Hollenback v. Clark, 1:17-cv-0721
Decision Date | 28 November 2017 |
Docket Number | 1:17-cv-0721 |
Parties | DAVID HOLLENBACK, JR., Petitioner, v. SUPERINTENDENT CLARK, PA STATE ATTORNEY GENERAL, Respondents. |
Court | U.S. District Court — Middle District of Pennsylvania |
Hon. John E. Jones III
David Hollenback, Jr., ("Hollenback" or "Petitioner") filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 24, 2017. (Doc. 1). Following initial review, the Court ordered Respondents to address the issue of the timeliness of the petition. (Doc. 8). After being granted two enlargements of time, Respondents filed their brief on October 31, 2017. (Docs. 12, 14, 15, 17, 18). Hollenback filed a "response" on November 16, 2017. (Doc. 19).
The issue of the timeliness of the petition is ripe for disposition. For the reasons that follow, the petition will be dismissed as untimely.
The following relevant state court background is extracted from the August 19, 2016 opinion of the Superior Court of Pennsylvania:
(Doc. 24-1, pp. 3-5). According to the electronic docket sheet found at https://ujsportal.pacourts.us, Hollenback filed a Petition for Allowance of Appeal in the Supreme Court, which was denied on April 3, 2017.
Hollenback filed the instant federal habeas petition on April 24, 2017, seeking relief on five grounds. (Doc. 1, pp. 6-15, 19, 20).
The court shall "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and EffectiveDeath Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d) (1). Specifically, a state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:
. . .
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
Hollenback's judgment of sentence became final on December 16, 2012, ninety days after the conclusion of his direct appeal. The one-year statute of limitations period commenced running as of that date and expired one year later.1Hence, the present petition, filed on April 24, 2017, is patently untimely, unless statutorily or equitably tolled.
1. Statutory Tolling
Section 2244(d)(2) tolls the one-year statute of limitations with respect to the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The Third Circuit Court of Appeals has defined "pending" as the time during which a petitioner may seek discretionary state court review, whether or not such review is sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000).
Hollenback filed his first PCRA petition on February 7, 2015. (Doc. 24-1, p. 4). However, it did not operate to toll the statute. The state courts found his PCRA to be untimely under the state statute of limitations and concluded that he had not established an exception to the timeliness requirements based on Alleyne. (Id. at pp. 4, 5). An untimely PCRA petition is not considered "properly filed" under section 2244(d)(2), and therefore does not statutorily toll the limitationsperiod. Pace v. Diguglielmo, 544 U.S. 408, 414 (2005) () (quoting Carey v. Saffold, 536 U.S. 214, 226 (2002)). Additionally, a PCRA petition cannot toll the statute of limitations where, as here, it is filed after the expiration of the federal habeas limitations period. See Long v. Wilson, 393 F.3d 390, 395 (3d Cir. 2004) ( ). Consequently, Hollenback is not entitled to statutory tolling.
With respect to the diligent pursuit of rights, he must demonstrate that he exercised reasonable diligence in investigating and bringing the claims. Holland v. Florida, 560 U.S. 631, 653 (2010); see also Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002). Mere excusable neglect is not sufficient. See LaCava, 398 F.3d at 276. Moreover, "the party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). Importantly, the diligence requirement "does not pertain solely to the filing of the federal habeas petition, rather it is an obligation that exists during the period [petitioner] is exhausting state court remedies as well." LaCava, 398 F.3d at 277) (citing Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999).
Extraordinary circumstances have been found where (1) the respondent has actively misled the petitioner, (2) the petitioner has in some extraordinary way been prevented from asserting his rights, (3) the petitioner has timely asserted his rights mistakenly in the wrong forum, see Jones, 195 F.3d at 159, or (4) the court has misled a party regarding the steps that the party needs to take to preserve a claim, see Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Even where extraordinary circumstances exist, "[i]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinarycircumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not...
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