IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIE FRANK HILL, : CIVIL ACTION

Petitioner, :

:

v. :

:

DAVID DIGUGLIELMO, et al., :

Respondents : NO. 05-5160

MEMORANDUM AND ORDER

PRATTER, J. OCTOBER 27, 2006

Petitioner Willie Frank Hill petitions for habeas corpus relief pursuant to 18 U.S.C. §

2254 from a sentence imposed by the Philadelphia Court of Common Pleas and affirmed by the

Pennsylvania Supreme Court following Mr. Hill’s conviction by a jury for first degree murder. 

United States Magistrate Judge Arnold C. Rapoport filed a Report and Recommendation

recommending that Mr. Hill’s petition be denied. Mr. Hill filed objections to the Report and

Recommendation, and the Government responded. After conducting a de novo review pursuant

to 28 U.S.C. 636(b)(1)(C), and for the reasons discussed below, the Court adopts the Report and

Recommendation in its entirety. Accordingly, Mr. Hill’s petition is denied.

BACKGROUND 

In 1976, the Court of Common Pleas of Philadelphia County jury convicted Mr. Hill of

first-degree murder, a crime he committed at the age of 16. The court sentenced Mr. Hill to life

in prison. Mr. Hill timely appealed his conviction and sentence to the Pennsylvania Supreme

Court, which affirmed the judgment of sentence on July 14, 1978. See Commonwealth v. Hill,

388 A.2d 689 (Pa. 1978). 

Mr. Hill subsequently filed numerous petitions for relief. In 1980, with the assistance of

Case 2:05-cv-05160-GEKP Document 12 Filed 11/02/06 Page 1 of 7
 Commonwealth v. Hill, 474 A.2d 642 (Pa. Super. 1984). 1

 Commonwealth v. Hill, 668 A.2d 1191 (Pa. Super. 1994). 2

 Commonwealth v. Hill, 704 A.2d 691 (Pa. Super 1997). 3

 Commonwealth v. Hill, 723 A.2d 670 (Pa. 1998). 4

 Commonwealth v. Hill, 864 A.2d 578 (Pa. Super. 2004). 5

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counsel, Mr. Hill filed a Post-Conviction Hearing Act (“PCHA”) petition, which was denied. The

Pennsylvania Superior Court affirmed the denial in 1984, and Mr. Hill did not seek review of the 1

denial by the Pennsylvania Supreme Court. In 1989, Mr. Hill filed a pro se PCHA petition, and,

after counsel was appointed, an amended petition was filed on Mr. Hill’s behalf. That petition

was also denied, and the Pennsylvania Superior Court affirmed that denial in 1995. Once again, 2

Mr. Hill did not file for review by the Pennsylvania Supreme Court. Mr. Hill next filed a pro se

petition for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), which was

denied without a hearing. The Pennsylvania Superior Court affirmed the denial, and the 3

Pennsylvania Supreme Court denied Mr. Hill’s petition for allocatur on March 10, 1998. Mr. 4

Hill filed his fourth and final petition for collateral relief on October 16, 2001. Following a

hearing, the petition was denied as untimely, and the Superior Court affirmed the dismissal on

October 7, 2004. Mr. Hill did not seek review by the Pennsylvania Supreme Court.

5

Mr. Hill filed the instant federal habeas corpus petition pursuant to 28 U.S.C. § 2254 on

September 29, 2005. Mr. Hill then filed a revised petition on November 7, 2005. In his petition,

Mr. Hill claims he is being unlawfully held, based on the following grounds: (1) violation of his

equal protection and due process rights because he was tried as an adult without certification; (2)

the PCRA court erred in (a) dismissing his application for post-conviction relief as untimely, (b)

Case 2:05-cv-05160-GEKP Document 12 Filed 11/02/06 Page 2 of 7
 None of the other possible “start dates” found in section 2244(d)(1) apply here: no state 6

action prevented the timely filing of the instant action; Mr. Hill does not rely on a new rule of

retroactively applicable constitutional law; and the factual predicates for Mr. Hill’s claims stem

from events that took place during the trial and were discoverable in the exercise of due

diligence.

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denying his claim of actual innocence, and (c) depriving him of a fair evidentiary hearing; and (3)

ineffective assistance of counsel at trial, on appeal, and in the PCHA and PCRA proceedings.

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)(1)(A). The AEDPA one-year time limit is

6

statutorily tolled during the time when “a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending . . . .” 28

U.S.C. § 2244(d)(2). An AEDPA time bar operates to prevent consideration of the substantive

grounds being advanced for the request for relief.

Mr. Hill’s judgment of conviction became final on July 14, 1978, before AEDPA was

enacted. Accordingly, the one-year time limit for Mr. Hill began on April 24, 1996, the effective

date of the AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (construing AEDPA

to allow prisoners a one-year grace period following the effective date to initiate their habeas

actions if their convictions became final prior to the AEDPA effective date). On that date, Mr.

Hill’s third pro se PCRA petition was pending in state court. As a result, the one-year time

period was tolled for the duration of the ongoing PCRA litigation. On March 10, 1998, the

Pennsylvania Supreme Court denied allocatur, and the one-year AEDPA limitations period

Case 2:05-cv-05160-GEKP Document 12 Filed 11/02/06 Page 3 of 7
 The AEDPA’s statute of limitations is not tolled during the ninety-day period when

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petitioner could have filed a Petition for Writ of Certiorari in the United States Supreme Court

after state collateral review. Stokes v. Dist. Attorney of Phila., 247 F.3d 539 (3d Cir. 2001), cert.

denied, 534 U.S. 959 (2001).

 Mr. Hill signed the petition on September 25, 2005. A revised petition was signed by 8

Mr. Hill on November 3, 2005 and docketed on November 7, 2005.

4

began, giving Mr. Hill until March 9, 1999 to timely file a habeas petition. Mr. Hill filed the 7

instant habeas petition on September 29, 2005, over six years after the AEDPA statute of

limitations had run.8

Mr. Hill’s fourth and final pro se PCRA petition, filed on October 16, 2001, did not toll

the statutory time period because it was filed over two years after the statutory time period had

expired in March 1999. Moreover, the PCRA petition itself was untimely and therefore not

“properly filed” as required to toll the statutory time limit for habeas purposes. Pace v.

DiGuglielmo, 544 U.S. 408, 417 (2005); Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir. 2003).

Although 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) (citations omitted). Such equitable 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 v. N.J. State

Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998). Mere excusable neglect is not sufficient. Id. 

Equitable tolling may also be appropriate if the defendant has actively misled the plaintiff or if

the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum. Jones,

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5

195 F.3d at 159 (citations omitted).

Although Mr. Hill does not make a specific claim for equitable tolling, he argues, as he

did in his fourth PCRA petition, that the testimony of Bruce Rozier demonstrates his actual

innocence. Neither the Supreme Court nor the Third Circuit has addressed whether there is an

“actual innocence” exception to the AEDPA statute of limitations. See, e.g., LaCava v. Kyler,

398 F.3d 271, 274 n.3 (3d Cir. 2005) (declining to address whether petitioner’s actual

innocence claim could overcome AEDPA time bar). However, even assuming an actual

innocence exception, the testimony of Bruce Rozier does not qualify as “new evidence”

permitting the Court to reach the merits of a time-barred claim. The pre-AEDPA standard

articulated by the Supreme Court in Schlup v. Delo, 513 U.S. 298 (1995), “requires petitioner

to support his allegations of constitutional error with new reliable evidence – whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence –

that was not presented at trial.” Schlup, 513 U.S. at 324. This new evidence must show that “it

is more likely than not that no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Id. at 327. 

The testimony of Mr. Rozier is not new; it was known to Mr. Hill prior to his trial. (See

Response to Petition, Exh. D, p. 28). At the PCRA hearing on November 20, 2002, Mr.

Rozier testified that he saw another person, Larry McKinney, actually stab the victim, and that

he had told Mr. Hill that he saw McKinney stab the victim when both Rozier and Mr. Hill were

held in county jail prior to Mr. Hill’s trial. (Response to Petition, Exh. D, pp. 28-29 (N.T.,

11/20/02, pp. 60-62) (emphasis added).) Mr. Hill, however, did not call Mr. Rozier as a

witness at Mr. Hill’s trial, and Mr. Hill’s attorney did not contact Mr. Rozier until 2001. 

Case 2:05-cv-05160-GEKP Document 12 Filed 11/02/06 Page 5 of 7
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Nothing in the record indicates that Mr. Hill exercised reasonable diligence in investigating or

bringing this claim during the almost 29 years between the time the information first became

known to Mr. Hill and the filing of the instant petition.

The facts thus demonstrate that equitable tolling on the basis of new evidence of actual

innocence is not warranted; nor is equitable tolling warranted for any other reason. PostAEDPA, the Supreme Court has held that “a litigant seeking equitable tolling bears the burden

of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418. As discussed

above, Mr. Hill has not satisfied his burden of showing that he has exercised the necessary

diligence or the existence of some extraordinary circumstance.

Since Mr. Hill filed his petition after the one-year period expired, it is time barred and

the Court will not reach the merits of Mr. Hill’s claims. See Schlup, 513 U.S. at 316

(explaining that “[w]ithout any new evidence of innocence, even the existence of a concededly

meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice

that would allow a habeas court to reach the merits of a barred claim”).

CONCLUSION

For the foregoing reasons, the Court denies all of Mr. Hill’s objections and adopts the

Report and Recommendation. An appropriate Order consistent with this Memorandum

follows.

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 Mr. Hill has not made “a substantial showing of the denial of a constitutional right” for 9

any of his claims as required under 28 U.S.C. § 2253(c)(2).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIE FRANK HILL, : CIVIL ACTION

Petitioner, :

:

v. :

:

DAVID DIGUGLIELMO, et al., :

Respondents : NO. 05-5160

ORDER

AND NOW, this 31 day of October, 2006, upon consideration of the following: the st

revised Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 of Willie Frank Hill

(Docket No. 3); the Government’s response thereto (Docket No. 6); the Report and

Recommendation of Judge Arnold C. Rapoport, United States Magistrate Judge (Docket No.

7); Petitioner’s objections thereto (Docket No. 8); and the Government’s response to

Petitioner’s objections (Docket No. 9); and for the reasons contained in the accompanying

Memorandum, it is hereby ORDERED that:

1. the Report and Recommendation is ADOPTED;

2. the Petition and revised Petition for Writ of Habeas Corpus are DENIED and

DISMISSED;

3. Petitioner’s objections are DENIED; and

4. there is no basis on which to issue a Certificate of Appealability under 28 U.S.C.

§ 2253.9

BY THE COURT,

S/Gene E.K. Pratter

GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

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