Zguro v. Commonwealth of Pennsylvania Board of Probation and Parole

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LARRY T. ZGURO,

Petitioner, No. 1:20-CV-01300

v.

(Judge Rambo)

THOMAS MCGINLEY, ET AL.,

Respondents.

MEMORANDUM OPINION

Petitioner Larry T. Zguro, a pre-trial detainee housed at the Dauphin County

Prison in Harrisburg, Pennsylvania, filed this petition for a writ of habeas corpus

under 28 U.S.C. § 2254, challenging his continued five month incarceration after

his maximum release date on a prior state court sentence. (Doc. 1.) Respondents

filed an answer raising as an affirmative defense the statute of limitations, arguing

that the petition is untimely. (Doc. 11.) Petitioner has filed no reply, and the time

for doing so has now expired. (See Doc. 9.) For the reasons discussed below, the

court will dismiss the petition as time-barred under 28 U.S.C. § 2244(d).

I. BACKGROUND

Petitioner alleges that he was convicted of theft by unlawful taking on May

23, 2014, in the Court of Common Pleas of Dauphin County. (Doc. 1 at 1.) He

was sentenced to eighteen to thirty-six months’ imprisonment. (Id.) In the

petition, Petitioner alleges that he “was held 5 months and 8 days over my max

date” of February 28, 2017. (Id. at 5.) According to Petitioner, he received

notification of his max release date by a Pennsylvania Board of Probation and

Parole (the “Parole Board”) decision dated August 3, 2017. (Id.) Petitioner filed

the instant habeas petition on July 30, 2020. (See Doc. 1.)

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 limitations hall 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 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

such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been newly

recognized by the 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.

28 U.S.C. § 2244(d).

In assessing a case involving a parole determination, courts have held that §

2244(d)(1) provides that the one-year AEDPA statute of limitations period applies

to a habeas petition challenging an administrative parole decision. See McAleese v.

Brennan, 483 F.3d 206, 212–13 (3d Cir. 2007). See also Shelby v. Bartlett, 391

F.3d 1061, 1063 (9th Cir. 2004) (§ 2244 one-year limitations period applies to

habeas petition challenging administrative decision); Garrison v. Wilson, No. 06-

cv-3566, 2007 WL 2318156, at *4 (E.D. Pa. Aug.10, 2007) (“The one (1) year

limitations period found in § 2244(d)(1) applies to any challenge by a prisoner to

the denial of parole and to the calculation of his sentence.”).

The start date applicable in this situation is found in § 2244(d)(1)(D), which

provides that the statute of limitations shall run from “the date on which the factual

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

exercise of due diligence.” See Cameron v. Kerestes, No. 13-cv-2159, 2014 WL

201078, at *4 (M.D. Pa. Jan. 16, 2014). In the typical circumstance, it is the denial

of parole that is the factual circumstance that triggers the statute of limitations to

run. See McAleese, 483 F.3d at 217 (“a parole denial . . . can, and in this case does,

constitute the ‘factual predicate’ of a habeas corpus claim under § 2254.”).

Petitioner’s circumstance differs from the typical circumstance in that he

appears not to be challenging the denial of his parole but the Board’s notification

on August 3, 2017, that his max release date should have been February 28, 2017.

Accordingly, the Court will consider the Board’s notification on August 3, 2017, as

the “factual predicate” of Petitioner’s claim, and Petitioner thus had one-year from

that date to file a habeas corpus petition. Petitioner here did not file the petition

until July 30, 2020, which is almost two years after his statute of limitations ran on

or about August 3, 2018. The petition is thus untimely.

The Court must, however, determine whether equitable tolling may apply to

Petitioner’s untimely petition. In Holland v. Florida, 560 U.S. 631, 649–50

(2010), 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. See Ross

v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). 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)

(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). 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.” 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”).

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.

See Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). 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.” Brown v. Shannon, 322 F.3d

768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.

2000)).

Respondents’ answer asserted the untimeliness of Petitioner’s federal habeas

petition. Petitioner had an opportunity to respond to the answer, but has failed to

file a reply and has not offered an explanation for the delay in bringing his federal

habeas petition which would allow this Court to consider equitable tolling.

Furthermore, the Court has reviewed Petitioner’s filings and finds no

circumstances which could potentially trigger equitable tolling. 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.” 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), cited in United States v.

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

“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 foregoing reasons, this Court will dismiss the petition as untimely filed

under 28 U.S.C. § 2244(d), and a certificate of appealability shall not issue.

An appropriate Order follows.

S/Sylvia H. Rambo

United States District Judge

Dated: April 27, 2021