IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

VERNON STEED : CIVIL ACTION

:

v. :

:

FRANK TENNIS, et. al. : NO. 05- 00144

REPORT AND RECOMMENDATION

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE May 26 , 2005

This is a counseled petition for the writ of habeas corpus filed pursuant to 28 U.S.C. §

2254, by an individual currently incarcerated at the State Correctional Institution at Bella Fonte,

Pennsylvania. For the reasons that follow, I recommend that the petition be denied. 

FACTS AND PROCEDURAL HISTORY:

On February 23, 1988, a jury, sitting before the Honorable Eugene Clarke, convicted 

Steed of first-degree murder, criminal conspiracy, and possessing an instrument of crime. Judge

Clarke sentenced Steed to life imprisonment with a concurrent five (5) year term of probation. 

The judgment was affirmed by the Superior Court on September 13, 1989. 

Commonwealth v. Steed, 569 A.2d 1386 (Pa. Super. 1989). The Supreme Court denied allocatur

on March 20, 1990. 

On December 26, 1996, the petitioner filed a pro se petition pursuant to the Post

Conviction Relief Act (PCRA). 42 Pa.C.S.A. §§ 9541-9551. However, it was dismissed without

a hearing on April 30, 2001. Commonwealth v. Steed, PCRA Opinion, Dembre, J. dated

4/30/01. Although an appeal was taken, the required brief was not filed. As a result, the appeal

was dismissed on December 6, 2001. Commonwealth v. Steed, No. 1650 EDA 2001. 

On November 26, 2002, a second PCRA petition was filed, alleging that counsel was

Case 2:05-cv-00144-BWK Document 9 Filed 05/26/05 Page 1 of 5
1 The petitioner did file a second collateral petition on November 26, 2002, which was

dismissed as untimely. Commonwealth v. Steed, PCRA opinion, Dembre, J. (filed 7/8/03). 

ineffective for failing to file a timely brief in the first PCRA appeal. However, this petition was

dismissed as untimely. The petitioner appealed, and the Superior Court affirmed. 

Commonwealth v. Steed, No. 1784 EDA 2003. Allocatur was denied on August 6, 2004. 

DISCUSSION:

Under the Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”), Congress

enacted a one-year statute of limitations period for federal habeas corpus petitions. This oneyear period begins when there is a final judgment made in the state court; however, this

limitation period may be tolled pending the completion of a properly filed PCRA petition. 28

U.S.C. § 2244(d)(1)(A) and (d)(2). In the instant case, the petitioner’s conviction became final

on, June 18, 1990, when the time for filing a certiorari petition expired. Clay v. United States,

537 U.S. 522 (2003). Under AEDPA, petitioner would have had until June 18, 1991, to file this

petition. However, in Burns v. Morton, the Third Circuit held that the one-year limitations

period could not be applied retroactively; thus for all federal habeas petitions that would have

been time-barred on the date AEDPA was enacted, petitioners are given a fresh one-year

limitations period, commencing on April 24, 1996. Burns, at 110. Therefore, when Steed filed

his first PCRA petition on December 26, 1996, eight (8) months of his one-year had elapsed. 

The habeas limitations period was tolled during the pendency of that PCRA petition and the

timely filed appeals. 28 U.S.C. § 2244(d)(1)(A) and (d)(2). The four months remaining in the

habeas limitations period again began to run on January 5, 2002, when the time to seek

discretionary review in the state Supreme Court expired. Therefore, Steed’s limitations period

expired in May, 2002, more than two and one-half years before the present petition was filed on

January 12, 2005. It is, therefore, untimely absent a basis for equitable tolling.1

 

Case 2:05-cv-00144-BWK Document 9 Filed 05/26/05 Page 2 of 5
However, this petition did not toll the one-year statute of limitations period for two reasons. 

First, since Steed only had four (4) months after January 5, 2002, to file a timely habeas corpus

petition, the federal habeas limitations period had already expired prior to his filing the second

PCRA petition. Secondly, the state court held that Steed’s second PCRA petition was untimely. 

Commonwealth v. Steed, PCRA opinion, Dembre, J. (filed 7/8/03). An untimely filed petition

for post-conviction relief does not toll the federal habeas limitation period. Pace v.

DiGuglielmo, _ U.S. _, 2005 WL 957194 *6 (Apr. 27, 2005). Therefore, tolling of the one-year

statute of limitations is not applicable; the one-year limitation has expired, and so, the January

12, 2005 habeas corpus petition is not entitled to review.

Equitable tolling is appropriate when “the petitioner has in some extraordinary

way...been prevented from asserting his or her rights.” Miller v. New Jersey State Department

of Corrections, 145 F.3d 616, 618 (3rd Cir. 1998). However, equitable tolling can be invoked

“only sparingly,” see United States v. Midgley, 142 F.3d 174, 179 (3rd Cir. 1998), and only when

the petitioner establishes that he exercised “reasonable diligence” in investigating and bringing

the claims. Miller v. New jersey State Department of Corrections, 145 F.3d 616, 618-619 (3rd

Cir. 1998) (citing New Castle County v. Haliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir.

1997)).

Section 2244's limitations period may be subject to equitable tolling only in four

circumstances: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in

some extraordinary way been prevented from asserting his rights; (3) if the plaintiff has timely

asserted his rights mistakenly in the wrong forum; or (4) if the claimant 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. Jones v.

Morton, 195 F.3d 153, 159 (3rd Cir. 1999). In this case, Steed has not asserted, nor has he

established that his case is deserving of equitable tolling. 

Case 2:05-cv-00144-BWK Document 9 Filed 05/26/05 Page 3 of 5
Therefore, I make the following:

R E C O M M E N D A T I O N

AND NOW, this 26th day of May , 2005, IT IS

RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be

DISMISSED AS UNTIMELY. There has been no substantial showing of the denial of a

constitutional right requiring the issuance of a certificate of appealability.

 

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00144-BWK Document 9 Filed 05/26/05 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VERNON STEED : CIVIL ACTION

:

v. :

:

FRANK TENNIS, et. al. : NO. 05- 00144

O R D E R

BRUCE W. KAUFFMAN, J.,

AND NOW, this day of , 2005, upon

careful and independent consideration of the petition for writ of habeas corpus, and after

review of the Report and Recommendation of United States Magistrate Judge Jacob P.

Hart, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The petition for a writ of habeas corpus is DISMISSED AS UNTIMELY.

3. There is no basis for the issuance of a certificate of appealability.

BY THE COURT:

 

BRUCE W. KAUFFMAN, J.

Case 2:05-cv-00144-BWK Document 9 Filed 05/26/05 Page 5 of 5