Sinkovitz v. Miller

FORIN T THHEE M UINDIDTLEED D SITSATTREICST D OISFT PREICNTN SCYOLUVRATN IA

JAMES F. SINKOVITZ, No. 4:19-CV-01947

Petitioner, (Judge Brann)

v.

SUPERINTENDENT GEORGE

MILLER, et al.,

Respondents.

MEMORANDUM OPINION

OCTOBER 30, 2020

Petitioner James F. Sinkovitz, a state prisoner presently confined at the State

Correctional Institution at Waymart in Waymart, Pennsylvania, filed this petition for

a writ of habeas corpus under 28 U.S.C. § 2254, challenging his state conviction on

numerous grounds.1 Respondents filed an answer raising as an affirmative defense

the statute of limitations, arguing that the petition is untimely.2 Petitioner filed a

reply, which does not address the issue of the statute of limitations other than to note

that “Petitioner has timely filed every document.”3

For the reasons discussed below, the Court will dismiss the petition as time-

barred under 28 U.S.C. § 2244(d).

1 Docs. 1 (petition), 2 (brief).

2 Doc. 12.

I. BACKGROUND

On November 19, 2009, Petitioner was convicted by a jury of first-degree

murder in the Court of Common Pleas of Dauphin County, Pennsylvania and was

sentenced to life in prison on November 23, 2009.4 Petitioner filed a timely direct

appeal, however the Superior Court of Pennsylvania affirmed his conviction and

sentence on February 8, 2011.5 Petitioner next sought permission to appeal to the

Supreme Court of Pennsylvania; his petition for allowance of appeal was denied on

September 28, 2011.6 Petitioner did not file a petition for writ of certiorari with the

Supreme Court of the United States, and the time for doing so expired on December

27, 2011.7

Two hundred and seventy-six days later, on September 28, 2012, Petitioner

filed a timely PCRA petition.8 That petition was denied, and the denial of the PCRA

petition was affirmed by the Superior Court on March 9, 2015.9 Petitioner did not

seek allowance of appeal with the Supreme Court of Pennsylvania, and the time for

doing so expired on April 8, 2015.10

4 Doc. 12 at 4.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

Over two years later on November 3, 2017, Petitioner filed a second PCRA

petition which was denied as untimely and affirmed on appeal.11 Both the PCRA

court and the Superior Court found that Petitioner could not establish the newly-

discovered evidence exception to the untimeliness of his second petition.12

Petitioner filed the instant habeas petition on November 7, 2019.13 In it, he

raises the following grounds for relief: (1) ineffective assistance of trial and post-

conviction counsel; (2) incompetency of the trial court causing various constitutional

violations; (3) selective prosecution and manipulation of defense counsel; and (4)

improper charge to the jury.14 Petitioner explains that he did not exhaust Ground 2

because “the issue was not developed until para-legal help with research discovered

this issue.”15 Petitioner does not address the timeliness of his petition.16 In its

answer, Respondents argue that the petition is untimely because the statute of

limitations for filing the federal habeas petition expired on July 6, 2015.17

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides the

applicable statute of limitations for Petitioner’s habeas petition, and it provides, in

pertinent part:

11 See id. at 5; Doc. 12-20 (Superior Court order affirming denial of second PCRA petition as

untimely and rejecting Petitioner’s argument of newly discovered evidence).

12 See Doc. 12-20.

13 See Doc. 1 (dated November 7, 2019, but filed November 13, 2019).

14 See Doc. 1.

15 See id. at 8.

16 See id. at 13.

a writ (o1f) h Aab 1e–ayse caor rppeursi obdy o af pliemrsitoanti oinn csuhsatlol dayp ppluyr tsou aannt a tpop ali cjuadtigomn efonrt

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;

. . .

(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.18

Pursuant to § 2244(d), evaluation of the timeliness of a § 2254 petition requires a

determination of, first, when the pertinent judgment became “final,” and, second, the

period of time during which an application for state post-conviction relief was

“properly filed” and “pending.” The judgment is determined to be final by the

conclusion of direct review, or the expiration of time for seeking such review,

including the ninety-day period for filing a petition for writ of certiorari in the

Supreme Court of the United States.19

Here, Petitioner filed a direct appeal but did not file a petition for writ of

certiorari. The time for doing so expired on December 27, 2011, and thus his

conviction became final on December 28, 2011. Petitionerdid not file his first PCRA

petition until after direct appeal concluded, and thus his federal habeas statute of

limitations began to run on December 28, 2011.20 Two hundred and seventy-six

18 28 U.S.C. § 2244(d). See also Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).

19 See Gonzalez v. Thaler, 132 S. Ct. 641, 653–54 (2012).

days of Petitioner’s federal habeas statute of limitations had run when Petitioner filed

his first PCRA petition on September 28, 2012. At this point, the federal statute of

limitations was tolled pursuant to 28 U.S.C. § 2244(d)(2) during the duration of his

PCRA proceedings including any appeals. According to the record before the Court,

those proceedings ended on April 8, 2015, when the time for filing a petition for

allowance of appeal with the Supreme Court of Pennsylvania expired. Thus, the

habeas statute of limitations started to run again on April 9, 2015. It expired on or

about July 6, 2015.21

Petitioner’s second PCRA petition has no effect on the running of the statute

of limitations, because the period of limitations had already expired when the second

PCRA petition was filed. Notably, however, even if Petitioner had filed the second

PCRA petition during the applicable period of limitations, it would not have tolled

the statute of limitations because the second PCRA petition was dismissed as

untimely.22

Before concluding that the Petition is untimely, the Court must determine

whether Petitioner would be entitled to an alternative starting point for the one-year

limitations period pursuant to § 2244(d)(1)(D). Petitioner intimates that his second

21 The Court notes that in 2015 Independence Day fell on a Saturday, but was legally celebrated

on July 3, 2015, not July 6, 2015.

22 See Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001) (holding that for the statute of limitations

to be tolled or remain tolled, any PCRA petition must be both pending and properly filed; in

ground for relief was not “discovered” until a paralegal helped him with research; in

that ground, Petitioner alleges that the trial court was generally ineffective.

Section 2244(d)(1)(D) provides an additional one-year period of limitations

for bringing a § 2254 habeas petition from “the date on which the factual predicate

of the claim or claims presented could have been discovered through the exercise of

due diligence.” “[I]t is appropriate to place at least some burden of pleading and

production on a habeas petitioner to show that the date for the running of the AEDPA

limitations period should . . . state from the date on which a factual predicate could

have first been discovered.”23 “This is so because it would seem that such

information is more peculiarly within the party asserting/arguing the existence of

such impediment and/or factual predicate, i.e., the habeas petitioner.”24

Here, Petitioner fails to specify any newly discovered evidence or factual

predicate that would make his second ground for relief timely under §

2244(d)(1)(D). He also fails to explain when he discovered this unidentified factual

predicate and how he exercised due diligence in discovering it.

23 United States ex rel. Lipchey v. Corbett, No. No. 06-cv-989, 2007 WL 2428662, at *5 (W.D.

Pa. Aug. 22, 2007) (citing Jackson v. Sec’y for Dep’t of Corrs., 292 F.3d 1347, 1349 (11th Cir.

2002). See also Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002) (“The purpose of

requiring the defendant to plead available affirmative defenses in his answer is to avoid

surprise and undue prejudice by providing the plaintiff with notice and an opportunity to

demonstrate why the affirmative defense should not succeed.”); Smith v. Duncan, 297 F.3d

809, 814 (9th Cir.2002) (“[O]nce a petitioner is given adequate notice and opportunity to

respond to allegations that his petition is subject to dismissal pursuant to AEDPA’s statute of

limitations, petitioner has the burden of providing an adequate response”), abrogation on other

grounds recognized in Moreno v. Harrison, 245 F. App’x 606 (9th Cir. 2007).

The Court has comprehensively reviewed his petition and supporting

memorandum of law and can discern no factual predicate upon which Petitioner can

now bring his ground of ineffective trial counsel. Further, Petitioner does not even

specify in his petition and brief how the trial court violated his constitutional rights

other than to say that the trial court misled Petitioner regarding his ability to raise

pretrial ineffective assistance of counsel.25 Petitioner was, of course, present at his

trial, and he raised the ineffectiveness of his trial counsel in his first PCRA petition,

and would have known, at the latest, any ineffectiveness on the part of his PCRA

counsel at the conclusion of his first PCRA proceedings, which concluded on April

8, 2015.

It is unclear to the Court how any of these facts could not have been

discovered earlier. Petitioner, having been on notice of the timeliness issue, has

failed to demonstrate that his petition is timely under § 2244(d)(1)(D). Therefore,

the Court finds that Petitioner cannot avail himself of § 2244(d)(1)(D), and the

petition is untimely.

Next, the Court must determine whether equitable tolling may apply to

Petitioner’s untimely petition. In Holland v. Florida, the Supreme Court held that

AEDPA’s one-year limitations period is subject to equitable tolling in appropriate

cases, on a case-by-case basis.26 A litigant seeking equitable tolling bears the burden

25 Doc. 2 at 7.

of establishing two elements: “(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.”27

The diligence required for equitable tolling is reasonable diligence, not

maximum, extreme, or exceptional diligence.28 “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.”29 Reasonable

diligence is examined under a subjective test, and it must be considered in light of

the particular circumstances of the case.30

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.31 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

27 Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). See also

Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 89 (3d Cir. 2013).

28 Holland, 560 U.S. at 653.

29 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”).

30 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.”).

31 Holland, 560 U.S. at 651 (citations omitted). See also Merritt v. Blaine, 326 F.3d 157, 168 (3d

from filing a timely habeas petition and the prisoner has exercised reasonable

diligence in attempting to investigate and bring his claims.”32

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.33

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.”34

Here, Petitioner was put on notice regarding the untimeliness of his federal

habeas petition by Respondent’s answer and had an opportunity to address the

untimeliness issue and arguments in favor of tolling in his reply. Petitioner offers

no explanation for the delay in bringing his federal habeas petition which would

allow this Court to consider equitable tolling. Furthermore, the Court has reviewed

32 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

unfair”).

33 See Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).

34 Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d

Petitioner’s filings and sees no circumstance which could potentially trigger

equitable tolling. None.

In light of the fact that Petitioner is proceeding pro se, however, the Court will

permit Petitioner thirty (30) days in which to present the Court with any argument

he wishes to make regarding equitable tolling. Should the Petitioner decline to do

so the Petition will be dismissed with prejudice.

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

constitutional right.”35 “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.”36

“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

35 28 U.S.C. § 2253(c)(2).

36 Miller–El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted), cited in United States v.

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

its procedural ruling.”37

Here, jurists of reason would not find it debatable 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 as untimely filed under 28 U.S.C. § 2244(d). Petitioner is

granted leave to plead over regarding the equitable tolling issue. 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