where the state court rejects petitioner's PCRA petition as untimely, the petition “was not ‘properly filed’ and [petitioner is] not entitled to statutory tolling under § 2244(d)(2)”
How later courts described this case
- where the state court rejects petitioner's PCRA petition as untimely, the petition “was not ‘properly filed’ and [petitioner is] not entitled to statutory tolling under § 2244(d)(2)”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONTAE EUGENE ROBINSON, :
Petitioner :
: CIVIL NO. 3:17-CV-1696
V. :
: (Judge Caputo)
SUPERINTENDENT LAUREL :
HARRY, et al., :
Respondents :
MEMORANDUM
Petitioner Dontae Robinson filed the instant petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his 2012 conviction from the Court of Common
Pleas of Dauphin County, Pennsylvania.’ (ECF No. 1.) Respondent seeks the dismissal
of the petition as untimely. (ECF No. 6.) Mr. Robinson filed a traverse arguing his
“sentence only became final on September 14, 2016” when the Pennsylvania Supreme
Court denied his Petition for Allowance of Appeal. (ECF No. 7.) For the following
reasons, the Court will dismiss the petition as untimely. A certificate of appealability will
not be issued.
1 The Court takes judicial notice of the docket sheet in Mr. Robinson's criminal case,
See Commonwealth v. Robinson, CP-22-CR-0000284-2012 (Dauphin Cty. Ct. Com. Pl.), which
| is available via the Pennsylvania’s Judiciary Web Portal at http://ujsportal.pacourts.us/ (last visited
December 17, 2019).
i. Background
On December 5, 2012, Mr. Robinson plead guilty to four counts of robbery, one
count of conspiracy, four counts of unlawful restraint, and one court each of persons not
to possess firearms and carrying a firearm without a license. The trial court sentenced
him to 10 to 20 years’ imprisonment. Commonwealth v. Robinson, No. 1564 MDA 2014,
2015 WL 5971073, at *1 (Pa. Super. Aug. 26, 2015) (non-precedential). Mr. Robinson
did not file a direct appeal.
On November 29, 2013, Mr. Robinson filed a pro se petition for post-conviction
relief under Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. STAT. §
9545, et seq. On July 29, 2014, following a hearing, the PCRA court denied the petition.
(id.) Mr. Robinson filed a timely notice of appeal on August 15, 2014. See
Commonwealth v. Robinson, 1564 MDA 2014, 2015 WL 5971073 (Pa. Super. Aug. 26,
2015).2 On August 26, 2015, noting that Mr. Robinson’s “judgment of sentence became
final on Friday, January 4, 2013, or thirty days after the trial court imposed sentence. Pa.
R.A.P. 903(a)”, the Superior Court of Pennsylvania affirmed the denial of Mr. Robinson's
PCRA petition. (/d. at *3.) On September 14, 2016, the Supreme Court of Pennsylvania
denied the petition for allowance of appeal. See Commonwealth v. Robinson, 717 MAL
2015 (Pa. Sept. 21, 2015).° (/d.)
2 The Court takes judicial notice of the docket sheet in Mr. Robinson’s PCRA appeal before
the Superior Court of Pennsylvania, Commonwealth v. Robinson, 1564 MDA 2014 (Pa. Super.),
available to the public at http://ujsportal.pacourts.us/ (last visited December 17, 2019).
3 The Court takes judicial notice of the docket sheet in Mr. Robinson's petition for
allowance of appeal before the Supreme Court of Pennsylvania, Commonwealth v. Robinson,
717 MAL 2015 (Pa.), available to the public at http://ujsportal.pacourts.us/ (last visited December
17, 2019).
-2.
Mr. Robinson commenced this action on September 9, 2017, pursuant to the
mailbox rule,* Mr. Robinson filed the instant petition. (ECF No. 1.)
i. Discussion
A. Timeliness
The court shail “entertain an application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides a one-year statute of limitations for § 2254 petitions filed by a person in state
custody. See 28 U.S.C. § 2244(d)(1). Specifically, 28 U.S.C. 2244(d) provides in relevant
part:
(d)(1) A 1-year period of limitations shall apply to an application for
writ of habeas corpus. by a person in custody pursuant to the
judgment of a State court. The limitations 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
(B) the date on which the impediment to filing an
application created by 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 rignt has been newly recognized by the
4 The “prisoner mailbox rule” dictates that the filings of pro se prisoners are deemed filed
on the date deposited in the prison mailbox or given to prison authorities for mailing. Houston v.
Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
3
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.
(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.
28 U.S.C. § 2244(d)(1) and (2); see also Wall v. Kholi, 562 U.S. 545, 550, 131 S.Ct. 1278,
1283, 179 L.Ed.2d 252 (2011); see also Romansky v. Supt. Greene SCI, 933 F.3d. 293,
298-99 (3d Cir. 2019) and Jenkins v. Supt. of Laurel Highlands, 705 F.3d 80, 84 (3d Cir.
2013). Where a defendant fails to file post-sentence motions, his judgment becomes final □
thirty days from the date of sentencing. See 42 PA. CON. STAT. § 9545(b)(3); Pa. R. Crim.
P. 720(A)(3).
Mr. Robinson was sentenced on December 5, 2012. His sentence became final
thirty days later, on January 4, 2013, when he failed to file a direct appeal.
Commonwealth v. Robinson, No. 1564 MDA 2014, 2015 WL 5971073, at *1. 9 Mr.
Robinson had one year from that date, or until Monday, January 6, 2014, to file a § 2254
petition.> Mr. Robinson’s instant habeas petition, filed September 9, 2017, exceeded the
one-year filing limitation by 1342 days. Consequently, unless Mr. Robinson’s petition is
subject to statutory or equitable tolling, it is time-barred.
° The 1-year limitations period technically expired on Saturday, January 4, 2014, however,
the period was tolled until Monday, January 6, 2014 per Fed. R. Civ. P. 6(a)(1)(C).
8 Although Mr. Robinson asserts in his Reply that his “sentence only became final on
September 14, 2015” when the Pennsylvania Supreme Court denied his petition for allowance of
appeal appealing the denial of his PCRA petition. (ECF No. 7.) However, as _ previously
discussed, because Mr. Robinson did not file a direct appeal, his sentence became final on Friday,
January 4, 2013, or thirty days after the trial court-imposed sentence. Pa. R.A.P. 903(a).
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B. Statutory Tolling
The one-year AEDPA limitations period is subject to both statutory and equitable
tolling. Statutory tolling for a federal habeas claim occurs during the time “a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending ...”. 28 U.S.C. § 2244(d)(2). “[A] petition is properly filed
when ‘its delivery and acceptance are in compliance with the applicable laws and rules
governing filing." A properly filed petition must be in the proper form, and be timely
delivered to the proper court or office.” Satterfield v. Johnson, 434 F.3d 185, 101-192 (3d
Cir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213
(2000)) (internal citations omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 417, 125
S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005) (where the state court rejects petitioner's
PCRA petition as untimely, the petition “was not ‘properly filed’ and [petitioner is] not
entitled to statutory tolling under § 2244(d)(2)”). A state post-conviction motion or other
collateral review is “pending” from the date it is filed until the date the court rules on the
petition as well as “the time during which an appeal could be filed even if the appeal is
not eventually filed.” Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).
Three hundred twenty-nine (329) days of the one-year limitations period lapsed
between Mr. Robinson’s judgment becoming final and the filing of his PCRA petition on
November 29, 2013. The Pennsylvania Supreme Court denied his petition for allowance
of appeal on Wednesday, September 14, 2016. At that point, the balance of Mr.
Robinson's 1-year limitations period started to run. The remaining thirty-six (36) days of
the limitations period expired on Thursday, October 20, 2016. Mr. Robinson filed his §
2254 petition until September 9, 2017, or three hundred twenty-four (324) days too late.
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However, the Court’s analysis does not stop here; the Court must consider whether Mr.
Robinson's federal limitation period is subject to equitable tolling.
Cc. Equitable Tolling
The AEDPA’s one-year limitations period may be subject to equitable tolling when
the petitioner shows that he “has been pursuing his rights diligently,” and yet “some
extraordinary circumstance stood in his way and prevented timely filing” of his habeas
petition. Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130
(2010); Ross v. Varano, 712 F.3d 784, 803 (3d Cir. 2013). “However, courts need to be
‘sparing in their use of the doctrine,” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)
(quoting Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)), as it does not extend to a
“garden variety claim of excusable neglect.” Schlueter v. Varner, 384 F.3d 69, 83 (3d Cir.
2004) (citing Irwin v. Dep’t Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 96, 112
L.Ed.2d 435 (1990)). Accordingly, equitable tolling is used only in “extraordinary” and
“rare” circumstances. Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir. 2006). The Third
Circuit Court of Appeals has found extraordinary circumstances prevented a petitioner
from pursuing his habeas claims when: (1) the respondent actively misled the petitioner;
(2) the petitioner has in some extraordinary way been prevented from asserting his rights;
(3) the petitioner has timely asserted his rights mistakenly in the wrong forum, see Jones,
195 F.3d at 159; or (4) the court has mislead the petitioner regarding the steps that he
needs to take to preserve a claim. See Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir.
2005). Even where extraordinary circumstances are found, “if the person seeking
equitable tolling has not exercised reasonable diligence in attempting to file after the
extraordinary circumstances began, the link of causation between the extraordinary
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circumstances and the failure to file is broken, and the extraordinary circumstances
therefore did not prevent timely filing.” Brown v. Shannon, 322 F.3d 768, 773 (3d Cir
2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). The petitioner
bears the burden of establishing that he is entitled to benefit from equitable tolling. See
Pace, 544 U.S. at 418, 125 S.Ct. at 1814-15.
The Supreme Court has also recognized that a credible showing of actual
innocence may allow a prisoner to pursue his constitutional claims on the merits
notwithstanding the existence of “a procedural bar ... or ... expiration of the statute of
limitations” under the miscarriage of justice exception. See McQuiggin v. Perkins, 569
U.S. 383, 386, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013). But actual innocence
claims are “rarely successful.” Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865,
130 L.Ed.2d 808 (1995). “[T]he fundamental miscarriage of justice exception applies only
in cases of actual innocence.” Coleman v. Greene, 845 F.3d 73, 77 (3d Cir. 2017) (citing
McQuiggin, 569 U.S. at 386, 133 S.Ct. at 1928). “[A]ctual innocence requires a showing
of factual innocence, not mere legal insufficiency.” Swenger v. Chesney, 294 F.3d 506,
523 (3d Cir. 2002). To prevail under this standard, the petitioner must show that “it is
more likely than not that no reasonable juror would have convicted him in the light of new
evidence.” Schiup, 513 U.S. at 327, 115 S.Ct. at 867. “Without any new evidence of
innocence, even the existence of a concededly meritorious constitutional violation is not
in itself sufficient to establish a miscarriage of justice that would allow a habeas court to
reach the merits of a barred claim.” /d. at 316, 115 S.Ct. at 861.
Mr. Robinson presents no evidence to account for his delay in pursuing his state
court remedies or for his delinquency in seeking relief in federal court. See ECF Nos. 1
and 7. Nor does he indicate that extraordinary circumstances obstructed his pursuit of
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post-conviction relief in either forum. Finally, the Court observes that Mr. Robinson
advances no claim of actual innocence or the discovery of new evidence in his
submissions. See McQuiggin, 569 U.S. at 386, 133 S.Ct. at 1928. Hence, the Court finds
no basis for equitable tolling the AEDPA’s statute of limitations in this case.
ill. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate
of appealability (COA), an appeal may not be taken from a final order in a proceeding
under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “When the district
court denies a habeas petition on procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA 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.” Slack v. McDaniel, 529 U.S. 473,
484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). In the instant matter, jurists of reason
would not find the disposition of Mr. Robinson's petition debatable. As such, the Court
will not issue a certificate of appealability in this case.
-8-
iV. Conclusion
For the reasons set forth above, the Court finds Mr. Robinson's petition is untimely
filed and cannot be rendered timely by application of any period of statutory or equitable
tolling of the limitations period. Accordingly, the petition will be dismissed. A certificate
of appealability will not issue.
An appropriate Order follows.
Date: December 17, 2019 /s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
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