Submitted under Third Circuit LAR 34.1(a) March 16, 2007.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the court on an appeal from an order entered on October 22, 2003, by the district court approving and adopting a magistrate judge's report and recommendation and denying as untimely Frank G. McAleese's petition for a writ of habeas corpus that he filed on March 2, 1998. In his petition, McAleese, a state prisoner currently confined at the State Correctional Institution at Albion, Pennsylvania,
II. FACTS AND PROCEDURAL HISTORY
In 1983, after a Philadelphia County jury found McAleese guilty of third-degree murder for killing his ex-wife and for possession of an instrument of a crime,
In 1995, after twelve and one half years of incarceration, McAleese became eligible for parole. McAleese contends that on March 6, 1995, the institution staff recommended that the PBPP grant him parole and release him to a halfway house, predicating its recommendation on his exemplary prison record and his completion of various prison programs. On March 27, 1995, however, the institution staff advised McAleese that the district attorney who had prosecuted the case had submitted correspondence opposing his release to a halfway house. McAleese alleges that, based on that correspondence, which he was unable to obtain either at that time and, as will be seen, for some years thereafter,
Nevertheless, the PBPP conducted a hearing on McAleese's case on July 12, 1995. On September 2, 1995, the PBPP advised McAleese that it was denying him parole and that it would not reconsider a parole application from him until July 2000. According to the PBPP, it denied McAleese parole for the following reasons: poor prison adjustment, habitual offender, assaultive instant offense, highly assaultive behavior potential, victim injury, weapon involved in the commission of the offense, need for counseling, and unfavorable recommendation from the Pennsylvania Department of Corrections ("DOC"). The PBPP also advised McAleese that it was requiring him to participate in a sex offender program.
Thereafter, McAleese began challenging his parole denial and the requirement that he participate in a sex offender program. As early as September 11, 1995 (a little more than one week after the parole denial), he notified the DOC that he believed that there was no "factual basis whatsoever" for the parole denial which he believed was a retaliatory act for his failure to cooperate with the district attorney in the 1986 murder prosecution of a fellow inmate, Wilfredo Santiago, who was charged with murdering a Philadelphia police officer.
Inasmuch as he was unsuccessful in his efforts to avoid the direction to participate in the sex offender program and to obtain the correspondence opposing his parole, McAleese obtained counsel who for the next several years sent requests to the PBPP, the DOC, and the district attorney seeking release of the district attorney's letters. All three agencies, however, rejected these requests. The DOC told his counsel that the records are not "public records" within the meaning of Pennsylvania's Right-to-Know Act, and, in any event, it could not locate the requested records. Id. at 101. The PBPP indicated that the information McAleese sought was "privileged," app. at 366, a response similar to that of the district attorney who cited "confidentiality protections" in refusing to disclose the letters, id. at 378.
On March 2, 1998, about two and one half years after the PBPP denied him parole, McAleese filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania. The petition challenged the PBPP's denial of his parole application and its requirement that he participate in the sex offender program, contending that the determination and direction were arbitrary, capricious, and in violation of his equal protection and due process rights. McAleese alleged that the PBPP's purported reasons for the decisions were pretextual and its real reasons were that it (1) was retaliating against him at the insistence of the district attorney for his refusal to testify helpfully for the prosecution in the original Santiago murder trial, and (2) was trying to coerce him to change his testimony for Santiago's pending retrial.
The magistrate judge issued a report and recommendation, recommending that the court dismiss the petition for failure to exhaust administrative remedies. On May 17, 1999, the district court approved and adopted the report and recommendation and thus dismissed the petition on the ground that McAleese had not exhausted his state remedies before seeking relief in the district court. On McAleese's appeal, however, we vacated that dismissal after we decided Coady v. Vaughn, 251 F.3d 480 (3d Cir.2001),
Id. at 4-5. Accordingly, we remanded the case to the district court, which transferred it to the Eastern District of Pennsylvania. While the judicial proceedings were pending, the PBPP on August 8, 2000, and October 30, 2001, again denied McAleese parole, explaining that he showed no remorse for his commission of the crime and presented a continued danger to the community. McAleese has not challenged these denials in separate habeas corpus proceedings.
On May 30, 2002, the district court in the Eastern District ordered McAleese to complete that court's forms for filing a habeas corpus petition pursuant to section 2254, and McAleese did so on June 20, 2002, restating the claims that he had made in the Western District. Respondents answered that the PBPP's actions were not retaliatory, and that the PBPP was not attempting to coerce him to testify in the Santiago case. They further contended that the court should dismiss McAleese's petition because it was time-barred and because he failed to exhaust his remedies with respect to some of the claims.
Significantly, in respondents' answer to the petition, they disclosed the correspondence from the district attorney that they previously withheld. Thus, they produced
Upon review of the materials submitted, the magistrate judge recommended that the court dismiss the petition as untimely. The magistrate judge concluded that because direct review of McAleese's conviction ended before the AEDPA's effective date, he had one year from its effective date, i.e., until April 23, 1997, to file his petition. However, McAleese did not file his petition until March 2, 1998. The magistrate judge further concluded that subsection (D) of section 2244(d)(1) extending the time for the filing of a petition for habeas corpus for one year after a petitioner knows or should know of the factual predicate for his claims, did not extend the filing deadline beyond April 23, 1997, because McAleese was cognizant of the "factual predicate" of his claims on the day that the PBPP denied him parole, September 2, 1995. Additionally, the magistrate judge found that McAleese had failed to present any evidence to justify equitable tolling of the statute of limitations, and that there was no basis for the court to toll the statute of limitations by reason of the subsequent denials of parole as they did not amount to "continuing violations" of McAleese's rights. On October 22, 2003, the district court entered an order approving and adopting the magistrate judge's report and recommendation, and, accordingly, dismissing the petition as being untimely.
On January 30, 2004, the district court entered an order permitting McAleese to file an appeal nunc pro tunc which McAleese did within the permitted period on February 18, 2004. As we indicated at the outset of this opinion, we granted a certificate of appealability on August 31, 2004, "with regard to the question whether the District Court erred in dismissing [McAleese's] habeas corpus petition as untimely," and we now resolve that issue.
III. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C. § 2254. Upon our issuance of a certificate of appealability, we obtained jurisdiction over this appeal under 28 U.S.C. §§ 1291 and 2253. Our review of the order denying the habeas corpus petition in this case as time-barred is plenary. See Douglas v. Horn, 359 F.3d 257, 259 (3d Cir.2004).
McAleese makes three arguments on this appeal. First, he argues that the "factual predicate" of his claims under section 2244(d)(1)(D) is the disclosure of the content of the district attorney's correspondence, not the denial of the parole, and thus the limitations period did not begin to run until its disclosure in 2002 in the answer to his June 20, 2002 restated petition filed in the Eastern District on its forms. If he is correct on this point, his petition surely could not have been late as he filed it before the disclosure. Second, he argues that even if the denial of the parole is the "factual predicate" triggering the running of the statute of limitations, the time of the last of three parole denials in 2001 is the appropriate date at which to look for the purposes of application of the AEDPA's limitations period because the PBPP continued to receive additional correspondence from the district attorney up until that time. Thus, he views this case as involving a "continuing violation" of his rights. Third, McAleese argues that we should equitably toll the limitations period because for seven years the district attorney, the PBPP and the DOC did not divulge the documents that he sought. For the reasons that follow, we will affirm the decision of the district court to dismiss the petition as untimely.
A. Factual predicate
Under the AEDPA there is a one-year limitations period in which a person in custody pursuant to a state-court judgment may file an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The period begins to run from the latest of: (A) the date on which the state-court judgment pursuant to which he is in custody becomes final; (B) the date on which an unconstitutional impediment to filing the application is removed; (C) the date on which the Supreme Court recognizes a new constitutional right asserted in the application (so long as the right is retroactively applicable to cases on collateral review); and (D) "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. Additionally, if direct review of a criminal conviction, or in this case a decision with respect to parole, ended before the AEDPA's effective date of April 24, 1996, a prisoner has a one-year grace period after the effective date to file a habeas corpus petition, i.e., until April 23, 1997. Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998).
In this case, McAleese is challenging the 1995 parole denial and thus section 2244(d)(1) and the one-year grace period, which expired on April 23, 1997, were applicable
McAleese argues that the magistrate judge and district court erred because the denial of parole in 1995 was not the "factual predicate" of his claims, but rather, "[t]he factual predicate which [he] was required to diligently act to discover was, in fact, the content of the [district attorney's] correspondence and the PBPP's reliance thereon, not merely the existence of such correspondence," and "[t]he legal event of the parole denial and the fact that [he] was aware that something had been submitted that was withheld from him, simply triggered his diligent effort to obtain that material."
In order to determine the "factual predicate of the claim or claims presented" for purposes of section 2244(d)(1)(D), we first must identify McAleese's claims. He asserts four grounds that he believes constitute an "unconstitutional execution of [his] sentence," app. at 18, but, boiled to their essence, his claims are two-fold. First, he believes that the PBPP unjustifiably denied him parole because his testimony was unfavorable to the prosecution in the Santiago murder case and the district attorney was trying to deter him from testifying in the same way at Santiago's
Having defined the contours of McAleese's claims, we set forth their "factual predicate" as 2244(d)(1)(D) uses that term. Though the AEDPA does not define "factual predicate," we have held that "[s]ection 2244(d)(1)(D) provides a petitioner with a later accrual date than section 2244(d)(1)(A) only if vital facts could not have been known." Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.2004), cert. denied, 544 U.S. 1037, 125 S.Ct. 2261, 161 L.Ed.2d 1067 (2005) (internal quotation marks omitted) (emphasis added). Therefore, under Schlueter, the "factual predicate" of a petitioner's claims constitutes the "vital facts" underlying those claims.
In this case, there is no doubt that the "vital facts" underlying McAleese's claims are the denial of his parole application in an alleged attempt to coerce him to cooperate in the Santiago case and the decision to require him to participate in the sex offender program, not the subsequent disclosure of the content of the letters the district attorney sent to the PBPP. In fact, McAleese himself proved that the content of the correspondence was not a "vital fact" underlying his claims as he filed his habeas corpus petition without possession of those documents. Obviously, he could have filed his petition earlier had he chosen to do so. Furthermore, even before the PBPP initially denied him parole he was aware of the correspondence opposing his parole application and surely knew that he had not been convicted of or, indeed, so far as we are aware, even charged with a sex offense.
Clearly, McAleese has confused the facts that make up his claims with evidence that might support his claims. See Johnson v. McBride, 381 F.3d 587, 589 (7th Cir.2004) ("A desire to see more information in the hope that something will turn up differs from `the factual predicate of [a] claim or claims' for purposes of § 2244(d)(1)(D)."). The record reveals that McAleese had all of the "vital facts" at the time of the parole denial in 1995. Indeed, the record includes his requests for relief to the DOC and the PBPP soon after his parole denial. The requests contain all of the critical information and claims which appeared in his habeas corpus petition filed several years later: he was denied parole and ordered to comply with a sex offender treatment program; there was no factual basis for the denial of parole; the PBPP denied him parole in retaliation for his failure to cooperate with the district attorney in the Santiago proceedings; and the correspondence from the district attorney to the PBPP was being withheld from him illegally. Moreover, we reiterate that he knew even before the PBPP denied his parole application that the district attorney had submitted correspondence opposing his application. Unfortunately for McAleese, he chose to pursue his grievances for several years with the DOC and the PBPP rather than to file a timely habeas corpus petition in the district court.
We are not the only court of appeals to have considered a situation like the one here. In Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir.1998), the petitioner was convicted in 1989 of aggravated possession of more than 400 grams of cocaine. His conviction became final in 1991 when its direct review was over. Id. In 1997, he filed a section 2254 petition asserting that his conviction was obtained without due process of law because he was called to testify on his own behalf without being informed of his right not to testify. Id. The petitioner argued that his petition was timely under section 2244(d)(1)(D) because he did not discover the "factual predicate" of his claim until October 1996 when his habeas corpus counsel located his trial counsel in a rehabilitation facility in rural Texas. Id. at 198. At that time, the petitioner's trial counsel executed an affidavit stating that he did not remember whether he and the petitioner discussed his right not to testify. Id. The petitioner contended that "the lawyer's affidavit form[ed] part of the factual predicate of his suit because, by not conclusively negating the proposition, the affidavit implicitly supports [his] claim that he was not informed of his right not to testify." Id. at 198-99.
The Court of Appeals of the Fifth Circuit rejected the petitioner's timeliness argument, explaining that
Id. at 199. The court pointed out that the petitioner did not even file the "purportedly crucial affidavit" with his original habeas petition. Id. Rather, he submitted only his own affidavit with the original habeas corpus petition and he did not submit his trial counsel's affidavit until he later filed a supplementary pleading. Id.
Inasmuch as the material facts here are indistinguishable from those in Flanagan, not surprisingly we reach a conclusion parallel with the conclusion that the court reached in that case. As was true of the trial attorney's affidavit in Flanagan with respect to the petitioner's claims there, the correspondence from the district attorney was not the "factual predicate" of McAleese's
We address one more case relating to this point. McAleese relies on Johnson v. United States, 340 F.3d 1219, 1223 (11th Cir.2003), for the proposition that legal events, such as parole denial, are not "facts" as used in the habeas corpus limitations provisions because "[a] factual proposition is typically something capable in principle of falsification (or possibly even verification) by some empirical inquiry, while a legal proposition is identified by consulting some authoritative legal source."
This is what happened in Johnson. After the petitioner pleaded guilty in the district court to distribution of cocaine, the court sentenced him as a career offender on the basis of two prior state convictions for cocaine distribution. Id. at 298, 125 S.Ct. at 1575. Four years later, a state court vacated one of the predicate convictions because the petitioner had not knowingly waived his right to counsel in that case. Id. at 300-01, 125 S.Ct. at 1576. Three months after the state court vacated the conviction, the petitioner filed a section 2255 habeas petition seeking an order vacating the enhanced federal sentence. Id. at 301, 125 S.Ct. at 1576. He claimed that his motion was timely under section 2255 because the order vacating the state judgment constituted the fact supporting his claim, thus triggering a renewed limitations period. Id. A divided court of appeals over a dissent rejected his argument, holding that the state-court order vacating the prior conviction was not a "fact," but, instead, was "a legally operative order [that was] a mandate of law or a consequence of applying law, and therefore [was] distinct from a matter of `fact' as Congress used the term in § 2255." Id. at 304-05, 125 S.Ct. at 1578 (summarizing holding of court of appeals).
B. Submission of new materials
McAleese next argues that even if the denial of the parole and not the disclosure of the documents constituted the "factual predicate" of his claims, the limitations period should not have begun to run until the PBPP last denied him parole in 2001 and not when it first denied him parole in 1995. McAleese predicates this contention on the fact that the PBPP received additional correspondence from the district attorney after the 1995 denial on which, according to him, the PBPP relied in denying him parole in 2000 and 2001. The additional documents to which McAleese points were attached to the letter dated August 16, 2000, from the district attorney to the PBPP, disclosed with respondents' answer to McAleese's restated Eastern District petition to which we have referred: (1) an anonymous letter postmarked July 14, 2000, to the president of the Fraternal Order of Police recommending favorable treatment towards him with respect to the Santiago retrial,
We reject this argument. McAleese filed his habeas corpus petition on March 2, 1998. Clearly, the "factual predicate" of his claims asserted in 1998 cannot be the subsequent parole denials in 2000 and 2001 regardless of when the documents on which he relies were sent to the PBPP. This is chronologically impossible.
To circumvent this impossibility, McAleese contends that the repeated denials of parole constitute a "continuing violation" of his rights, and that we, accordingly, should regard the most recent parole denial in 2001 as the event that triggered
Second, even if we were to apply a continuing violations theory in the context of habeas corpus petitions, the successive denials of McAleese's parole applications would not constitute "continuing violations." Under the continuing violations theory, a plaintiff may pursue a claim for conduct that standing alone would have been untimely as it occurred before the start of the applicable statute of limitations filing period as measured back from the time of the filing of the action. The application of the continuing violations theory may be appropriate in cases in which a plaintiff can demonstrate that the defendant's allegedly wrongful conduct was part of a practice or pattern of conduct in which he engaged both without and within the limitations period. See, e.g., West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). "To establish that a claim falls within the continuing violations theory, a plaintiff must do two things": (1) "he must demonstrate that at least one act occurred within the filing period[,]" and (2) he must establish that the conduct is "more than the occurrence of isolated or sporadic acts," i.e., the conduct must be "a persistent, on-going pattern." Id. at 754-55 (internal quotation marks omitted).
In this case, McAleese's petition was subject to a one-year filing period under the AEDPA measured from April 24, 1996, until April 23, 1997.
We also point out that it is clear that the three parole denials over the six-year period from 1995 to 2001 are "isolated or sporadic acts" and not "a persistent on-going pattern." Therefore, in accord with our recent discussion in O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir.2006), and in light of the Supreme Court's holding in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), challenges to these "discrete acts" of parole denial were required to have been made within the applicable limitations periods with respect to each act. Accordingly, because the challenge to the September 2, 1995 parole denial was not raised within the applicable period, it was untimely. A conclusion that each denial of parole was a discrete act is unavoidable in that Morgan indicated that "termination, failure to promote, denial of transfer, or refusal to hire" are discrete acts. Id. at 114, 122 S.Ct. at 2073. Denial of parole and a direction that petitioner participate in a sex offender program are no less discrete.
C. Equitable tolling
McAleese's last argument is that even if we find that he failed to file his petition within the AEDPA's limitation period, we should equitably toll the running of the statute of limitations because he "was actively misled as to even the existence of the various materials sent to the PBPP regarding his parole, and certainly was denied access to their contents." Appellant's br. at 23. McAleese's argument is unpersuasive. Equitable tolling is available "only when the principle of equity would make the rigid application of a limitation period unfair." Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir.2003) (internal quotation marks omitted). A petitioner seeking equitable tolling bears the burden to show that he diligently pursued his rights and that some "extraordinary circumstances stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005).
Here, there were no extraordinary circumstances, or, indeed, any circumstances at all, preventing McAleese from filing a timely petition. Obviously, McAleese cannot persuasively argue that the withholding of the materials sent to the PBPP prevented him from doing so as he, in fact, did file his petition without first seeing that documentation. But instead of timely filing his petition following the 1995 parole denial, he engaged in a multi-year campaign to secure evidence that might support his claims. While we exercise some level of leniency with respect to pro se petitioners as McAleese was both when he first began contesting the parole denial at the administrative level and at the time he filed his initial habeas corpus petition, mere neglect, even if characterized as excusable, does not justify equitable tolling in any circumstances. See Miller v. N.J. Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998).
For the foregoing reasons, we will affirm the order entered on October 22,