IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIAN YOUNG, : NO. 2:05-cv-3697-CG

Petitioner :

:

VS. :

:

KENNETH KYLER, SUPERINTENDENT :

OF SCI HUNTINGDON, :

AND :

THE DISTRICT ATTORNEY OF :

THE COUNTY OF PHILADELPHIA, :

AND :

THE ATTORNEY GENERAL OF :

THE STATE OF PENNSYLVANIA, :

Respondents :

REPORT AND RECOMMENDATION

CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

Currently pending before the Court is a counseled Petition for Writ of Habeas Corpus filed,

pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated at the State Correctional Institution at

Huntingdon, Pennsylvania. For the reasons which follow, it is recommended that the petition be

dismissed as untimely.

I. PROCEDURAL HISTORY

Following a jury trial presided over by the Honorable Jane Cutler Greenspan of the

Philadelphia Court of Common Pleas, petitioner and his co-defendants, Bernard Bennett and

Dwayne Brown, were convicted, in September of 1997, of murder in the first degree, attempted

murder conspiracy, and possession of an instrument of crime. Petitioner was sentenced to life

imprisonment without parole on the murder charge, together with consecutive terms of 90 months

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 In his petition, petitioner claims that the Pennsylvania Supreme Court denied allocatur on April 19, 2000. 

On review of the record, it is apparent that allocatur was actually denied on March 21, 2000.

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to 20 years for attempted murder, 5 to 10 years for conspiracy and 12 to 60 months for possession

of an instrument of crime.

Petitioner filed a timely appeal to the Pennsylvania Superior Court claiming that the trial

court erred in refusing his mistrial request following an alleged Bruton violation. The Superior

Court affirmed the judgment of sentence on October 7, 1999. Commonwealth v. Young, 748 A.2d

780 (Pa. Super. 1999). On March 21, 2000, the Pennsylvania Supreme Court denied petitioner’s

request for allowance of appeal.1

 Commonwealth v. Young, 753 A.2d 818 (Pa. 2000).

Subsequently, on May 22, 2001, petitioner submitted his first pro se petition under

Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541, et seq., raising seven

different claims: (1) ineffective assistance of appellate counsel for failure to challenge the trial

court’s denial of his severance motion; (2) ineffective assistance of appellate counsel for failure to

challenge the admission of evidence regarding his escape from custody; (3) ineffective assistance

of appellate counsel for failure to challenge the admission of the alleged hearsay testimony of

Jermaine Brute; (4) ineffective assistance of trial and appellate counsel for failure to call numerous

witnesses and not arguing this failure on appeal; (5) ineffective assistance of trial and appellate

counsel for failure to impeach Officer Bey through a prior inconsistent statement; (6) ineffective

assistance of trial and appellate counsel for failure to challenge the prosecutor’s reference to religion

in closing argument; and (7) ineffective assistance of trial counsel for failure to pursue a defense of

diminished capacity to reduce a first degree murder charge to a third degree murder charge. The

PCRA court appointed counsel, who filed a “no merit” letter pursuant to Commonwealth v. Finley,

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 The parties disagree regarding the filing date for the second PCRA petition, as respondent alleges that it

was not filed until December 31, 2003. Given the multitude of other mistaken dates listed in petitioner’s brief, the

Court is hesitant to rely on petitioner’s factual history. Nonetheless, in lieu of unnecessarily delaying disposition of

this matter by investigating the truth of the parties’ allegations, we grant petitioner the benefit of the doubt and rely

on the December 18, 2003 date.

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550 A.2d 213 (Pa. 1988). Following an independent review of the record, the PCRA court then

denied the petition without an evidentiary hearing. The Superior Court affirmed, on June 19, 2003.

Commonwealth v. Young, 830 A.2d 1055 (Pa. Super. 2002). On November 25, 2003, the

Pennsylvania Supreme Court again denied allowance of appeal. Commonwealth v. Young, 837

A.2d 1178 (Pa. Super. 2003).

Petitioner filed a second PCRA petition on December 18, 2003.2 Subsequently, on February

28, 2005, the PCRA court dismissed petitioner’s second PCRA petition without a hearing.

On July 15, 2005, petitioner filed the instant Petition for Writ of Habeas Corpus, setting forth

the following claims: (1) the trial court erred by determining that the Commonwealth’s Bruton and

Gray violation was harmless error; (2) trial and appellate counsel were ineffective for failing to

impeach Officer Bey with prior inconsistent statements and failing to preserve that issue on appeal;

(3) trial and appellate counsel were ineffective for not appealing the trial court’s denial of

petitioner’s motion for severance; and (4) the trial court erred in failing to grant a mistrial to

petitioner after CommonwealthwitnessJermaineBrute offeredirrelevant, inflammatory, prejudicial

and hearsay testimony.

II. TIMELINESS

Respondents assert that the entire petition is untimely and must be dismissed. Upon

consideration of the record, the Court agrees.

Underthe Antiterrorism and Effective DeathPenaltyAct of 1996,(“AEDPA”), enactedApril

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The statute also sets forth three other potential starting points for the running of the statute of limitations,

as follows:

(B) the date on which the impediment to filing an application created by the 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

(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). As the petition does not allege any facts which indicate that any of these other starting

points should be used, the Court does not consider them. 

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24, 1996:

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.3

28 U.S.C. § 2244 (d)(1) (1996). If direct review of a criminal conviction ended prior to the statute’s

effective date, then, under Third Circuit precedent, a prisoner has a one-year grace period

subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v.

Morton, 134 F.3d 109, 111 (3d Cir. 1998). 

The statute, however, also creates a tolling exception, which notes that “[t]he time during

which a properly filed application for state post-conviction 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)(2). A “properly filed application” is “one submitted

according to the state’s procedural requirements, such as the rules governing time and place of

filing.” Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Accordingly, “[w]hen a

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 Petitioner mistakenly asserts that his conviction became final on July 19, 2000. Apparently, he relied on

the erroneous date of April 19, 2000 as the date of the Pennsylvania Supreme Court’s denial of allocatur.

5

 United States Supreme Court Rule 13(1) provides that a petition for writ of certiorari shall be deemed

timely when filed within ninety days from the date of the judgment by the United States Court of Appeals. SUP. CT.

R. 13(1).

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postconviction petition is untimely under state law, ‘that [is] the end of the matter’ for purposes of

28 U.S.C. § 2244(d)(2).” Pace v. DiGuglielmo, U.S. 125 S. Ct. 1807, 1812, reh’g denied, 125

S. Ct. 2931 (2005) (quotations omitted); see also Merritt v. Blaine, 326 F.3d 157, 165-66 (3d Cir.

2003) (if a petitioner files an out-of-time application and the state court dismisses it as time-barred,

then it is not deemed to be a “properly-filed application” for tolling purposes). To determine

whether or not a state PCRA petition is properly filed, “‘we must look to state law governing when

a petition for collateral relief is properly filed’ and ‘defer to a state’s highest court when it rules on

an issue.’” Merritt, 326 F.3d at 165 (quoting Fahy v. Horn, 240 F.3d 239, 243-244 (3d Cir. 2001)).

Notably, § 2244(d)(2) of the AEDPA excludes from the one-year period only the time that a

properly filed collateral attack is actually under submission. See Nino v. Galaza, 183 F.3d 1003,

1006 (9th Cir. 1999) (“AEDPA’s statute of limitations is not tolled from the time a final decision is

issued on direct state appeal and the time the first state collateral challenge is filed because there is

no case ‘pending’ during that interval.”); Shaird v. Wolf, Civ. A. No. 03-18, 2004 WL 555413, *

3 (E.D. Pa. Feb. 26, 2004) (time that lapses between final judgment of petitioner’s criminal case and

petitioner’s filing of first PCRA counts toward petitioner’s one-year time limit).

In the case at bar, petitioner’s conviction became final on June 19, 20004 – ninety days after

the denial of allocatur by the Pennsylvania Supreme Court.

5

 See Kapral v. United States, 166 F.3d

565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration

of time for filing such review, including the time for filing a petition for writ of certiorari in the

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 Petitioner contends that the statute of limitations only ran for nine months between the time his

conviction became final and the time that his first PCRA petition was filed. While we recognize that petitioner

mistakenly used July 19, 2002 as the date his conviction became final, we are somewhat puzzled by petitioner’s time

calculations since there are more than ten months between that date and the date of his PCRA petition.

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 In his brief, petitioner argues that the federal statute of limitations remained tolled until February 25,

2004, ninety days after the Pennsylvania Supreme Court denied allowance of appeal on November 25, 2003. The

law in this Circuit is clear, however, that “the ninety day period during which a state prisoner may file a petition for

a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not

toll the one year limitations period set forth at 28 U.S.C. § 2244(d)(2).” Stokes v. District Attorney of County of

Philadelphia, 247 F.3d 539, 543 (3d Cir. 2001).

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United States Supreme Court). Accordingly, petitioner had one year from this date – until June 19,

2001 – to file a petition for writ of habeas corpus. On May 22, 2001, 337 days6

 into his one year

statute of limitations, petitioner filed his first PCRA petition. The statute remained tolled until

November 25, 2003, when the Pennsylvania Supreme Court denied his request for allowance of

appeal.7

 The statute of limitations resumed running on that date, with approximately 28 days

remaining, thereby giving petitioner until December 19, 2003 to file his federal petition. He did not

do so, however, until July 15, 2005, over a year and a half too late.

Petitioner’s second PCRA petition fails to provide any relief to this legal bar. The petition

was explicitly deemed untimely by both the PCRA court and the Pennsylvania Superior Court,

meaning that it was not “properly filed” for purposes of statutory tolling under 28 U.S.C. §

2244(d)(2). See Pace, 125 S. Ct. at 1814. Furthermore, the Superior Court dismissed this second

petition on February 28, 2005. Even giving petitioner thirty days to appeal to the Pennsylvania

Supreme Court plus the remaining 28 days on his federal statute of limitations, he would have had

to file his habeas petition by April 27, 2005 – a deadline he failed to meet.

One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is

subject to equitable tolling, which is proper only when the “principles of equity would make [the]

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rigid application [of a limitation period] unfair.” Miller v. New Jersey State Dept. of Corrections,

145 F.3d 616, 618 (3d Cir. 1998) (quotation omitted). “Generally, 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, 125 S. Ct. at 1814.

Under the first element, “[d]ue diligence does not require ‘the maximum feasible diligence,’ but it

does require reasonable diligence in the circumstances.” Schlueter v. Varner, 384 F.3d 69, 74 (3d

Cir. 2004), cert. denied, 125 S. Ct. 2261 (2005). Defining the second element, the Third Circuit has

set forth three circumstances permitting equitable tolling: (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 v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (internal quotations omitted). “In noncapital 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). The Third Circuit has repeatedly cautioned that “courts should be

sparing in their use of this doctrine.” LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005).

In the case at bar, petitioner invokes the third Jones equitable tolling circumstance.

Specifically, he alleges that, on January 28, 2004, he attempted to file a federal habeas corpus

petition. Unfortunately, he mistakenly submitted the petition to the Clerk of Quarter Sessions,

Prison Liason Unit in Philadelphia County. The following day, he received a memorandum from

the Clerk of Quarter Sessions informing him that his petition would be forwarded to the appropriate

agency. As it failed to do so, however, the petition was never received by the Clerk of Courts for

the Eastern District of Pennsylvania. He now asserts that since he timely filed his habeas corpus

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petition, albeit in the wrong forum, he is entitled to equitable tolling. In turn, he claims that this

Court should deem his present habeas petition to have been filed as of January 28, 2004, the date

he submitted his original petition.

Petitioner’s argument falters on several grounds. First and foremost, even assuming

arguendo that his habeas petition should equitably be deemed filed on January 28, 2004, his federal

statute of limitations had already expired. As discussed above, after his first PCRA petition was no

longer pending in state court, petitioner had until December 19, 2003 to seek federal relief. Thus,

even his January 28, 2004 filing attempt was over a month late. Because petitioner failed to submit

any timely federal finding, he is not entitled to equitable tolling under the second Jones condition.

Moreover, even if petitioner were found to have timely filed his petition in the wrong forum

– circumstances which would rise to the level of “extraordinary” – petitioner has failed to

demonstrate that he exercised reasonable diligence. Indeed, the facts reflect the contrary. He

initially sat on his rights for almost a year between the finality of his conviction and the submission

of his first PCRA petition. Pace, 125 S. Ct. at 1815 (sitting on rights for extended period of time

prior to filing PCRA petition counsels against invocation of equitable tolling); LaCava, 398 F.2d at

277 (although no fault could be attributed to petitioner who waited nine months to file PCRA

petition, it is a reasonable factor to consider when reviewing an equitable tolling claim). Then, after

the denial of his PCRA petition by all levels of the Pennsylvania courts, petitioner opted not to

pursue federal relief, but rather elected to file a clearly untimely PCRA petition. 

Subsequently, petitioner filed his purported habeas petition with the Clerk of Quarter

Sessions on January 28, 2004. The very next day, petitioner received the following memorandum

from the Clerk of Quarter Sessions, Prison Liason Unit:

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The Office of the Clerk of Quarter Sessions is not the official filing agency for

motions, petitions or any other document that require court action.

Whenever we do receive this material, our office simply refers such matters to the

appropriate agency. When requesting further information on your filing, kindly

address your concerns to the proper source. We can be of no further service to you

once we have made the referral of your concerns.

We assume absolutely no responsibility for processing your legal documents which

are intended for action in the First Judicial District of Pennsylvania.

Your adherence to this process is appreciated.

See Exhibits to Petition for Writ of Habeas Corpus. Attached to this Memorandum was a sheet

indicating that the Prison Liason Unit faxed his petition to the Motion Court in Room 206 of the

Criminal Justice Center. Notably, however, the Memorandum clearly stated that (1) the Clerk was

assuming no responsibility for his documents; (2) the documents were merely to be forwarded, not

filed; and (3) the Clerk was forwarding them to the Philadelphia courts, not the federal court.

Notwithstanding these obvious red flags and disregarding the highlighted filing address on page four

of his habeas submission, petitioner made absolutely no effort to follow up on his habeas petition

and ensure that it was properly filed and docketed. Indeed, petitioner waited over fifteen months

after the issuance of that memorandum, without valid justification, before even retaining his current

counsel to review the status of his petition. He now fails to allege any obstruction that prevented

him from making an earlier inquiry to ensure that his petition was properly proceeding through the

federal system. Such inaction, particularly in light of his obvious knowledge that he never correctly

filed his habeas petition, completely undermines any claim of diligence. See LaCava, 398 F.3d at

277 (allowing twenty-one months to lapse from filing a petition with the Pennsylvania Supreme

Court before inquiring as to its status precludes habeas petitioner from obtaining equitable tolling

due to alleged failure to receive notice of Pennsylvania Supreme Court’s denial of allocatur); Carter

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v. Vaughn, Civ. A. No. 00-3886, 2002 WL 1565229, *3 (E.D. Pa. July 10, 2002) (waiting over a

year after filing petition to Pennsylvania Supreme Court before contacting attorney to check status

of case precludes operation of equitable tolling for failure to receive notice of decision). “Under

long-established principles, petitioner's lack of diligence precludes equity's operation.” Pace, 125

S. Ct. at 1815. Thus, the Court declines to exercise its equitable tolling powers and consider

petitioner’s January 2004 filing to be a timely petition for writ of habeas corpus.

In sum, petitioner’s habeas petition was submitted after the expiration of his one-year statute

of limitations under the AEDPA. Notwithstanding his emphatic arguments to the contrary, neither

statutory tolling nor equitable tolling provide any relief. As such, the Court must recommend

dismissal of his petition with prejudice.

Therefore, I make the following:

RECOMMENDATION

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

RECOMMENDED that the Petition for Writ of Habeas Corpus be DISMISSED. There is no

probable cause to issue a certificate of appealability.

 

CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

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