                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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"Lively v. Superintendent" (2004). 2004 Decisions. Paper 1087.
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                                                  NOT PRECEDENTIAL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
