Perez-Toledo v. Marsh

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICARDO PEREZ-TOLEDO, : CIVIL ACTION NO. 3:19-CV-456

:

Petitioner : (Judge Conner)

:

v. :

:

ROBERT MARSH, :

:

Respondent :

MEMORANDUM

Petitioner Ricardo Perez-Toledo, through counsel, filed this petition for a

writ of habeas corpus under 28 U.S.C. § 2254, challenging his state court convictions

because his trial and post-conviction counsel was allegedly ineffective. (See Doc. 1).

Respondent filed an answer raising as an affirmative defense the statute of

limitations, arguing that the petition is untimely. (See Doc. 11). Petitioner filed a

reply seeking to invoke equitable tolling in order to make his petition timely. (See

Doc. 12). For the reasons discussed below, the court will dismiss the petition as

time-barred under 28 U.S.C. § 2244(d).

I. Factual Background & Procedural History

On June 28, 2011, petitioner was charged by criminal information with rape

of a child and related offenses in the Court of Common Pleas for Luzerne County.

(See Doc. 11 at 1). A jury trial began on October 16, 2012, and on October 18, 2012,

the jury convicted him on all counts. (Id.) Petitioner was sentenced on March 15,

2013, to an aggregate term of 22 to 44 years’ imprisonment. (Id. at 1-2).

After his sentencing, petitioner filed a direct appeal to the Superior Court of

Pennsylvania. (Id.) The Superior Court denied relief and affirmed his judgment of

conviction on June 6, 2014. (Id. at 2). Respondent states that “[i]t does not appear

that he filed a Petition for Allowance of Appeal.” (Id. at 2). The time for doing so

would have expired on or about July 7, 2014.1 See PA. R. APP. P. 903 (providing

thirty days in which to file an appeal).

Approximately 197 days later, petitioner filed a petition pursuant to

Pennsylvania’s Post-Conviction Relief Act (“PCRA”) on January 21, 2015. (See Doc.

11 at 2). The court held a hearing on his claims in the PCRA petition, but the court

ultimately denied relief on May 17, 2016. (Id.) Petitioner filed a timely notice of

appeal on June 14, 2016, and the Superior Court affirmed the denial of the PCRA

petition on August 15, 2017. (Id. at 2-3). Petitioner filed a petition for allowance of

appeal with the Supreme Court of Pennsylvania, which denied permission to appeal

on February 27, 2018. (Id. at 3).

Petitioner filed the instant petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 on March 13, 2019. (See Doc. 1). In it, he argues that his trial counsel

was ineffective, and petitioner was denied a merits review of this claim in his PCRA

proceedings due to the ineffectiveness of PCRA counsel in failing to subpoena trial

counsel. (Id. at 8). Petitioner also argues that equitable tolling is warranted

because petitioner never received a substantive review of his conviction due to the

ineffectiveness of his prior counsel. (Id. at 16).

1 The court notes that July 6, 2014, was a Sunday, thus petitioner would have

had until July 7, 2014, to file a petition for allowance of appeal.

II. Discussion

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

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

pertinent part:

(1) A 1-year period of limitation shall apply to an application for

a writ of habeas corpus by a person in custody pursuant to a 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;

. . .

(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); see also Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).

Pursuant to Section 2244(d), evaluation of the timeliness of a Section 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. See Gonzalez v. Thaler, 565 U.S. 134, 150

(2012).

Here, petitioner filed a timely direct appeal, but he did not file for a petition

for allowance of appeal with the Supreme Court of Pennsylvania. His conviction

thus became final after his time for doing so expired, on or about July 7, 2014. His

one year federal habeas statute of limitations begun to run on July 8, 2014. Once

petitioner filed his PCRA petition on January 21, 2015, the statute of limitations was

tolled pursuant to 28 U.S.C. § 2244(d)(2) until the conclusion of his PRCA

proceedings including any appeals. According to the record before the court, those

proceedings ended on February 27, 2018, when his petition for allowance of appeal

was denied. Thus, the habeas statute of limitations started to run again on

February 28, 2018, and expired on August 14, 2018, well before petitioner filed the

instant petition on March 13, 2019.

Before concluding that the petition is untimely, the court must determine

whether equitable tolling may apply to petitioner’s untimely petition. AEDPA’s

one-year limitations period is subject to equitable tolling in appropriate cases, on a

case-by-case basis. See Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013) (citing

Holland v. Florida, 560 U.S. 631, 649-50 (2010)). 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.”

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).

The diligence required for equitable tolling is reasonable diligence, not

maximum, extreme, or exceptional diligence. Holland, 560 U.S. at 653. “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.” 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)

(nonprecedential) (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”). Reasonable diligence is examined under a subjective test, and it must

be considered in light of the particular circumstances of the case. 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.”).

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. Holland, 560 U.S. at 651 (citations omitted); see also

Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). 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.” 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”).

Extraordinary circumstances have been found only where: the respondent

has actively misled the petitioner; the petitioner has in some extraordinary way

been prevented from asserting his rights; the petitioner has timely asserted his

rights mistakenly in the wrong forum; or the court itself has misled a party

regarding the steps that the party needs to take to preserve a claim. See Brinson v.

Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Even where extraordinary circumstances

exist, however, “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.” Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v.

Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).

Petitioner argues that equitable tolling is appropriate here because his trial

counsel and PCRA counsel were ineffective, and thus he has never had the

opportunity to have a substantive review of his conviction. While that may be true,

that is not sufficient to invoke equitable tolling. Petitioner presumably knew that

his counsel was ineffective when he remained imprisoned and his PCRA petition

was not granted and its denial was upheld on appeal. That his trial and PCRA

counsel were allegedly ineffective does not excuse petitioner’s failure to bring this

habeas petition in a timely manner. Petitioner waited well over a year after his

petition for allowance of appeal of his PCRA petition was denied to file the instant

petition. That failure to file this petition in a timely manner is petitioner’s failure

alone—not that of his prior counsel. Thus, the court will dismiss the petition as

untimely.

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.” See 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, 327 (2003) (citation omitted); United States v.

Williams, 536 F. App’x 169, 171 (3d Cir. 2013) (nonprecedential).

“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 (2000). Here, jurists

of reason would not find it debatable whether this court is correct in its procedural

ruling. No certificate of appealability shall issue.

IV. Conclusion

For the reasons set forth above, the petition will be dismissed without

prejudice as untimely. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: April 21, 2021