Robinson v. Johnson
| Decision Date | 18 November 2002 |
| Docket Number | No. 00-1979.,00-1979. |
| Citation | 313 F.3d 128 |
| Parties | Eric ROBINSON, Appellant v. Philip L. JOHNSON; the District Attorney of the County of Philadelphia; the Attorney General of the State of Pennsylvania, Mike Fisher. |
| Court | U.S. Court of Appeals — Third Circuit |
Paul Rosenzweig (Argued), Washington, DC, for Appellant.
David C. Glebe (Argued), Office of the District Attorney, Philadelphia, PA, for Appellees.
Before: SLOVITER, NYGAARD, and AMBRO, Circuit Judges.
When this appeal originally came before this panel of the court, we decided that state officials (hereafter "the Commonwealth"), against whom a habeas corpus proceeding had been filed, can waive the state's defense of the statute of limitations that is set forth in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). The members of the panel were unanimous on that issue. Judge Nygaard authored the opinion of the court, which was filed March 11, 2002. The factual background, and the portion of that earlier opinion reflecting the views of the court on that issue, are incorporated here as Part I with only such changes as are required in light of the different posture of the appeals.
The remainder of the opinion considered the application of waiver under the facts of this case. Judge Nygaard, in the portion of the opinion writing for a majority of the panel, held that the Commonwealth waived its limitations defense. I dissented on the ground that under the procedural background in this case, the Commonwealth had not waived the statute of limitations defense because it had appropriately asserted it in its first relevant pleading (after remand from this court) before the District Court.
The Commonwealth filed a Petition for Rehearing en banc. On April 8, 2002, the court entered an order granting rehearing en banc and vacating the opinion and judgment filed March 11, 2002. Thereafter, on May 8, 2002, the court vacated the April 8 order granting rehearing en banc and remanded the case to the original three-judge panel for panel rehearing.
At the direction of the court, Robinson, the appellant, then filed his Answer to the Petition for Rehearing, and the Commonwealth, with the permission of the court, filed its Reply to Robinson's Answer.
The opinion of the court follows, Part I taken from Judge Nygaard's original opinion as explained above, and Parts II and III authored by Judge Sloviter sur rehearing.
Appellant, Eric Robinson, was convicted in a bench trial before the Court of Common Pleas of Philadelphia of first degree murder, conspiracy, theft by unlawful taking, robbery, and possession of an instrument of crime. He was sentenced to life imprisonment for the murder conviction and a concurrent aggregate sentence of twenty to thirty-five years imprisonment on the remaining counts.
Robinson filed a direct appeal in the Pennsylvania Superior Court, which affirmed the judgment. See Commonwealth v. Robinson, 332 Pa.Super. 1376, 481 A.2d 1376 (1984) (table). The Pennsylvania Supreme Court denied Robinson's request for discretionary review. This ended the direct review of Robinson's case.
Robinson then filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Hearing Act ("PCHA"),1 42 Pa. Cons.Stat. Ann. §§ 9541 et seq. (1984), alleging ineffective assistance of counsel. The court appointed counsel to represent Robinson, and it subsequently denied his petition for relief. This denial of collateral relief was affirmed by the Pennsylvania Superior Court. See Commonwealth v. Robinson, 391 Pa.Super. 640, 563 A.2d 194 (1989) (table). Robinson did not petition for allocatur with the Pennsylvania Supreme Court.
On August 29, 1991, Robinson filed his first federal habeas petition alleging ineffective assistance of trial counsel, insufficiency of evidence, and violation of the Fourth Amendment. A Magistrate Judge issued a Report and Recommendation which concluded that Robinson's failure to pursue discretionary review in the Pennsylvania Supreme Court of the ineffective assistance of counsel claim constituted a procedural default. The District Court adopted the Magistrate's Report and Recommendation, concluding that the ineffectiveness claim had been procedurally defaulted. See Order, Robinson v. Vaughn, No. 91-5422 (E.D.Pa. Dec. 17, 1991). Robinson appealed that decision, and we denied Robinson's request for issuance of a certificate of probable cause because of Robinson's failure to exhaust his state remedies. See Order, Robinson v. Vaughn, No. 91-2107 (3d Cir. Apr. 8, 1992). Thus, as to the ineffectiveness claim, Robinson's first federal habeas petition was dismissed so that he could exhaust his remedies in the Commonwealth.
Robinson returned to the Commonwealth courts and filed a second petition under the PCRA, again alleging ineffective assistance of his trial counsel and now also alleging the ineffectiveness of his appellate counsel. This application was denied, and Robinson did not appeal.
Robinson filed a third state application for post-conviction relief. That petition was denied by the Court of Common Pleas. Robinson then appealed to the Pennsylvania Superior Court, which affirmed the denial. See Commonwealth v. Robinson, No. 03093 Phila.1994, 679 A.2d 257 (Pa.Super.1996) (table). Robinson petitioned for, and was denied, allocatur by the Pennsylvania Supreme Court. See Commonwealth v. Robinson, 546 Pa. 641, 683 A.2d 880 (1996) (table).
Robinson filed his second federal habeas petition, which is the one at issue in this appeal, on September 25, 1998, alleging ineffective assistance of counsel as a ground for habeas relief. His petition also reasserts as grounds for habeas relief the insufficiency of the evidence against him and the allegedly unlawful seizure of evidence in violation of the Fourth Amendment.
Robinson's petition was referred to a Magistrate Judge who ordered a responsive pleading including "specific and detailed answers and a brief or memorandum of law in support thereof" from the Office of the District Attorney of Philadelphia on November 10, 1998. On January 27, 1999, the District Attorney filed a letter pleading which argued that Robinson's petition should be transferred to the Court of Appeals for the Third Circuit because it was a successive petition. The District Attorney contended that the denial of Robinson's first federal habeas petition in 1991 precluded relief because he had not received permission for a successive petition from this Court as is required by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. §§ 2241 et seq. The Magistrate Judge recommended denying Robinson's second federal habeas petition, and on April 26, 1999, the District Court accepted the Magistrate Judge's recommendation and denied the petition.
Robinson appealed that decision, and we ordered the District Attorney to show cause why the order dismissing the petition should not be summarily reversed in light of our decision in Christy v. Horn, 115 F.3d 201, 208 (3d Cir.1997), where we held that when a federal habeas petition has been dismissed without prejudice for failure to exhaust state remedies, a petitioner, after exhausting his state remedies, need not apply to the court of appeals for authorization to file a federal habeas action, but may file his petition in the district court as if it were his first such filing. On December 23, 1999, the District Attorney filed a letter brief conceding that Robinson's second federal habeas petition indeed was not successive. The District Attorney did not present any alternative legal grounds for affirming the District Court's conclusion. Thus, we accepted the Commonwealth's concession and summarily reversed and remanded.
On remand, Robinson filed a motion to strike his original petition and for permission to file an amended petition which the Magistrate Judge granted. The District Attorney moved for reconsideration of the order permitting Robinson to amend his petition. Then on March 30, 2000, the District Attorney asserted that Robinson's second federal habeas petition was time-barred by the limitations provision of the AEDPA, 28 U.S.C. § 2244(d). Robinson, in return, argued that the Commonwealth's statute of limitations defense was untimely.
The Magistrate Judge vacated his initial order granting Robinson leave to amend his petition, and instead substituted a Report and Recommendation adopting the District Attorney's argument that Robinson's second federal habeas petition should be dismissed on statute of limitations grounds. In particular, the Magistrate Judge concluded that (1) Robinson's third state petition had not been "properly filed" because it involved claims subject to a state procedural default rule and did not toll the period of limitations; (2) therefore, Robinson's second federal habeas petition was required to be filed on or before April 23, 1997; (3) alternatively, if the third state habeas petition had been "properly filed," then Robinson's second federal habeas petition should have been filed on or before September 25, 1997; and (4) finally, because Robinson had access to his legal papers for eleven of the twelve months prior to the expiration of the September 1997 limitations period, the period of limitations should not be equitably tolled.
The District Court adopted the Magistrate Judge's Report and Recommendation over Robinson's renewed objection that the Commonwealth had waived its limitations defense and Robinson's further proffer regarding the efforts he had made to acquire his legal papers. Robinson noted a timely appeal, and the District Court granted his request for a certificate of appealability.2 Robinson was granted leave to proceed in forma pauperis, and we appointed counsel to represent him.
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