IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RUSSELL CARL DEATER, :

:

Petitioner :

:

v. : CIVIL NO. 4:14-CV-628

:

SUPERINTENDENT LAMAS, : (Judge Branned)

:

Respondent :

MEMORANDUM

April 22, 2015

Background

 Russell Carl Dater, an inmate presently confined at the Banner State

Correctional Institution, Bellefonte, Pennsylvania initiated this pro se petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Service of the petition was

previously ordered.

Deater entered a guilty plea to a charge of aggravated indecent assault in the

Court of Common Pleas of Columbia County, Pennsylvania on June 5, 2008. On

that same day, Petitioner was sentenced to a five (5) to ten (10) year term of

incarceration. While there is no indication that a direct appeal was filed, Deater

states that he sought seek collateral relief pursuant to Pennsylvania’s Post

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Conviction Relief Act (PCRA).1

 See Doc. 1, ¶ 9. Deater asserts that PCRA relief

was denied by the sentencing court during 2011 and he acknowledges that the

adverse outcome was appealed.

Petitioner further contends that he filed a second PCRA action in October,

2013 regarding: the legality of his sentence; alleged ineffective assistance of

counsel; and the validity of his guilty plea. See id. at ¶ 11. The Petition adds that

the second PCRA was dismissed by the sentencing court without a hearing in

December, 2013 and the Pennsylvania Superior Court refused to entertain his

appeal.

Deater’s pending action claims entitlement to federal habeas corpus relief

on the grounds that the trial court erred by refusing to accept his timely request to

withdraw his guilty plea. See id. at ¶ 12, Ground One. Petitioner also contends

that he was improperly denied sentence credit by the sentencing court for time

spent incarcerated in 2008. See id. at Ground Two. As relief, Petitioner requests

that his guilty plea be vacated.

Respondent initially notes that Deater’s sentence was amended on July 17,

1

 The PCRA permits motions for post-conviction collateral relief for

allegations of error, including ineffective assistance of counsel, unlawfully induced

guilty pleas, improper obstruction of rights to appeal by Commonwealth officials, and

violation of constitutional provisions." Hankins v. Fulcomer, 941 F.2d 246, 251 (3d

Cir. 1991). 

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2008 and November 12, 2008 to modify the credit time applied and the amount of

restitution. The Respondent adds that Petitioner did not file any post-sentence

motions or a direct appeal but acknowledges that he did file two PCRA actions

with the sentencing court. See Doc. 9, ¶ 12. According to Respondent, the initial

PCRA petition was filed on March 21, 2011 and was ultimately dismissed on

April 23, 2012 as being untimely. With respect to the second PCRA action,

Respondent notes that it was filed on September 12, 2013 and that the Court of

Common Pleas issued an order on December 10, 2013 expressing its intention to

dismiss that matter as being untimely. However, as of the filing of the response in

this matter, no subsequent order was issued by the sentencing court and the second

PCRA was still pending before the Court of Common Pleas.

Based upon the above chronology, the Respondent argues that this matter is

time barred by 28 U.S.C. § 2244 (d). See Doc. 9, ¶ 18. Petitioner has not filed a

reply to the untimeliness argument.

Discussion

A § 2254 habeas corpus petition may be brought by a state prisoner who

seeks to challenge either the fact or duration of his confinement in prison. See

Preiser v. Rodriguez, 411 U.S. 475, 486-87 (1973). Federal habeas corpus review

is available only “where the deprivation of rights is such that it necessarily impacts

the fact or length of detention.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.

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2002). More recently, in Suggs v. Bureau of Prisons, Civil No. 08-3613, 2008

WL 2966740 *4 (D. N.J. July 31, 2008), the district court reiterated that in cases

where “a judgment in Petitioner’s favor would not affect the fact or duration of

Petitioner’s incarceration, habeas relief is unavailable.”

Respondent argues that because a direct appeal was not filed, Petitioner’s

habeas corpus action in order to be timely needed to be initiated within one year of

December 12, 2008. Second, since Deater’s initial PCRA action was filed 829

days after conclusion of the opportunity for direct appeal it was untimely and as

such did not toll the running of the § 2244(d) statute of limitations.

In conclusion, Respondent contends that because this matter was not filed

within one year of the expiration of the period for direct review in state court, it is

untimely. See Doc. 9, p. 5. Although granted an opportunity to do so, Petitioner

has not filed a reply addressing the untimeliness argument.

Section 2244(d) of Title 28 of the United States Code provides, in relevant

part, as follows:

(d)(1) 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 for seeking such review; ...

 (2) The time during which a properly filed application

for State post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending

shall not be counted toward any period of limitation

under this subsection.

 See generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999).

The running of limitations period is suspended for the period when

properly-filed state post-conviction proceedings are pending in any state court. 

However, the period during which a § 2254 applicant could have filed a petition

for writ of certiorari with the United States Supreme Court from denial of an

application for state post conviction or other collateral relief does not defer the

commencement of the limitations period. See Lawrence v. Florida, 549 U.S. 327,

333-36 (2007). Furthermore, 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), citing Miller v. New Jersey State Department of Corrections, 145 F.3d 616

(3d Cir. 1998).

Deater’s pending § 2254 petition is dated March 26, 2014,2

 and will be

deemed filed as of that date. See Houston v. Lack, 487 U.S. 266, 276 (1988)(a

prisoner’s action is deemed filed at the time it is given to prison officials for

mailing to the Court.) 

2

 See Doc. 1, p. 14.

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It is undisputed that Petitioner’s final amended sentence was imposed on

November 12, 2008. Under Pennsylvania state law, Deater had thirty (30) days

after imposition of the sentence in which to file a direct appeal. Pa. R. Crim. P.

720(A)(3). The undisputed record establishes that Petitioner did not pursue a

direct appeal. Hence, Deater’s conviction became final for purposes of § 2244(d)

and the one (1) year limitations period began to run on December 13, 2008 when

the thirty day period in which to file a direct appeal expired. 

It is undisputed that Petitioner twice sought relief under the PCRA. The

initially filed PCRA action was not filed until March 21, 2011, some 829 days

after the conclusion of the period for seeking direct state court review and as such 

was determined to be untimely by the sentencing court. The § 2244(d) limitations

period had already expired prior to submission of the initial PCRA action.

Petitioner’s pending arguments are also not based a newly recognized

constitutional right which the United States Supreme Court has made retroactively

applicable. See § 2244(d)(1)(C). Moreover, the factual predicate of Deater’s

pending claims was discoverable at the time his sentence was imposed. See id. at

(D). There is also no indication that any State action impeded Petitioner’s ability

to seek federal habeas corpus relief. Pursuant to the above discussion, there is no

basis for statutory tolling. Since this habeas corpus action was not initiated until

March 26, 2014, more than five (5) years after the December 12, 2008 expiration

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of the direct appeal period, it is clearly untimely.

“[A] litigant seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his claims diligently; and (2) that some

extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 

418 (2005). In Jones, the court held that a finding of equitable tolling is proper

only in “extraordinary” and “rare” circumstances. 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. 

“[M]iscalculation, 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). In Johnson v. Hendricks, 314 F.

3d 159, 163 (3d Cir. 2002), the United States Court of Appeals for the Third

Circuit reiterated that attorney error was not a sufficient basis for equitable tolling. 

Likewise, it has been established that the principles of equitable tolling do not

extend to claims of excusable neglect. Irwin, Dept. Of Veterans’ Affairs, 498

U.S. 89, 96 (1990). 

Based upon an application of the standards announced in Pace, Jones, and

Fahy, there are no facts presented or apparent from the record which could

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establish that Deater’s failure to timely pursue his pending federal claims in state

court was caused by being misled by the Commonwealth, or that pursuit of those

arguments was otherwise prevented in some extraordinary fashion. It is also noted

that this is not a case where the Commonwealth allegedly failed to produce

favorable evidence to a criminal defendant. Based upon those factors, a viable

basis for a finding of equitable tolling has not been established.

Since Petitioner has not established entitlement to either statutory or

equitable tolling and his § 2254 petition was clearly filed well after the expiration

of the § 2244(d) limitations period, this matter is clearly time barred and is

precluded from consideration. 

BY THE COURT:

 s/Matthew W. Brann 

Matthew W. Brann

United States District Judge

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