holding that the “obligation to act diligently pertains to both the federal habeas claim and the period in which the petitioner exhausts state court remedies”
How later courts described this case
- holding that the “obligation to act diligently pertains to both the federal habeas claim and the period in which the petitioner exhausts state court remedies”
- “Due diligence does not require the maximum feasible diligence, but it does require diligence in the circumstances.”
Written by the judges who cited it.
The opinion
FORIN T THHEE M UINDIDTLEED D SITSATTREICST D OISFT PREICNTN SCYOLUVRATN IA
KENNETH LEE RANDOLPH, JR., No. 4:18-CV-02231
Petitioner, (Judge Brann)
v.
THERESA DELBASO, et al.,
Respondents.
MEMORANDUM OPINION
MAY 29, 2020
Petitioner Kenneth Lee Randolph, Jr., a state prisoner presently confined at
the State Correctional Institution at Mahanoy in Frackville, Pennsylvania, filed this
petition for a writ of habeas corpus under 28 U.S.C. § 2254,1 challenging the legality
of his sentence pursuant to Alleyne v. United States.2 The Court previously
dismissed the petition without prejudice as untimely, but permitted Petitioner an
additional period of time in which to prevent any argument regarding equitable
tolling. Petitioner has now filed a supplemental brief regarding equitable tolling.3
For the reasons discussed below, Petitioner’s circumstances do not warrant
equitable tolling, and the Court will dismiss the petition with prejudice as time-
barred under 28 U.S.C. § 2244(d).
1 Doc. 1.
2 570 U.S. 99 (2013).
3 Doc. 18.
I. BACKGROUND
Petitioner was sentenced on various state court convictions on May 10, 2011.
He did not file a direct appeal. His conviction thus became final on or about June 9,
2012. On April 5, 2012, petitioner filed a pro se motion seeking modification of
sentence, which was dismissed as untimely. Then, on September 19, 2012,
Petitioner filed a pro se PCRA petition, which was dismissed. Petitioner filed a
second PCRA petition on October 18, 2018, which was dismissed as untimely and
that dismissal was affirmed on appeal. In the affirmance, the Superior Court of
Pennsylvania noted that Petitioner would have needed to have filed his PCRA
petition by June 9, 2012, in order for it to have been timely.
Petitioner filed his petition for a writ of habeas corpus under 28 U.S.C. §
2254,4 on November 16, 2018, challenging the legality of his sentence pursuant to
Alleyne v. United States.5 Respondents filed an answer raising as an affirmative
defense the statute of limitations, arguing that the petition is untimely.6 After
Petitioner filed no reply, the Court determined that the petition was in fact untimely
both under 28 U.S.C. § 2244(d)(1)(A), because the petition was filed over a year
after his state conviction became final, and under 28 U.S.C. § 2244(d)(1)(C),
because the Alleyne decision cannot be applied retroactively to cases on collateral
4 Doc. No. 1.
5 570 U.S. 99 (2013).
6 Doc. 11. Respondents also argued that Alleyne would not even apply to Petitioner’s
review. The Court dismissed the petition without prejudice, but provided Petitioner
with an opportunity to advance any arguments regarding equitable tolling that he
wished to make.
Petitioner has since filed a supplemental brief regarding the timeliness of his
petition.8 In it, Petitioner argues that his state criminal attorney failed to file the
necessary motions to protect and preserve his post-sentencing and appellate rights,
and was thus ineffective, and that for some portion of time, he was incarcerated at
SCI Camp Hill in a restricted housing unit, where Petitioner did not have access to
the law library. In addition, Petitioner references the statute of limitations provided
for in § 2244(d)(1)(C); from this reference, the Court presumes that Petitioner
believes his petition should be timely based on a newly recognized constitutional
right.
II. DISCUSSION
As the Court noted in its prior memorandum opinion, AEDPA’s one-year
limitations period for habeas petitions is subject to equitable tolling in appropriate
cases, on a case-by-case basis.9 A litigant seeking equitable tolling bears the burden
of establishing two elements: “(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.”10
7 See Docs. 13, 14.
8 Doc. 18.
9 560 U.S. 631, 649–50 (2010). See Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013).
10 Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). See also
The diligence required for equitable tolling is reasonable diligence, not
maximum, extreme, or exceptional diligence.11 “This obligation does not pertain
solely to the filing of the federal habeas petition, rather it is an obligation that exists
during the period appellant is exhausting state court remedies as well.”12 Reasonable
diligence is examined under a subjective test, and it must be considered in light of
the particular circumstances of the case.13
The Court also must determine whether extraordinary circumstances exist to
warrant equitable tolling. “[G]arden variety claim[s] of excusable neglect” by a
petitioner’s attorney do not generally present an extraordinary circumstance meriting
equitable tolling.14 Rather, equitable tolling can be triggered only when “the
principles of equity would make the rigid application of a limitation period unfair,
such as when a state prisoner faces extraordinary circumstances that prevent him
from filing a timely habeas petition and the prisoner has exercised reasonable
diligence in attempting to investigate and bring his claims.”15
11 Holland, 560 U.S. at 653.
12 LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citation omitted). See also Alicia v.
Karestes, 389 F. App'x 118, 122 (3d Cir. 2010) (holding that the “obligation to act diligently
pertains to both the federal habeas claim and the period in which the petitioner exhausts state
court remedies”).
13 See Ross, 712 F.3d at 799; Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (“Due diligence
does not require the maximum feasible diligence, but it does require diligence in the
circumstances.”).
14 Holland, 560 U.S. at 651 (citations omitted). See also Merritt v. Blaine, 326 F.3d 157, 168 (3d
Cir. 2003).
15 LaCava, 398 F.3d at 275–276. See also Holland, 560 U.S. at 648–49 (relying on Pace, 544
U.S. at 418); Jenkins, 705 F.3d at 89 (holding that equitable tolling should be applied sparingly,
and only when the “principles of equity would make the rigid application of a limitation period
Indeed, extraordinary circumstances have been found only where (a) the
respondent has actively misled the petitioner, (b) the petitioner has in some
extraordinary way been prevented from asserting his rights, (c) the petitioner has
timely asserted his rights mistakenly in the wrong forum, or (d) the court itself has
misled a party regarding the steps that the party needs to take to preserve a claim.16
Nevertheless, it must be restated that, even where extraordinary circumstances do
exist, “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 circumstances and the failure to file is broken,
and the extraordinary circumstances therefore did not prevent timely filing.”17
The Court has reviewed Petitioner’s supplemental brief. First, Petitioner has
not pursued his rights diligently. Although Petitioner states that his trial attorney
failed to file the necessary motions to preserve his appellate rights, at no point did
Petitioner seek to file a direct appeal or file one nunc pro tunc after he discovered
that his attorney did not file the notice of appeal. In addition, Petitioner could have
also filed a timely PCRA petition immediately after he discovered that a direct
appeal was not filed, which would have tolled the running of the federal habeas
statute of limitations. For whatever reason, he waited until after the time for doing
so had expired. Further, Petitioner could have filed his federal habeas petition after
16 See Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).
17 Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d
his first PCRA petition was denied, yet he did not. Instead, he waited years to file
an untimely second PCRA petition. Although Petitioner has been pursuing his
rights, the Court cannot conclude that he has done so diligently.
In addition, Petitioner has not demonstrated the sort of extraordinary
circumstances that would warrant equitable tolling. For example, his allegation of
attorney neglect in not filing a notice of appeal is a garden variety type of claim and
will not suffice for equitable tolling. In addition, although Petitioner states that for
some unspecified portion of time he was held in the RHU at SCI Camp Hill and
could not access the law library, he does not explain how that would have prevented
him from filing a letter notice of appeal or PCRA petition with a request for an
extension of time for any supporting legal brief. Because Petitioner has failed to
demonstrate either that he has been pursuing his rights diligently or that any
extraordinary circumstances existed, the Court will dismiss the Petition with
prejudice as untimely.18
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken from a final order in a
proceeding under 28 U.S.C. § 2254. A certificate of appealability (“COA”) may
issue “only if the applicant has made a substantial showing of the denial of a
18 The Court notes that it already addressed Petitioner’s argument that his petition as timely based
on a newly recognized constitutional right in its prior memorandum opinion, as the Alleyne
constitutional right.” “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.”20
“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.”21
Here, jurists of reason would not find it debatable as to whether this Court is
correct in its procedural ruling. No certificate of appealability shall therefore issue.
IV. CONCLUSION
For the reasons set forth above, this Court finds that the § 2254 habeas petition
should be dismissed with prejudice as untimely under 28 U.S.C. § 2244(d). A
certificate of appealability shall not issue. An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
19 28 U.S.C. § 2253(c)(2).
20 Miller–El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted), cited in United States v.
Williams, 536 F. App’x 169, 171 (3d Cir. 2013).