Filed: Jan. 15, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 1-15-2004 Lively v. Superintendent Precedential or Non-Precedential: Non-Precedential Docket No. 03-1446 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Lively v. Superintendent" (2004). 2004 Decisions. Paper 1087. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1087 This decision is brought to you for free and open access by the Opini
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 1-15-2004 Lively v. Superintendent Precedential or Non-Precedential: Non-Precedential Docket No. 03-1446 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Lively v. Superintendent" (2004). 2004 Decisions. Paper 1087. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1087 This decision is brought to you for free and open access by the Opinio..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-15-2004
Lively v. Superintendent
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1446
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Lively v. Superintendent" (2004). 2004 Decisions. Paper 1087.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1087
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
03-1446
KEVIN LIVELY,
Appellant
v.
SUPERINTENDENT, SCI HUNTINGDON; DISTRICT ATTORNEY OF
PHILADELPHIA COUNTY;
ATTORNEY GENERAL OF PENNSYLVANIA
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Civil Action No. 01-CV-204)
District Judge: The Honorable Anita B. Brody
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2004
BEFORE: BARRY, SMITH, and GREENBERG, Circuit Judges,
(Filed January 15, 2004 )
OPINION OF THE COURT
SMITH, Circuit Judge.
Appellant, Kevin Lively, appeals from the District Court’s dismissal of his habeas
petition as untimely under 28 U.S.C. § 2244. For the reasons set out below, we dismiss
Lively’s appeal for lack of jurisdiction.
I.
Because we write only for the parties, our statement of the facts is a brief one.
Tyrone “Smiley” Miller was murdered on April 14, 1986. Lively was charged for the
murder, and his first trial ended in a mistrial. He was re-tried and convicted of murder
and possessing an instrument of crime on February 12, 1988. The judge in the
Pennsylvania Court of Common Pleas imposed a mandatory sentence of life
imprisonment. Lively appealed to the Pennsylvania Superior Court, which affirmed the
lower court’s decision. See Commonwealth v. Lively, No. 243 Phila. 1989 (Pa. Super. Jan.
26, 1990). The Pennsylvania Supreme Court reversed the Superior Court based on the
trial court’s admission of prior inconsistent statements and remanded for a new trial.
Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992). On October 28, 1992, a jury once again
convicted Lively of first degree murder and possessing an instrument of a crime. Again,
the judge imposed the mandatory sentence of life imprisonment. His conviction was
affirmed by the Superior Court. Commonwealth v. Lively, No. 02271 Phila. 1993 (Pa.
Super. Apr. 19, 1994). The Pennsylvania Supreme Court declined Lively’s request for
discretionary review. Commonwealth v. Lively,
653 A.2d 1228 (Pa. 1994).
2
On January 14, 1997, Lively sought collateral relief pursuant to Pennsylvania’s
Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541. The petition was
dismissed. The dismissal was affirmed by the Superior Court on September 20, 1999.
Lively claims he was not aware of the Superior Court’s ruling until May 24, 2000. He
then filed a petition for allowance of appeal nunc pro tunc with the Pennsylvania
Supreme Court on June 29, 2000.1 The petition was denied on October 6, 2000.
Lively filed a federal habeas petition on January 15, 2001. The Magistrate Judge
recommended that the habeas petition be denied as untimely under 28 U.S.C. §
2244(d)(2). Even granting all conceivable statutory and equitable tolling of the one year
statute of limitations established by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), the Magistrate Judge ruled that the petition was untimely.
The District Court adopted the recommendation by the Magistrate Judge, but
certified the following questions to this Court: (1) whether the judicially-created “grace
period” for filing of habeas corpus petitions by state prisoners whose convictions became
final prior to April 23, 1996 is extendable in the interests of fairness and reason, or is the
strict one-year limitations period subject to statutory and equitable tolling; (2) whether the
“grace period,” if limited to a strict year, violates either the Suspension Clause or the Due
Process Clause of the Constitution; and (3) whether there is any basis upon which the
1
The appeal was docketed on July 5, 2000. The District Court determined that, based
on the time taken for other filings to reach the court, Lively mailed the appeal on June 29,
2000.
3
District Court could allow more than thirty days tolling past the date Lively learned of the
Superior Court ruling.
II.
This Court has jurisdiction over a certificate of appealability (“COA”) only where
that certificate is properly issued by the District Court. United States v. Cepero, 224 F.3d
256, 261-62 (3d Cir. 2000). Where, as here, the District Court denies plaintiff’s habeas
petition on procedural grounds, a COA is appropriate where (1) “jurists of reason could
disagree with the district court’s resolution of [plaintiff’s] constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further,” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003), and (2) “jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling,” Slack v. McDaniel,
529 U.S. 473, 478 (2000). Because there is no question as to
the propriety of the District Court’s procedural ruling that Lively’s petition was untimely,
this Court lacks jurisdiction.
The first and second issues certified by the District Court have already been ruled
on by this Court. See, e.g., Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). From the
effective date of AEDPA, April 24 1996, a strict one year time limit, to April 23, 1997,
applies.
Id. at 111. By the time the District Court made its ruling, every Circuit had
reached the same conclusion.2 Accordingly, that the limitations period beginning April
2
Valentine v. Francis,
270 F.3d 1032, 1034 (9th Cir. 2001); Searcy v. Carter,
246 F.3d
515, 517 (6th Cir. 2001); United States v. Cicero,
214 F.3d 199, 202 (D.C. Cir. 2000);
4
24, 1996 lasts one year, and that it is constitutionally valid, are no longer subjects upon
which jurists of reason can disagree. Thus, no COA should have been granted on these
issues.
Nor is there any basis upon which Lively can demonstrate that he is entitled to
more tolling than that which was accorded by the District Court. Indeed, it is arguable
that even that period tolled by the District Court was inappropriate. Lively filed his
PCRA claim on January 14, 1997, and its dismissal was affirmed by the Superior Court
on September 20, 1999. Lively claims that he learned of this affirmance on May 24,
2000. The District Court tolled Lively’s period to file a habeas petition until thirty days
past the day he claims to have learned of the denial, or June 23, 2000. The District Court
reasoned that normally a petitioner is afforded thirty days from a denial to file a timely
appeal. Lively filed a nunc pro tunc appeal on June 29, 2000. The District Court tolled
the limitations period from June 29, 2000 until Lively’s appeal was denied on October 6,
2000. Lively argued, both here and before the District Court, that the entire period from
January 14, 1997 to October 6, 2000 should be tolled, including the six days between June
Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999); Ross v. Artuz,
150 F.3d 97, 100-03 (2d
Cir. 1998); O'Connor v. United States,
133 F.3d 548, 550 (7th Cir. 1998); Brown v.
Angelone,
150 F.3d 370, 374-76 (4th Cir. 1998); United States v. Flores,
135 F.3d 1000,
1002 n.7 (5th Cir. 1998); Austin v. Mitchell,
200 F.3d 391, 393 (6th Cir. 1999); Ford v.
Bowersox,
178 F.3d 522, 523 (8th Cir. 1999); Hoggro v. Boone,
150 F.3d 1223, 1226
(10th Cir. 1998); Wilcox v. Florida Dep’t of Corrections,
158 F.3d 1209, 1211 (11th Cir.
1998). Additionally, the Supreme Court applied a one year statute of limitations in Carey
v. Saffold,
536 U.S. 214 (2002), after the Magistrate filed his report and recommendation,
but before the District Court issued its COA.
5
23 and June 29, 2000.
There is no basis for Lively’s claim. The limitations period under § 2244 is tolled
only so long as plaintiff’s PCRA claim is “properly pending.” 28 U.S.C. § 2244; Artuz v.
Bennett, 531 U.S. 4, 8 (2000). There was no pending state proceeding between June 23
and June 29, 2000. In fact, those petitions for PCRA relief which are untimely, such as
Lively’s, do not toll the statute of limitations.
Artuz, 531 U.S. at 8 ; Merritt v. Blaine,
326
F.3d 157, 158-59 (3d Cir. 2003) (“We hold that an untimely application for state post-
conviction relief by a petitioner, who sought but was denied application of a statutory
exception to the PCRA’s time bar, is not ‘properly filed’ under 28 U.S.C § 2244(d)(2).”);
Horn v. Fahy,
240 F.3d 239, 243 (3d Cir. 2001).3 Thus, the only point upon which
reasonable jurists could disagree is whether the District Court tolled Lively’s limitation
period for too long–not too short–a period of time.
Because there is no room for debate on the three issues certified by the District
Court, the COA fails to meet the second prong of the Slack test. 529 U.S. at 478. We
therefore conclude that this Court has no jurisdiction over this appeal. The appeal will be
dismissed.
To the Clerk:
3
The fact that it is Lively’s appeal to the Pennsylvania Supreme Court and not his
initial petition that was untimely does not distinguish his case. Merritt, 326 F.3d at 166
n.6 (explaining Nara v. Frank,
264 F.3d 310 (3d Cir. 2001)).
6
Please file the foregoing opinion.
By the Court:
/s/ D. Brooks Smith
Circuit Judge
7
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
03-1446
KEVIN LIVELY,
Appellant
v.
SUPERINTENDENT, SCI HUNTINGDON; DISTRICT ATTORNEY OF
PHILADELPHIA
COUNTY; ATTORNEY GENERAL OF PENNSYLVANIA
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Civil Action No. 01-CV-204)
District Judge: The Honorable Anita B. Brody
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2004
BEFORE: BARRY, SMITH, and GREENBERG, Circuit Judges,
JUDGMENT
This cause came to be on the record from United States District Court for the
Eastern District of Pennsylvania and was submitted on January 13, 2004. On
consideration whereof, it is
ORDERED AND ADJUDGED that the appeal is hereby dismissed.
ATTEST:
8
________________________________
Marcia M. Waldron, Clerk
Dated:
9
