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”
- 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”
- “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
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
OMAR SIGUE, No. 3:21-CV-00527
Petitioner, (Chief Judge Brann)
v.
WARDERN, SCI-GREENE,
Respondent.
MEMORANDUM OPINION
APRIL 11, 2022
Petitioner, Omar Sigue, a state inmate presently confined in the Greene State
Correctional Institution, Waynesburg, Pennsylvania, filed this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction on
numerous grounds.1 Respondent filed an answer raising as an affirmative defense
the statute of limitations, arguing that the petition is untimely.2 Although provided
an opportunity,3 Petitioner chose to not file a traverse. For the reasons discussed
below, the Court will dismiss the petition as time-barred under 28 U.S.C. §
2244(d).
1 Doc. 1.
2 Doc. 10.
I. BACKGROUND
On September 20, 2007, Petitioner entered into a negotiated plea agreement,
in which he pled guilty to one count each of Aggravated Assault, Possession with
Intent to Deliver Crack Cocaine, Firearms Not to be Carried Without a License,
Prohibited Offensive Weapons, Possession of Cocaine, and Recklessly
Endangering Another Person.4 On October 31, 2007, Petitioner was sentenced to
an aggregate sentence of twelve (12) to forty-two (42) years in a State Correctional
Facility.5 No direct appeal was filed. Petitioner did, however, filed a motion to
modify sentence which was granted on November 30, 2007 and Petitioner was
granted 251 days of credit for time spent incarcerated from February 12, 2007 to
October 31, 2007.6
On April 17, 2008, Petitioner filed a timely PCRA petition with the trial
court.7 That court denied the petition on the merits on December 15, 2008.8 On
January 5, 2009, Petitioner filed a timely notice of appeal to the Pennsylvania
Superior Court.9 On December 18, 2009, the Pennsylvania Superior Court
affirmed the PCRA court’s decision and denied Petitioner relief.10 Petitioner
filed a petition for allowance of appeal with the Supreme Court of Pennsylvania,
4 Doc. 10 at 1.
5 Id. at 3.
6 Id.
7 Id. at 4.
8 Id.
9 Id. at 6.
which denied the petition on September 2, 2010.11
Plaintiff filed the instant petition for writ of habeas corpus on March 16,
2021, which was docketed on March 23, 2021.12
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:
(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;
. . .
(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.13
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,
11 Id.
12 Doc. 1.
including the ninety-day period for filing a petition for writ of certiorari in the
Supreme Court of the United States.14
Here, Petitioner was sentenced on his underlying criminal charges on
October 31, 2007. His motion for modification of sentence was granted on
November 30, 2007. Petitioner did not file a direct appeal and therefore, his
conviction became final on or about December 31, 2007.15 His federal habeas
statute of limitations thus began to run on December 31, 2007. Once Petitioner
filed his PCRA petition on April 17, 2008, however, the statute of limitations was
tolled. By that point, 108 days of the statute of limitations had already run.
Petitioner’s PCRA proceedings concluded on September 2, 2010, when the
Supreme Court of Pennsylvania denied allocatur. Therefore, his federal statute of
limitations began to run again the next day, September 3, 2010. The remaining
257 days of the statute expired on or about May 18, 2011.
Petitioner did not file the instant habeas petition until more than nine years
later, on March 16, 2021. It is therefore untimely.
The Court must next determine whether equitable tolling may apply to
Petitioner’s untimely petition. In Holland v. Florida , the Supreme Court of the
United States held that AEDPA’s one-year limitations period is subject to equitable
tolling in appropriate cases, on a case-by-case basis.16 A litigant seeking equitable
14 See Gonzalez v. Thaler, 132 S. Ct. 641, 653–54 (2012).
15 See Pa. R. App. P. 903 (providing thirty days in which to file a direct appeal).
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.”17
The diligence required for equitable tolling is reasonable diligence, not
maximum, extreme, or exceptional diligence.18 “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.”19
Reasonable diligence is examined under a subjective test, and it must be
considered in light of the particular circumstances of the case.20
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.21 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
17 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).
18 Holland, 560 U.S. at 653.
19 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”).
20 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.”)
21 Holland, 560 U.S. at 651 (citations omitted). See also Merritt v. Blaine, 326 F.3d 157, 168 (3d
him from filing a timely habeas petition and the prisoner has exercised reasonable
diligence in attempting to investigate and bring his claims.”22
Indeed, extraordinary circumstances have been found only where (1) the
respondent has 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, or (4) the court itself has
misled a party regarding the steps that the party needs to take to preserve a claim.23
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.”24
In the matter at hand, 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 and arguments in favor of tolling in his reply. Petitioner
chose not to file a traverse. Thus, the Court was not presented with any
22 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”).
23 See Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).
24 Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d
explanation for Petitioner’s 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 sees no circumstance which could potentially
trigger equitable tolling. Because, however, Petitioner is proceeding pro se, the
Court will permit Petitioner thirty (30) days in which to present the Court with any
argument he wishes to make regarding equitable tolling. Failure to do so will
result in the petition being 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.”25 “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.”26
“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
25 28 U.S.C. § 2253(c)(2).
26 Miller–El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted), cited in United States v.
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.”27
Here, jurists of reason would not find it debatable whether this Court is
correct in its procedural ruling. Consequently, no certificate of appealability shall
issue.
IV. CONCLUSION
For the reasons set forth above, this Court finds that the § 2254 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
Chief United States District Judge