The judge declared a mistrial on the charge of criminal homicide after the jury 1

failed to reach a verdict on that charge. On July 9, 1983, Petitioner was retried on the homicide

charge and on July 22, 1983, he was acquitted.

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LARRY CREIGHTON

v.

ROBERT D. SHANNON, et al.

: CIVIL ACTION 

:

: NO. 03-6343

: 

:

MEMORANDUM AND ORDER

Kauffman, J. October 5, 2006

Now before the Court is the pro se Petition of Larry Creighton (“Petitioner”) for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated in the State

Correctional Institution at Frackville, Pennsylvania (“SCI-Frackville”). For the reasons that

follow, the Petition will be denied and dismissed as untimely.

I. Procedural History

On August 18, 1982, Petitioner was found guilty of criminal conspiracy, robbery, and

possession of an instrument of crime. He subsequently was sentenced to an aggregate term of 1

seventeen and one-half to thirty-five years imprisonment. The Pennsylvania Superior Court

denied Petitioner’s direct appeal on January 30, 1985. Commonwealth v. Creighton, 490 A.2d

10 (Pa. Super. Ct. 1985) (Table). Petitioner did not seek review by the Pennsylvania Supreme

Court.

 Petitioner filed a petition under the Post Conviction Hearing Act (“PCHA”), 42 Pa.

Cons. Stat. Ann. §§ 9541, et seq. (repealed), on July 24, 1986. The PCHA court dismissed the

Case 2:03-cv-06343-BWK Document 16 Filed 10/06/06 Page 1 of 6
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petition. The Pennsylvania Superior Court affirmed the dismissal on August 6, 1990. 

Commonwealth v. Creighton, 581 A.2d 970 (Pa. Super. Ct. 1990) (Table). Petitioner did not

seek review by the Pennsylvania Supreme Court.

Petitioner filed a second petition for collateral relief on July 26, 2000 under the Post

Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. The petition was

dismissed as untimely on December 27, 2000. Petitioner did not seek review by the

Pennsylvania Supreme Court. 

Petitioner filed a third petition for collateral relief on February 7, 2001. The court

dismissed the petition as untimely after construing it as a PCRA petition. The Pennsylvania

Superior Court affirmed the dismissal on May 9, 2002. Commonwealth v. Creighton, 804 A.2d

52 (Pa. Super. Ct. 2002) (Table). On November 22, 2002, the Pennsylvania Supreme Court

denied Petitioner’s request for review. Commonwealth v. Creighton, 813 A.2d 837 (Pa. 2002)

(Table).

On November 20, 2003, Petitioner filed the instant pro se petition for writ of habeas

corpus. The Court designated United States Magistrate Judge Thomas J. Rueter to submit a

Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B); Local R. Civ. P. 72.1(I)(b). 

Magistrate Judge Rueter has recommended that the Court deny the Petition as time-barred. 

Because Petitioner has objected to the Magistrate Judge’s Report and Recommendation, the

Court must “make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). Having

reviewed the Report and Recommendation, Petitioner’s Objections thereto, the Government’s

Response, and Petitioner’s Reply to the Government’s Response, the Court will approve and

adopt the Report and Recommendation. 

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II. Legal Standard

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. §§ 2241 et seq., which provides in pertinent part: 

(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 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 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). The statute of limitations is tolled during the time in 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). In addition, AEDPA’s limitations

period allows prisoners a one-year grace period following the effective date of the statute, April

24, 1996, to file their habeas petitions if their convictions became final prior to the statute’s

effective date. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). 

The statute of limitations is subject to equitable tolling when the “principles of equity

would make [the] rigid application [of a limitation period] unfair.” Miller v. New Jersey State

Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (internal quotations omitted). “This

unfairness generally occurs when the petitioner has in some extraordinary way ... been prevented

from asserting his or her rights.” Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (internal

Case 2:03-cv-06343-BWK Document 16 Filed 10/06/06 Page 3 of 6
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quotations omitted). The petitioner “must show that he or she exercised reasonable diligence in

investigating and bringing [the] claims. Mere excusable neglect is not sufficient.” Id. at 618-19

(internal quotations omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)

(“[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”). 

III. Analysis

In his Report and Recommendation, Magistrate Judge Rueter noted that Petitioner’s

conviction became final on March 1, 1985, thirty days after the Pennsylvania Superior Court

affirmed the judgment of the Court of Common Pleas. Magistrate Judge Rueter also noted that

Petitioner filed his first petition for collateral relief on July 24, 1986 and that the Pennsylvania

Superior Court affirmed the dismissal of this petition on August 6, 1990. Since this activity took

place prior to the April 24, 1996 effective date of the AEDPA, it did not toll the AEDPA’s

limitation period. However, under the AEDPA’s one-year grace period, Petitioner had until

April 23, 1997 to file his habeas petition. See Burns, 134 F.3d at 111 (3d Cir. 1998). 

Petitioner’s second and third petitions for collateral relief, filed on July 26, 2000 and

February 7, 2001, respectively, were filed several years after the April 23, 1997 expiration of the

limitation period. Therefore, neither petition tolled the already-expired statute of limitations. 

Petitioner’s § 2254 motion, which was filed on November 20, 2003, was beyond the

applicable deadline. Since Petitioner failed to explain the delay, Magistrate Judge Rueter

concluded that he was not entitled to equitable tolling and recommended that Petitioner’s § 2254

motion be dismissed. Petitioner’s objections to the Report and Recommendation fail to identify

any extraordinary circumstances that prevented him from filing his habeas petition in a timely

manner. Morton, 195 F.3d at 159. Accordingly, Petitioner’s Objections are without merit and

Case 2:03-cv-06343-BWK Document 16 Filed 10/06/06 Page 4 of 6
-5-

will be overruled. 

IV. Conclusion

The Petition must be dismissed because it was filed outside the applicable limitations

period without an adequate explanation for the delay. An appropriate Order follows.

Case 2:03-cv-06343-BWK Document 16 Filed 10/06/06 Page 5 of 6
-6-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LARRY CREIGHTON

v.

ROBERT D. SHANNON, et al.

: CIVIL ACTION 

:

: NO. 03-6343

: 

:

ORDER

AND NOW, this 5 day of October, 2006, upon consideration of the Report and th

Recommendation of United States Magistrate Judge Thomas J. Rueter (docket no. 11),

Petitioner’s Objections thereto (docket no. 13), the Government’s Response (docket no. 14), and

Petitioner’s Reply to the Government’s Response (docket no. 15), and after de novo review of

the pleadings and record in this case, it is ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;

2. The Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, is

DENIED and DISMISSED;

3. There is no probable cause to issue a certificate of appealability.

BY THE COURT:

 /s/ Bruce W. Kauffman 

BRUCE W. KAUFFMAN, J.

 

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