IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES ANDREW GRAY : CIVIL ACTION

:

v. : No. 05-2382

:

EDWARD KLEM, et al. :

MEMORANDUM OPINION

Savage, J. February 4, 2009

Petitioner James Gray, a state prisoner serving a life sentence for first degree

murder, has filed objections to the Report and Recommendation of United States

Magistrate Judge Jacob P. Hart, which recommended that the petitioner’s federal habeas

petition under 28 U.S.C. §2254 be dismissed as time-barred. Petitioner argues that a rigid

application of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) violates

his Fourteenth Amendment right to due process. He characterizes the respondents’

invocation of the timeliness requirement under AEDPA as a device to “shirk their duty to

review and correct” his wrongful conviction.

The petitioner does not contest the relevant dates for calculating the AEDPA clock.

He claims that the District Attorney concealed a prosecutor’s instructional tape regarding

how to exclude African Americans from a criminal defendant’s jury until March 31, 1997,

and he did not learn of its existence until he read the Pennsylvania Supreme Court’s

decision in Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000), which addressed the

tape. He contends that the tape formed the predicate of his Batson challenge, which he

sought to pursue in the state court and in his federal habeas petition.

Case 2:05-cv-02382-TJS Document 39 Filed 02/05/09 Page 1 of 4
Giving the petitioner the benefit of the doubt, we assume that he did not learn of the

prosecutor’s espoused strategy to exclude African-American venire persons until he read

the Basemore decision in 2000. Nevertheless, he has not attempted to explain why he

waited almost five years to raise the issue in a federal habeas petition. In short, he offers

no excuse for not taking timely action to present his Batson claim. 

Petitioner was convicted on July 14, 1988, and his conviction was affirmed by the

Pennsylvania Superior Court on May 11, 1992. In his petition under Pennsylvania’s Post

Conviction Relief Act (“PCRA”) filed almost eight years later on March 2, 2000, petitioner

made a claim that the prosecutor at his trial had excluded African-American venire persons

from his jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The PCRA court

dismissed his petition as untimely on December 7, 2001. The Superior Court affirmed the

dismissal as time-barred on December 26, 2002. The Pennsylvania Supreme Court

denied allocatur on August 6, 2003. 

Petitioner did not file his federal habeas petition until May 20, 2005. He took no

action to assert his Batson claim between the denial of allocatur in 2003 and filing the

federal petition over twenty-one months later.

Section 2244(d)(2) of AEDPA tolls the limitations period during the pendency of a

“properly filed” petition for collateral review in the state courts. An untimely petition for

collateral review in the state court is not “properly filed” and cannot trigger statutory tolling.

Pace v. DiGugliemo, 544 U.S. 408, 417 (2005). Further, a federal court is bound to

respect PCRA timeliness determinations made by the state court. Merritt v. Blaine, 326

F. 3d 157, 165 (3d Cir. 2003). Thus, because a petition deemed untimely by the state

court is not “properly filed” for purposes of applying the AEDPA limitations period, the

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magistrate judge’s finding that the time during which the PCRA petition was pending in the

state court did not stop the AEDPA clock, and petitioner’s objections to the report will be

overruled. 

The magistrate judge’s reporting of the factual and procedural history is accurate,

and his application of 28 U.S.C. § 2244(d)(1) and equitable tolling principles were correct.

Therefore, his report and recommendation will be adopted. 

Case 2:05-cv-02382-TJS Document 39 Filed 02/05/09 Page 3 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES ANDREW GRAY : CIVIL ACTION

:

v. : No. 05-2382

:

EDWARD KLEM, et al :

ORDER

AND NOW, this 4th day of February, 2009, upon consideration of the Petition for

Writ of Habeas Corpus (Document No. 1), the Respondents’ Answer to Petition for Writ of

Habeas Corpus, the Petitioner’s ”Traverse Response” to Respondents’ Answer Filed, the

Report and Recommendation filed by United States Magistrate Judge Jacob B. Hart and

the petitioner’s objections to the Report and Recommendation, and after a thorough and

independent review of the record, it is ORDERED that:

1. The petitioner’s objections are OVERRULED;

2. The Report and Recommendation of Magistrate Judge Hart is APPROVED

and ADOPTED;

3. The Petition for Writ of Habeas Corpus is DENIED; and,

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

 /s Timothy J. Savage 

TIMOTHY J. SAVAGE, J.

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