UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DONALD L. WASHINGTON, :

:

Petitioner :

v. : CIVIL NO. 4:CV-05-2387

:

: (Judge McClure) 

SCI-COAL TWP. SUPERINTENDENT,:

ET AL., :

:

Respondents :

MEMORANDUM AND ORDER

April 4, 2006

Background

Donald L. Washington, an inmate presently confined at the State

Correctional Institution, Coal Township, Pennsylvania (“SCI-Coal Twp.”), filed

this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Service of

the petition has not yet been ordered. 

By Order dated December 7, 2005, Washington’s motion for an enlargement

of time in which to file a memorandum in support of his petition for writ of habeas

corpus was granted. The Order also advised Washington of this Court’s

intention, upon preliminary review of the petition, to sua sponte raise the issue of

whether his action is subject to dismissal as being time barred under 28 U.S.C. §

2244(d) . See United States v. Bendolph, 409 F.3d 155, 165, n. 15 (3d Cir. 2005)

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and United States v. Johnson, 2005 WL 3179985 * 1, n.2 (M.D. Pa. Nov. 29,

2005)(Vanaskie, C.J.). 

Washington states that he was convicted of first degree murder, criminal

conspiracy to commit aggravated assault, and recklessly endangering another

person following a jury trial in the Dauphin County, Pennsylvania Court of

Common Pleas. He was sentenced to a term of life imprisonment on December 29,

1993. Following a direct appeal, the Pennsylvania Superior Court affirmed

Washington’s conviction and sentence on July 18, 1994. On April 18, 1995, the

Pennsylvania Supreme Court denied Petitioner’s request for allowance of appeal. 

See Commonwealth v. Washington, 657 A.2d 490 (Pa. 1995)(Table).

On or about June 22, 1995, Washington sought relief pursuant to

Pennsylvania’s Post Conviction Relief Act (“PCRA”). His petition was denied by

the trial court on January 15, 1997. An appeal to the Superior Court was denied on

August 4, 1998. The Pennsylvania Supreme Court denied his request for allowance

of appeal on March 23, 1999. See Commonwealth v. Washington, No. 678 M.D.

Alloc. 1998, 1999 WL 160567 (Pa. 1999)(per curiam).

 A second PCRA action filed by Washington on May 10, 1999 was

unsuccessfully litigated in the Pennsylvania state courts until January 22, 2001. See

Commonwealth v. Washington, 766 A.2d 1248 (Pa. 2001)(Table). Approximately

six (6) months later, on June 5, 2001, the Petitioner filed a third unsuccessful

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 See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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PCRA action. State court consideration of Washington’s third PCRA proceedings

concluded during December 2002. 

Eight (8) months later, Washington filed a fourth PCRA action (in August,

2003). The Pennsylvania Supreme Court denied a petition for allowance of appeal

with respect to the fourth PCRA action in December, 2004. Thereafter, the

Petitioner waited a period of approximately eleven (11) months before initiating his

present habeas corpus petition.

In his present action, Washington claims that he is entitled to federal habeas

corpus relief based upon the following grounds of ineffective assistance of counsel: 

 (1) counsel at his arraignment failed to request a pre-trial line up; (2) all subsequent

counsel neglected to raise the lack of a pre-trial line-up issue; (3) trial counsel did

not objecting to a suggestive in-court identification of the Petitioner; (4) appellate

counsel failed to raise the identification issue; (5) trial counsel neglected to request

a Kloiber instruction;1 (6) appellate counsel did not raise the Kloiber issue. 

Washington also challenges his conviction on the grounds that he was subjected to

an in-court suggestive identification and that Dwight Sutton, who is described as

being a key Commonwealth witness, has recanted his testimony.

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Discussion

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)

amended the federal habeas statute by imposing a statute of limitations on prisoners

requesting habeas corpus relief pursuant to 28 U.S.C. § 2254. Specifically, 28

U.S.C. § 2244(d)(1)-(2) provides, in relevant part, as follows:

(d)(1) A one-year period of limitations 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 for seeking such review . .

.

(d)(2) The 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.

(emphasis added); see generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir.

1999).

In Bendolph, the Court of Appeals for the Third Circuit recognized that

“courts have the power to raise the ADEPA limitations issue sua sponte in cases

arising under § 2254. Bendolph, 409 F. 3d at 166 . The Court of Appeals added

that “a court’s exercise of its sua sponte powers should be limited” to the period

when it undertakes preliminary consideration in accordance with Rule 4 of the

Rules Governing Section 2254 Cases in the United States District Courts. Id. at

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167. Since this Court is presently conducting its Rule 4 consideration, it is

permissible to sua sponte raise the issue of whether the present matter is time

barred. It is additionally noted that this Court’s December 7, 2005 Order clearly

advised the Petitioner of this Court’s intention to sua sponte address the timeliness

issue at this juncture, and afforded him the opportunity to submit a response

addressing that issue. 

Under the plain terms of § 2244(d)(1)(A), the period of time for filing a

habeas corpus petition begins to run when the direct appeal is concluded. See

Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)(“[T]he AEDPA provides

that upon conclusion of direct review of a judgment of conviction, the one year

period within which to file a federal habeas corpus petition commences, but the

running of the period is suspended for the period when state post-conviction

proceedings are pending in any state court.”)(emphasis in original). 

However, a one year grace period existed for applicants whose convictions

became final before the April 23, 1996 effective date of the AEDPA. See Burns v.

Morton, 134 F.3d 109, 111 (3d Cir. 1998). Washington was convicted and

sentenced in 1993. The Pennsylvania Supreme Court denied his request for

allowance of appeal on April 18, 1995, prior to the AEDPA’s effective date. 

Consequently, Washington had until April 23, 1997 in which to initiate a timely §

2254 petition.

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As indicated above, § 2244(d)(2) operates to exclude only the time within

which a “properly filed application” for post conviction relief is pending in state

court. Thus, when a petition or appeal has concluded and is no longer pending, the

one (1) year statute of limitations starts to run and the time is counted. A “properly

filed application” for post conviction relief under § 2244(d)(2) is one submitted

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

place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). The Third

Circuit Court of Appeals has defined “pending” as the time during which a

petitioner may seek discretionary state court review, whether or not such review is

sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000). “Pending,” however,

does not include the period during which a state prisoner may file a petition for writ

of certiorari in the United States Supreme Court from the denial of his state postconviction petition. Stokes v. District Attorney of the County of Philadelphia, No.

99-1493, 2001 WL 387516, at *2 (3d Cir., April 17, 2001). Likewise, the statute of

limitations is not tolled under § 2244(d)(2) for the time during which a habeas

petition is pending in federal court. Jones, 195 F.3d at 158.

For purposes of this discussion, this Court will presume that Washington’s

first PCRA action was timely filed on June 22, 1995 and was not concluded until

March 23, 1998, when the Pennsylvania Supreme Court denied his petition for

allowance of appeal. Consequently, this Court will presume that the statute of

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 If any of his multiple successive PCRA petitions were dismissed as being

untimely or procedurally barred, Washington would not be entitled to tolling for the

time periods in which those actions were pending in state court. See Lovasz, supra. 

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limitations was tolled during that time period.

Clearly, the statute of limitations was not tolled for the one and one half 

(1 1⁄2) months (March 23, 1999-May 10, 1999) between the termination of the first

PCRA action and Washington’s filing of a second PCRA action. Likewise, the

statute was not tolled for the approximately six (6) month period (January 22,

2001- June 5, 2001) between conclusion of the second PCRA action and the filing

of the third PCRA petition. The statute was also not tolled for the eight (8) month

period (December 23, 2002-August, 2003) between the finish of the third PCRA

and the initiation of the fourth petition. Tolling also did not transpire between

termination of the fourth PCRA petition and the filing of this action, approximately

eleven (11) months, from December 2004-November 17, 2005. Based upon those

calculations, it is clear that § 2244(d)(1)(A)’s one year filing requirement has

expired.2

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, 195 F.3d at 159, citing Miller v. New Jersey State Department of

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 Equitable tolling may be appropriate “if (1) 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 mistakenly in the

wrong forum.” Jones, 195 F.3d at 159. 

4

 This position is also supported by the unambiguous statutory language of 28

U.S.C. § 2254(i) which precludes habeas relief for ineffective or incompetence of

collateral counsel. 

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Corrections, 145 F.3d 616 (3d Cir. 1998). The Jones court held that

“extraordinary” and “rare” circumstances are required for the granting of equitable

tolling.3 “In non-capital cases, attorney error, miscalculation, inadequate research,

or other mistakes have not been found to rise to the ‘extraordinary’ circumstances

for equitable tolling.” Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001).4

While this Court is sympathetic to the plight of pro se litigants, under the

standards set forth in Miller and Jones, the present petition simply does not allege

the type of extraordinary circumstances which would warrant equitable tolling for

the prolonged periods of inactivity by the Petitioner between litigation of his

multiple apparently untimely successive PCRA actions and his failure to seek

federal habeas corpus relief until more than six (6) years after the denial of his first

PCRA action. Since Washington’s present § 2254 action was not filed until

November 17, 2005, it was well beyond the one year limitations period established

by § 2244. 

Furthermore, in his supporting memorandum, Washington argues that

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5. To the extent that Washington believes that there are circumstances existing that

would warrant tolling of the limitations period, or that he can allege facts showing that

his present habeas corpus petition was timely filed, he may seek reconsideration of this

decision. Any motion for reconsideration must be filed within ten (10) days of this

decision.

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dismissal under § 2244 only applies to second or successive federal habeas corpus

applications. See Record document no. 6, p.12. He adds that because this is his

first federal habeas corpus petition, it cannot be deemed time barred. Petitioner

does not offer any supporting authority for his novel argument. Furthermore, his

contention is simply baseless. Pursuant to the above discussion., Petitioner’s

request for federal habeas corpus relief will be dismissed pursuant to §

2244(d)(1)(A).5 Consequently,

IT HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus is dismissed as untimely

pursuant to 28 U.S.C. § 2244(d)(1)(A).

2. The Clerk of Court is directed to close the case.

3. Based on the Court’s conclusion herein, there is no basis for

the issuance of a certificate of appealability.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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