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The Respondents have filed electronically relevant parts of the state court record at Documents 15-47. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DOUGLAS LUNDBERG, )

Petitioner, ) Civil Action No. 07-258 Erie

)

v. )

) District Judge McLaughlin

ATTORNEY GENERAL, et al., ) Magistrate Judge Baxter

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus be dismissed

with prejudice, and that a certificate of appealability be denied

II. REPORT1

A. Relevant Procedural History

In 2002, Petitioner was charged with numerous crimes relating to his sexual molestation

of a minor child, J.L., over the course of several years (from 1995 through 2001), beginning

when she was nine years old. Mark Zearfous, Esq., represented him at his trial before the Court

of Common Pleas of Cambria County. On May 22, 2003, the jury found him guilty on all counts. 

On September 9, 2003, the trial court sentenced him to serve an aggregate sentence of 13-26

years in prison. He appealed his judgment of sentence to the Superior Court of Pennsylvania,

challenging the weight and sufficiency of the evidence and evidentiary rulings made by the trial

court. 

On September 10, 2004, the Superior Court issued a Memorandum affirming Petitioner's

judgment of sentence. [Document 19, Commonwealth v. D.L., No. 1913 WDA 2003, slip op.

(Pa.Super. Sept. 10, 2003)]. Petitioner did not file a petition for allowance of appeal ("PAA") to

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September 24, 2007, is the date upon which Petitioner avers he placed the petition for writ of habeas corpus in the

prison mailing system. Under the "mailbox rule," his petition will be considered filed on that date. 

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The docket sheet for the Court of Common Pleas shows that, at an entry dated June 26, 2007, the court entered an

Order denying Petitioner's application for in forma pauperis status. Another docket entry, dated August 14, 2007,

shows that the court denied a request made by Petitioner on July 23, 2007, for appointment of counsel. Petitioner is

challenging those decisions, but they do not raise claims that are cognizable in federal habeas. Hassine v.

Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) ("[T]he federal role in reviewing an application for habeas corpus is

limited to evaluating what occurred in the state ... proceedings that actually led to the petitioner's conviction; what

occurred in the petitioner's collateral proceeding does not enter into the habeas calculation.") (internal citations

omitted); see also Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) ("[A]lleged errors in collateral proceedings

are not a proper basis for habeas relief from the original conviction."). Nor do these allegations warrant the

application of equitable tolling (discussed infra) to this case. 

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the Supreme Court of Pennsylvania. Accordingly, his judgment of sentence became final on or

around October 11, 2004, the date on which the 30 day period to file a PAA expired. 

Pa.R.App.P. 1113(a); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (a judgment becomes

final at the conclusion of direct review or the expiration of time for seeking such review). 

On September 7, 2005, Petitioner, through his new attorney David Beyer, Esq., filed a

motion for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42

PA.CONS.STAT. § 9541 et seq. He raised numerous claims of ineffective assistance of trial

counsel. A hearing was held on December 20, 2005, and February 9, 2006. On March 23, 2006,

the PCRA Court denied relief.

Petitioner appealed to the Superior Court. On March 5, 2007, it issued a Memorandum

affirming the PCRA Court's decision. [Document 21, Commonwealth v. Lundberg, No. 733

WDA 2006, slip op. (Mar. 5, 2007)]. Petitioner did not file a PAA with the Pennsylvania

Supreme Court.

On or around September 24, 2007, Petitioner filed with this Court his pro se Petition for 2

Writ of Habeas Corpus. [Document 4]. He raises numerous allegations in support of his claim

that he was denied his Sixth Amendment right to effective trial counsel. As relief, he seeks 3

release from custody, or in the alternative, a new trial. 

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Nothing in the record in this action indicates that Petitioner is entitled to take advantage of any of the other provisions

triggering the one-year limitations period. His petition for writ of habeas corpus does not indicate that he suffered any

impediment to filing his federal petition. 28 U.S.C. § 2244(d)(1)(B). He has not asserted that his claims are based on

a new constitutional right recognized by the Supreme Court of the United States and made retroactive to cases on

collateral review. Id. at § 2244(d)(1)(C). He has not shown that his claims are based upon a factual predicate that

could not have been discovered through the exercise of due diligence. Id. § 2244(d)(1)(D).

 

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Petitioner had 30 days (until on or around April 4, 2007), to file a PAA from the Superior Court's March 5, 2007,

Memorandum affirming the denial of PCRA relief. Pa.R.App.P. 1113(a).

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B. The Petition Is Untimely

In their Answer [Document 14], Respondents contend that Petitioner's habeas petition

must be dismissed because it is untimely under the statute of limitations set forth in the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C.

§ 2244(d). AEDPA requires, with a few exceptions not implicated here, that a state prisoner

seeking federal habeas corpus relief file a petition in federal district court within one year after

his state judgment of sentence becomes final. 28 U.S.C. § 2244(d)(1)(A). It also provides that 4

"properly filed" applications for state post-conviction relief that are pending during its limitations

period will statutorily toll the limitations period. 28 U.S.C. § 2244(d)(2). 

As noted above, Petitioner's judgment of sentence became final on or around October 11,

2004. Therefore AEDPA's statute of limitations began to run on that date. It was statutorily

tolled on the date he commenced his PCRA proceeding, which was September 7, 2005. Between

those two dates, approximately 331 days had expired. 

Once Petitioner's PCRA proceeding concluded, he had 34 days remaining under

AEDPA's limitations period. His PCRA proceeding concluded, at the very latest, on or around

April 4, 2007. Swartz, 204 F.3d at 421-25 (limitations period for filing federal habeas petition 5

was statutorily tolled during time between the Superior Court's ruling on petitioner's application

for postconviction relief and the deadline for filing timely PAA, even though timely request for

PAA was not filed). Thus, he had until on or around May 9, 2007, in which to file a timely

federal habeas petition. His federal habeas petition was filed well beyond that date and is

therefore untimely. 

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Finally, Petitioner makes no case for equitable tolling of the limitations period. 

"Equitable tolling is proper only when the principles of equity would make the rigid application

of a limitation period unfair." Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 618-19

(3d Cir. 1998) (internal citations, quotations, and punctuation omitted). The United States Court

of Appeals for the Third Circuit Court has cautioned that "courts should be sparing in their use of

this doctrine, applying equitable tolling only in the rare situation where it is demanded by sound

legal principles as well as the interests of justice." Lacava v. Kyler, 398 F.3d 271, 275-76 (3d

Cir. 2005) (internal quotations, citations, and bracketed text omitted). A petitioner seeking

equitable tolling bears the burden of establishing that he has exercised reasonable diligence in

attempting to investigate and bring his claims, and he was in some extraordinary way prevented

from bringing his claims. Id. at 276-78; Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). See

also Urcinoli v. Cathel, 546 F.3d 269, 272 -273 (3d Cir. 2008) (equitable tolling could apply if

the defendant has actively misled the plaintiff or if the plaintiff has timely asserted his rights

mistakenly in the wrong forum."). Petitioner has not established any basis to apply equitable

tolling in this case. 

C. Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for

appellate review of a district court's disposition of a habeas petition. It provides that "[a]

certificate of appealability may issue ... only if the applicant has made a substantial showing of

the denial of a constitutional right." 28 U.S.C. § 2253. In Slack v. McDaniel, 529 U.S. 473, 474

(2000), the Supreme Court stated that "[w]hen the district court denies a habeas petition on

procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate

of appealability] should issue when the prisoner shows, at least, that jurists of reason would find

it debatable whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling." Applying this standard here, jurists of reason would not find it debatable

whether the Petition for Writ of Habeas Corpus commenced by Petitioner was filed within the

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one-year limitations period which is provided for under AEDPA. Accordingly, a certificate of

appealability should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the instant Petition for

Writ of Habeas Corpus be dismissed with prejudice and that a certificate of appealability be

denied.

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.D.2 of the Local Civil Rules, Petitioner is allowed to file objections in accordance with the

schedule established in the docket entry reflecting the filing of this Report and Recommendation. 

Failure to file timely objections may constitute a waiver of any appellate rights. See Nara v.

Frank, 488 F.3d 187 (3d Cir. 2007). 

 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: March 17, 2010

cc: The Honorable Sean J. McLaughlin

United States District Judge

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