CYNTHIA REED EDDY, Magistrate Judge.
Presently before the Court is a counseled petition for a writ of habeas corpus filed on behalf of state prisoner Anwar Rizvi ("Petitioner"), in which he challenges the judgment of sentence imposed on him by the Court of Common Pleas of Allegheny County, Pennsylvania, on August 11, 2009. Respondents have filed their Answer to the Petition (ECF No. 14), in which they argue, inter alia, that the Petition is untimely and should be dismissed on that ground. After careful consideration of the parties' submissions, and for the reasons discussed below, the Petition will be dismissed as untimely pursuant to 28 U.S.C. § 2244(d) and a certificate of appealability will be denied.
On August 11, 2009, Petitioner, Anwar Rizvi, was sentenced to 15-30 years incarceration after a jury convicted him of attempted homicide. He filed a direct appeal to the Pennsylvania Superior Court. Prior to the Superior Court's disposition of his direct appeal, Rizvi was transferred to a correctional institution in the Commonwealth of Virginia as part of an agreement between the Virginia Department of Corrections ("VA DOC") and the Pennsylvania Department of Corrections ("PA DOC"), whereby Virginia agreed to house 1,000 Pennsylvania male prisoners.
On January 10, 2011, the Pennsylvania Superior Court affirmed Rizvi's judgment of sentence. He did not file a petition for appeal by allowance with the Pennsylvania Supreme Court. Accordingly, Rizvi's judgment of sentence became final on February 9, 2011. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking review).
According to Rizvi, it was during the time that he was incarcerated in Virginia that he encountered difficulties with conducting legal research which made preparation of a timely PCRA petition and federal habeas petition impossible. He claims, inter alia, that the Virginia correctional facility in which he was housed contained an underequipped library that could only accommodate several inmate researchers at a time, impeding his ability to conduct meaningful conventional or computer-based research and that his ability to access the prison's legal resources and law library was limited, at best.
By late February 2012, Rizvi returned to the PA DOC's custody and was housed at SCI-Graterford. On March 28, 2012, Rizvi filed a pro se motion entitled "Motion for Court Order to Permit Appellant a First PCRA Opinion Nunc Pro Tunc," which was properly construed by the court as a PCRA petition and counsel was appointed to represent Rizvi.
On October 17, 2012, court-appointed counsel filed a "no merit" letter advising the court that the petition had no arguable merit. Counsel also stated that while the petition was filed late, the delay was beyond Rivzi's control due to "mail delay" and because the court had granted Rivzi's nunc pro tunc motion, the petition had been timely filed. By Order of October 23, 2012, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition as meritless. On November 13, 2012, the PCRA court issued a summary final order dismissing the PCRA petition, but did not give any explanation as to why the petition was denied.
On January 13, 2013, Rizvi filed a pro se notice of appeal to the Pennsylvania Superior Court, sixty-six days after the final order dismissing the PCRA petition was entered. By Order dated April 24, 2013, the PCRA court recommended that the appeal be quashed due to the Notice of Appeal being filed beyond the 30 day time period set forth in Pa.R.A.P. 903(a). On September 25, 2013, Chris Rand Eyster, a privately retained attorney, entered his appearance on Rizvi's behalf to represent him on appeal. The Superior Court affirmed the dismissal of the PCRA petition by Order dated June 16, 2014, finding that the dismissal was proper as the motion was an untimely first PCRA petition:
(ECF No. 1-18 at 4-5).
Petitioner, through counsel, filed an application for reargument before the Superior Court en banc. This request was denied on August 19, 2014, and the following month, on September 17, 2014, counsel filed a petition for appeal by allowance ("PAA") with the Pennsylvania Supreme Court. The PAA was denied on February 18, 2015.
Almost a year later, on January 17, 2016, Petitioner, through present counsel, Craig M. Cooley, filed a second PCRA petition.
Thereafter, Attorney Cooley filed a timely notice of appeal to the Superior Court. By Opinion filed June 19, 2017, the Superior Court affirmed the dismissal of the PCRA petition, finding no error with the PCRA court's dismissal of the second petition as untimely, as the court was without jurisdiction to review the merits of the claims.
On November 15, 2016, while the appeal of his second PCRA petition was pending, Petitioner, through Attorney Cooley, filed the instant federal habeas petition in this Court (ECF No. 1), with brief in support (ECF No. 3). Contemporaneously with filing the Petition, Rizvi requested and was granted a stay of the proceedings in this Court pending exhaustion of his state court remedies. On September 12, 2017, Attorney Cooley advised the Court that on June 19, 2017, the Superior Court affirmed the dismissal of the second PCRA petition as untimely. The case thereafter was reopened and on October 19, 2017, Respondents filed a response to the petition. (ECF No. 14).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year limitations period within which a state prisoner must file a federal habeas petition. Generally, the limitations period begins to run on the date the judgment of sentence becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final at the conclusion of direct review or upon the expiration of time for seeking such review. Id.; see Gonzales v. Thaler, 565 U.S. 134 (2012). One of the following alternative start dates, however, may apply:
Petitioner's judgment became final on February 9, 2011. Under AEDPA, he needed to file his federal habeas petition within one year of that date, or February 9, 2012. Since Rizvi did not file the instant petition until approximately 4 years and 9 months (or 1714 days) beyond that date, the petition is facially untimely and must be dismissed unless Petitioner can show that the limitations period should be tolled, either statutorily or equitably, or that an alternate date should apply.
Section 2244(d)(2) provides that "[t]he time during which a
Although AEDPA's statute of limitations is subject to equitable tolling, the Third Circuit Court of Appeals has held that "courts should be sparing in their use of the doctrine" and limit its application only to the "rare situation where [it] is demanded by sound legal principles as well as the interests of justice." LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005) (internal citations omitted). Equitable tolling is thus only appropriate when "`the principles of equity would make the rigid application of a limitation period unfair,' such as when a state prisoner faces extraordinary circumstances that prevent him from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims." Id. at 276 (quoting Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998)). "Due diligence does not require `the maximum feasible diligence;'" but "it does require reasonable diligence in the circumstances." Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (internal citations omitted). "This obligation does not pertain solely to the filing of the federal habeas petition, rather it is an obligation that exists during the period appellant is exhausting state court remedies as well." LaCava, 398 F.3d at 277. "The fact that a petitioner is proceeding pro se does not insulate him from the `reasonable diligence' inquiry and his lack of legal knowledge or legal training does not alone justify equitable tolling." Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013) (citing Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003); Doe v. Menefee, 391 F.3d 147, 177 (2d Cir. 2004)).
Rizvi acknowledges that the instant habeas petition was filed more than one year after his judgment became final, but argues that he is entitled to equitable tolling because exceptional circumstances prevented him from timely filing both his PCRA petition and his §2254 petition. For the reasons below, the Court finds that Petitioner has failed to demonstrate that equitable tolling of the one-year limitation period is warranted in this case.
Generally, a litigant seeking equitable tolling bears the burden of establishing two requirements: (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. 631 (2010) (quoting Pace v. DeGuglielmo, 544 U.S. 408, 418 (2005)). See also Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). "This conjunctive standard requires showing
With respect to the first equitable tolling requirement, the diligence must be reasonable, not maximum, extreme or exceptional. With respect to the second equitable tolling requirement, the court measures subjectively whether petitioner faced "extraordinary circumstances" that prevented him from timely filing his §2254 petition. Finally, there must be a causal connection, or nexus, between the extraordinary circumstances petitioner faced and his failure to file a timely § 2254 motion. Holland v. Florida, 560 U.S. 631, 649 (2010) (noting a habeas petitioner must prove an "extraordinary circumstance stood in his way
In support of equitable tolling, Rizvi argues that his inability to access the prison's legal research resources and law library while incarcerated at VA DOC prevented him from "`adequate opportunity to present his [state and federal] claims fairly'." Pet. at 12 (quoting Bounds v. Smith, 430 U.S. 817, 823 (1977). He also argues that during his time at VA DOC he did not have an attorney and that he did not have his trial and sentencing transcripts or his pre-trial discovery. All he had were the appellate pleadings filed by his appellate counsel and the Superior Court's opinion affirming his conviction and sentence. And last, Petitioner contends that "the manner in which appointed PCRA counsel, the Commonwealth and the PCRA court addressed the timeliness issue led Mr. Rizvi to believe the PCRA court reinstated his PCRA rights nunc pro tunc." Pet. at 14.
Accepting all of Rizvi's arguments as true, including that he had been misled that his PCRA's rights had been reinstated nunc pro tunc, the Court finds that Rizvi fails to satisfy the Court that: (1) he or his counsel diligently pursued his rights; and (2) an extraordinary circumstance prevented him from filing a timely federal habeas petition. Assuming that Rizvi's PCRA rights had been reinstated nunc pro tunc, the instant habeas petition would still be untimely. Rizvi should have filed a federal habeas petition by February 18, 2016, one year from February 18, 2015, the date the Pennsylvania Supreme Court denied the PAA on his first petition. Rizvi offers no explanation as to why the instant habeas petition was not filed until November 15, 2016, approximately 636 days later. Rizvi had been back in Pennsylvania custody since late February 2012, the impediments to conducting legal research had been removed, he had retained private legal counsel since September 25, 2013,
The record is void of any evidence that Rizvi or his counsel (i) pursued his rights diligently and/or (ii) that some extraordinary circumstance stood in their way and prevented timely filing. Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (quoting Holland, 560 U.S. at 648-49)). As a result, there is no basis for the Court to apply the doctrine of equitable tolling to remedy the untimeliness and the petition will be dismissed as time barred.
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. 28 U.S.C. § 2253 provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, jurists of reason would not find it debatable whether Petitioner's claims should be denied as untimely. Accordingly, a certificate of appealability will be denied.
For the reasons set forth above, the petition for writ of habeas corpus is time-barred and no tolling applies to remedy the untimeliness. A certificate of appealability will be denied. A separate Order follows.
Superior Court Opinion, filed June 19, 2017. (emphasis in original; internal citations omitted) (ECF No. 14-3).
