IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JERMEL SHULER : CIVIL ACTION

:

v. :

:

LOUIS FOLIO, et al. : NO. 04-4704

REPORT AND RECOMMENDATION

THOMAS J. RUETER March , 2005

United States Magistrate Judge

Presently before the court is a pro se petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254. For the reasons stated below, this court recommends that the

petition be dismissed because it is barred by the one-year statute of limitations for the filing of a

habeas corpus petition.

I. BACKGROUND

On November 30, 1998, a jury sitting in the Court of Common Pleas for

Philadelphia County convicted petitioner of second-degree murder, burglary, possession of an

instrument of crime and criminal conspiracy. (Phila. C.P. No. 9801-0300). The trial court

sentenced petitioner to life imprisonment. The Pennsylvania Superior Court affirmed the

judgment of sentence in an unpublished opinion dated October 6, 2000. Commonwealth v.

Shuler, 767 A.2d 1114 (Pa. Super. Ct. 2000) (Table). On May 29, 2001, the Pennsylvania

Supreme Court denied the petition for allowance of appeal. Commonwealth v. Shuler, 782 A.2d

544 (Pa. 2001) (Table). 

On May 30, 2002, petitioner filed a petition pursuant to the Post Conviction Relief

Act (“PCRA”). The PCRA court dismissed the petition on December 4, 2002. The Superior
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Court affirmed the dismissal of the petition. Commonwealth v. Shuler, 849 A.2d 610 (Pa. Super.

Ct. 2004) (Table). The petitioner did not request review by the Pennsylvania Supreme Court.

On October 7, 2004, petitioner filed the instant pro se habeas petition claiming

that the evidence was insufficient to sustain the conviction for murder, burglary, possession of an

instrument of crime and conspiracy. 

On February 16, 2005, the District Attorney for Philadelphia County filed a

response in which she argued that the petition should be dismissed as untimely because it was not

filed within the one-year statute of limitations as required by 28 U.S.C. § 2244.

II. DISCUSSION

Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), creates a one-year time limit for filing a habeas corpus

petition and in relevant part provides:

(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;

(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 
1

28 U.S.C. § 2244(d)(1)(A) provides that the statute of limitations runs from “the

date on which the judgment became final by the conclusion of direct review or the expiration of

the time for seeking such review.” With respect to the claims asserted in the petition, none of the

other possible “start dates” listed in § 2244(d)(1)(B)(C) and (D) apply here. No state action

prevented the timely filing of this habeas action; petitioner does not rely on a new rule of

retroactively applicable constitutional law; and factual predicates for his claims stem from events

that took place during the trial and were discoverable in the exercise of due diligence long ago. 

3

(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 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.

28 U.S.C. § 2244(d). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S.

944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998).

Petitioner’s conviction became final on August 27, 2001 when the time for

seeking certiorari in the United States Supreme Court expired. See Sup. Ct. R. 13; Kapral v.

United States, 166 F.3d 565, 570 (3d Cir. 1999) (if a defendant does not file a certiorari petition,

a judgment of conviction does not become “final” until time for seeking certiorari review

expires). See also Johnson v. Hendricks, 314 F.3d 159, 161 (3d Cir. 2002) (same).1 

The one-year limitation found in 28 U.S.C. § 2244 is statutorily tolled during the

period when a timely filed application for state post-conviction review is pending. 28 U.S.C. §

2244(d)(2). Thus, the statute of limitations was tolled upon the filing of petitioner’s PCRA

petition on May 30, 2002, with 89 days remaining in the allowable habeas filing period. As

noted above, the Superior Court denied petitioner’s appeal from the dismissal of the PCRA

petition on February 10, 2004 and petitioner did not seek review with the Pennsylvania Supreme
4

Court. Thus, the remaining habeas limitations period began to run on March 11, 2001. See

Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000) (PCRA petition is no longer “pending” upon the

expiration of the thirty-day period to file a petition for allowance of appeal). The limitations

period, therefore, expired on June 8, 2004. Petitioner’s original habeas petition was not docketed

until October 7, 2004, four months after the deadline. Accordingly, the petition is untimely and

must be dismissed.

Petitioner has not alleged any facts to suggest that the statute of limitations should

be equitably tolled. The Third Circuit has held that the federal habeas statute of limitations is

subject to equitable tolling only in extraordinary circumstances. See Miller v. New Jersey State

Dep’t of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In Miller, the court stated the following:

[E]quitable 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.

Id. at 618-19 (interior quotations and citations omitted). Equitable tolling may be found only

when: (1) the state has actively misled the petitioner; (2) the petitioner has in some extraordinary

way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights

but in a wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). See also Johnson v.

Hendricks, 314 F.3d 159, 162 (3d Cir. 2002) (reaffirming the principles of equitable tolling

enunciated in Jones v. Morton).

Petitioner has not alleged that the Commonwealth of Pennsylvania misled him

regarding the required date to file his federal habeas corpus petition. Moreover, petitioner has

not alleged that he has “in some extraordinary way” been prevented from asserting his rights. 
2 The COA should be denied because petitioner has not shown that reasonable

jurists could debate whether his petition should be resolved in a different manner or that the

issues presented are adequate to deserve encouragement to proceed further. See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003).

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Finally, this is not a case where petitioner timely asserted his rights in the wrong forum. Thus,

the one-year statute of limitations cannot be equitably tolled. 

For all the above reasons, the court makes the following:

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

AND NOW, this day of March, 2005, the court respectfully recommends that

the petition for a writ of habeas corpus be DISMISSED as time-barred by the statute of 

limitations, and that no certificate of appealability (“COA”) be granted.2

BY THE COURT:

_______________________________

THOMAS J. RUETER

United States Magistrate Judge