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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GERALD ROZUM, et al.,
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
JULY 30, 2013
Petitioner Michael Andrews (“Petitioner”) filed this
Petition for Writ of Habeas Corpus (“Habeas Petition”) pursuant
to 28 U.S.C. § 2254. Petitioner is currently incarcerated in
the State Correctional Institution in Somerset, Pennsylvania.
Consistent with U.S. Magistrate Judge Linda K. Caracappa’s
Report and Recommendation, the Court will dismiss the instant
petition as untimely.
BACKGROUND AND PROCEDURAL HISTORY
On November 22, 2000, Petitioner was convicted in the
Philadelphia County Court of Common Pleas of second degree
murder, robbery, and possessing instruments of crime. R&R 1.
Petitioner appealed that decision, and his appeal was dismissed
on March 28, 2002 for failure to file a brief. Id. at 2. He
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then filed a petition to have his appellate rights reinstated
nunc pro tunc pursuant to Pennsylvania’s Post Conviction Relief
Act (“PCRA”). Id. The PCRA court granted the petition. Id.
On March 22, 2004, the Pennsylvania Superior Court
affirmed Petitioner’s sentence. Id. On March 1, 2005,1
Petitioner filed a second PCRA petition. Id. The PCRA court
dismissed that petition on April 11, 2006. Id. Petitioner
requested that his counsel appeal the PCRA court’s decision;
however, counsel failed to do so. Id. More than a year later,
after Petitioner wrote several letters to the court, it ordered
counsel to file a notice of appeal nunc pro tunc. Id. Counsel
did so, and the PCRA court denied the appeal as untimely on
January 8, 2007. Id. Petitioner and counsel both appealed that
denial, but the appeals were dismissed for failure to file a
docketing statement. Id.
Petitioner then filed a third PCRA petition. Id.
Upon agreement of the parties, on April 5, 2010, the PCRA court
reinstated Petitioner’s appellate rights from his April 11, 2006
PCRA petition dismissal (which his attorney failed to appeal
despite Petitioner’s requests). Id. at 3. However, a month
The Clerk of Court noted on the docket that Petitioner
filed his second PCRA petition on February 29, 2005; however,
because 2005 was not a leap year, the petition could not have
been filed on that date. Therefore, for the purposes of the
instant petition, the Court will consider that PCRA petition as
filed on March 1, 2005.
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later, the PCRA court found that it was error to grant
reinstatement of Petitioner’s appellate rights and that
Petitioner’s third PCRA petition was untimely. Id. Petitioner
appealed that decision to the Superior Court, which denied his
appeal as untimely on June 10, 2011. Id. On November 14, 2011,
the Pennsylvania Supreme Court denied Petitioner’s petition for
allowance of appeal. Id.
On December 19, 2011, Petitioner filed the instant
Petition for Writ of Habeas Corpus. Id. Since that date, he
has filed a fourth PCRA petition, which the PCRA court noted
that it intended to dismiss. State Court Docket, at 13.
Nevertheless, Petitioner recently amended the petition, and it
is still awaiting disposition in the PCRA court. Id. On
February 19, 2013, Petitioner filed a motion for a stay and
abeyance in this case while his PCRA petition is pending. ECF
The district court may refer an application for a writ
of habeas corpus to a U.S. Magistrate Judge for a report and
recommendation. Section 2254 R. 10; see also 28 U.S.C.
§ 636(b)(1)(B) (2006 & Supp. V 2011). Parties may object to the
magistrate judge’s report and recommendation within fourteen
days after being served with a copy thereof. See 28 U.S.C.
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§ 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The Court must then “make
a de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). The Court does not
review general objections. See Brown v. Astrue, 649 F.3d 193,
195 (3d Cir. 2011) (“We have provided that § 636(b)(1) requires
district courts to review such objections de novo unless the
objection is not timely or not specific.” (internal quotation
marks omitted)). The Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” Id. Therefore, the Court will conduct a de
novo review of those portions of the Report and Recommendation
to which the parties object.
On habeas review, the Court must determine whether the
state court’s adjudication of the claims raised was (1) contrary
to, or an unreasonable application of, clearly established
federal law, or (2) based on an unreasonable determination of
the facts in light of the evidence presented. See 28 U.S.C.
§ 2254(d) (2006).
The Report and Recommendation (“R&R”) prepared by
Magistrate Judge Caracappa recommends that the Court dismiss
Petitioner’s instant habeas petition as untimely. Petitioner
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raises several objections to the R&R. Although he has raised
his objections in the form of a Motion to Alter Judgment instead
of in a formal list of objections, the Court will construe the
arguments in the motion as objections to the R&R.
Specifically, Petitioner argues that the AEDPA’s one-
year limitations period should be equitably tolled because his
trial counsel and PCRA counsel abandoned him, leaving him unable
to properly pursue habeas relief. In his motion, Petitioner
raises three primary arguments: (1) ineffective assistance of
PCRA counsel in failing to raise issues on appeal; (2)
ineffective assistance of PCRA counsel in failing to file an
appeal after Petitioner’s request; and (3) that Petitioner is
entitled to a new trial as a result of destroyed evidence.
Because Petitioner’s arguments deal primarily with the merits of
his claims and not with the procedural grounds on which
Magistrate Judge Caracappa based the R&R, the Court will
consider them only to the extent that they affect those
A. Exhaustion Requirements
Petitioner is required to exhaust his remedies in
state court before the Court can grant his federal habeas
petition. § 2254(b)(1)(A). “An applicant shall not be deemed
to have exhausted the remedies available in the courts of the
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State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure,
the question presented.” Id. § 2254(c).
State court judgments become final “at the conclusion
of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa. C.S.A. § 9545(b)(3) (West 2013). When a
petitioner does not pursue appeals through the United States
Supreme Court, his judgment becomes final after the time for
pursuing direct review in either the Supreme Court or in state
court expires. Gonzales v. Thaler, 132 S. Ct. 641, 653-54
(2012). Where a petitioner does not pursue appeals to the
Pennsylvania Supreme Court, judgment is considered final for
PCRA purposes after the time for filing such an appeal expires.
Commonwealth v. Barrett, 761 A.2d 145 (Pa. Super. 2000). A
petitioner has thirty days in which to appeal a Superior Court
judgment to the Pennsylvania Supreme Court. Pa. R.A.P. 1113(a).
Here, Petitioner’s state court judgment became final
on April 21, 2004, thirty days after the date on which the
Superior Court affirmed his sentence. The Court must next
consider whether Petitioner’s subsequent filings were timely in
light of the date on which his state court judgment became
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B. Statutory Tolling
Petitioner was required to exhaust his claims by
bringing them pursuant to Pennsylvania’s Post Conviction Relief
Act after his state court judgment became final. A petitioner
raising claims pursuant to the PCRA must file all PCRA claims
within one year of the date on which his state court judgment
became final. § 9545(b). The AEDPA’s one-year limitations
period is tolled while a petitioner’s timely post-conviction or
collateral review is pending in state court.2 See 28 U.S.C. §
2244(d)(2); Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001).
Here, Petitioner was required to file any PCRA
petitions by April 21, 2005. Petitioner filed his second PCRA
petition, pro se, on March 1, 2005.3 At the time Petitioner
filed that petition, 314 days of the AEDPA’s one-year
limitations period had lapsed. Therefore, Petitioner had 51
There are three exceptions to this time bar discussed
in § 9545(b)(1). However, in order to qualify for an exception,
a petitioner must file a motion pleading such an exception
within sixty days of the expiration of the time to file a PCRA
petition. § 9545(b)(2). Petitioner did not file such a motion;
therefore, none of the exceptions applies.
See note 1. Although Petitioner filed a PCRA petition
prior to the one discussed here, that petition was no longer
pending when Petitioner’s state court judgment became final.
Therefore, the AEDPA’s one-year limitations period was not
tolled between the time the state court judgment became final
and the date on which Petitioner filed his second timely PCRA
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days in which to file a habeas petition remaining at the time he
filed his second PCRA petition.
The PCRA court dismissed Petitioner’s second PCRA
petition on April 11, 2006. Despite Petitioner’s requests,
counsel did not appeal the PCRA court’s decision. As noted in
the R&R, Petitioner’s judgment became final on May 11, 2006,
thirty days after the PCRA court entered judgment. Therefore,
pursuant to the AEDPA, and consistent with Magistrate Judge
Caracappa’s finding in the R&R, Petitioner was required to file
any habeas petition by July 3, 2006, 51 days after his PCRA
judgment became final. Petitioner did not file his instant
petition until December 19, 2011; therefore, it is untimely.
C. Equitable Tolling
Petitioner argues that even if he does not qualify for
statutory tolling, he is entitled to equitable tolling because
his attorney abandoned him. The AEDPA’s one-year limitations
period is subject to equitable tolling. Holland v. Florida, 130
S. Ct. 2549, 2560 (2010); see also Alicia v. Karestas, Civ. A.
No. 07-03183, 2008 WL 4108056, at *3 (E.D. Pa. Aug. 28, 2008)
(Robreno, J.) (citing Miller v. N.J. State Dep’t of Corr., 145
F.3d 616, 618 (3d Cir. 1998)). A petitioner qualifies for
equitable tolling only if he is able to prove: “‘(1) that he has
been pursuing his rights diligently, and (2) that some
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extraordinary circumstance stood in his way’ and prevented
timely filing.” Holland, 130 S. Ct. at 2562 (citing Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Attorney abandonment
can qualify as an extraordinary circumstance when a petitioner
has no way of knowing about his inability to comply with the
procedural rule that led to his default. Maples v. Thomas, 132
S.Ct. 912, 916 (2012); see also Downey v. Gavin, Civ. A. No. 11-
4507, 2012 WL 252832, at *1, n. 1 (E.D. Pa. Jan. 27, 2012)
(Robreno, J.). The Third Circuit has held that equitable
tolling is appropriate only in limited circumstances:
[E]quitable tolling “may be appropriate if
(1) the [attorney] has actively misled the
plaintiff, (2) if the plaintiff has ‘in some
extraordinary way’ been prevented from asserting
his rights, or (3) if the plaintiff has timely
asserted his rights mistakenly in the wrong
forum.” In Seitzinger v. Reading Hosp. & Med.
Ctr., 165 F.3d 236 (3d Cir. 1999), we recently
held that “equitable tolling may be appropriate
[in a Title VII action] when a claimant received
inadequate notice of her right to file suit,
where a motion for appointment of counsel is
pending, or where the court has misled the
plaintiff into believing that she had done
everything required of her.”
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998))
(applying the factors discussed above in consideration of
whether a habeas petitioner is entitled to equitable tolling).
Here, Petitioner does not demonstrate any of the four
factors outlined in Jones, and he cannot prove that he has
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pursued his rights diligently throughout his appeals. Although
Petitioner did pursue his rights diligently through early 2007,
he was aware that he did not file the required docketing
statement in his PCRA appeals. Petitioner was notified that his
counsel had not filed the docketing statement; the PCRA court
also instructed Petitioner that he must file the docketing
statement himself in order to avoid dismissal. ECF No. 14-7.
Petitioner points to no evidence showing that he attempted to
file the docketing statement or that he was somehow prevented
from doing so. His appeals were dismissed based on his own
procedural omission and not due to an extraordinary circumstance
such as abandonment of counsel. Therefore, Petitioner does not
qualify for equitable tolling, and the Court will dismiss his
petition as untimely.
D. Stay and Abeyance
Petitioner recently moved for a stay and abeyance due
to his pending PCRA petition. ECF No. 27. “AEDPA does not
deprive district courts of the authority to issue stays that are
a proper exercise of their discretion, but it does circumscribe
that discretion.” Rhines, 544 U.S. at 270. A petitioner must
meet three criteria in order to receive a stay and abeyance:
“good cause, potentially meritorious claims, and a lack of
intentionally dilatory litigation tactics.” Heleva v. Brooks,
581 F.3d 187, 192 (3d Cir. 2009) (citing Rhines, 544 U.S. at
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Here, Petitioner cannot show either good cause for his
procedural default (as discussed above) or that he has
potentially meritorious claims. The PCRA court has indicated
its intention to dismiss Petitioner’s claim as untimely.
Petitioner was required to file all PCRA petitions by April 21,
2005; he filed the pending Petition years after that date.
Petitioner does not qualify for a stay and abeyance, and so the
Court will deny his motion.
CERTIFICATE OF APPEALABILITY
The Court will not issue a Certificate of
Appealability because Petitioner has not made a substantial
showing of the denial of his constitutional rights. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
For the foregoing reasons, and consistent with the R&R
before the Court, the Court will deny and dismiss the Petition
for Writ of Habeas Corpus with prejudice. Furthermore, the
Court will dismiss Petitioner’s motion for stay and abeyance.
The Court will not issue a Certificate of Appealability. An
appropriate order will follow.