2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-17-2001

Stokes v. District Attorney of Philadelphia

Precedential or Non-Precedential:

Docket 99-1493

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Recommended Citation

"Stokes v. District Attorney of Philadelphia" (2001). 2001 Decisions. Paper 81.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/81
Filed April 17, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1493 

WILLIE STOKES, 

 Appellant 

v. 

THE DISTRICT ATTORNEY OF THE COUNTY OF 

PHILADELPHIA; THE ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 98-cv-05182) 

District Judge: Honorable Marvin Katz 

Submitted Under Third Circuit LAR 34.1(a) 

March 13, 2001 

Before: MANSMANN, BARRY and COWEN, Circuit Judges. 

(Filed April 17, 2001) 

 Mary Gibbons, Esquire 

 600 Mule Road, Suite 16 

 Holiday City Plaza III 

 Toms River, NJ 08758 

 COUNSEL FOR APPELLANT 
 Donna G. Zucker, Esquire 

 Michele S. Davidson, Esquire 

 Marilyn F. Murray, Esquire 

 Thomas W. Dolgenos, Esquire 

 Ronald Eisenberg, Esquire 

 Arnold H. Gordon, Esquire 

 Lynne Abraham, Esquire 

 Office of the District Attorney 

 1421 Arch Street 

 Philadelphia, PA 19102-1582 

 COUNSEL FOR APPELLEES 

OPINION OF THE COURT 

MANSMANN, Circuit Judge. 

Willie Stokes appeals from an or der of the District Court 

dismissing his petition for habeas corpus, filed pursuant to 

28 U.S.C. 2254, as time-barred. We addr ess an issue of 

first impression for our court: Whether Stokes' time to file 

a federal habeas corpus petition under 28 U.S.C. 

S 2244(d)(1) was tolled under 28 U.S.C. S 2244(d)(2) for the 

ninety day period during which Stokes could havefiled a 

petition for certiorari in the United States Supr eme Court. 

We join all of the other Courts of Appeals to have decided 

this issue, holding that the ninety day period during which 

a certiorari petition may be filed does not toll the applicable 

statute of limitations. Accordingly, we will affirm the order 

of the District Court. 

I. 

On August 21, 1984 Stokes was convicted, following a 

jury trial in a Pennsylvania state court, of first degree 

murder and possession of an instrument of crime. He was 

sentenced to life imprisonment for the murder and to a 

concurrent term of years on the weapons count. 

Stokes' conviction was affirmed on dir ect appeal in 1986 

and the Pennsylvania Supreme Court denied his petition for 

allocatur in 1987. Shortly thereafter, Stokes filed a petition 

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for relief under Pennsylvania's Post Conviction Hearing Act, 

42 Pa. Const. Stat. S 9541 et seq. (r epealed). Relief was 

denied in February 1991, and that decision was affirmed by 

the Pennsylvania Superior Court. Stokes did notfile a 

petition for allocatur in the Pennsylvania Supr eme Court. 

On October 30, 1995, Stokes filed a second postconviction request for relief pursuant to the Post Conviction 

Relief Act, 42 Pa. Cons. Stat S 9541 et seq. (1988). Relief 

was denied on January 3, 1996 and the denial was affirmed 

on December 26, 1996 by the Pennsylvania Superior Court. 

Allocator was sought and was denied by the Pennsylvania 

Supreme Court on July 2, 1997. 

Stokes filed the petition for writ of habeas corpus

underlying this appeal on September 30, 1998. The United 

States Magistrate Judge concluded that Stokes' petition 

was time-barred under the provisions of 28 U.S.C. 

S 2244(d)(1) and that Stokes had failed to establish any 

circumstance warranting application of equitable tolling. 

The District Court adopted the report and r ecommendation 

of the Magistrate Judge, dismissed the petition as timebarred, and denied a certificate of appealability. 

Stokes filed a timely appeal. On September 14, 2000 we 

granted a certificate of appealability as to the limitations 

issue posed by Stokes' petition. This issue is one of 

statutory construction subject to plenary review. 

II. 

In the Anti-Terrorism and Effective Death Penalty Act of 

1996 ("AEDPA"), Congress amended the federal habeas

statute by adding a one year statute of limitations for the 

filing of habeas corpus petitions. Section 2244(d)(1) 

provides in relevant part: 

 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. 

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 * * * * 

 (2) The time during which a properly filed application 

 for state post-conviction or other collateral r eview with 

 respect to the pertinent judgment or claim is pending 

 shall not be counted toward any period of limitation 

 under this section. 

Although the statute itself did not provide for one, most 

courts of appeals, including ours, implied a one year grace 

period for petitioners whose convictions becamefinal before 

the effective date of the AEDPA. See Burns v. Morton, 134 

F.3d 109, 111 (3d Cir. 1998). Because Stokes' conviction 

became final in 1987, he was entitled to the grace period 

and, on the basis of that grace period alone, would have 

been required to file his section 2254 petition on or before 

April 23, 1997. 

This April 23, 1997 date is not controlling her e, however, 

because when the AEDPA amendments became ef fective, 

Stokes was actively pursuing a state collateral action. As a 

result, his time for filing the federal habeas petition at issue 

here was tolled under 28 U.S.C. 2244(d)(2), so long as the 

state petition was pending. As the defendants note,"[T]he 

question here is when the [state collateral proceeding] 

ceased to be `pending.' " 

According to the defendants, that state pr oceeding ceased 

to be pending on July 2, 1997, the date on which the 

Pennsylvania Supreme Court denied Stokes' petition for 

allocator. Under this view, Stokes then had one year -- 

until July 1, 1998 -- to file the federal habeas petition. 

Stokes' petition was not filed until September 30, 1998. 

Stokes takes a different view, contending that the state 

proceeding should be deemed to have been pending for an 

additional ninety days after the Supreme Court of 

Pennsylvania declined to grant discretionary r eview -- these 

ninety days being the period during which he could have 

sought further review by the United States Supr eme Court. 

III. 

Although we have yet to address the precise question 

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posed here,1 we do not find ourselves in uncharted legal 

territory. Arguments similar to the one raised here by 

Stokes have been considered by a number of our sister 

courts of appeals. These courts have concluded, without 

exception, that the time 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 statute of limitations 

under 28 U.S.C. S 2244(d)(2). See Snow v. Ault, 238 F.3d 

1033 (8th Cir. 2001); Gutierrez v. Schomig, 233 F.3d 490 

(7th Cir. 2000), petition for cert. filed, (U.S. Jan. 19, 2001) 

(No. 00-1384); Isham v. Randle, 226 F .3d 691, 695 (6th Cir. 

2000), cert. denied, ___ S. Ct. ___, 2001 WL 76698 (U.S. 

Feb. 26, 2001) (No. 00-8222); Coates v. Byr d, 211 F.3d 

1225, 1227 (11th Cir. 2000), cert. denied , ___ S. Ct. ___, 

2001 WL 138154 (U.S. Feb. 20, 2001) (No. 99-12642); Ott 

v. Johnson, 192 F.3d 510, 513 (5th Cir . 1999), cert. denied, 

529 U.S. 1099 (2000); Rhine v. Boone, 182 F .3d 1153, 1155 

(10th Cir. 1999), cert. denied, 528 U.S. 1084 (2000). We 

now join these courts of appeals and conclude that Stokes' 

petition was properly dismissed as time-barr ed. 

We reach this conclusion for several r easons. First, we 

note that the language used in section 2244(d)(1)(A) differs 

from that found in section 2244(d)(2). "[U]nlike 

S 2244(d)(1)(A), which uses the phrase `became final by . . . 

expiration of the time for seeking [direct] . . . review,' a 

phrase that . . . takes into account certiorari pr oceedings, 

S 2244(d)(2) contains no such language." Snow v. Ault, 238 

_________________________________________________________________ 

1. In our decision in Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000), we 

concluded that "pending" as that word is used in section 2244(d)(2) 

includes the time during which a petitioner seeks discretionary state 

court review, whether or not review is sought. Our holding in that case 

was tied to finality for purposes of habeas r eview: "If [the petitioner] 

had 

attempted to seek federal habeas relief while there was still time to seek 

allowance of appeal, the petition would be dismissed for failure to 

exhaust state remedies." Id. at 422. In Schwartz, we specifically reserved 

for another day the issue which we confront in this appeal: "We need not 

delve into the issue whether `pending' includes the time to file a 

petition 

for writ of certiorari in the United States Supr eme Court because that 

question is not presented by this appeal. Other courts have addressed 

this issue and find that the time does not toll." Id. at n.5. 

 5 
F.3d at ___ (citation omitted). W e agree with the Court of 

Appeals for the Sixth Circuit: 

 [I]t seems clear that Congress intended to exclude 

 potential Supreme Court review as a basis for tolling 

 the one year limitations period. See Hohn v. United 

 States, 524 U.S. 236, 249-50 (1998) (observing that by 

 including particular language in one section of an act 

 but omitting it in another section of the same act, it is 

 presumed that Congress intended to exclude the 

 language). 

Isham v. Randle, 226 F.3d at 695. This reading of section 

2244(d)(2) is consistent with the requir ement that a 

petitioner exhaust state remedies prior to instituting a 

federal habeas petition. "Such exhaustion does not include 

seeking certiorari from the state court's denial of postconviction relief." Snow v. Ault, 238 F.3d at ___. 

The result is also consistent with our pr ecedent 

construing section 2244(d)(2). In Jones v. Morton, 195 F.3d 

153 (3d Cir. 1999), we considered whether a pending

properly filed habeas petition tolls the statute of limitations 

under section 2244(d)(2) for purposes of filing a subsequent 

federal habeas petition.2 W e concluded that it does not: 

 Congress clearly intended that the word"State" would 

 be read to modify both "post conviction" and "other 

 collateral review" so that tolling would be afforded 

 under S 2244(d)(2) for various forms of state review 

 only. We find nothing in S 2244(d)(2)'s language or 

 legislative history, and nothing in the policy concerns 

 behind AEDPA's enactment to suggest a contrary 

 result. 

Id. at 159. Our conclusion in Jones supports the 

conclusion here that the statute of limitations was not 

_________________________________________________________________ 

2. There is a split in the circuits with regard to the issue decided in 

Jones. This split is highlighted in Walker v. Artuz, 208 F.3d 357 (2d Cir. 

2000), cert. granted in part by Duncan v. W alker, 121 S. Ct. 480 (2000). 

The Supreme Court has agreed to deter mine whether a prior federal 

habeas corpus petition is an "application for State-post-conviction or 

other collateral review" within the meaning of 28 U.S.C. S 2244(d)(2). 

 6 
tolled during the period when Stokes could have sought 

review in the Supreme Court. 

Finally, we note the reasoning undertaken by the Court 

of Appeals for the Seventh Circuit in Gutierrez v. Schomig, 

233 F.3d 490 (7th Cir. 2000). Ther e, the Court of Appeals 

held, as we do here, that the ninety days during which a 

petitioner could have filed a petition for certiorari in the 

United States Supreme Court did not toll the limitations 

period set forth in section 2244(d)(2). The Seventh Circuit's 

holding was narrower than the holdings of other courts to 

have considered this issue. The court in Gutierrez wrote: 

 Section 2244(d)(2) . . . provides that the limitations 

 period is tolled during the time that "a pr operly filed 

 application for State post-conviction or other collateral 

 review with respect to the pertinent judgment or claim 

 is pending." 

 * * * * 

 Because Gutierrez never filed a petition for certiorari 

 review in the Supreme Court, his potential certiorari 

 petition was never "properly filed." . . . [I]nstead of 

 excluding time a pleading could have been filed, 

 Congress explicitly required a "pr operly filed" pleading 

 to toll the statute of limitations. Gutierrez did not 

 properly file a petition for certiorari and, thus, the one- 

 year limitations period was not tolled during the time 

 [in] which he could have filed such a petition. Likewise, 

 a petition for certiorari that is not actually filed cannot 

 reasonably be considered "pending." 

233 F.3d at 491-92. 

Stokes, like Gutierrez, never filed a petition for certiorari. 

Consequently, the reasoning underlying the decision in 

Gutierrez applies here as well, pr oviding an alternate 

ground for our conclusion that Stokes' petition for a writ of 

habeas corpus was properly dismissed as untimely. 

IV. 

For the foregoing reasons, we hold that the ninety day 

period during which a state prisoner may file a petition for 

 7 
a writ of certiorari in the United States Supr eme 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. 

S 2244(d)(2). Accordingly, we will affirm the order of the 

District Court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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