IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LOUIS TYLER, : CIVIL ACTION

Petitioner :

:

v. :

:

HARRY E. WILSON, et al :

Respondents : NO. 04-5946

MEMORANDUM AND ORDER

PRATTER, DISTRICT JUDGE MARCH 14, 2006

Presently before the Court is the petition for writ of habeas corpus filed by Petitioner Louis

Tyler pursuant to 28 U.S.C. § 2254. After conducting a de novo review pursuant to 28 U.S.C.

636(b)(1)(C), and for the reasons discussed more fully below, the Court adopts the Report and

Recommendation of the Honorable Linda K. Caracappa, United States Magistrate Judge,

recommending the denial of the petition. Accordingly, Mr. Tyler’s petition is denied.

BACKGROUND

On December 27, 1996, Mr. Tyler robbed eight people outside of a Philadelphia nightclub

and shot one of the victims in the head. Two days later, Mr. Tyler was arrested in New York on

unrelated weapons and narcotics charges and was subsequently returned to Pennsylvania to stand

trial for the robberies and the shooting. On July 13, 1999, a jury in the Court of Common Pleas for

Philadelphia County convicted Mr. Tyler of attempted murder, robbery, aggravated assault, and

possession of an instrument of a crime. On January 6, 2000, the Honorable Tama Myers Clark

imposed consecutive sentences totaling 132 1⁄2 to 265 years imprisonment. Petitioner did not file a

direct appeal, and his conviction became final on February 5, 2000.

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 Mr. Tyler asserts that the order dismissing his petition, although dated September 19,

2002, was not actually filed until October 23, 2002, and was not received by the PCRA Unit until

October 24, 2002. Mr. Tyler claims that he submitted his notice of appeal on November 11,

2002, within 14 days from the receipt of the order dismissing the PCRA petition. Mr. Tyler

represents that his notice of appeal was returned to him on November 22, 2002, with a letter

stating that it was untimely filed. Whether or not Mr. Tyler’s notice of appeal was timely filed is

of no moment here. As set forth more fully below, Mr. Tyler’s initial PCRA petition was

untimely filed, and, as such, cannot form the basis for tolling the statute of limitations for his

habeas relief here.

2

 Mr. Tyler asserts that, despite his proper noticing the PCRA Unit of his change in

address, the PCRA Unit sent the dismissal of his second PCRA petition to the wrong institution. 

Mr. Tyler contends that he was not able to properly respond to the dismissal as a result of it being

sent to the wrong institution. Once again, even if these assertions are true, they are irrelevant to

the fact that Mr. Tyler’s petition for habeas relief was untimely filed. 

2

On or about March 26, 2000, after being sentenced in Pennsylvania, Mr. Tyler was

transferred to New York to serve the remainder of his sentence on his New York convictions. On

April 6, 2001, Mr. Tyler was paroled from New York and transferred back to Pennsylvania to serve

the sentence imposed by Judge Clark.

On January 18, 2002, Mr. Tyler filed a pro se petition under the Post Conviction Relief Act

(“PCRA”), 42 PA. CONS. STAT. ANN. § 9541, et seq., alleging ineffective assistance of counsel and

violations of the Interstate Agreement on Detainers (“IAD”). The trial court appointed counsel, who

concluded that Mr. Tyler’s application was untimely and filed a request to withdraw. The trial court

granted counsel’s request, and Mr. Tyler’s application was subsequently dismissed on September

19, 2002. Mr. Tyler then filed a notice of appeal, which was dismissed as untimely by the

Pennsylvania Superior Court.1 Thereafter, Mr. Tyler filed a second PCRA petition, in which he

requested the “restoration of his appellate rights.” That petition was dismissed as untimely, and Mr.

Tyler did not appeal that dismissal.2

On December 21, 2004, Mr. Tyler filed the instant Petition for Writ of Habeas Corpus,

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asserting: (1) ineffective assistance because trial counsel did not file a direct appeal; (2) violation of

the Interstate Agreement on Detainers because his trial did not commence in a timely manner; (3)

violation of his appellate rights when the notice of appeal was improperly returned as untimely; (4)

violation of his appellate rights when the PCRA court forwarded its order of dismissal to the

incorrect prison address; (5) the improper dismissal of his application for post-conviction relief as

untimely. 

On April 29, 2005, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure

72.1, this matter was assigned to Magistrate Judge Caracappa for a Report and Recommendation. 

On August 30, 2005, Magistrate Judge Caracappa recommended that the petition be denied as

untimely. Mr. Tyler objected to the Report and Recommendation, asserting that Magistrate Judge

Caracappa erred in determining that the petition was untimely filed and that equitable tolling was

inapplicable. On October 11, 2005, the Respondents, collectively represented by the District

Attorney’s Office of Philadelphia, responded to Mr. Tyler’s objections. Upon close review of the

Mr. Tyler’s Objections to the Report and Recommendation, the Court finds that he cannot overcome

the fact that his Petition for Habeas Corpus was untimely filed, and, accordingly, his Petition is

denied. 

DISCUSSION

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

petition for habeas corpus must be filed within one year from “the date on which the [petitioner’s]

judgment became final by the conclusion of direct review or the expiration of the time for seeking

such review.” 28 U.S.C. § 2244(d). Mr. Tyler’s judgment became final on February 5, 2000, 30

days after he was sentenced. Thus, Mr. Tyler had until February 4, 2001, one year from the date the

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judgment became final, to file a timely petition for a Writ of Habeas Corpus. Mr. Tyler, however,

did not file his habeas petition until December 21, 2004, over three years after the ADEPA statute of

limitations had run. 

Moreover, Mr. Tyler failed to file a timely PCRA petition, which, if timely, would have

statutorily tolled the AEDPA’s one-year limitation pursuant to 28 U.S.C. § 2244(d)(2). Mr. Tyler,

however, did not file his PCRA petition until January 18, 2002, and the Pennsylvania courts have

consistently held Mr. Tyler’s petition to be untimely. Petitions that are deemed untimely cannot act

to toll the statute of limitations as they are not a “properly filed application.” Merritt v. Blaine, 326

F.3d 157, 165-66 (3d Cir. 2003). Also, Mr. Tyler’s argument that his time to seek state post

conviction relief under the PCRA was tolled during the time he was completing his prison sentence

in New York is unavailing as a matter of Pennsylvania law. See Commonwealth v. Judge, 797 A.2d

250, 257 (Pa. 2002) (“[N]othing in the language of the PCRA requires the prisoner be in the

Commonwealth when he or she files a Petition [for post-conviction relief].”). Mr. Tyler could have

sought state post-conviction relief from a prison in New York as easily as from a prison in

Pennsylvania. Thus, because Mr. Tyler’s PCRA petition was untimely filed, it could not toll the

limitations period for habeas purposes. See Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (2005);

Merritt, 326 F.3d at 165-66. 

Although the AEDPA generally requires habeas petitions to be filed within one year of the

final judgment, the “one-year filing requirement is a statute of limitations, not a jurisdictional rule,

and thus a habeas petition should not be dismissed as untimely filed if the petitioner can establish an

equitable basis for tolling the limitations period.” Jones v. Morton, 195 F.3d 153, 159 (3d Cir.

1999) (citing Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)). Such equitable

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tolling is warranted when “the petitioner has in some extraordinary way been prevented from

asserting his or her rights . . . [and] has exercised reasonable diligence in investigating and bringing

the claims.” Miller, 145 F.3d at 618. Mere excusable neglect is not sufficient. Id. The Third

Circuit has set forth three circumstances where equitable tolling may be appropriate: “(1) if the

defendant has actively misled the plaintiff, (2) if the plaintiff has in some extraordinary way been

prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights, but has

mistakenly done so in the wrong forum.” Jones, 195 F.3d at 159 (citations omitted). 

Mr. Tyler argues that equitable tolling should apply in this case because his trial counsel

informed Mr. Tyler that he would be filing a notice of appeal (which he did not), lulling Mr. Tyler

into inaction, and, shortly thereafter, Mr. Tyler was transferred to New York. Mr. Tyler asserts that

the combination of his attorney’s unfulfilled promises and his transfer excuse any default. The

Court cannot agree that Mr. Tyler’s untimely filing is excused by equitable tolling because his

circumstances are not “extraordinary” or excusable. Even if Mr. Tyler was “lulled” into non-action

with respect to his initial appeal, he was transferred to New York on or about March 26, 2000, and,

thereafter, had over ten months while in New York to file for habeas relief. Being “lulled” into

inactivity is not the equivalent to being “prevented from exercising his rights” as is the mandate

from Jones. Mr. Tyler did not file his application for a writ of habeas corpus until December 21,

2004, over four years after his sentence became final, and he did not file his application for relief

pursuant to the PCRA until January 18, 2002, nearly two years from the date of his conviction. Mr.

Tyler has not shown that he acted with reasonable diligence or that extraordinary circumstances

prevented this petition from being filed in a timely manner. Thus, the Court finds that equitable

tolling does not apply to save Mr. Tyler’s claims. 

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Mr. Tyler also contends that the Court should consider his procedurally defaulted claims

because he has demonstrated cause for his default and actual prejudice, and that failure to consider

his claims will result in a fundamental miscarriage of justice. To show cause, Mr. Tyler would have

to demonstrate “some objective factor external to the defense that prevented compliance with the

state’s procedural requirements.” Keller v. Larkins, 251 F.3d 408, (3d Cir. 2001). Again, Mr. Tyler

could have filed his claims in a timely manner, there were no “external factors” that prevented him

from complying with filing procedures. Mr. Tyler alone is responsible for his inaction. To show

that there has been a fundamental miscarriage of justice, Mr. Tyler would have to show that he was

actually innocent, i.e., produce “new reliable evidence,” such as “exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence,” that would make it more likely than

not that “no juror, acting reasonably, would have voted to find [him] guilty beyond a reasonable

doubt.” Schulp v. Delo, 513 U.S. 289, 324, 329 (1995). Mr. Tyler has not supplied the Court with

any evidence that there he is actually innocent of the crimes for which he was convicted. 

Finally, Mr. Tyler’s more substantive arguments regarding alleged infirmities in his postconviction relief proceedings and the purported violations of the IAD are unmeritorious, and,

moreover, do not excuse the untimeliness of the petition. First, Mr. Tyler’s argument that the IAD

time limits were violated is unavailing, particularly because Mr. Tyler has not alleged that he

objected to his trial date, nor does he attempt to show that he was actually prejudiced by any delay. 

See Reed v. Farley, 512 U.S. 339, 342 (1994). Second, alleged infirmities in his post-conviction

relief proceedings are not properly challenged through habeas corpus review. See Hassine v.

Zimmerman, 160 F.3d 941, 954-55 (3d Cir. 1998) (habeas corpus relief challenges constitutionality

and lawfulness of judgment of conviction, not whether the post-conviction process was flawed).

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CONCLUSION

For the foregoing reasons, the Court denies each of Mr. Tyler’s objections and adopts the

Report and Recommendation. An appropriate Order consistent with this Memorandum follows.

BY THE COURT:

S/Gene E.K. Pratter_

GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-05946-GEKP Document 8 Filed 03/15/06 Page 7 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LOUIS TYLER, : CIVIL ACTION

Petitioner :

:

v. :

:

HARRY E. WILSON, et al :

Respondents : NO. 04-5946

O R D E R 

AND NOW, this 14th day of March, 2006, upon consideration of the Petition for Habeas

Corpus (the Petition”) and the Memorandum in Support (Docket No. 1), Respondents’ Answer to

the Petition (Docket No. 4), and after careful review of the Report and Recommendation of United

States Magistrate Judge Linda K. Caracappa (Docket No. 5) and the Objections (Docket No. 6) and

Response thereto (Docket No. 7), it is ORDERED that:

1. The Report and Recommendation (Docket No. 5) is APPROVED and ADOPTED; 

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

and

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

BY THE COURT:

 S/Gene E.K. Pratter

 GENE E.K. PRATTER

 UNITED STATES DISTRICT JUDGE

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