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Case 2:11-cv-07731-ER Document 28 Filed 07/30/13 Page 1 of 11








NO. 11-7731




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.



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

No. 27.



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

procedural issues.

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.



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.