                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2003

Hubley v. Supt SCI Camp Hill
Precedential or Non-Precedential: Non-Precedential

Docket 01-1025




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                                                 NOT PRECEDENTIAL

             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                          No. 01-1025
                          ____________

                       MARC W.W. HUBLEY,

                                                   Appellant

                                  v.

  SUPERINTENDENT, SCI CAMP HILL; DISTRICT ATTORNEY OF DAUPHIN
    COUNTY; and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF
                          PENNSYLVANIA


                          ____________

          Appeal from the United States District Court
            For the Middle District of Pennsylvania
                      D.C. No.: 00-cv-1180
                 District Judge: Edwin M. Kosik
                          ____________

          Submitted under Third Circuit L.A.R. 34.1(a)
                        December 3, 2002

        Before: ROTH, SMITH and CUDAHY, Circuit Judges.

                   (Filed: January 10, 2003 )


                                Peter Goldberger
                                50 Rittenhouse Place
                                Ardmore, PA 19003-2276

                                         Counsel for Appellant

                                James P. Barker
                                                                        Francis T. Chardo II
                                Deputy District Attorney
                                Dauphin County Court House
                                Front and Market Streets
                                Harrisburg, PA 17101

                                         Counsel for Appellees
                          ____________

                      OPINION OF THE COURT
                          ____________

D. BROOKS SMITH, Circuit Judge
     In October of 1992, petitioner-appellant Marc W.W. Hubley was convicted in the
Court of Common Pleas of Dauphin County, Pennsylvania, of first degree murder and
recklessly endangering another person. He was sentenced to life in prison. After
exhausting his direct appeals in 1994, petitioner began to seek State collateral review with
the filing of a pro se Post Conviction Review Act ("PCRA") petition on or about January
7, 1997. That petition was denied on August 3, 1998. After that denial was affirmed by
the Pennsylvania Superior Court, the Supreme Court of Pennsylvania denied allocatur on
December 16, 1999. Petitioner did not petition the Supreme Court of the United States
for a writ of certiorari to review that judgment.
     On June 30, 2000, petitioner sought a writ of habeas corpus from the United
States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C.
2254. After respondent protested that the petition was untimely and barred by the one-
year statute of limitations effected by the Anti-Terrorism and Effective Death Penalty Act
of 1996 ("AEDPA") in 28 U.S.C. 2244(d)(1), the District Court entered an order
dismissing the petition.
     On appeal, petitioner originally argued that his habeas petition was timely because
the statute of limitations was tolled, pursuant to 28 U.S.C. 2244(d)(2), during the 90 day
period when petitioner might have sought a writ of certiorari from the United States
Supreme Court. However, after petitioner filed his notice of appeal on December 22,
2000, this Court issued its opinion in Stokes v. District Attorney of Philadelphia, 247 F.3d
539 (3d Cir. 2001), cert. denied, 122 S. Ct. 364 (2001), holding that the time during
which a state prisoner might file a petition for writ of certiorari to the United States
Supreme Court does not toll the AEDPA statute of limitations, especially where the state
prisoner fails to file such a petition. See id. at 542-43. The Stokes ruling, therefore,
deprived petitioner of the issue he had hoped to raise on appeal.
     In response to the Stokes decision, petitioner sought, and this Court granted, an
order certifying an additional issue for appeal. See Order, Hubley v. Superintendent, SCI
Camp Hill, No. 01-1025 (3d Cir. Mar. 15, 2002). Therefore, petitioner now argues that
even if 28 U.S.C. 2244(d)(2) did not toll the statute of limitations, the limitations period
should nevertheless be equitably tolled for a further 120 days because of the legal
uncertainty that existed prior to Stokes. Petitioner’s brief further contests any application
of the AEDPA’s statute of limitations to his conviction, which predated the effective date
of that Act, stating this question was "[n]ecessarily included" within the other issues
presented. Petitioner thus argues that application of the statute of limitations to him
would result in an impermissibly retroactive application of that law.
     Our review of a district court’s construction of the AEDPA is plenary. See
Stokes, 247 F.3d at 541. Because petitioner’s retroactivity argument is not within the
scope of the issues upon which we granted certificates of appealability, we decline
petitioner’s request to grant a further certificate for that issue. Further, we are bound to
follow our holding in Stokes, a holding we very recently extended in Miller v. Dragovich,
311 F.3d 574 (3d Cir. 2002). Finally, petitioner has failed to demonstrate that equitable
tolling would be appropriate. The District Court will be affirmed.
                               I.
     The jurisdiction of an appellate court to review a final order in a habeas corpus
proceeding in which the detention arises from process issued by a State court is limited by
28 U.S.C. 2253(c). See Morris v. Horn, 187 F.3d 333, 339 (3d Cir. 1999). A
"certificate of appealability in a case brought under 2253(c)(2) may issue, in the literal
language of the statute, ’only if the applicant has made a substantial showing of the denial
of a constitutional right.’" United States v. Cepero, 224 F.3d 256, 267 (3d Cir. 2000) (en
banc) (quoting 28 U.S.C. 2253 (c)(2)), cert. denied, 121 S. Ct. 861 (2001). Where an
applicant fails to make such a showing, "we do not have jurisdiction to review the merits
of Appellant’s case." Id. at 268; see also Szuchon v. Lehman, 273 F.3d 299, 311 (3d Cir.
2001) ("issuance of a certificate of appealability is a jurisdictional requirement"); United
States v. Brooks, 230 F.3d 643, 646 (3d Cir. 2000), aff’d on reh’g, 245 F.3d 291 (3d Cir.
2001).
     A certificate of appealability may only be granted "to review non-constitutional
questions [where] the issue is procedural and the underlying petition raises a substantial
constitutional question." Brooks, 230 F.3d at 646. Petitioner’s certificates of
appealability arose from non-constitutional questions related to the procedures effected by
the AEDPA. However, the underlying habeas petition raises numerous constitutional
issues, including violations of the Fifth, Sixth, and Fourteenth Amendments, compelled
self-incrimination, and the ineffective assistance of counsel. Respondents did not answer
and contest that these violations would be substantial. In these circumstances, where it is
unrebutted that the underlying petition alleges "substantial constitutional question[s]," id.
at 646, we have jurisdiction to consider petitioner’s appeal of these procedural questions.
See Miller v. Dragovich, 311 F.3d at 575-76, 577.
                              II.
     Petitioner argues for the first time on appeal that applying the AEDPA to him
would give the statute an unconstitutional retroactive effect. However, unless a
certificate of appealability is granted on the "specific issue or issues" a petitioner seeks t
appeal, 28 U.S.C. 2253(c)(3), "an appeal may not be taken to the court of appeals" that
"arises out of process issued by a State court." Id. 2253(c)(1)(A). Neither of the
certificates of appealability granted to petitioner included this "retroactive effect"
argument. In fact, petitioner concedes that this question was not raised in the District
Court.
     Instead, petitioner argues that such a "predicate question" was "necessarily
included" in the other issues raised. We disagree. Both the Supreme Court and this Court
have applied the AEDPA’s statute of limitations to convictions that predate the AEDPA’s
effective date. See, e.g., Duncan v. Walker, 533 U.S. 167 (2001); Jones v. Morton, 195
F.3d 153, 157-58 (3d Cir. 1999) (petitioner whose proceeding was "final" prior to the
effective date of AEDPA must file within one year of passage); Stokes, 247 F.3d at 542
(filing a petition for certiorari does not toll the one-year statute of limitations); United
States v. Chew, 284 F.3d 468, 471 n.2 (3d Cir. 2002) (noting petitions based on final
convictions preceeding the effective date of the AEDPA have one year from the Act’s
effective date to petition). In Duncan, the Supreme Court went so far as to reverse a court
of appeals decision that inappropriately directed the tolling and extension of the
AEDPA’s one-year statute of limitations. See Duncan, 533 U.S. at 181-82. It was
evidently not necessary to address the novel proposition that petitioner advances. We
therefore do not view this issue as "predicate" to the other questions petitioner raises to
this Court.
     In the alternative, petitioner invites this Court to review this issue by granting a
certificate of appealability. See, e.g., Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir.
2001). However, the Rules of this Court provide that if a "district court grants a
certificate of appealability as to only some issues, the court of appeals will not consider
uncertified issues unless petitioner first seeks, and the court of appeals grants,
certification of additional issues." 3d Cir. LAR 22.1(b) (2002). Such an application must
be made "within 21 days of the docketing of the appeal in the court of appeals." Id. In
this case, we already granted the petitioner one certificate of appealability, out of time.
We decline to do so again.
     The District Court originally granted the petitioner a certificate of appealability to
challenge its interpretation of the tolling provision of 28 U.S.C. 2253. The District
Court did not, however, grant a specific request from the petitioner to also certify whether
equitable tolling was appropriate. Thus, once this Court decided Stokes    a decision that
specifically answered the question contained in that original certificate of appealability
petitioner was, for all practical purposes, left without a basis for appeal. Because
petitioner had previously sought review of the still viable issue of the appropriateness of
equitable tolling, on these unique facts, it was appropriate to grant a further certificate of
appealability out of time.
     In his briefs, petitioner now presents a wholly new theory for appeal. While
petitioner could have presented this theory to respondent and this Court earlier, such as
when he sought his certificate of appealability on the equitable tolling issue, he did not.
Petitioner might also have filed "a separate motion for additional certification," as our
Rules require, but he did not. 3d Cir. LAR 22.1(b). Petitioner offers no justification for
these failures.
     Further, this Court’s Rules specifically provide that where there has been no
certification of additional issues for appeal, "the parties should brief only the issues
certified unless the merits panel directs briefing of any additional issues." See 3d Cir.
LAR 22.1(b). Having complied with the Rules of this Court, respondent would therefore
be prejudiced by not having briefed the merits of this new issue. An eleventh hour
certificate of appealability is therefore not appropriate.
     Contrary to petitioner’s argument, it is not the stated "practice" of this Court to
grant, sua sponte, certificates of appealability whenever a habeas petitioner wishes to
raise a new argument on appeal. Such a general practice would plainly be inconsistent
with the intent of Congress, as expressed through the plain text of 28 U.S.C. 2253(c).
See Board of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 190
n.11 (1982) ("Congress expresses its purpose by words. It is for us to ascertain      neither
to add nor to subtract, neither to delete nor to distort."). That practice would also be
inconsistent with our Rules. See 3d Cir. LAR 22.1(b) ("the court of appeals will not
consider uncertified issues").
      Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001), cited by petitioner, does not
indicate otherwise. Coady involved a petitioner who, while representing himself pro se,
filed a timely notice of appeal instead of seeking a certificate of appealability. Id. at 486
We decided to "construe [that timely] notice as a request for a certificate of
appealability," id., and granted the certificate with respect to one, but not all, of the issu
presented. Id. at 487. That is plainly not this case.
      Instead, we will follow our procedure in Miller v. Dragovich, 311 F.3d at 577, and
"will not consider the [retroactivity] argument as it is not within the scope of the issue on
which we granted a certificate of appealability." Id. at 577.
                               III.
      Petitioner’s original certificate of appealability argued that the AEDPA’s statute
of limitations should be tolled for the 90 days during which he might have sought
certiorari from the United States Supreme Court, though he did not, in fact, seek that
review. However, in the interim between the granting of that certificate and the briefing
of this appeal, this Court decided that question. See Stokes, 247 F.3d at 542. Shifting
grounds, petitioner now argues that the Supreme Court’s decision in Duncan v. Walker,
533 U.S. 167 (2001), indicates that Stokes was wrongly decided. In fact, Duncan
supports the opposite conclusion, as recently recognized by this Court. See Miller v.
Dragovich, 311 F.3d at 579.
      At its core, Duncan holds "that an application for federal habeas corpus review is
not an ’application for State post-conviction or other collateral review’ within the
meaning of 28 U.S.C. 2244(d)(2)." 533 U.S. at 181. The Court reached that
determination by noting that 2244(d)(2) "employs the word ’State,’ but not the word
’Federal.’" Id. at 173. Thus, whatever dicta Duncan might contain which petitioner
contends is supportive, this Court interprets Duncan to "close[] the door on a petition for
certiorari qualifying under 2244(d)(2) as a tolling mechanism." See Miller v.
Dragovich, 311 F.3d at 579 (quotation omitted).
      Nonetheless, even assuming arguendo petitioner’s broader reading of 2244(d)(2)
is correct, petitioner would still need to show that the State collateral review was
"pending" even though petitioner never sought certiorari. 28 U.S.C. 2244(d)(2). The
Supreme Court’s most recent interpretation of 2244(d)(2), Carey v. Saffold, 536 U.S.
214, 122 S. Ct. 2134 (2002), indicates that the alternative holding in Stokes     that State
post-conviction review is not "pending" if a certiorari petition is not actually filed, see
Stokes, 247 F.3d at 543    was also correct.
      In Saffold, the Supreme Court resolved that the 2244 statute of limitations
continues to toll during the intervals between a defendant receiving a state court decision
on his collateral review, and the filing of any appeals relating to that decision. 122 S.Ct.
at 2138-41. After articulating that rule, the Court sought to apply it to that case. Id. at
2141. In doing so, the Supreme Court stated, "It remains to ask whether Saffold delayed
’unreasonably’ in seeking California Supreme Court review. If so, his application would
no longer have been ’pending’ during this period." Id. (emphasis added). In other
words, the Court noted that the AEDPA statute of limitations would not automatically be
tolled for whatever "reasonable" period California law allowed to appeal a post-
conviction review. Rather, Saffold was required to actually seek that review, and do so
within that reasonable period, in order for the 2244 one year statute of limitations to
toll.
      Even if "State post-conviction or other collateral review" of 28 U.S.C.
2244(d)(2) included appeal to the United States Supreme Court, Hubley did not file a
petition for certiorari. Thus, under the Third Circuit’s Stokes decision, which Saffold
supports, this failure to seek certiorari within the 90 days allotted means that petitioner’s
state collateral review was not pending, and the AEDPA’s one-year statute of limitations
was not tolled, for that period. Stokes, 247 F.3d at 543. Therefore, the District Court
should be affirmed.
                               IV.
      Finally, petitioner argues that equity demands that additional tolling should be
permitted for all criminal defendants whose convictions became final prior to the AEDPA
and before Stokes. We disagree.
     First, petitioner argues that this Court has the equitable power to toll the statute of
limitations. This Court has already concluded that because the statute of limitations in the
AEDPA is "not a jurisdictional bar," equitable tolling of that statute of limitations is
permissible where appropriate. Miller v. New Jersey State Dep’t of Corrections, 145 F.3d
616, 618 (3d Cir. 1998). Thus, the Third Circuit has already adopted various equitable
tolling rules in conjunction with the AEDPA. See, e.g., United States v. Miller, 197 F.3d
644, 653 (3d Cir. 1999); Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001), cert. denied, 122 S.
Ct. 323 (2001).
     However, while petitioner is correct that this Court can equitably toll, the
petitioner does not convincingly argue we should do so instantly. A "statute of
limitations should be tolled only in the rare situation where equitable tolling is demanded
by sound legal principles as well as the interests of justice." Jones, 195 F.3d at 159
(internal quotation omitted). However, the cases petitioner relies upon are distinguishable
as rules developed for pro se or death penalty habeas petitioners. See Fahy, 240 F.3d at
244-45 (death penalty conviction); Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000) (pro se
petitioner); United States v. Miller, 197 F.3d 644 (3d Cir. 1999) (pro se petitioner).
         As the Supreme Court has repeatedly stated, however, "death
         is different." See Caldwell v. Mississippi, 472 U.S. 320, 329,
         105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985) . . . . In a
         capital case . . . the consequences of error are terminal, and
         we therefore pay particular attention to whether principles of
         "equity would make the rigid application of a limitation
         period unfair" and whether the petitioner has "exercised
         reasonable diligence in investigating and bringing [the]
         claims." Miller, 145 F.3d at 618.

Fahy, 240 F.3d at 244-45. Likewise, this Court recognizes the special vulnerability of pro
se petitioners through special "prospective" rules that prevent the "trap [of] unwary
petitioners." See, e.g., United States v. Miller, 197 F.3d 644, 651-52 (3d Cir. 1999).
     By contrast, petitioner fails to make a compelling case that equity demands tolling
in his circumstance. "[E]quitable tolling is proper only when the principles of equity
would make the rigid application of a limitation period unfair." Miller v. New Jersey
State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (internal quotations omitted).
"Generally, this will occur when the petitioner has ’in some extraordinary way . . . been
prevented from asserting his or her rights.’" Id. (quoting Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994)). The "petitioner must ’show that he or
she exercised reasonable diligence in investigating and bringing [the] claims.’ . . . Mere
excusable neglect is not sufficient." Robinson v. Johnson, __ F.3d __, 2002 WL
31546341, at *12 (3d Cir. 2002) (quoting Miller, 145 F.3d at 618-19 (internal quotations
omitted)).
     Critically, nowhere does petitioner attempt to explain why he and his admittedly
"experienced, relatively knowledgeable counsel"   at least out of an abundance of caution
in light of the contrary authority that existed in other Circuits, see, e.g., Ott v. Johnson,
192 F.3d 510 (5th Cir. 1999); Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999), cert.
denied, 120 S. Ct. 808 (2000)   did not file the federal habeas petition 90 days earlier.
"In non-capital cases, attorney error, miscalculation, inadequate research, or other
mistakes have not been found to rise to the ’extraordinary’ circumstances required for
equitable tolling." Fahy, 240 F.3d at 244. Indeed, it is curious that the petitioner seeks a
120 day equitable tolling period, instead of the mere 90 days that would be consistent
with petitioner’s legal theory. In sum, petitioner "has not shown that he exercised
adequate diligence in attempting to file a timely petition." Robinson, ___ F.3d at ___,
2002 WL 31546341, at *12. Therefore, the District Court will be affirmed.
                              IV.
     In conclusion, while numerous Courts of Appeals, including this one, have
considered the application of the AEDPA’s one year statute of limitations to final
convictions that predate the effective date of that Act, none have indicated a need to
address the issue of whether that statute is impermissibly retroactive. Because that issue
is not within the scope of the certificates of appealability already granted, we deny
petitioner’s eleventh hour request to certify that further issue.   Petitioner also fails to
demonstrate that recent Supreme Court precedent calls into doubt this Court’s numerous
prior decisions interpreting 28 U.S.C. 2244. Those decisions control this case.
Therefore, the AEDPA’s statute of limitations is not tolled during the period that
petitioner might have petitioned for certiorari. Finally, since petitioner fails to present
any extraordinary circumstances that justify the adoption of a rule of equitable tolling
here, the District Court will be affirmed.



TO THE CLERK:

                Please file the foregoing opinion.



                                        /s/ D. Brooks Smith
                                        Circuit Judge
