                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Stokes v. Vaughn" (2005). 2005 Decisions. Paper 1072.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1072


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*RESUBMIT CPS-318                                                NOT PRECEDENTIAL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



                                               2
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,



                                               3
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



                                              4
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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