Fielder v. Varner

• Decision Date: 09 August 2004
• Docket Number: No. 01-1463.,01-1463.
• Citation: 379 F.3d 113
• Parties: Anthony FIELDER, Appellant v. Benjamin VARNER; The District Attorney of County of Philadelphia; Attorney General of the State of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

379 F.3d 113

Anthony FIELDER, Appellant v. Benjamin VARNER; The District Attorney of County of Philadelphia; Attorney General of the State of Pennsylvania.

No. 01-1463.

United States Court of Appeals, Third Circuit.

Argued January 12, 2004.

Filed August 9, 2004.

Appeal from the United States District Court for the Eastern District of Pennsylvania, Louis Charles Bechtle, J J. Scott O'Keefe (argued), Philadelphia, for Appellant.

David C. Glebe (argued), Thomas W. Dolgenos, Robert M. Falin, Office of the District Attorney, Philadelphia, for Appellee.

Before ALITO, CHERTOFF, and BECKER, Circuit Judges.

ALITO, Circuit Judge.

Anthony Fielder, a state prisoner serving a life sentence, appeals the dismissal of his application for a writ of habeas corpus. The District Court approved and adopted the report and recommendation of a Magistrate Judge who concluded that Fielder's petition in its entirety was untimely under 28 U.S.C. § 2244(d)(1). We hold that one of Fielder's claims (his claim of prosecutorial misconduct) was untimely and that his other claim (which sought a new trial based on newly discovered evidence) is not cognizable under the federal habeas statute. We therefore affirm the order of the District Court, albeit in part on different grounds.

I.

In 1990, Fielder was arrested and charged with murdering Jack Fauntleroy outside a bar at 52nd and Market Streets in Philadelphia in September 1989. As summarized by the trial judge, the evidence showed the following. Shortly before Fauntleroy was killed, he became involved in an argument with a man named Stefan. Stefan then went into the bar and emerged with Fielder, who began to argue with Fauntleroy. Several minutes later, Antonio Goldsmith, a friend of Fauntleroy, entered into the argument as well. After the parties came to blows, Fielder reentered the bar and returned to the street with a .38 caliber handgun. As Fauntleroy was fleeing, Fielder shot and fatally wounded him.

Two witnesses gave testimony that tended to show that Fielder was the one who shot Fauntleroy. Latonia Shawyer, who was waiting for a bus and did not previously know either Fauntleroy or Fielder, testified that she saw Fielder shoot Fauntleroy. Goldsmith testified that he ran from the scene when Fielder came out of the bar with a gun. Goldsmith stated that, while running, he heard two shots and that when he turned around, he saw that Fielder was chasing him with the gun in his hand.

The jury found Fielder guilty of first-degree murder and possession of an instrument of crime, and he was sentenced to imprisonment for life on the murder conviction and to a lesser concurrent term for the weapons conviction. Fielder appealed, claiming among other things that the prosecutor had committed acts of misconduct during the trial. However, the Superior Court affirmed, and the state supreme court denied allocatur. Commonwealth v. Fielder, 417 Pa.Super. 455, 612 A.2d 1028 (1992), allocatur denied, 533 Pa. 630, 621 A.2d 577 (1993) (table).

Fielder initiated a proceeding under Pennsylvania's Post Conviction Relief Act (PCRA) in which claims of ineffective assistance of counsel and after-discovered evidence were raised. Fielder's after-discovered evidence claim was based on the discovery of an alleged eyewitness to the shooting, Daran Brown, who stated that a man whom he knew by the name of Nike was the one who actually shot Fauntleroy. According to Brown, Fielder and Fauntleroy were walking down Market Street when "Nike came running down the street" behind them and "started shooting in their direction." He continued:

This is when Zark [Fauntleroy] was shot and fell down in the middle of Market Street. After Zark got shot another guy who I didn't know chased Nike up the street with a gun. At this point I left the scene.

App. 16.

Brown stated that he did not come forward with this information at the time of the shooting because he did want to get involved and because on the street "the general feeling is that it is best if you mind your own business." App. 16. According to Brown, he did not learn that Fielder had been convicted for the shooting until October 1997. Id.

The PCRA court denied the petition, and Fielder appealed and advanced two arguments. First, he contended that the PCRA court should have conducted an evidentiary hearing regarding the after-discovered evidence. Second, he argued that the attorney who represented him in the trial court during the PCRA proceeding was ineffective for failing to contact Brown. The Superior Court rejected both arguments. The Court held that it was not likely that Brown's testimony would have compelled a different result if it had been offered at trial and that therefore the standard under Pennsylvania law for granting a new trial based on after-discovered evidence was not met. The Court then concluded that because the underlying after-discovered evidence claim lacked merit, Fielder's lawyer could not be deemed ineffective "for failing in his efforts to find Daran Brown."

The Superior Court's decision was issued on June 10, 1999, and Fielder failed to file a timely allocatur petition with in the Pennsylvania Supreme Court. Instead, after the expiration of the time for filing an allocatur petition, he submitted a request for permission to seek allocatur on a nunc pro tunc basis. The state supreme court dismissed that request in an order dated October 25, 1999.

On May 17, 2000, Fielder filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. Fielder argued, first, that the Pennsylvania courts erred when they rejected his claim of newly-discovered evidence and, second, that the prosecutor engaged in misconduct at trial. The Magistrate Judge to whom the petition was referred concluded that the entire petition was untimely. The Magistrate Judge began by noting that Fielder's conviction had become final before April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposed the present statute of limitations for federal habeas petitions, 28 U.S.C. § 2244(d)(1). As a consequence, the Magistrate Judge stated that Fielder's time to file his petition began to run on April 24, 1996. See Burns v. Morton, 134 F.3d 109, 110 (3d Cir.1998). The Magistrate Judge concluded that the one-year period for filing the petition was tolled under 28 U.S.C. § 2244(d)(2) from the date when Fielder filed his PCRA petition (January 14, 1997) until the date when the Superior Court affirmed the dismissal of that petition (June 10, 1999). When the time again began to run after this period, the Magistrate Judge calculated, approximately three and one-half months of the one-year period remained and therefore Fielder had until "the end of October 1999" to file the federal petition. Because he did not file until May 2000, the Magistrate held, the petition was time-barred.

The District Court approved and adopted the report and recommendation without elaboration and therefore dismissed the application. The District Court also denied a certificate of appealability, but a motions panel of our Court granted a certificate and set out issues to be addressed in the briefs. The order of the motions panel stated:

The parties shall address whether appellant's § 2254 petition was timely filed. Specifically, the parties shall address (1) whether the cognizability of Fielder's claim of newly discovered evidence affects the application of § 2244(d)(1)(D), and (2) whether § 2244(d)(1)(D) applies to the entire petition if the time period under § 2244(d)(1)(A) for trial claims had not expired at the time of the discovery of the factual predicate of the claim of new evidence.

App. at 10.

II.

A.

The timeliness of Fielder's federal habeas petition turns on the meaning of 28 U.S.C. § 2244(d)(1) and thus presents a question of law subject to plenary review. See Merritt v. Blaine, 326 F.3d 157, 161 (3d. Cir.2003). Under 28 U.S.C. § 2244(d)(1), the one-year period for filing a federal habeas application runs from the latest of the four dates set out in subsections (A) through (D). These are:

(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;

(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).

Subsection (A) specifies the date when the one-year period for filing a federal habeas petition begins in most cases (at the end of the direct appeals). Subsection (B) provides a later starting date when a state has unlawfully prevented the petitioner from filing, and subsections (C) and (D) provide later filing dates in two circumstances in which claims could not have been litigated within one year after the end of direct review, i.e., where the claim is based on a new, retroactive rule of constitutional law subsequently recognized by the Supreme Court and where the factual predicate of the claim did not arise or was not discoverable until after the conclusion of the direct review period.

B.

Fielder argues that we should apply these provisions to the present case in the following manner. He begins by noting that "an application for a writ of habeas corpus" by a person in state custody must be filed within one year after "the latest of" the four dates set out in subsections (A) through (D). 28 U.S.C. § 2244(d)(1) (emphasis added). He then...