to proceed in forma
pauperis was filed by Petitioner on January 23, 2017 (Doc. 7), and on January 25,
2017, Petitioner filed his opposition to Respondents’ motion to dismiss his petition as
untimely (Doc. 8). In support of his opposition, Petitioner argues first that there
should not be a statute of limitations and, in the alternative, that he is entitled to
equitable tolling. For the reasons that follow, Petitioner’s in forma pauperis motion
will be granted for the purpose of filing this action, but his arguments will be rejected
and the petition will be dismissed as untimely. Respondents’ motion to stay any
response on the merits will be denied as moot in light of the dismissal of the petition.
I.

Background
As previously stated, Petitioner is serving an aggregate 6-to-12 year sentence

following a guilty plea to the charges referenced above in the York County Court of
Common Pleas. Petitioner did not file a direct appeal to the Superior Court of
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Pennsylvania from his state conviction, nor a petition for post-conviction relief
(“PCRA”) with the sentencing court. The instant federal habeas corpus petition was
filed on January 6, 2017 (Doc. 1), wherein Petitioner challenges his sentence.
I.

Discussion
The court may “entertain an application for a writ of habeas corpus in behalf of

a person in custody pursuant to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed
under the stringent standards set forth in the AEDPA. Pub.L. No. 104-132, 110 Stat.
12214 (April 24, 1996). See 28 U.S.C. § 2244(d)(1). A state prisoner requesting
habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that
provides, in relevant part, as follows:
(1) 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. . . .
(2) The time during which a properly filed application for State postconviction 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.

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28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).
Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does
not become final until appeals have been exhausted or the time for appeal has
expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
Petitioner was convicted and sentenced by the York County Court on October
14, 2014. He did not file a direct appeal to the Pennsylvania Superior Court. As
such, his conviction became final on November 13, 2014, which is thirty (30) days
following the date the sentence was imposed. The one-year federal limitations
deadline commenced on this date, and expired one year later, on November 13, 2015.
Hence, the instant federal petition filed on January 6, 2017 appears to be untimely.
However, the court’s analysis does not end here. Consideration of both statutory and
equitable tolling must be undertaken.
A.

Statutory Tolling

Section 2244(d)(2) tolls the statute of limitations with respect to 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.” 28 U.S.C. §
2244(d)(2). While it is true that a properly filed PCRA petition tolls the running of
AEDPA’s statute of limitations, the PCRA petition must be filed before the
limitations period runs out, otherwise there is nothing left to be tolled. See Tinker v.
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Moore, 255 F.3d 1331, 1333 (11th Cir. 2001)(“‘properly filed’ state-court [postconviction] petitions must be ‘pending’ in order to toll the limitations period. Thus, a
state court petition like Tinker’s that is filed following the expiration of the federal
[AEDPA] limitations period cannot toll that period because there is no period
remaining to be tolled.”)(some internal quotations omitted), reh’g denied, 273 F.3d
1123 (11th Cir. 2001). A petition that is timely under state law is “properly filed.”
Pace v. DiGuglielmo, 544 U.S. 408 (2005). Pursuant to Pennsylvania law, a petition
for post-conviction relief is timely if “filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1). There is no tolling applicable in the instant
case in that Petitioner readily admits that he did not file a PCRA petition. Thus, the
instant petition filed here on January 6, 2017 is clearly untimely.
B.

Equitable Tolling

Equitable tolling of the limitations period is to be used sparingly and only in
“extraordinary” and “rare” circumstances. See Satterfield v. Johnson, 434 F.3d 185,
195 (3d Cir. 2006); LaCava v. Kyler, 398 F.3d 271, 274-75 (3d Cir. 2005). It is only
in situations “when the principle of equity would make the rigid application of a
limitation period unfair” that the doctrine of equitable tolling is to be applied. See
Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). “Generally, a litigant seeking
equitable tolling must establish two elements: (1) that he has been pursuing his rights
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diligently; and (2) that some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
With respect to the diligent pursuit of rights, Petitioner must demonstrate that
he exercised reasonable diligence in investigating and bringing the claims. See
Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002). Mere excusable neglect is
not sufficient. See LaCava, 398 F.3d at 276. Moreover, “the party seeking equitable
tolling must have acted with reasonable diligence throughout the period he seeks to
toll.” Warren v. Garvin, 219 F.3d 111, 113 (3d Cir. 2000)(quoting Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). The fact that a petitioner is proceeding
pro se does not insulate him from the “reasonable diligence” inquiry and his lack of
legal knowledge or legal training does not alone justify equitable tolling. See Brown
v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003).
In addition, a court measures the extraordinary circumstances prong
subjectively. In analyzing whether the circumstances faced by a petitioner were
extraordinary, “the proper inquiry is not how unusual the circumstance alleged to
warrant tolling is among the universe of prisoners, ... but rather how severe an
obstacle it is for the prisoner endeavoring to comply with AEDPA’s limitations
period.” See Ross v. Varano, 712 F.3d 784, 802-03 (3d Cir. 2013)(citing Pabon v.
Mahanoy, 654 F.3d 385, 400 (3d Cir. 2011))(internal citations omitted)(emphasis in
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original). To obtain relief, there must be a causal connection, or nexus, between the
extraordinary circumstances petitioner faced and his failure to file a timely federal
petition. See Nara v. Frank, 264 F.3d 310, 320 (3rd Cir. 2001), abrogated on other
grounds by Saffold v. Carey, 536 U.S. 214 (2002). A demonstration cannot be made
if the petitioner, acting with reasonable diligence, could have filed on time
notwithstanding the extraordinary circumstances. See Valverde v. Stinson, 224 F.3d
129, 134 (2d Cir. 2000).
Petitioner claims that there should not be a statute of limitations in habeas
matters. Petitioner also does not disagree, however, that his petition is untimely. But,
he argues that § 2244(d)(1) violates Article III and the Separation of Powers doctrine.
In the alternative, he contends that for the reasons set forth in the grounds in his
petition, that there has been a miscarriage of justice in the instant case, and therefore
he is entitled to equitable tolling. Petitioner is mistaken. He is not able to meet either
of the prongs necessary for equitable tolling to apply, and as such, is not entitled to
equitable tolling in this case.
Petitioner claims that a miscarriage of justice occurred in this case, because of
defects existing in the Information filed in his case. He also claims that the state trial
court was without the power to convict him, and therefore the judgment is “void ab
initio.” He challenges the Violent Offender Incarceration and Truth In Sentencing
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(“VOITIS”) Incentive Grant Program, 42 U.S.C. § 13701 et seq. as unconstitutional,
claiming that the Commonwealth of Pennsylvania received a lot of money to enforce
VOITIS. Based on the foregoing, Petitioner seeks the application of the equitable
tolling doctrine to save his federal petition from the untimeliness bar.
The court rejects Petitioner’s argument for the following reasons. First, with
respect to due diligence, Petitioner neither filed a direct appeal nor a PCRA petition
with respect to his sentence. He offers no reason for failing to raise these arguments
sooner. Moreover, even if Petitioner had acted with due diligence, he fails to raise
any argument in his petition that establishes that he faced an extraordinary
circumstance in this case that prevented him from filing a timely federal habeas
petition. Sine no basis exists for finding that equitable tolling should be applied in
this case, the instant petition will be dismissed as untimely.
III.

Certificate of appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order in
a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has
made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims
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or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
“When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was right in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of reason would
not find the procedural disposition of this case debatable. Accordingly, no COA will
issue.
An appropriate order follows.

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