RUCKER v. CURLEY et al
Filing
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MEMORANDUM AND OPINION that the Petition for Writ of Habeas Corpus filed by LANCE RUCKER be dismissed as untimely and that a certificate of appealability be denied. Signed by Judge Lisa Pupo Lenihan on August 30, 2011. (far, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LANCE RUCKER,
Petitioner,
v.
WARDEN MICHAEL CURLEY; THE
DISTRICT ATTORNEY OF THE
COUNTY OF ALLEGHENY and THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA
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Civil Action No. 11 - 82
Magistrate Judge Lisa Pupo Lenihan
Respondents.
MEMORANDUM OPINION AND ORDER
Petitioner, Lance Rucker, a state prisoner incarcerated at the State Correctional Institution at
Huntingdon, Pennsylvania, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254.
For the reasons that follow, the Petition should be dismissed as untimely because it was not filed
within the one-year limitations period provided for under 28 U.S.C. ' 2244(d).
A. Relevant Procedural History
The record evidence reveals the following. On April 23, 2001, in the Court of Common
Pleas of Allegheny County, Pennsylvania, Petitioner was convicted by a jury of Second Degree
Murder and related charges and was sentenced to life imprisonment. Petitioner filed a timely notice
of appeal and on August 20, 2002, the Superior Court of Pennsylvania affirmed his judgment of
sentence. Petitioner filed a timely Petition for Allowance of Appeal to the Supreme Court of
Pennsylvania, which was denied on March 7, 2006.
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On September 21, 2006, Petitioner filed a petition for relief under the Pennsylvania Post
Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. ' 9542. On November 1, 2006, the PCRA Court
denied Petitioner=s PCRA Petition. Petitioner filed a timely Notice of Appeal and on January 8,
2008, the Superior Court of Pennsylvania affirmed the Trial Court=s determination denying Petitioner
PCRA relief. On September 12, 2008, the Supreme Court of Pennsylvania denied Petitioner=s
Petition for Allowance of Appeal.
On October 31, 2008, Petitioner filed a second pro se Motion for Post Conviction Collateral
Relief. On December 22, 2008, this Petition was dismissed as untimely. Petitioner did not file any
appeal from this order.
On June 17, 2009, Petitioner filed a third pro se Motion for Post Conviction Collateral Relief.
On July 7, 2009, this Petition was dismissed as untimely. Petitioner filed a timely Notice of Appeal
and on August 13, 2010, the Superior Court of Pennsylvania affirmed the Trial Court=s determination
denying Petitioner PCRA relief.
Petitioner=s federal Petition for Writ of Habeas Corpus was executed on January 20, 2011.
B. Time Period for Filing Federal Habeas Corpus Petitions
The first consideration in reviewing a federal habeas corpus petition is whether the petition
was timely filed under the one-year limitations period applicable to such petitions. In this regard, the
federal habeas corpus laws impose a one-year limitations period applicable to state prisoners, which
provides as follows.
(d)
(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--
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(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 applicant 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.
(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) (as amended).
The Court of Appeals for the Third Circuit has held that the statute of limitations set out in '
2244(d)(1) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113 (3d Cir.
2004), cert denied, 543 U.S. 1067 (2005). Thus, in analyzing whether a petition for writ of habeas
corpus has been timely filed under the one-year limitations period, a federal court must undertake a
three-part inquiry. First, the court must determine the "trigger" date for the individual claims raised
in the Petition. Typically, this is the date that the petitioner's direct review concluded and the
judgment became "final" for purposes of triggering the one-year period under section '
2244(d)(1)(A). Second, the court must determine whether any "properly filed" applications for
post-conviction or collateral relief were pending during the limitations period that would toll the
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statute pursuant to section 2244(d)(2). Third, the court must determine whether any of the other
statutory exceptions or equitable tolling should be applied on the facts presented.
In the instant action, the Supreme Court of Pennsylvania denied Petitioner's timely filed
Petition for Allowance of Appeal on March 7, 2006. Consequently, direct review of Petitioner's
conviction became "final" on or about June 5, 2006, i.e., the date of the expiration of the ninety-day
period for filing a petition for writ of certiorari in the United States Supreme Court. See Swartz v.
Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes final at the conclusion of
direct review or the expiration of time for seeking such review, including the time limit (90 days) for
filing a writ of certiorari in the Supreme Court); Kapral v. United States, 166 F.3d 565, 575 (3d Cir.
1999) (same for 28 U.S.C. ' 2255 motions). Thus, Petitioner had one year from that date, i.e., until
June 5, 2007 to file a federal habeas corpus petition challenging his conviction.
In the case at bar, however, Petitioner did not file his federal Habeas in this Court until
January 20, 2011, the date he signed his Petition. Thus, this court must determine whether Petitioner
can take advantage of the "tolling" provision in section 2244(d)(2). In this regard, as stated above,
section 2244(d)(2) provides that "[t]he 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)(2).
With respect to the instant petition, Petitioner filed his first PCRA Petition on September 21,
2006. As stated above, his one-year limitations period began running on June 6, 2006 and continued
to run until September 21, 2006, when he filed his PCRA petition. From June 6, 2006 until
September 21, 2006, 107 days had run on Petitioner's one-year limitations period; 258 days remained
(365-107=258). Petitioner's one-year AEDPA limitations was tolled while he was pursuing his
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PCRA proceeding from September 21, 2006 through September 12, 2008, the date the Supreme
Court of Pennsylvania denied his Petition for Allowance of Appeal. See Stokes v. District Attorney
of County of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001) (holding that the time during which a
state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the
denial of his state post-conviction petition does not toll the statute of limitations on filing a habeas
petition). He is not entitled to any tolling with regards to his second or third PCRA Petitions as those
petitions were dismissed as untimely. Pace v. DiGuglielmo, 544 U.S. 408 (2005) (holding that
untimely Pennsylvania PCRA petition does not toll AEDPA's limitation period); Artuz v. Bennett,
531 U.S. 4, 8 (2000) (holding that a state post conviction petition is properly filed when its delivery
and acceptance are in compliance with applicable laws). Thus, his limitations period began running
again on September 13, 2008 and expired 258 days later on May 29, 2009.
Unfortunately for him, Petitioner did not file his federal habeas corpus petition until January
20, 2011, almost eighteen months after his limitations period had expired. Nothing in the record in
this action indicates that Petitioner is entitled to take advantage of any of the other provisions
triggering the one-year limitations period. In this regard, Petitioner's petition for habeas corpus and
his attachments do not indicate that Petitioner suffered any impediment to filing his federal petition.
28 U.S.C. ' 2244(d)(1)(B). Nor has he asserted that his claims are based on a new constitutional
right recognized by the United States Supreme Court and made retroactive to cases on collateral
review. 28 U.S.C. ' 2244(d)(1)(C).
Finally, after reviewing Petitioner's claims, there is no indication that the doctrine of
equitable tolling should be applied in this action. Although AEDPA's one-year limitation in '
2244(d) is a statute of limitations, not a jurisdictional bar, and, therefore, may be equitably tolled:
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Equitable tolling is proper only when the principles of equity
would make the rigid application of a limitation period unfair.
Generally, this will occur when the petitioner has in some
extraordinary way been prevented from asserting his or her rights.
The petitioner must show that he or she exercised reasonable
diligence in investigating and bringing the claims. Mere excusable
neglect is not sufficient.
Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) (internal
citations, quotations, and punctuation omitted). The burden of establishing entitlement to the
extraordinary remedy of equitable tolling rests with the petitioner. Id. at 978. See also LaCava v.
Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005).
The United States Court of Appeals for the Third Circuit has indicated that equitable tolling
of the AEDPA statute of limitations is permitted if: "(1) the defendant has actively misled the
plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or
(3) the plaintiff has timely asserted his rights mistakenly in the wrong forum." Fahy v. Horn, 240
F.3d 239, 244 (3d Cir.) (internal citation omitted), cert. denied, 513 U.S. 1086 (2001). In the instant
action, Petitioner has not carried his burden of showing any extraordinary circumstances beyond his
control that accounted for his failure to have filed his habeas petition in a timely manner. See, e.g.,
Johnson v. Hendricks, 314 F.3d 159 (3d Cir. 2002) (agreeing with other circuits in holding that in
non-capital cases, an attorney's mistake in determining a petitioner's one-year limitations period does
not constitute extraordinary circumstances for purposes of equitable tolling).
Moreover, while Petitioner sets forth an argument that he was actually innocent of the crimes
of which he was convicted, it should be noted that the Court of Appeals for the Third Circuit has not
held that a showing of actual innocence is grounds for equitably tolling AEDPA's statute of
limitations. See, e.g., Horning v. Lavan, 197 Fed. App'x. 90, 93-94 (3d Cir. 2006) ("we have yet to
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hold that the AEDPA statute of limitations can be equitably tolled on the basis of actual innocence");
LaCava v. Kyler, 398 F.3d 271, 274 n. 3 (3d Cir. 2005) (declining to address whether petitioner's
actual innocence claim could overcome the AEDPA time bar). The Court has indicated that, if it
were to permit equitable tolling based upon a claim of actual innocence, a petitioner would not be
entitled to benefit from such tolling unless he exercised reasonable diligence in pursuing his claim.
Horning, 197 Fed. App'x at 94; see also Doe v. Menefee, 391 F.3d 147, 160-62 (2d Cir. 2004), cert.
denied, 546 U.S. 961 (2005) (holding that habeas petitioner seeking tolling of statute of limitations
based on actual innocence must demonstrate "reasonable diligence during the period that he seeks to
have tolled"). Moreover, as observed by the United States Supreme Court in Schlup v. Delo, 513
U.S. 298, 324 (1995), actual innocence requires that a petitioner must provide "new reliable evidence
. . . not presented at trial" which demonstrates that "it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence." Such new evidence should generally take
the form of "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence." Id. at 324. Petitioner fails to satisfy this standard.
The discussion above reveals that the petition for writ of habeas corpus in the instant action
was not timely filed in accordance with the directives in 28 U.S.C. ' 2244(d). Consequently, the
Petition will be dismissed as untimely.
C. Certificate of Appealability
Section 2253 generally governs appeals from district court orders regarding habeas petitions.
Section 2253(c)(1)(A) provides that an appeal may not be taken from a final order in a habeas
proceeding in which the detention arises out of process issued by a State court unless a certificate of
appealability (COA) has been issued. A certificate of appealability should be issued only when a
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petitioner has made a substantial showing of a denial of a constitutional right. 28 U.S.C. '
2254(c)(2). There is a difficulty with this provision when the District Court does not decide the case
on the merits but decides the case on a procedural ground without determining whether there has
been a denial of a constitutional right. In Slack v. McDaniel, 529 U.S. 473 (2000) the Supreme
Court held that when the district court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a certificate of appealability 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 correct in its procedural ruling. Applying this standard to
the instant case, the court concludes that jurists of reason would not find it debatable that Petitioner
did not file his habeas petition within the one-year limitations period. Accordingly, a certificate of
appealability will be denied. An appropriate order will follow.
AND NOW, this 30th day of August, 2011;
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED as
untimely.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of
the Federal Rules of Appellate Procedure.
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Lisa Pupo Lenihan
United States Magistrate Judge
cc:
Lance Rucker
354915
SCI Muskegon Correctional Facility
2400 S. Sheridan Dr.
Muskegon, WI 49442
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