# CARRINGTON v. TICE

> District Court, W.D. Pennsylvania · August 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10417890

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** August 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10417890

## How later opinions describe it (automated extraction)

- noting a habeas petitioner must prove an “extraordinary circumstance stood in his way and prevented timely filing.”
- finding lack of due diligence where petitioner, represented by counsel, wanted 21 months to inquire with the state courts as to the status of his filing

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH

ANDRE T. CARRINGTON, ) Civil Action No. 2: 21-cv-00853
)
Petitioner, ) Chief United States Magistrate Judge
) Cynthia Reed Eddy
v. )
)
ERIC TICE, Superintendent, SCI Somerset, )
ATTORNEY GENERAL PA, and )
DISTRICT ATTORNEY FOR )
ALLEGHENY COUNTY, )
)
Respondents. )

MEMORANDUM OPINION1

Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner
Andre T. Carrington, in which he challenges the judgment of sentence imposed on him by the
Court of Common Pleas of Allegheny County, Pennsylvania, on October 11, 2012, in case no.
CP-02-CR-2922-2011.
I. Procedural History2
On October 11, 2012, Petitioner, Andre T. Carrington was sentenced to life without the
possibility of parole after a jury convicted him of First Degree Murder. The Superior Court of
Pennsylvania affirmed Carrington’s judgment of sentence on October 14, 2014. (ECF No. 9-12
at p. 1). The Pennsylvania Supreme Court denied Carrington’s request for a petition for

1. In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a
final judgment. See ECF Nos. 11 and 15.

2 The factual background of Carrington’s criminal case is not relevant to the Court’s
determination of whether the petition was filed in a timely fashion. However, the factual
background may be found in Respondents’ Answer. See Ans. (ECF No. 9).
allowance of appeal (“PAA”) on April 8, 2015. (ECF No. 9-12, at p. 24). Carrington did not file
a petition for writ of certiorari with the Supreme Court of the United States. His judgment of
sentence, therefore, became final on July 7, 2015, at the expiration of his time to seek review by
the Supreme Court of the United States. See Rules of the Supreme Court of the United States,

Rule 13.1.
On June 6, 2015, prior to his judgment of sentence becoming final, Carrington filed a
timely pro se petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.
Stat. §§ 9541-9546. (ECF 9-12, at p. 25). The PCRA court appointed counsel to represent
Carrington. (Id., p. 36). On December 27, 2016, counsel submitted a “no merit” letter pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc). (ECF No. 9-13, at p. 1). Thereafter, the PCRA court entered a
notice of its intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
See Notice, 2/27/2017 (ECF No. 9-13, p. 18). After receiving no response from Carrington, the
PCRA court dismissed the petition. See Order, 4/25/2017 (ECF No 9-13, p. 19). Ultimately,

Carrington’s PCRA counsel was granted leave to withdraw from the case. (Id., p. 17).
Carrington sought no further review.
On July 2, 2021, Carrington filed the instant federal habeas petition in this Court. (ECF
No. 1). On September 9, 2021, Respondents filed a response to the petition (ECF No. 9) in
which they argue, inter alia, that the Petition is untimely and should be dismissed on that ground.
Carrington filed a Traverse (ECF No. 20) contending that he has not received any mail from the
PCRA court since December 27, 2016.
II. Discussion
A. Timeliness
This proceeding is governed by the federal habeas statute applicable to state prisoners, 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). AEDPA imposes a one-year limitations period within which a state prisoner must
file a federal habeas petition. 28 U.S.C. § 2254(d)(1). Generally, the limitations period begins to
run on the date the judgment of sentence becomes final “by the conclusion of direct review or
upon the expiration of time for seeking such review.” Id. § 2244(d)(1)(D); Gonzales v. Thaler,
565 U.S. 134 (2012); Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004). One of the following
alternative start dates, however, may apply:
(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 by 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)(1)(B)-(D).3 Furthermore, the AEDPA limitations period is subject to both
statutory and equitable tolling. Id., at § 2244(d)(2); Holland v. Florida, 560 U.S. 631, 645
(2010); Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).
It appears to the Court that all of Carrington’s claims are subject to dismissal under
AEDPA’s one-year limitations period. For all of his claims, the applicable one-year limitations
period began to run, at the latest, on July 7, 2015, when his judgment of sentence became final.

3 Carrington does not argue that any of the timeliness exceptions delineated in 28 U.S.C. §
2244(d)(1)(B)-(D) apply in this case.
Under AEDPA, Carrington needed to file his federal habeas petition within one year of that date,
or by July 7, 2016. Since Carrington did not file the instant petition until July 2, 2021, the
petition is facially untimely and must be dismissed unless he can show that the limitations period
should be tolled, either statutorily or equitably, or that an alternate date should apply.

B. Statutory Tolling
The federal limitations period may be tolled during the time a “properly filed” state
collateral proceeding is pending. 28 U.S.C. § 2244(d)(2); see Pace v. DiGuglielmo, 544 U.S.
408, 415-17 (2005). Carrington timely filed his PCRA petition. As a result, the federal
limitations period was statutorily tolled until May 25, 2017, during the pendency of Carrington’s
properly filed PCRA proceedings and the time during which he could have appealed the PCRA
court’s ruling to the Pennsylvania Superior Court. See 28 U.S.C. § 2244(d)(2); Pa. R.A.P. 903;
Swartz v Meyers, 204 F.3d 417, 424 (3d Cir. 2000). The AEDPA clock began to run on May 26,
2017. At that point, Carrington had 365 days, or until May 26, 2018, to file his federal habeas
petition. Carrington, however, did not file his federal habeas petition until July 2, 2021, more

than 3 years (or 1133 days) beyond the relevant time limit.
C. Equitable Tolling
Although AEDPA’s limitations period is subject to equitable tolling, the United States
Court of Appeals for the Third Circuit has held that “courts should be sparing in their use of the
doctrine” and limit its application only to the “rare situation where [it] is demanded by sound
legal principles as well as the interests of justice.” LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir.
2005) (internal citations omitted). Equitable tolling is thus only appropriate 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.” Id. at 276 (quoting Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616,
618 (3d Cir. 1998)). “Due diligence does not require ‘the maximum feasible diligence;’” but “it
does require reasonable diligence in the circumstances.” Schlueter v. Varner, 384 F.3d 69, 74 (3d

Cir. 2004) (internal citations omitted). “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, 398 F.3d at 277. “The fact that a petitioner is
proceeding pro se does not insulate him from the ‘reasonable diligence’ inquiry and his lack of
legal knowledge or legal training does not alone justify equitable tolling.” Ross v. Varano, 712
F.3d 784, 799-800 (3d Cir. 2013) (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003);
Doe v. Menefee, 391 F.3d 147, 177 (2d Cir. 2004)).
Generally, a litigant seeking equitable tolling bears the burden of establishing two
requirements: (1) that he has been pursuing his rights diligently and (2) that some extraordinary
circumstance stood in his way. Holland v. Florida, 560 U.S. 631 (2010) (quoting Pace v.

DeGuglielmo, 544 U.S. 408, 418 (2005)). See also Munchinski v. Wilson, 694 F.3d 308, 329–32
(3d Cir. 2012). “This conjunctive standard requires showing both elements before we will permit
tolling.” Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original).
With respect to the first equitable tolling requirement, the diligence must be reasonable,
not maximum, extreme or exceptional. With respect to the second equitable tolling requirement,
the court measures subjectively whether petitioner faced “extraordinary circumstances” that
prevented him from timely filing his § 2254 petition. Finally, there must be a causal connection,
or nexus, between the extraordinary circumstances petitioner faced and his failure to file a timely
§ 2254 motion. Holland v. Florida, 560 U.S. 631, 649 (2010) (noting a habeas petitioner must
prove an “extraordinary circumstance stood in his way and prevented timely filing.”)(emphasis
added).
In support of equitable tolling, Carrington argues the following:
As of 12-27-16 Mr. Carrington has not heard nor received any mail from
the commonwealth court about this PCRA: Judge Durkin issued an order granting
Attorney Kaczynski’s Petition on 1-9-17 that was never received by Mr.
Carrington. On 2-9-17 Judge Durkin directed Mr. Carrington to notify the court
in writing if he wished to proceed with his PCRA. That too was never received.
2-28-17 Judge Durkin issued a Notice of Intent to Dismiss. Never received. 4-25-
17 Judge Durkin Dismissed Mr. Carrington’s PCRA. That was never received.

Before ever hearing anything from the courts or receiving trial transcripts
Mr. Carrington was transferred from Lee County U.S.P Virginia on 8-15-17.
Then from there to Lewisburg U.S.P. Pennsylvania 9-5-17. With no time for his
missing mail to catch up to him, Mr. Carrington was moved from Lewisburg
U.S.P. to Camp Hill on 7-19-19. Then from Camp Hill he was shipped to S.C.I.
Somerset on 10-16-19. No long after arriving at S.C.I. Somerset the global
pandemic Covid 19 caused for all facilities to be shut down some time in
February 2020.

Traverse at p.1 (ECF No. 20).

After careful consideration of the submissions of the parties, and accepting all of
Carrington’s arguments as true, the Court finds that he has failed to meet the standards to entitle
him to equitable tolling. According to Carrington, he did not receive anything from the PRCA
court after December 27, 2016. It is not clear from the record if he received counsel’s no-merit
letter, which is dated December 27, 2016. However, he offers no explanation for why he never
contacted the PCRA court or his appointed counsel to determine the status of his case. His
PCRA petition was filed on June 6, 2015, and counsel was appointed on July 1, 2015. (ECF No.
9-12, p. 36). See LaCava, 398 F.3d at 227-78 (finding lack of due diligence where petitioner,
represented by counsel, wanted 21 months to inquire with the state courts as to the status of his
filing).
Moreover, to the extent Carrington is arguing that he faced extraordinary circumstances
due to his transfers, such argument is unavailing. Carrington states in his Traverse that he
remained at USP Lee until August 15, 2017. The state court records reflect that all court filings
were mailed to Carrington at USP Lee, U.S. Penitentiary, P. O. Box 305, Jonesville, VA 24263.

(The Order dismissing Carrington’s PCRA Petition was entered on April 25, 2017.) On
September 5, 2017, Carrington was transferred to USP Lewisburg, where he remained in federal
custody until July 19, 2019, when he was transferred into state custody. Carrington offers no
explanation why during his time in federal custody he could not have contacted the PCRA court
or his court-appointed attorney about the status of his case. Similarly, Carrington offers no
explanation why he did not contact the PCRA court or his court-appointed attorney after his
transfer from federal custody to state custody on July19, 2019, to inquire about the status of his
case.
The record is void of any evidence that Carrington (i) pursued his rights diligently and/or
(ii) that some extraordinary circumstance stood in his way and prevented timely filing. Sistrunk

v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (quoting Holland, 560 U.S. at 648-49)). As a result,
there is no basis for the Court to apply the doctrine of equitable tolling to remedy the
untimeliness and the petition will be dismissed as time barred.4
III. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for
appellate review of a district court’s disposition of a habeas petition. 28 U.S.C. § 2253 provides
that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” “When the district court denies a habeas petition

4 Because the petition will be dismissed as time barred, the Court declines to address the
merits of Carrington’s petition.
on procedural grounds without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] 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). Applying that standard here,
jurists of reason would not find it debatable whether Carrington’s claims should be denied as
untimely. Accordingly, a certificate of appealability will be denied.
IV. Conclusion
For the reasons set forth above, the petition for writ of habeas corpus is time-barred and
no tolling applies to remedy the untimeliness. A certificate of appealability will be denied. A
separate Order follows.
DATED: August 2, 2022
BY THE COURT:

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge

cc: ANDRE T. CARRINGTON
NW 7189
SCI SOMERSET
1590 Walters Mill Road
Somerset, PA 15510-0001
(via U.S. First Class Mail)

Rusheen R. Pettit
Office of the District Attorney
(via ECF electronic notification)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417890. Public record. Not legal advice.