A petitioner must be “in custody in violation of the laws or treaties of the United States” 1

in order to be eligible for habeas corpus relief, see 28 U.S.C. § 2254(a). Petitioner satisfies the

custody requirement of § 2254 because he is “in custody” of the Pennsylvania Board of Probation

and Parole. See Mabry v. Johnson, 467 U.S. 504, 507 n.3 (1984) (prisoner on parole remains “in

custody” for purposes of 28 U.S.C. § 2254); Barry v. Brower, 864 F.2d 294, 296 (3d Cir. 1988)

(there is no material difference between probation and parole for purposes of the “in custody”

requirement of § 2254). 

Petitioner’s first jury trial, in April 1997, resulted in a mistrial when the jury could not 2

reach a verdict.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BARRAE CHOICE : CIVIL ACTION

:

v. :

:

MICHAEL L. GREEN, et al. : No. 05-0731

REPORT AND RECOMMENDATION

PETER B. SCUDERI 

UNITED STATES MAGISTRATE JUDGE November , 2005

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

2254 by Barrae Choice (“Petitioner”), an individual currently on probation. For the 1

reasons that follow, I recommend that the petition be dismissed.

FACTS AND PROCEDURAL HISTORY:

In October 1997, a jury sitting before the Honorable Steven R. Geroff, Court of

Common Pleas of Philadelphia County, convicted Petitioner of robbery, conspiracy, and

possession of an instrument of crime. The court sentenced him to five (5) to ten (10) 2

years of imprisonment on the robbery charge and two (2) concurrent terms of five (5)

years probation on the remaining convictions. On direct appeal, the Pennsylvania

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 1 of 8
2

Superior Court affirmed the convictions on January 27, 2000. Commonwealth v. Choice,

752 A.2d 419 (Pa. Super. 2000) (table). 

On July 17, 2001, Petitioner filed a counseled petition under Pennsylvania’s Post

Conviction Relief Act (“PCRA”), 42 Pa. Con. Stat. § 9541, et seq. Petitioner advanced a

claim of error under Brady v. Maryland, 373 U.S. 83 (1963), based upon after-discovered

evidence of police misconduct. Petitioner claimed that new facts were revealed during a

deposition in a civil defamation case, where the police officers involved in Petitioner’s

arrest were suing a reporter. Specifically, he claimed that the police officers testified

during the deposition that, contrary to trial testimony, the victim, who was the only

eyewitness to the crime, did not look at the robber’s face, that the robber told the victim

not to look at his face, and that the victim only glimpsed the robber from the side.

The PCRA court denied relief without a hearing on February 15, 2002. Petitioner

appealed to the Superior Court which affirmed the denial of PCRA relief on August 7,

2003. Commonwealth v. Choice, 830 A.2d 1005 (Pa. Super. 2003) (table). The

Pennsylvania Supreme Court denied Petitioner’s petition for allowance of appeal on

February 19, 2004. Commonwealth v. Choice, 843 A.2d 1236 (Pa. 2004) (table). 

On February 16, 2005, Petitioner filed the instant petition for a federal writ of

habeas corpus raising the same claim of Brady error articulated on PCRA review.

Respondents have filed an answer asserting that Petitioner is not entitled to federal habeas

relief because the instant petition is time-barred under the Anti-Terrorism and Effective

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 2 of 8
3

Death Penalty Act (“AEDPA”) and arguing, in the alternative, that Petitioner’s claims are

without merit. 

DISCUSSION: 

I. Statute of Limitations

Section 101 of the AEDPA, effective April 24, 1996, amended habeas corpus law

by imposing a one (1) year limitation period to applications for writ of habeas corpus filed

by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section 2244, as amended,

provides that the one (1) year 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;

© 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 amended statute also provides that the time during which a

properly filed application for state post-conviction or other collateral review is pending

shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2). 

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 3 of 8
I find it unnecessary to address Respondent’s alternative argument, that the statute of 3

limitations started to run on an earlier date, as any such argument is moot. Using Petitioner’s

asserted date of May 18, 2001, I reach the same conclusion. 

4

In the instant case, the applicable starting point for the statute of limitations is “the

date on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” The factual predicate of Petitioner’s

Brady claim is the allegation of after discovered evidence, which casts doubt upon the

veracity of trial testimony. The date that this evidence could have been discovered

through the exercise of due diligence is “context-specific.” See Wilson v. Beard, No. 04-

2461, 2005 WL 2559716 (3d Cir. Oct. 13, 2005) (petitioner was found to have knowledge

of the factual predicate of his claim when contacted by his attorney). Petitioner argues

that he became aware of this after-discovered evidence when he was visited by counsel on

May 18, 2001. On that date, counsel discussed the police officers’ depositions with him

and offered him representation. Respondent argues that while the factual predicate of this

claim may have been determined at a date earlier than May 18, 2001, it could not have

been later. Therefore, I find that the statute of limitations under 28 U.S.C. § 2241(d)(1) 3

started to run on May 18, 2001.

On July 17, 2001 – 60 days into his one (1) year federal statute of limitations –

Petitioner filed his PCRA petition. Because this petition was filed in accordance with

Pennsylvania’s procedural requirements, it is considered a “properly filed application” for

post-conviction relief, thereby tolling the one (1) year limitation period. See 28 U.S.C. §

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 4 of 8
The ninety (90) day period during which a state prisoner may file a petition for a writ of 4

certiorari in the United States Supreme Court from the denial of his state post-conviction petition

does not toll the AEDPA limitations period. Stokes v. District Att'y of the County of Phila., 247

F.3d 539, 543 (3d Cir. 2001).

While Petitioner urges us to follow the decision in Abela v. Martin, 348 F.3d 164 (6 5 th

Cir. 2003) (finding that the ninety (90) day waiting period during which a state prisoner may file

a petition for a writ of certiorari in the United State Supreme Court does toll the AEDPA

limitations period), we are bound by the 3 Circuit ruling in Stokes, supra. rd

5

2254(d)(2) (the time during which a “properly filed application” for state post-conviction

review is pending shall not be counted toward the one (1) year period of limitation); Artuz

v. Bennett, 531 U.S. 4 (2000) (“an application is ‘properly filed’ when its delivery and

acceptance are in compliance with the applicable laws and rules governing filings” such

as “the form of the document, the time limits upon its delivery, the court and office in

which it must be lodged, and the requisite filing fee”). Such a petition is considered

“pending” within the meaning of § 2244(d)(2) during the time a state prisoner is pursuing

his state post-conviction remedies, including the time for seeking discretionary review of

any court decisions whether or not such review was actually sought. See Swartz v.

Meyers, 204 F.3d 417, 424 (3d Cir. 2000). Petitioner’s petition was thus pending until

February 19, 2004, when the Pennsylvania Supreme Court denied his petition for

allowance of appeal. At this time, the one (1) year grace period began to run again and 4 5

Petitioner had 305 days, or until December 21, 2004, to file a timely § 2254 petition. See

Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir. 2002), cert. denied, 538 U.S. 1022

(2003) (28 U.S.C. § 2244(d)(2)’s tolling provision does not reset date from which the

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 5 of 8
6

applicable 1-year limitations period begins to run).

Petitioner submitted the instant motion for filing on February 16, 2005, fifty-seven

(57) days after the limitation period expired. He does not assert that there has been an

impediment to filing his habeas petition which was caused by state action, that his petition

involves a right which was newly recognized by the United States Supreme Court, or that

there are new facts which could not have been previously discovered. See 28 U.S.C. §

2244(d)(1)(B)-(D). Consequently, Petitioner would be barred from presenting his claims

under § 2254, unless the instant petition is subject to equitable tolling.

A. Equitable Tolling

The Third Circuit has determined that the one (1) year period of limitation for §

2254 is subject to equitable tolling because this limitation period is a statute of limitations

and not a jurisdictional bar. See Miller v. New Jersey State Dept. of Corrections, 145

F.3d 616, 618 (3d Cir. 1998). Equitable tolling is proper only when the “principles of

equity would make [the] rigid application [of a limitation period] unfair.” Id. (citation

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 (citations omitted). The Third Circuit has set forth three (3) circumstances in

which equitable tolling is justified: (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

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 6 of 8
7

wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted). “In

non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes

have not been found to rise to the ‘extraordinary’ circumstances required for equitable

tolling.” Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases) (emphasis added); 

LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (failure of petitioner’s attorney to

notify him of the Pennsylvania Supreme Court’s denial of allocatur, which caused the

statute of limitations to begin running and expire under Section 2244(d), was not

extraordinary circumstance warranting equitable tolling).

I do not find the instant matter to be one of “rare situation[s] where equitable

tolling is demanded by sound legal principals as well as the interests of justice.” See

Jones, supra. Petitioner presents us with no evidence that he was prevented from

pursuing his claim in some extraordinary way. Petitioner cannot justify his untimeliness

by blaming his counsel, as attorney error has not been found to be an extraordinary

circumstance for purposes of equitable tolling. See Fahy, supra, LaCava, supra. Because

Petitioner has not established “extraordinary” circumstances which would justify

application of equitable principles, this court finds that there are no circumstances which

would make the rigid application of the limitation period unfair. Consequently,

Petitioner’s petition must be dismissed as untimely. 

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 7 of 8
8

Therefore, I make the following:

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

AND NOW, this day of November, 2005, IT IS RESPECTFULLY

RECOMMENDED that the petition for writ of habeas corpus be DISMISSED. There has

been no substantial showing of the denial of a constitutional right requiring the issuance

of a certificate of appealability.

 s/Peter B. Scuderi 

PETER B. SCUDERI

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00731-WD Document 13 Filed 11/10/05 Page 8 of 8