Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-26-2006

Peterson v. Brennan
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2797




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                                                      NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                      Nos. 04-2797 & 04-3081


                     EDWARD C. PETERSON,
                                     Appellant at No. 04-2797

                                 v.

                  EDWARD BRENNAN;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
 THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA


                 IN RE: EDWARD C. PETERSON,
                                      Petitioner at No. 04-3081


           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                D.C. Civil Action No. 97-cv-03477
                     (Honorable Jan E. DuBois)


           Submitted Pursuant to Third Circuit LAR 34.1(a)
                           May 18, 2006

Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges

                     (Filed September 26, 2006)


                    OPINION OF THE COURT
SCIRICA, Chief Judge.

       Pennsylvania inmate Edward Peterson is serving two life sentences for first degree

murder. He appeals from the District Court’s order denying his petition for a writ of

habeas corpus. For the following reasons, we will affirm.

                                             I.

       Following a jury trial in the Philadelphia Court of Common Pleas, Edward

Peterson was convicted on March 10, 1988, of two counts of first degree murder. He is

currently serving a life sentence for each conviction. Peterson first sought habeas relief in

federal court in 1987, before his state trial concluded. His petition was dismissed for

failure to exhaust state remedies. We affirmed on February 29, 1988. While his post-trial

motions were pending in state court, Peterson filed a second habeas petition in federal

court, which was also dismissed for failure to exhaust state remedies. We dismissed his

appeal for lack of appellate jurisdiction.

       Peterson returned to state court in May 1992 and filed a petition under

Pennsylvania’s Post-Conviction Relief Act (PCRA), seeking to reinstate his right to a

direct appeal. After the PCRA court reinstated Peterson’s direct appeal rights, the

Pennsylvania Superior Court affirmed his convictions and sentences. The Pennsylvania

Supreme Court denied allowance of appeal on May 22, 1996.

       Peterson filed another habeas petition in federal court on May 19, 1997, alleging

nine new grounds of ineffective assistance of counsel. The District Court denied the

petition without prejudice for failure to exhaust state remedies. Appellees then filed a

                                             2
motion for reconsideration on August 26, 1998, arguing the petition should have been

dismissed with prejudice because Peterson’s claims were procedurally barred by the

waiver and statute of limitations provisions in the PCRA, and Peterson did not fit within

any exceptions to the provisions. The District Court denied appellees’ motion. Peterson

returned to state court in 1999 and filed a second PCRA petition, which was dismissed as

untimely. His second PCRA proceedings terminated on April 30, 2001, when the

Pennsylvania Supreme Court denied allowance of appeal.

       Peterson filed a pro se Verified First Amended Habeas Petition in federal court on

May 10, 2001, and a pro se Verified Second Amended Habeas Petition on December 3,

2001. In this petition, he raised forty-seven claims of error, including appellate

ineffective assistance of counsel claims, Brady violations, trial court errors, errors by the

PCRA court, and loss of exculpatory records and statements made by prosecution

witnesses. The Magistrate Judge initially recommended equitably tolling the one-year

period of limitation prescribed in the Antiterrorism and Effective Death Penalty Act

(AEDPA). He also concluded that all but four of Peterson’s claims were procedurally

defaulted because he did not raise those claims either on direct appeal or in a timely

PCRA petition, and that his exhausted claims lacked merit. Accordingly, the Magistrate

Judge recommended denying the petition without an evidentiary hearing.

       Peterson filed objections, and in a letter dated March 7, 2002, requested leave to

supplement his habeas petition to include a claim that the accomplice liability jury

instruction violated due process because it did not require a jury finding of specific intent

                                              3
in order to convict of first degree murder. He argued that the jury instruction was

materially indistinguishable from an accomplice instruction claim held unconstitutional in

Laird v. Horn, 

, 83 (E.D. Pa. 2001). Peterson also claimed he did not

previously know of the constitutional violation because appellees withheld the trial

transcripts from him. Without addressing these issues, the District Court adopted the

Magistrate Judge’s Report and Recommendation, and denied and dismissed Peterson’s

amended petition without an evidentiary hearing.

       On January 9, 2003, Peterson filed a Motion for Reconsideration under Fed. R.

Civ. P. 59(e), citing twelve grounds. On June 15, 2004, the District Court granted the

motion in part and denied it in part. In considering the motion, the District Court denied

nunc pro tunc Peterson’s Motion to Supplement setting forth his accomplice instruction

claim because the claim was untimely under the AEDPA and did not relate back to his

2001 habeas petition. The District Court ordered Peterson’s Motion to Supplement

transferred to this Court under 28 U.S.C. § 1631 to determine whether the accomplice

instruction claim could be considered as a successive habeas petition. The District Court

also issued a Certificate of Appealability on whether the PCRA statute of limitations is an

adequate state ground to preclude habeas review of the claims raised for the first time in

Peterson’s untimely 1999 PCRA petition.

                                             II.

       In his brief, Peterson contends that his accomplice instruction claim relates back to

his 2001 habeas petition and that the District Court has authority to consider it. He also

                                             4
argues that the PCRA statute of limitations is not an adequate state ground to preclude

habeas review of his claims.1

                                              A.

       The District Court determined Peterson’s accomplice liability claim, presented in a

Motion to Supplement his 2001 habeas petition, was untimely and did not “relate back” to

the 2001 petition. Accordingly, the District Court held the Motion to Supplement, setting

forth the accomplice instruction claim, was a second or successive habeas petition which

the court lacked jurisdiction to consider under 28 U.S.C. § 2244(b)(3).2 Invoking the

federal transfer statute, 28 U.S.C. § 1631, and citing opinions from the Courts of Appeals

for the Seventh and Tenth Circuits, the District Court transferred the claim to this Court.

While neither party disputes the District Court’s authority to do so, Peterson claims the

District Court erred in treating the accomplice liability claim as a second or successive

habeas petition. Appellees contend that Peterson failed to obtain a Certificate of

Appealability granting us jurisdiction to consider whether the District Court erred.

       In our view, the District Court should not have treated Peterson’s claims in his

Motion to Supplement as a successive petition. Under 28 U.S.C. § 1631, a district court



   1
    We have plenary review of the District Court’s legal conclusions in a habeas
proceeding. Johnson v. Rosemeyer, 

(3d Cir. 1997).
   2
     The statute reads, in part, “Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court to consider the application.” 28
U.S.C. § 2244(b)(3).

                                               5
may transfer a motion requesting authorization to file a second or successive petition to

the court of appeals when that motion has been erroneously brought before the district

court. See Robinson v. Johnson, 

, 139 (3d Cir. 2002). Citing Pridgen v.

Shannon, 

(3d Cir. 2004), the District Court held Peterson’s accomplice

liability claim “may only be considered if it is treated as a successive habeas petition.”

But Pridgen considered whether, after the district court had already issued a judgment on

a habeas petition, a subsequently filed Fed. R. Civ. P. 60(b) motion was “in essence a

second or successive habeas 

. Here, Peterson filed his Motion

to Supplement on March 7, 2002, before the District Court ruled on the habeas petition.

But the District Court did not rule on that motion prior to Peterson’s filing his Motion for

Reconsideration. Examining Peterson’s claims under his Motion for Reconsideration, the

District Court corrected its oversight and considered the Motion to Supplement nunc pro

tunc – that is, as if it had considered it when originally presented.

       As such, Pridgen is inapposite. The relevant question here is whether Peterson’s

Motion to Supplement qualifies as a “second or successive” habeas petition subject to 28

U.S.C. § 2244. This determination depends on whether a final judgment has already been

rendered on the merits of a prior habeas petition. See 28 U.S.C. § 2244(a) (“No circuit or

district judge shall be required to entertain an application for a writ of habeas corpus . . .

if it appears that the legality of such detention has been determined by a judge or court of

the United States on a prior application for a writ of habeas corpus . . . ”). Here, § 2244

does not apply because the District Court had not yet rendered a judgment on the merits

                                               6
of any claims in the petition when Peterson filed his Motion to Supplement or when the

District Court denied it as untimely. Because § 2244(a) does not apply, the District Court

erred when it construed Peterson’s accomplice liability claim as a successive habeas

petition. For these reasons, we will deny as unnecessary the request for authorization to

file a second or successive petition.

         The District Court was nonetheless correct to consider whether the Motion to

Supplement “related back” to the original habeas petition.3 Peterson submitted his

Motion to Supplement long after the one-year period of limitation had lapsed. See 28

U.S.C. § 2244(d). As we explained in United States v. Thomas, 

(3d Cir.

2000), allowing a habeas petitioner to amend a habeas petition in order to raise a new

claim or new theory of relief would frustrate Congress’ intent under the AEDPA. 

435. But we also held that, insofar as a petitioner seeks to amend his petition to

“provide factual clarification or amplification after the expiration of the one-year period

of limitations,” then Fed. R. Civ. P. 15(c)(2) – describing when an amendment relates

back to an original pleading – governs.4 The District Court, invoking Thomas, held the


   3
    The District Court did not issue a Certificate of Appealability on this question.
Although we may not hear issues on appeal that are not within the scope of a COA, see
28 U.S.C. § 2253(c)(3), we may expand the COA sua sponte, see Villot v. Varner, 

, 337 n.13 (3d Cir. 2004). In light of the District Court’s decision to transfer
Peterson’s accomplice liability claim without considering whether a COA would be
appropriate, we will expand the COA issued by the District Court to include review of its
Rule 15(c) analysis.
   4
       Although we have not explicitly held that Thomas’s holding applies to § 2254 (state
                                                                              (continued...)

                                              7
accomplice liability claim did not “relate back” because, contrary to the requirements of

Rule 15(c)(2), the claim did not arise “out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleading.” Peterson contends his ability

to timely file for habeas review of his accomplice liability instruction claim is “directly

related” to his failure to obtain trial transcripts – an issue he had raised in his 2001

petition – and he should be allowed to supplement his petition.

       We disagree. “The rationale of Rule 15(c) is that a party who has been notified of

litigation concerning a particular occurrence has been given all the notice that statutes of

limitations were intended to provide.” United States v. Craycraft, 

, 457 (8th

Cir. 1999). If the new claim being asserted is “a separate occurrence in both time and

type” from the previous claim, then it cannot be said that “the original petition would

provide notice of such a different theory.” See 

amendment to a petition,

seeking to add a claim concerning failure to file an appeal, was distinct from a claim

concerning failure to pursue a downward departure, and was thus time barred).

Peterson’s claim in his Motion to Supplement is a separate occurrence “in both time and

type” from his claim that the appellee allegedly failed to provide him with trial

transcripts. It accordingly is an entirely new claim, one which does not “relate back” to

the 2001 petition and cannot be added after the limitation period has elapsed. See Crews


   4
    (...continued)
custody) petitioners, neither party disputes the District Court’s application of Thomas to
this case. Additionally, 28 U.S.C. § 2242 allows habeas petitions to be “amended or
supplemented as provided in the rules of procedure applicable to civil actions.”

                                               8
v. Horn, 

, 154 n.5 (3d Cir. 2004). We see no error in the District Court’s

analysis on this point.

       Because we agree with the District Court that Peterson’s Motion to Supplement is

time barred, we will affirm its determination in this regard. We disagree, however, that

the motion constitutes a second or successive habeas petition, and we deny as

unnecessary the request for authorization to file Peterson’s motion under § 2244(b).

                                              B.

       We consider next whether the PCRA statute of limitations is an adequate state

ground to preclude habeas review of the claims raised for the first time in Peterson’s

untimely 1999 PCRA petition. The PCRA provides that a post-conviction petition must

be filed “within one year from the date that the judgment of sentence becomes final.” 42

Pa C.S.A. § 9545(b)(1). If not filed within the requisite time, a petition must invoke one

of three outlined exceptions. See 

timeliness requirement is

“jurisdictional in nature,” and failure to meet the requirement will render a court

powerless to address the merits of the underlying claim. Commonwealth v. Wilson, 

, 334 (Pa. Super. Ct. 2003).

       A federal habeas court “will not review a question of federal law decided by a state

court if the decision of that court rests on a state law ground that is independent of the

federal question and adequate to support the judgment.” Lambrix v. Singletary, 

, 522 (1997). “A state rule provides an independent and adequate basis for precluding

federal review of a state prisoner’s habeas claims only if: (1) the state procedural rule

                                              9
speaks in unmistakable terms; (2) all state appellate courts refused to review the

petitioner’s claims on the merits; and (3) the state courts’ refusal in this instance is

consistent with other decisions.” Doctor v. Walters, 

, 684 (3d Cir. 1996)

(internal citations omitted). Because of concerns that the “petitioner should be on notice

of how to present his claims in the state courts if his failure to present them is to bar him

from advancing them in a federal court,” Cabrera v. Barbo, 

, 313 (3d Cir.

1999), the applicable rule must have been “firmly established” and “regularly applied” at

the time of the state court procedural default, 

.

       Peterson argues the statute of limitations provision of the PCRA is not an adequate

state ground for denying habeas review. Relying only on the third Doctor prong, he

contends a judicially-created exception to the PCRA time limits – the “relaxed waiver”

rule, invoked by Pennsylvania courts to waive, in certain cases, the PCRA statute of

limitations and review untimely petitions on the merits – has been inconsistently applied,

and thus its availability is “less than perfectly clear.” (Appellant Br. 38.) Rejecting

Peterson’s argument, the District Court held that the relaxed waiver rule has never been

applied in a non-capital case during the relevant time period. Although Peterson

concedes that no Pennsylvania court has applied the relaxed waiver rule in non-capital

cases, he nevertheless argues that several cases question the clarity of the rule’s

application in non-capital cases.

       Peterson points to two Pennsylvania Supreme Court cases overturning Superior

Court efforts to expand the scope of the relaxed waiver, and argues that these decisions

                                              10
illustrate “case law was clearly evolving from 1999 through 2003.” (Appellant Br. 41.)

In Commonwealth v. Eller, the Pennsylvania Supreme Court considered whether its

previous decision in Commonwealth v. Lantzy, 

(Pa. 1999) – in which it held

the PCRA “provides the exclusive remedy for post-conviction claims seeking restoration

of appellate rights due to counsel’s failure to perfect a direct appeal” – was a new rule of

procedure that could not be applied retroactively. 

(Pa. 2002). The

Pennsylvania Supreme Court held its decision in Lantzy did not raise retroactivity

concerns, despite Superior Court decisions to the contrary, because it merely clarified

existing law when it engaged in straightforward statutory interpretation. 

(“[W]hen the Court in Lantzy held that claims seeking restoration of appellate rights due

to counsel’s alleged failure to perfect a requested direct appeal are cognizable under the

PCRA . . . it was not creating a new judicial rule of procedure, but instead was

interpreting and applying the plain language of the statute.”).

       In the second case, Commonwealth v. Robinson, the Pennsylvania Supreme Court

considered the validity of the “extension theory,” which “construes an untimely, serial

PCRA petition as if it were an ‘extension’ of a timely, but previously dismissed, first

PCRA petition in cases where an appeal was taken from the denial of the first petition,

but the Superior Court ultimately dismissed the appeal when the PCRA appellant failed to

file a brief.” 

, 1158 (Pa. 2003). The Robinson court held “neither the

language of the statute nor this Court’s decisional law authorizes suspension of the time-

bar in instances where the petitioner is seeking nunc pro tunc appellate relief or

                                             11
reiterating claims which were litigated on a previous petition,” making it impossible for

the statute to “bear the Superior Court’s interpretation” allowing for an extension theory.

       Peterson points to these cases to argue that the PCRA’s timeliness bar has not been

absolutely applied by Pennsylvania courts, and thus cannot be considered an “adequate

state ground” to deny habeas relief. But we have never said that a procedural rule must

be uniformly and absolutely applied in all instances in order to be considered

“consistently or regularly applied.” Rather, “if a state supreme court faithfully has

applied a procedural rule in ‘the vast majority’ of cases, its willingness in a few cases to

overlook the rule and address a claim on the merits does not mean that it does not apply

the procedural rule regularly or consistently.” Banks v. Horn, 

, 211 (3d Cir.

1997). Although Peterson cites instances in which the Pennsylvania Superior Court has

relied on certain legal theories to circumvent the PCRA’s timeliness provisions, these

cases are few in number and narrowly tailored in both reasoning and application. More

importantly, the Pennsylvania Supreme Court, in the decisions Peterson cites, repeatedly

makes plain that the PCRA’s timeliness requirements have been consistently applied.

Both Eller and Robinson are efforts to rein in any potential future erosion of the statute of

limitations wrought by these “occasional acts of grace . . . in excusing or disregarding”

the procedural rule. See 

. But those “occasional acts of grace” do

not point to any application of the relaxed waiver rule so inconsistent as to undermine the

adequacy of the PCRA’s timeliness provisions. Accordingly, we will affirm the District

                                             12
Court’s order that the PCRA statute of limitations is an adequate and independent state

ground to deny habeas relief.

                                            III.

       For these reasons, we will affirm the District Court’s order denying Peterson’s

habeas corpus petition. We also deny as unnecessary the District Court’s transfer of the

accomplice liability claim to this Court for authorization to hear the claim as a second or

successive habeas petition.




                                             13