RIZVI v. GILMORE et al

Filing 17

MEMORANDUM OPINION & ORDER re 1 Petition for Writ of Habeas Corpus, filed by ANWAR RIZVI. The Petition is dismissed as untimely pursuant to 28 U.S.C. section 2244(d) and a certificate of appealability is denied. Signed by Magistrate Judge Cynthia Reed Eddy on 12/6/2017. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANWAR RIZVI,

)
)
Petitioner,
)
)
v.
)
)
ROBERT GILMORE (WARDEN) and
)
THE DISTRICT ATTORNEY’S OFFICE, )
)
Respondents.
)

Civil Action No. 2: 16-cv-1716
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM OPINION1
Presently before the Court is a counseled petition for a writ of habeas corpus filed on
behalf of state prisoner Anwar Rizvi (“Petitioner”), in which he challenges the judgment of
sentence imposed on him by the Court of Common Pleas of Allegheny County, Pennsylvania, on
August 11, 2009. Respondents have filed their Answer to the Petition (ECF No. 14), in which
they argue, inter alia, that the Petition is untimely and should be dismissed on that ground. After
careful consideration of the parties’ submissions, and for the reasons discussed below, the
Petition will be dismissed as untimely pursuant to 28 U.S.C. § 2244(d) and a certificate of
appealability will be denied.
I.

Procedural History2
On August 11, 2009, Petitioner, Anwar Rizvi, was sentenced to 15 - 30 years

1.

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a
final judgment. jurisdiction by a United States Magistrate Judge. See ECF Nos. 11 and 16
The factual background of Rizvi’s criminal case is not relevant to the Court’s
determination of whether the petition was filed in a timely fashion. However, the factual
background may be found in Respondents’ Answer. See Ans. (ECF No. 14).
2

1

incarceration after a jury convicted him of attempted homicide. He filed a direct appeal to the
Pennsylvania Superior Court. Prior to the Superior Court’s disposition of his direct appeal, Rizvi
was transferred to a correctional institution in the Commonwealth of Virginia as part of an
agreement between the Virginia Department of Corrections (“VA DOC”) and the Pennsylvania
Department of Corrections (“PA DOC”), whereby Virginia agreed to house 1,000 Pennsylvania
male prisoners.
On January 10, 2011, the Pennsylvania Superior Court affirmed Rizvi’s judgment of
sentence. He did not file a petition for appeal by allowance with the Pennsylvania Supreme
Court. Accordingly, Rizvi’s judgment of sentence became final on February 9, 2011. See 42
Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the conclusion
of direct review or the expiration of the time for seeking review).
According to Rizvi, it was during the time that he was incarcerated in Virginia that he
encountered difficulties with conducting legal research which made preparation of a timely
PCRA petition and federal habeas petition impossible. He claims, inter alia, that the Virginia
correctional facility in which he was housed contained an underequipped library that could only
accommodate several inmate researchers at a time, impeding his ability to conduct meaningful
conventional or computer-based research and that his ability to access the prison’s legal
resources and law library was limited, at best.
By late February 2012, Rizvi returned to the PA DOC’s custody and was housed at SCIGraterford. On March 28, 2012, Rizvi filed a pro se motion entitled “Motion for Court Order to
Permit Appellant a First PCRA Opinion Nunc Pro Tunc,” which was properly construed by the

2

court as a PCRA petition and counsel was appointed to represent Rizvi.3 In this motion, Rizvi
requested that the PCRA court confirm that it would apply equitable tolling principles and the
PCRA’s government interference exception to the statutory time-bar to find his petition timely.
In his motion, Rizvi raised almost identical issues to the ones raised in the instant federal petition
- that inadequacies within the VA DOC prison system made legal research and preparation of a
timely appeal impossible.
On October 17, 2012, court-appointed counsel filed a “no merit” letter advising the court
that the petition had no arguable merit. Counsel also stated that while the petition was filed late,
the delay was beyond Rivzi’s control due to “mail delay” and because the court had granted
Rivzi’s nunc pro tunc motion, the petition had been timely filed. By Order of October 23, 2012,
the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition
as meritless. On November 13, 2012, the PCRA court issued a summary final order dismissing
the PCRA petition, but did not give any explanation as to why the petition was denied.
On January 13, 2013, Rizvi filed a pro se notice of appeal to the Pennsylvania Superior
Court, sixty-six days after the final order dismissing the PCRA petition was entered. By Order
dated April 24, 2013, the PCRA court recommended that the appeal be quashed due to the Notice
of Appeal being filed beyond the 30 day time period set forth in Pa.R.A.P. 903(a).

On

September 25, 2013, Chris Rand Eyster, a privately retained attorney, entered his appearance on
Rizvi’s behalf to represent him on appeal. The Superior Court affirmed the dismissal of the
PCRA petition by Order dated June 16, 2014, finding that the dismissal was proper as the motion
was an untimely first PCRA petition:
3

Under Pennsylvania law, all motions filed after a judgment of sentence is final are to be
construed as PCRA petitions. Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007).
This includes any request for nunc pro tunc relief. Commonwealth v. Hall, 771 A.2d 1232, 1236
(Pa. 2001).
3

Additionally, a petitioner asserting a timeliness exception must file a petition
within sixty (60) days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA petition is not filed within one
year of the expiration of the direct review, or not eligible for one of the three
limited exceptions, or entitled to one of the exceptions, but not filed within 60
days of the date that the claim could have been first brought, the trial court has no
power to address the substantive merits of a petitioner’s PCRA claims.”
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).
Instantly, Appellant’s judgment of sentence became final on February 9, 2011,
upon expiration of the time to file a petition for allowance of appeal with our
Supreme Court. See Pa.R.A.P. 1113 (allowing thirty days to file petition for
allowance of appeal). Appellant file his pro se motion on April 9, 2012, more
than one (1) year after his judgment of sentence became final. Therefore,
Appellant’s petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Additionally, Appellant’s PCRA petition fails to establish any cognizable
exception to the PCRA timeliness requirements. See 42 Pa.C.S.A. § 9545(b)(1).
Accordingly, the PCRA court properly dismissed the petition.
(ECF No. 1-18 at 4-5).
Petitioner, through counsel, filed an application for reargument before the Superior Court
en banc. This request was denied on August 19, 2014, and the following month, on September
17, 2014, counsel filed a petition for appeal by allowance (“PAA”) with the Pennsylvania
Supreme Court. The PAA was denied on February 18, 2015.
Almost a year later, on January 17, 2016, Petitioner, through present counsel, Craig M.
Cooley, filed a second PCRA petition.4 Rizvi argued that both equitable tolling principles and

4

Petitioner incorrectly refers to this petition as his first PCRA petition. ECF No. 1, ¶ 37.
But as explained by the Pennsylvania Superior Court, this petition was Rizvi’s second under the
PCRA:
Appellant contends that his first petition was not a PCRA petition, but simply a request
that the court accept an imminent filing as a PCRA petition nunc pro tunc. Appellant,
however, was asking the PCRA court to do what it could not do, for it was well-settled at
the time, and remains so, that the PCRA provides the “sole means” for obtaining nunc
pro tunc relief, and all claims seeking reinstatement of appellate rights are subject to the
PCRA timeliness requirements . . . .The PCRA court and this Court on appeal both
correctly deemed Appellant’s self-styled “motion” as a first PCRA petition and reviewed
4

statutory exceptions to the time bar applied to except his otherwise patently untimely petition
from the PCRA’s timeliness requirements. The PCRA court issued a Rule 907 Notice of its
intent to dismiss the second petition because it was untimely. Through counsel, Rizvi filed
objections to the Notice, but on October 26, 2016, the PCRA court entered its final dismissal
order.
Thereafter, Attorney Cooley filed a timely notice of appeal to the Superior Court. By
Opinion filed June 19, 2017, the Superior Court affirmed the dismissal of the PCRA petition,
finding no error with the PCRA court’s dismissal of the second petition as untimely, as the court
was without jurisdiction to review the merits of the claims.
On November 15, 2016, while the appeal of his second PCRA petition was pending,
Petitioner, through Attorney Cooley, filed the instant federal habeas petition in this Court (ECF
No. 1), with brief in support (ECF No. 3). Contemporaneously with filing the Petition, Rizvi
requested and was granted a stay of the proceedings in this Court pending exhaustion of his state
court remedies. On September 12, 2017, Attorney Cooley advised the Court that on June 19,
2017, the Superior Court affirmed the dismissal of the second PCRA petition as untimely. The
case thereafter was reopened and on October 19, 2017, Respondents filed a response to the
petition. (ECF No. 14).
II.

Discussion
A.

Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-

it under the PCRA’s timeliness provisions. Accordingly, this petition is Appellant’s
second under the PCRA, despite his protestations to the contrary.
Superior Court Opinion, filed June 19, 2017. (emphasis in original; internal citations omitted)
(ECF No. 14-3).
5

year limitations period within which a state prisoner must file a federal habeas petition.
Generally, the limitations period begins to run on the date the judgment of sentence becomes
final. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final at the conclusion of direct review or
upon the expiration of time for seeking such review. Id.; see Gonzales v. Thaler, 565 U.S. 134
(2012). One of the following alternative start dates, however, may apply:
(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.
28 U.S.C. § 2244(d)(1)(B)-(D). Furthermore, the AEDPA limitations period is subject to both
statutory and equitable tolling. Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).
Petitioner’s judgment became final on February 9, 2011. Under AEDPA, he needed to
file his federal habeas petition within one year of that date, or February 9, 2012. Since Rizvi did
not file the instant petition until approximately 4 years and 9 months (or 1714 days) beyond that
date, the petition is facially untimely and must be dismissed unless Petitioner can show that the
limitations period should be tolled, either statutorily or equitably, or that an alternate date should
apply.
B.

Statutory Tolling
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) (emphasis added). Rizvi filed the instant federal habeas petition, over five (5) years
6

after his judgment of sentence had become final. Rizvi concedes his petition is untimely. A
properly filed post-conviction petition tolls AEDPA’s statute of limitations.

Id.

“A state

postconviction petition rejected by the state court as untimely is not ‘properly filed’ within the
meaning of § 2244(d)(2).” Allen v. Siebert, 552 U.S. 3, 5, (2007) (citing Pace v. DiGuglielmo,
544 U.S. 408 (2005)). Because the state court dismissed both Rizvi’s first and second PCRA
petitions as untimely, he is not entitled to statutory tolling under § 2244(d)(2) for the time he
spent litigating these two petitions.5
C.

Equitable Tolling
Although AEDPA’s statute of limitations is subject to equitable tolling, the Third Circuit

Court of Appeals has held that “courts should be sparing in their use of the doctrine” and limit its
application only to the “rare situation where [it] is demanded by sound legal principles as well as
the interests of justice.” LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005) (internal citations
omitted). Equitable tolling is thus only appropriate when “‘the principles of equity would make
the rigid application of a limitation period unfair,’ such as when a state prisoner faces
extraordinary circumstances that prevent him from filing a timely habeas petition and the
prisoner has exercised reasonable diligence in attempting to investigate and bring his claims.” Id.
at 276 (quoting Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)).
“Due diligence does not require ‘the maximum feasible diligence;’” but “it does require
reasonable diligence in the circumstances.” Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)
(internal citations omitted). “This obligation does not pertain solely to the filing of the federal
habeas petition, rather it is an obligation that exists during the period appellant is exhausting state
court remedies as well.” LaCava, 398 F.3d at 277. “The fact that a petitioner is proceeding pro se
This Court “must defer” to the holdings of the state courts on whether a PCRA petition is
untimely. See Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).
5

7

does not insulate him from the ‘reasonable diligence’ inquiry and his lack of legal knowledge or
legal training does not alone justify equitable tolling.” Ross v. Varano, 712 F.3d 784, 799-800
(3d Cir. 2013) (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003); Doe v. Menefee, 391
F.3d 147, 177 (2d Cir. 2004)).

Rizvi acknowledges that the instant habeas petition was filed more than one year after his
judgment became final, but argues that he is entitled to equitable tolling because exceptional
circumstances prevented him from timely filing both his PCRA petition and his §2254 petition.
For the reasons below, the Court finds that Petitioner has failed to demonstrate that equitable
tolling of the one-year limitation period is warranted in this case.
Generally, a litigant seeking equitable tolling bears the burden of establishing two
requirements: (1) that he has been pursuing his rights diligently and (2) that some extraordinary
circumstance stood in his way. Holland v. Florida, 560 U.S. 631 (2010) (quoting Pace v.
DeGuglielmo, 544 U.S. 408, 418 (2005)). See also Munchinski v. Wilson, 694 F.3d 308, 329–32
(3d Cir. 2012). “This conjunctive standard requires showing both elements before we will permit
tolling.” Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original).
With respect to the first equitable tolling requirement, the diligence must be reasonable,
not maximum, extreme or exceptional. With respect to the second equitable tolling requirement,
the court measures subjectively whether petitioner faced “extraordinary circumstances” that
prevented him from timely filing his §2254 petition. Finally, there must be a causal connection,
or nexus, between the extraordinary circumstances petitioner faced and his failure to file a timely
§ 2254 motion. Holland v. Florida, 560 U.S. 631, 649 (2010) (noting a habeas petitioner must
prove an “extraordinary circumstance stood in his way and prevented timely filing.”)(emphasis
8

added).
In support of equitable tolling, Rizvi argues that his inability to access the prison’s legal
research resources and law library while incarcerated at VA DOC prevented him from
“‘adequate opportunity to present his [state and federal] claims fairly’.” Pet. at 12 (quoting
Bounds v. Smith, 430 U.S. 817, 823 (1977). He also argues that during his time at VA DOC he
did not have an attorney and that he did not have his trial and sentencing transcripts or his pretrial discovery. All he had were the appellate pleadings filed by his appellate counsel and the
Superior Court’s opinion affirming his conviction and sentence. And last, Petitioner contends
that “the manner in which appointed PCRA counsel, the Commonwealth and the PCRA court
addressed the timeliness issue led Mr. Rizvi to believe the PCRA court reinstated his PCRA
rights nunc pro tunc.” Pet. at 14.6
Accepting all of Rizvi’s arguments as true, including that he had been misled that his
PCRA’s rights had been reinstated nunc pro tunc, the Court finds that Rizvi fails to satisfy the
Court that: (1) he or his counsel diligently pursued his rights; and (2) an extraordinary
circumstance prevented him from filing a timely federal habeas petition. Assuming that Rizvi’s
PCRA rights had been reinstated nunc pro tunc, the instant habeas petition would still be
untimely. Rizvi should have filed a federal habeas petition by February 18, 2016, one year from
February 18, 2015, the date the Pennsylvania Supreme Court denied the PAA on his first

The Court notes that while “at least sometimes, an attorney’s unprofessional conduct can
be so egregious as to create an extraordinary circumstance,” “equitable tolling is not warranted
for a ‘garden variety claim of excusable neglect.’” Holland, 560 U.S. at 633; see also Brown v.
Shannon, 322 F.3d 768, 774 (3d Cir. 2002) (attorney negligence in failing to properly advise a
client is generally “an insufficient basis for equitable tolling”) (emphasis added); LaCava, 398
F.3d at 274 (“[i]n non-capital cases, attorney error, miscalculation, inadequate research, or other
mistakes have not been found to rise to the ‘extraordinary’ circumstances required for equitable
tolling”).
6

9

petition. Rizvi offers no explanation as to why the instant habeas petition was not filed until
November 15, 2016, approximately 636 days later. Rizvi had been back in Pennsylvania custody
since late February 2012, the impediments to conducting legal research had been removed, he
had retained private legal counsel since September 25, 2013,7 and he “knew with certainty” that
as of February 18, 2015, his PCRA petition had been denied as untimely.8 See Pet. at ¶ 40(iv)
(ECF No. 1) (“Consequently, on February 18, 2015, Mr. Rizvi knew with certainty that his
PCRA petition was untimely. By this point, however, AEDPA’s one-year limitations period had
been expired for more than three years.”).
The record is void of any evidence that Rizvi or his counsel (i) pursued his rights
diligently and/or (ii) that some extraordinary circumstance stood in their way and prevented
timely filing. Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (quoting Holland, 560 U.S. at
648-49)). As a result, there is no basis for the Court to apply the doctrine of equitable tolling to
remedy the untimeliness and the petition will be dismissed as time barred.9
III.

Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for

appellate review of a district court’s disposition of a habeas petition. 28 U.S.C. § 2253 provides
7

On September 25, 2013, Attorney Chris R. Eyster entered his appearance to represent
Rizvi on appeal. On January 28, 2016, Attorney Craig M. Cooley filed on Rizvi’s behalf the
second PCRA petition.
8

However, rather than filing a federal habeas petition within one year of February 18,
2015, Rizvi filed a second PCRA petition on January 28, 2016. And again, Rizvi delayed in
filing his habeas petition. He waited until November 15, 2016, after the petition had been
dismissed by the PCRA court and was on appeal, to file the instant petition and asked this Court
to stay the matter while he exhausted his state court remedies. The record is void of any
explanation as to why he could not file a federal habeas petition after the conclusion of his first
PCRA proceedings.
9

Because the petition will be dismissed as time barred, the Court declines to address the
merits of Rizvi’s petition.
10

that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here,
jurists of reason would not find it debatable whether Petitioner’s claims should be denied as
untimely. Accordingly, a certificate of appealability will be denied.
IV.

Conclusion
For the reasons set forth above, the petition for writ of habeas corpus is time-barred and

no tolling applies to remedy the untimeliness. A certificate of appealability will be denied. A
separate Order follows.
DATED: December 6, 2017
BY THE COURT:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc:

Craig M. Cooley
Innocence Project
(via ECF electronic notification)
Daniel A. Vernacchio
Office of the District Attorney
(via ECF electronic notification)

11

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANWAR RIZVI,

)
)
Petitioner,
)
)
v.
)
)
ROBERT GILMORE (WARDEN) and
)
THE DISTRICT ATTORNEY’S OFFICE, )
)
Respondents.
)

Civil Action No. 2: 16-cv-1716
United States Magistrate Judge
Cynthia Reed Eddy

ORDER
AND NOW, this 6th day of December, 2017, for the reasons set forth in the
accompanying Memorandum Opinion, the Petition for Writ of Habeas Corpus is dismissed as
untimely. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
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.
BY THE COURT:

s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc:

Craig M. Cooley
Innocence Project
(via ECF electronic notification)
Daniel A. Vernacchio
Office of the District Attorney
(via ECF electronic notification)

12