Stokes v. Vaughn , 132 F. App'x 971 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-3-2005
Stokes v. Vaughn
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4822
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"Stokes v. Vaughn" (2005). 2005 Decisions. Paper 1072.
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*RESUBMIT CPS-318 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4822
________________
MICHAEL D. STOKES,
Appellant
v.
DONALD VAUGHN, STATE CORRECTIONAL INSTITUTION GRATERFORD;
THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 00-cv-04483)
District Judge: Honorable Anita B. Brody
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
October 7, 2004
Before: *SCIRICA, CHIEF JUDGE, ALITO and FUENTES, Circuit Judges
(Filed June 3, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Michael D. Stokes appeals from the order of the District Court for the Eastern District
of Pennsylvania denying his § 2254 petition as barred by the statute of limitations under 28
U.S.C. § 2244(d)(1).
In 1993, Stokes was convicted by a jury of first degree murder and related crimes and
was sentenced to life imprisonment plus a concurrrent term of four to fourteen years of
imprisonment. The Superior Court affirmed the conviction; the Pennsylvania Supreme Court
denied an allowance of appeal on December 18, 1995. On September 6, 1996, Stokes filed
a petition for post-conviction relief (“PCRA petition”), which the PCRA court dismissed in
1998. The Superior Court affirmed the dismissal on August 6, 1999. Stokes did not file a
timely appeal to the Pennsylvania Supreme Court. Instead, on September 30, 1999, he filed
with the Pennsylvania Supreme Court a petition for permission to file a late petition for
allowance of appeal (“Permission Petition”), as well as a petition for allowance of appeal.
The Pennsylvania Supreme Court denied the Permission Petition on February 15, 2000.
On September 1, 2000, Stokes filed a § 2254 petition raising numerous claims of
prosecutorial misconduct and ineffective assistance of trial and appellate counsel. The
District Court denied the petition as untimely but granted a certificate of appealability on the
issue whether the Permission Petition “should have been deemed timely filed under
principles of statutory tolling.” Stokes filed a timely appeal. We will affirm.
I.
Statutory Tolling
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) sets a statute of
limitations period of one year to apply for a writ of habeas corpus challenging a state court
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conviction. See 28 U.S.C. § 2244(d)(1). The limitations period begins running from the date
on which the judgment becomes final by the conclusion of direct review or the expiration of
time for seeking such review. Id. Stokes’s judgment became final on March 17, 1996, when
the ninety-day period for appeal to the U S Supreme Court lapsed. However, because
Stokes’s conviction became final before the enactment of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), he had a one-year grace period to file his request for habeas
relief, subject to statutory tolling. See Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir. 1998).
In Stokes’s case, the limitations period ran 135 days from the AEDPA’s effective date,
April 24, 1996, to September 6, 1996, when Stokes “properly filed” his first PCRA petition.
The limitations period was tolled until September 5, 1999, thirty days after the Superior
Court affirmed the PCRA court’s dismissal of the PCRA petition. Relying on Merritt v.
Blaine, 326 F.3d 157 (3d Cir. 2003), and distinguishing Nara v. Frank, 264 F.3d 310 (3d Cir.
2001), the District Court concluded that the Permission Petition was not “properly filed” for
purposes of tolling under § 2244(d)(2). The District Court determined that Stokes had 230
days, or until April 24, 2000, to file a timely habeas petition. He filed the habeas petition on
September 1, 2000. The District Court ruled that Stokes’s habeas petition was time-barred
because it was filed about four months too late.
The District Court correctly determined that the pendency of the Stokes’s Permission
Petition did not toll the AEDPA statute of limitations. Almost three weeks after the time for
seeking an appeal of the Superior Court’s decision affirming the denial of PCRA relief,
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Stokes sought to obtain permission from the state court to file a request to appeal nunc pro
tunc. Once the period for filing an appeal expired on September 5, 1999, however, the
PCRA petition was no longer “properly pending” or timely filed under state law. See Artuz
v. Bennett, 531 U.S. 4, 8 (2000); Merritt, 326 F.3d at 158-59 (3d Cir. 2003). The fact that
it is Stokes’s appeal to the Pennsylvania Supreme Court and not his initial PCRA petition that
was untimely does not distinguish his case. See Merritt, 326 F.2d at 166 n. 6. We conclude
that Stokes’s petition for allowance of appeal nunc pro tunc was not “properly filed” for
federal habeas purposes. The District Court correctly denied the habeas petition as time-
barred.
The Supreme Court’s recent decision in Pace v. DiGuglielmo, 125 S.Ct. 1807 (Apr.
27, 2005), does not compel a different result. Stokes submitted two documents. One was
the Permission Petition, and the other document was the petition for allowance of appeal
nunc pro tunc itself. The Pennsylvania Supreme Court’s denial of the Permission Petition
without comment indicates that it did not accept Stokes’s petition for allowance of appeal
nunc pro tunc as properly filed under state law, and thus the pendency of Permission Petition
did not result in statutory tolling.
II.
Equitable Tolling
We agree with the Magistrate Judge’s findings that none of Stokes’s equitable tolling
claims constitutes the kind of “extraordinary circumstances” that would toll the statute of
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limitations. See Miller v. New Jersey State Dep’t. Of Corrections, 145 F.3d 616, 618-19 (3d
Cir. 1998).
III.
Because no substantial question is presented by this appeal, we will affirm the District
Court’s judgment. See Third Circuit LAR 27.4 and I.O.P. 10.6. The parties’ motions for
extension of time to answer the Court’s show cause order are granted. Stokes’s motion for
leave to file an application for a certificate of appealability out of time is granted. Stokes’s
application for a certificate of appealability as to the additional issue of equitable tolling is
denied because he failed to show that “jurists of reason would find it debatable whether the
District Court was correct” in determining that none of Stokes’s claims warranted equitable
tolling. See Miller-El v. Cockrell, 537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S. 473,
484 (2000). The Commonwealth’s motion to strike Appellant’s late-filed answer to the
Court’s show cause order is denied, and the Commonwealth’s motion for summary
affirmance is granted.
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