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The stock of Royal Bank of Scotland Group PLC (NYSE:RBS) is a huge mover today! About 362,551 shares traded hands. Royal Bank of Scotland Group PLC (NYSE:RBS) has declined 34.86% since April 26, 2016 and is downtrending. It has underperformed by 40.12% the S&P500.
The move comes after 6 months positive chart setup for the $28.22B company. It was reported on Nov, 29 by Barchart.com. We have $5.20 PT which if reached, will make NYSE:RBS worth $1.69B more.
Analysts await Royal Bank of Scotland Group PLC (NYSE:RBS) to report earnings on February, 24. They expect $0.03 earnings per share, down 81.25% or $0.13 from last year's $0.16 per share. RBS's profit will be $172.42M for 40.92 P/E if the $0.03 EPS becomes a reality. After $0.10 actual earnings per share reported by Royal Bank of Scotland Group PLC for the previous quarter, Wall Street now forecasts -70.00% negative EPS growth.
Royal Bank of Scotland Group PLC (NYSE:RBS) Ratings Coverage
Out of 14 analysts covering Royal Bank of Scotland Group plc (ADR) (NYSE:RBS), 0 rate it a "Buy", 6 "Sell", while 8 "Hold". This means 0 are positive. Royal Bank of Scotland Group plc (ADR) has been the topic of 20 analyst reports since July 29, 2015 according to StockzIntelligence Inc. Morgan Stanley upgraded the stock to "Equal-Weight" rating in Wednesday, August 26 report. The firm has "Neutral" rating given on Monday, June 27 by BNP Paribas. Investec downgraded the stock to "Sell" rating in Monday, September 12 report. RBC Capital Markets downgraded the stock to "Underperform" rating in Monday, June 27 report. The company was maintained on Tuesday, August 4 by Investec. The firm earned "Neutral" rating on Wednesday, July 6 by Mediobanca. On Wednesday, March 9 the stock rating was upgraded by Berenberg to "Hold". The firm has "Reduce" rating given on Monday, July 18 by Natixis. The stock has "Outperform" rating given by BNP Paribas on Monday, November 2. The stock has "Hold" rating given by Shore Capital on Wednesday, July 29.
According to Zacks Investment Research, "The Royal Bank of Scotland Group plc is the holding company of one of the world's largest banking and financial services groups, with a market capitalisation of £62.8 billion at the end of 2006. Headquartered in Edinburgh, the Group operates in the UK, US and internationally through its two principal subsidiaries, the Royal Bank and NatWest. Both the Royal Bank and NatWest are major UK clearing banks whose origins go back over 275 years. In the US, the Group's subsidiary Citizens is ranked the eighth largest commercial banking organisation by deposits. The Group has a large and diversified customer base and provides a wide range of products and services to personal, commercial and large corporate and institutional customers."
Another recent and important Royal Bank of Scotland Group PLC (NYSE:RBS) news was published by Nasdaq.com which published an article titled: "Royal Bank of Scotland to Face $12B Fine for RMBS Scam" on November 21, 2016.
RBS Company Profile
The Royal Bank of Scotland Group plc (RBS), incorporated on March 25, 1968, is a banking and financial services company. The Firm provides financial services and products to personal, commercial, corporate and institutional customers, through its subsidiaries, The Royal Bank of Scotland and National Westminster Bank Plc (NatWest), as well as through other brands, including Ulster Bank and Coutts. The Company's divisions include Personal & Business Banking (PBB), Commercial & Private Banking (CPB), Corporate & Institutional Banking (CIB), Capital Resolution, Williams & Glyn (W&G), and Central items & other. The Company's businesses are focused on the United Kingdom and Ireland markets. Williams & Glyn consists of the RBS England and Wales branch businesses, along with certain small and medium enterprises (SME) and corporate activities across the United Kingdom.
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Grandcarma is a mod for Grand theft auto based on the game Carmageddon 1 and 2. The mod features a complete new world map, built up out of Carmageddon 1 and 2 racetracks. These tracks have been put together, and the landmass between the tracks has been modelled to create a continuous landscape. The mode will also feature some of the carmageddon cars, and maybe some mission coding, thought this is still far from done.
Thanks for voting and helping Grandcarma on it's quest to become the 2016 Mod of the Year. You are now in with a chance to score some free games from our #modlove collection. Help this mod secure more votes by embedding the widget (or link) we have included below on your favorite sites.
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Hi there!
it has been a while since a last update, but here are the new files for the mod.
The mod now contains;
I now still need to place some parked cars throughout the map, savepoints (but that will be a scripting issue), garages and stunt jumps...
I am currently working on a car model for the EAGLE 3, which is going nicely. I hope to put it ingame soon. Here's a preview image of the model;
Files can be downloaded over at the download section. Enjoy!
Harmalarm out
The first Teaser of the Carmageddon mod for San Andreas
Work has been done on the mod after a long break. Objects have been placed and traffic paths are partially added
added a lot of objects and almost completed the vertex lighting
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This is the second beta of my grandcarma mod. It now contains all the maps of Carmageddon, Splat pack and Carmageddon 2!
This beta version only features on map, the beaver city map. It comes with a couple of spawned cars, a garage, trees and gibs, and a trainter to get araound...
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thanks good jop
The mod is dead, I think, 'course there was no updates for an year, though....
But anyway, the mod is quite cool :)
When I play, the game starts with the biggest lag I have ever experienced!!!
is that cause it's a beta?
Wow, looks awsome, though it seems like a lot of work. Good luck! :)
Yeah, I will use this place for updates more also... :) Thanks for pointing it out to the people enigmaTLOD
btw if someone htinks there's no update then he's wrong!
check Harm.toshiba-3.com for updates. There are quite big updates already released.
Only registered members can share their thoughts. So come on! Join the community today (totally free - or sign in with your social account on the right) and join in the conversation.

subset: commoncrawl


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In the game it starts in the spring (as mentioned by clementines mom on the answering machine) and by episode two, 3 months later, it's October (fall colors of the leaves in Ep2, and from the date mentioned from the tapes in Crawford from Episode 4)? Where did the summer go?
31 Comments - Linear Discussion: Classic Style
There are two basic possibilities here. Either the writers messed up and this is a continuity error, or the three months account for the time difference.
Assuming it's not the first one, let me try to explain the second option. Firstly, "Spring Break" usually coincides with Easter, and depending on the year, Catholic Easter tends to fall between late March and late April. In 2003, the year The Waking Dead comics started coming out on, and the year the game (presumably) takes place in (judging from the boxy "new" TVs on sale in Macon and the lack of smart-phones), Catholic Easter was on April 20th (according to Wikipedia: http://en.wikipedia.org/wiki/Easter#Reform_of_the_date). Let's assume that Sandra's Spring Break was in late April, and that it was about to begin when Clementine's mom made those calls, not long before Lee found Clementine. Fast forward 3 months, and it's late July. Give the writers the benefit of the doubt, and add a couple of weeks so that the time still rounds to 3 months, and it's still mid August.
There is, however, the possibility that Fall came early that year from all the junk in the air from all the fires that started all over the world in the initial panic (or fires started by lightning that no fire departments were around to put out). Max Brooks talks about this in WWZ to explain the unusually cold winters survivors had to face. Think it's too far fetched? 1816 was known as the "year without a summer" because of a global drop in temperatures caused in part by ash released from the explosion of a volcano in Indonesia (http://en.wikipedia.org/wiki/Year_Without_a_Summer). I'm not a botanist, and I don't know how the seasons change in Georgia, but my guess is that a drop in global temperatures could cause leaves to turn red and yellow a month before they're supposed to.
I don't know if the writers thought exactly all of this out, but my point is that the continuity is plausible...
Except for the fact that that the date on the tapes is October 10th, as staticfl pointed out. And the doctor in Crawford says on one of his tapes that "this is day 82 since the outbreak" (http://www.youtube.com/watch?v=aYENrBC0xuk), which on the 2003 calendar, places the day of Lee's car crash (assuming it was on "outbreak day") on Sunday, July 27th. No school district that I'm aware of schedules spring break in late July. So yes, the writers goofed.
Telltale Games could use a continuity consultant, who's only job is to nitpick with little things like dates and times, and whether or not Lee still has a gun in his back pocket when Clementine gives him his only one back to shoot a walker (Episode 3, in the station). It's a shame when little things mess up the credibility of such an awesome story. And "yes, but zombies..." isn't an excuse for three months to be five months at the same time.
I don't know, I really am not concerned enough about the whole affair to label the continuity as "messed up." I just... I really don't care, you know?Catedratico;745206 said:Science and things and such.
You can't question this or else you're anti-environmental . Just trust Al Gore blindly okay?:)owner070;745037 said:Globar warming makes the earth hotter, so the summer would be hotter. how could global warming let summer is dissapear ??
Stop with the global warming? I made one post, which was in reference to someone else's post. Get a grip, lol. You can assume anything you want. I wasn't even talking about the game. I was merely stating that global warming can in fact cause an ice age. Not to mention that global warming speaks to the average global temperature. Its far more complex than simply everything getting hotter. Some places will have no temperature change at all, some places will see the temperature rise far above the average, some places will see increases right on par with the average, and some places will actually get colder.staticfl;745176 said:Stop with the global warming. Ep1 they mentioned spring break and there were references to Easter at the drug store. 3 months later in Crawford they mentioned the date on the tapes as October 10th. I'll just assume it was just a goof on part of the writers of the game. :rolleyes:
Only one thing could explain the existence of such a strange time discrepancy.
...or writer goof. But I prefer to blame the Doctor.
Clem's mom saying they'd be back for spring break was an error on Telltale's part. The apocalypse really started late summer. In the comics, which the game follows, Rick is shot and in a coma for approximately a month. By the time he wakes up, it's already cold enough outside for people to be wearing coats and colder weather clothing, so it's either late September or October by then.
We'll assume that it starts in late July/early August. That means three months later in Episode 2, it's either late October or early November. Kirkman was extremely vague about the timelines until it starts snowing, and there is then a reference by Andrea when she tells Rick that she's been counting off on a calender and thinks that it's Christmas at one point. That's the only reference to a time table that we are given.
Either way, that part about spring break was just a goof on Telltale's end.
I found this:
In regards to the timeline, Robert Kirkman wrote, "The Walking Dead takes place in our world, as if this stuff had started happening in October 2003 and continued from there. Now, (Issue 38) In the book It's still only like...June 2004 at this point (If you're keeping track)."
So whether or not he means Rick woke up in October in issue 1, or the apocalypse started in October is vague as well. That means we are looking at Lee in the car going to prison either in September or October, not spring.
Well, I always assumed Ep. 1 happened uring the summer since everyone was wearing summer clothes (Doug was wearing Sandals and Lilly had a sleeveless T-shirt, for example). Fast-forward three months and it's Autumn ). Plus, counting backwards from the Crawford tape places the start of the apocalypse sometime in July (which I assume is Summer. Sorry, I'm from the southern hemisphere, I don't want to start counting seasons the other way around )
This comment may contain spoilers!The game starts on July 20th.
Source: [spoiler] the medical tapes in ep 4 state October 10th day 83 since the outbreak[/spoiler]
Edit: And it ends on Nov 2nd. Someone did a calculation on it with every event in the game but I can't find it now.


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The July stress test of Europe's banks by the European Banking Authority (EBA) has come in for a fair amount of criticism. Some gripe that the scenarios were overly lenient, while risk managers complain the idiosyncrasies of credit modelling mean the results are not comparable from one institution to the next (Risk June 2011, page 12). Another quibble – at the more specific end of the spectrum – comes from a quantitative analyst at one European bank, who takes aim at the stress test's approach...
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WEBE 107.9 FM (advertised on air as 'WEBE 108'), owned by Cumulus Media, is an Adult Contemporary music formatted radio station licensed to serve the community of Westport, Connecticut. The station is usually ranked number one the Stamford-Norwalk,Bridgeport and Fairfield County ratings, and is in the top 5 of the New Haven Market rating. One of the main elements behind the station's success is its traffic coverage reports that cover the entire route from interior Connecticut to lower Fairfield County. WEBE is one of the most powerful radio stations in Southern Connecticut, with an effective radiated power of 50,000 watts, reaching most of Westchester County, New York into the Bronx, parts of Manhattan as well as southern parts of the Hartford area.
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Belle Plaine Man Crashes Helicopter
The Federal Aviation Administration is investigating after a crop-dusting helicopter crashed near Arlington Friday morning. The Sibley County Sheriff's office says that 28-year-old Daniel Lee of Belle Plaine was flying for Scott's Helicopter Services of …10 Sep 13
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A man accused of trying to kill his mother at a Nicollet County Park last year was found guilty of attempted murder Monday in a trial that lasted just over an hour. 49-year-old Burton James …10 Sep 13
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A 62-year-old Sleepy Eye man accused of making sexual advances to a police officer posing as a 15-year-old girl online was sentenced to 45 days in jail and 3 years of probation in Brown County …10 Sep 13
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|15 Avaliações
|Tipo de imóvel
|Estadia Mínima
|2 - 5 noites
Rabaska é um domínio no coração do Laurentians Mountains no rio la Diable. Vencedor do melhor desenvolvimento de golfe no Canadá em 2008. Situado em uma área com muitas actividades, Rabaska irá oferecer-lhe tranquila no centro da acção. Localizado no premiado campo de golfe La Bête-a apenas alguns minutos do Mont Tremblant, Mont Blanc e Gray Rocks estâncias de esqui. moradia espaçosa e luxuosa, com 2.000 sq. ft, de espaço em dois andares. Quatro quartos de luxo, três casas de banho completas com piso aquecido.
Piso principal: Open área de conceito com sala de estar e de madeira lareira, de alta qualidade cozinha, ilha, casa de banho completa, sala de lavadora / secadora 42 '' TV de plasma com HD de cabo, sistema de som, Blue-Ray DVD, sala de jantar, cozinha totalmente equipada, quarto com cama queen size, pisos de madeira (excepto cozinha), e banheiro com piso em cerâmica aquecidos.
2º andar: três quartos e um pode ser usado como um quarto principal família quarto-grande com cama king size, banheiro privativo com chuveiro grande, grande banheira terapêutica, piso de cerâmica aquecida, quarto com duas camas individuais, sala grande família com queen size Murphy cama, sofás, 42 '' TV de plasma, DVD Blue-Ray, e uma casa de banho completa com piso aquecido.
This townhouse is beautiful. The decor in the home is cozy and charming. A huge kitchen and fully equipped! The location is great, not to far from Ste Jovite or Mont Tremblant itself and right on a golf course. Peaceful and tranquil. Lots of friendly visits from the deer...loved it! Michel is very pleasant and replies promptly.
We had a great weekend and hope to return soon, we Will definitely rent this place again without a doubt!
The property is perfectly equiped, clean, comfortable and relaxing place.
Also, the owner is very responsive, which made our stay more enjoyable since we were able to extend our stay as we loved the house.
We'd definitely recommned!
After reading the many positive reviews I was quite excited about spending the weekend with family and a few friends at this lovely looking golf course vacation home. Pleased to report that I was not disappointed at all! It was fabulous. The open concept kitchen layout was particularly pleasing. We all had a really great time. And the owner Michel was completely accessible and very accommodating. We will definitely be back! Thanks for a wonderful stay.
The Rabaska townhouse was like new, clean, well appointed and located on the 18 th tee of La Bete golf course. Luxury accommodations in a country setting. It was quiet during our 10 day stay and we were surrounded by the sights and sounds of nature. We used the petit train du nord bike path daily which was close by and easily accessible. Using the bike path it was only a 5km ride to either the old village or to St. Jovite.
Overall, we enjoyed our stay at Rabaska and we hope to rent this home the next time we visit Mont Tremblant.
Thanks again Pierre.
Neil & Sharon
Excellent place for family. We did have a wonderful long weekend in this lovely house! Definitely will come back!
This house is all that was advertised. It is in a great location for any activity in the Mont Tremblant area and is close to restaurants and stores. The kitchen is the best equipped of any vacation rental that we have stayed in and we were impressed with all the condiments that are included in the rental. The bedrooms are large and comfortable and the Murphy bed upstairs is a bonus. We were so impressed that we will gladly stay again on future vacations.
5 minutos do Mont Tremblant montanha, construída sobre o buraco 18 do premiado resort e campeonato de classe mundial de golfe La Bete, cercada por montanhas e lagos próximo a ciclovia e belo rio La Diable.
Outras atividades: snowboard, escalada, Compras, Náutica, surfista, Mini-golfe, canoagem, Spa, vida selvagem.
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Estadia mínima: 2 noite(s)
A partir deR$ 894
* Tarifa mensal aproximada. O valor real dependerá dos dias em que você de fato se hospedar no imóvel.


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Event: Bollywood stars Shahrukh Khan, Ajay Devgn, Zarine Khan, Rishi Kapoor, and many others attend Sanjay Dutt's party for the success of the film AGNEEPATH.
Guest List: Priyanka Chopra, Abhishek Bachchan, Karisma Kapoor, Minissha Lamba, Vidya Malvade, Zareen Khan, Anjana Sukhani, Ajay Devgn, Tanisha Mukherjee, Sanjay Dutt, Shahrukh Khan, Arshad Warsi, Mallika Sherawat, Vivek Oberoi, Priyanka Oberoi, Neetu Singh, Rishi Kapoor, Arbaaz Khan, Arshad Warsi, Dino Morea, Kush Sinha, Sophie Chaudhary, Amisha Patel, Jackky Bhagnani, Rohit Roy, Sudhanshu Pandey, Sheeba, Vashu Bhagnani, Krishan Kumar, David Dhawan, Bappa Lahiri, Anupama Verma, Masaba Gupta, Ekta Kapoor, Shirish Kunder, Dj Akhil, Farah Ali Khan, Shweta Pandit, Chunky Pandey, Ashmit Patel, Nandita Mahtani, Sanjay Kapoor, Gita Kapoor, Priya Dutt, Manyata Dutt
Bollywood actress Aishwarya Rai Bachchan was snapped at the unveiling of 49th World Congress Dance Resarch.
Bollywood celebs Amitabh Bachchan, Tiger Shroff, Swapnil Joshi, Sayaji Shinde, Richa Inamdar, Ganesh Acharya, Pooja Sawant, Manoj Joshi were seen at the mahurat of Marathi film BHIKARI.
Bollywood celebs Farhan Akhtar, Boney Kapoor, Sridevi among others were snapped at the airport.
Bollywood celebs Sunny Deol, Shreyas Talpade and Bobby Deol celebrated Ali Asgar's birthday at The Kapil Sharma Show.
Bollywood celebs Deepshika, Hrishita Bhatt, Subhash Ghai, Hard Kaur, Gurmeet Choudhary, Debina Bonnerjee, Jyoti Saxena among others were seen at launch of lounge Drinking Kulture.


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Electricity and Magnetism. by Fleeming Jenkin ... by Fleeming Jenkin (Paperback / softback, 2006)
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- Author(s)Fleeming Jenkin
- PublisherUniversity of Michigan Library
- Date of Publication13/09/2006
- LanguageEnglish
- FormatPaperback / softback
- SubjectRegional History
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- Country of PublicationUnited States
- ImprintUniversity of Michigan Library
- Content Noteblack & white illustrations
- Weight576 g
- Width156 mm
- Height234 mm
- Spine21 mm
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- Format DetailsTrade paperback (US),Unsewn / adhesive bound
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15 Years Ago
May 2, 1996
The Republican Party held their county convention in April at the Williamstown Courthouse electing five delegates and five alternatives to an executive committee representing the county at the Republican State Convention. The five delegates were John Risen, Jim Ginn, and Les and Betty Taylor of Williamstown and Damon Thayer of Crittenden.
Amanda Cofer, 12, won first place in her age category with her acrylic painting "Black Duck's Home." She had beaten 650 people for Best of Show by the Kentucky Department of Fish and Wildlife Resources' Junior Duck Stamp contest. She also was a representative of Kentucky as one of 48 finalists in the national postage stamp art competition.
25 Years Ago
May 8, 1986
The Williamstown City Council voted to authorize the city's administrative officer to take the necessary steps, including contracts, to have an historic log house on High Street stripped of exterior lumber and added-on rooms. The house was reputed to be the home of William Arnold, founder of Williamstown.
The Grant County Hospital chose Marian Wilhoite as the Employee of the Year. She had worked at the hospital for 17 years. Beginning May 26, 1969 and being hired by Charles Hamilton, administrator at the time to count supplies.
50 Years Ago
May 5, 1961
Area services were expanded based on funding from the state government in 1960. For the year, Grant County schools received $319,631. The Highway Department spent $4,132,700. Under Governor Combs' Lake Development Program, construction should start in the spring on Corinth Lake by authorities in Washington.
Reverend Kenneth Dillon fractured his right ankle when he climbed on the roof of Williamstown Methodist Church to remove a broken branch from a tree at the rear of the church. In attempt to throw a rope over the branch, he slipped. Lying there for several hours unheard, he was later taken by firemen to the local hospital.
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May 12, 2011
MYKAL S. RYAN,PLAINTIFF,v.LEE M. QUICK; LEE M. QUICK, P.C.,DEFENDANTS.
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION [Doc. No. 10]
On May 9, 2011, Plaintiff Mykal Ryan filed an "Objection to Decision and Motion to Continue Prosecution of Case." [Doc. No. 10.] Therein, Plaintiff challenges the Court's dismissal of this matter on December 7, 2010. [Doc. No. 8.] The Court construes Plaintiff's objection as a motion for reconsideration of the Court's entry of judgment. For the reasons stated below, the Court DENIES Plaintiff's motion.
On June 23, 2010, Plaintiff filed a complaint alleging thirty causes of action against Defendants, including fourteen claims for perjury, thirteen claims for conspiracy to commit perjury, and claims for defamation, malice, and intentional infliction of emotional distress; a summons was issued the same day. [Doc. Nos. 1, 2.] Plaintiff's claims arise out of events related to his appointment as trustee of his deceased brother's estate, subsequent efforts to remove Plaintiff from that position due to disagreement with his management of the trust assets, and allegedly false accusations that Plaintiff misappropriated over one million dollars from the trust.
All of the events complained of occurred in the state of Virginia, and Defendants reside in Virginia. However, Plaintiff, a California resident, deliberately filed this action in the Southern District of California claiming that, this "is the proper venue for fairness to [Plaintiff] to allow due process and in the interest of justice. Any other venue would deny [him] the opportunity to prosecute the case and to fully participate in the trial and hearings." [Doc. No. 1.] Plaintiff asserts he suffers from Post Traumatic Stress Disorder ("PTSD") which prohibits him from traveling outside of California.
Nearly five months after Plaintiff filed his complaint, Plaintiff had not served either named Defendant. On November 4, 2010, the Court set a hearing for December 6, 2010 for Plaintiff to show cause why he had not served Defendants within the time permitted by Federal Rule of Civil Procedure 4(m). [Doc. No. 3.] On December 1, 2010, Defendants specially appeared to notify the Court that Plaintiff had unsuccessfully attempted service on October 27, 2010, and to assert that Plaintiff's choice of venue in California was improper. [Doc. No. 5.] Plaintiff filed nothing in response to the notice of hearing, and he did not appear at the hearing on December 6, 2010. Accordingly, on December 7, 2010, the Court entered judgment and dismissed the action without prejudice for failure to serve Defendants in accordance with Rule 4(m), and for improper venue. [Doc. No. 8.]
More than five months after the Court dismissed Defendants without prejudice and terminated the case, Plaintiff filed the pending motion challenging the Court's entry of judgment.
Rule 60(b)*fn1 of the Federal Rules of Civil Procedure provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of the judgment; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. A Cand S Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Plaintiff does not reference Rule 60(b) in his moving papers, and does not argue that reconsideration should be based on subparagraphs (1) through (5). Therefore the Court sua sponte considers the motion pursuant to Rule 60(b)(6).
Under subparagraph (6), Plaintiff must show that there are extraordinary grounds justifying relief; mere dissatisfaction with the court's order or belief that the court is wrong in its decision are not adequate grounds for relief. Twentieth Century -- Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Further, Rule 60(b)(6) "is used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006).
Plaintiff asserts he has been unable to prosecute his action against Defendants because he "was diagnosed . . . with Post Traumatic Stress Disorder (PTSD) in August 2005 after serving two (2) consecutive tours of duty in Iraq as an Army soldier and the second tour was voluntary." [Doc. No.10, ¶¶3, 10, 24.] Plaintiff therefore requests that he be permitted to "continue the prosecution of this case as a reasonable accommodation for [his] PTSD disability." [Id. at ¶25.] Plaintiff does not, however, demonstrate any legally cognizable ground for relief from the judgment entered in this case. Plaintiff asserts he has been completely disabled by his PTSD since 2005, and offers no indication his ability to prosecute this matter has improved since he filed the complaint in June 2010. [Id. at ¶19.] Nor does Plaintiff acknowledge either ground on which the Court entered the judgment.
(A) Failure to Serve
The Court dismissed Plaintiff's complaint without prejudice on December 7, 2010, on two grounds. First, Plaintiff did not serve Defendants within the time permitted under Rule 4(m). Rule 4(m) provides:
Time Limit for Service. If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Plaintiff filed his complaint and a summons was issued on June 23, 2010. Plaintiff's time to serve Defendants under Rule 4(m) expired on October 22, 2010. According to Defendants, Plaintiff attempted to serve them on October 27, 2010, but service was ineffective and otherwise untimely. [Doc. No. 5.]
In response to Plaintiff's failure to serve Defendants or take any action to prosecute his case, the Court set a hearing for December 6, 2010 for Plaintiff to show cause why he had not served Defendants within the time permitted by Rule 4(m). [Doc. No. 3.] Plaintiff filed nothing in response to the notice of hearing, and he did not appear at the hearing on December 6. Accordingly, the Court entered a judgment on December 7, 2010 dismissing Defendants without prejudice. [Doc. No. 8.]
Plaintiff's current motion does not demonstrate reconsideration of the December 2010 judgment is warranted. Plaintiff still does not indicate why he was unable to serve Defendants within the time permitted by Rule 4(m) in 2010, nor does he assert he is now capable of effecting service. Rather, Plaintiff repeatedly asserts he is completely disabled by his PTSD, and asks the Court to accommodate his disability by allowing him to proceed with his action. Although the Court is sympathetic to Plaintiff's condition, the fact that Plaintiff suffers from a disability, alone, does not demonstrate good cause to allow Plaintiff to maintain his action indefinitely without any meaningful progression. Plaintiff therefore has not shown relief from the Court's judgment in this action is appropriate.
(B) Improper Venue
Second, the Court dismissed Plaintiff's action on the ground that the Southern District of California is not an appropriate venue. Plaintiff is a resident of California, however, all of the acts alleged in the complaint occurred in Virginia, and Defendants are residents of Virginia. Further, Plaintiff filed this action in California solely because his PTSD symptoms prevent him from traveling. According to Plaintiff, "[v]enue of this action is placed in this Court in the interest of justice and fairness and to allow Mr. Ryan a reasonable accommodation for his PTSD disability." [Doc. No. 1, ¶17.] "Any other venue would deny Mr. Ryan's participation in the trial and hearings." [Id. at ¶16.] Plaintiff's pending motion for reconsideration simply reiterates his belief that the "legal, logical and reasonable place of venue is San Diego" to accommodate his PTSD. [Doc. No.10, ¶21.]
Plaintiff provides no authority for the proposition that his disability entitles him to venue in Southern California. In fact, "it is well-established that Plaintiff may have his day in court without ever setting foot in a courtroom." Ryan v. Hyden, 2010 U.S. Dist. LEXIS 110431 *6-7 (S.D. Cal.) (citing Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 11 (2d Cir. 1995); Utoafili v. Trident Seafoods Corp., 2009 U.S. Dist. LEXIS 127109, 2009 WL 6465288, at *6 (N.D. Cal. Oct. 19, 2009) ("Even if this Court were to presume a strong likelihood that Plaintiff would be unable to travel to Washington for trial herself, physical disability alone is generally not sufficient to conclude that a distant venue would effectively deprive a plaintiff of her day in court."); Hale v. Vacaville Housing Auth., 2009 U.S. Dist. LEXIS 14350, 2009 WL 311399, at *1 (N.D. Cal. Feb. 9, 2009) ("[A]lthough Hale states she has a 'disability' and problems understanding the English language, such circumstances do not provide a basis for venue in the Northern District.")). Accordingly, based on the record before the Court, Plaintiff is not entitled to relief from the judgment dismissing Defendants for improper venue.
For the reasons set forth above, the Court DENIES Plaintiff's motion for reconsideration. Plaintiff is advised this case remains closed, and no further filings will be accepted.
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"You know Peter, nothing happens if it isn't supposed to."
Winter's Tale (2014)
Jessica Brown Findlay as Beverly Penn in Winter's Tale (2014).
These actresses who were born to be Ladies and Princesses:
↳2/? : Jessica Brown Findlay (Downton Abbey ; Winter's Tale)
"Beverly. Her name was Beverly."
Still of Jessica Brown Findlay as Beverly Penn in Winter's Tale (x)
"You are impossibly beautiful."
~ Peter Lake
"Winter's Tale" Press Conference (x)
Introverted Intuition (Ni): Beverly sees the inner-weavings of the universe as a connected whole, in which everyone's life is significant but entwined with everyone else's. She is a firm believer in fate, in her idealistic conception that when we die, we become stars. She has a certainty about her future and her impending death, and her way of looking at the world is so unique that others cannot often grasp it, although it enchants them. She often speaks in beautiful abstractions, about the true nature of light and its deep meaning; she seeks specific, personal, symbolic meaning from all she encounters.
Extroverted Feeling (Fe): "I suppose the proper thing to do is to offer you a cup of tea," she says, upon finding someone attempting to burgle her house … who decides not to. She can be animated in her passions and seeks to draw others closer to her, through encouraging them, and inspiring them to imagine greater things than they can imagine. Her narrative voice-over reinforces socially harmonic values such as no life being worth more than another, and that our entire purpose of existence is to do something of significance for another human being, before we can find peace in death.
Introverted Thinking (Ti): Her conclusions about the universe, her belief in the stars, in miracles, and in the unexpected joys to be found in life, are drawn not from external "provable things," but her own imagination and sense of what seems logical to herself. Beverly often asks questions of others, to deepen her understanding of their situation and to provide herself with more information upon which to draw logical conclusions.
Extroverted Sensing (Se): She can be somewhat impulsive and pleasure-seeking (inviting Peter to "love me now, or no one ever will" and risking her life for a night of passion). She yearns to dance, to experience life, and to seek out new physical experiences and sensations. She recovers well from her spirited ride through the skies.
Typed by Charity / the mod.
Note: Peter Lake is an ISTP, as is the villain. And … I don't think I have ever seen another film that touched me on so many levels. So much rich depth of emotion and eternal meaning. Gorgeous.
Winter's Tale
"The fever can make things wonderful.
Even now I see winter as it turns around the room in the light. Darting from white lances, to rays, silver crosses, to the optical glass, to the flames, to the reflective windows, and illuminating each of us. The sicker I become, the more clearly I can see that everything is connected by light.
Do you have glasses for that?"
Jessica Brown Findlay at "Winter's Tale" premiere (x)
5 hours !!!
"You know Peter, nothing happens if it isn't supposed to."
~ Beverly Penn
Jessica Brown Findlay as Beverly Penn in Winter's Tale (2014).
The gorgeous Jessica Brown Findlay as Beverly Penn from "Winter's tale" movie set


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July 6, 2009
ELWOOD PATRICK HOPKINS, PETITIONERv.DAVID DIGUGLIELMO, ET. AL, RESPONDENTS
This matter is before the Court on the petition of Elwood Patrick Hopkins for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition will be dismissed as untimely.
The factual and procedural background to this action are comprehensively set forth in the Court's May 27, 2009 memorandum and order (Doc. 23). Therefore, summarized below are only the procedural history and factual background necessary to the disposition of the statute of limitations issue.
On November 14, 1990, a jury found Hopkins guilty of involuntary manslaughter, arson endangering persons, arson endangering property, risking a catastrophe, causing a catastrophe, and reckless burning or exploding. The offenses arose from a fire that damaged an apartment building and an adjacent personal care home in Mahanoy City, Pennsylvania, and which resulted in the death of one of the residents of the personal care home. On April 26, 1993, the Schuylkill County Court of Common Pleas sentenced Hopkins to life imprisonment without the possibility of parole on the arson conviction and various concurrent sentences on the remaining convictions.
Hopkins filed a timely appeal to the Pennsylvania Superior Court, raising the following issues: (i) weight and sufficiency of the evidence; (ii) the trial court erroneously permitted introduction of a videotape of the fire; (iii) impermissible closing argument by the prosecutor; (iv) the trial court unduly pressured the jury to reach a verdict; (v) the trial court imposed an illegal sentence; and (vi) the trial court erroneously denied his motion for a new trial based the allegation that one of the prosecution's witnesses testified falsely at trial. By memorandum of April 15, 1994, the Superior Court affirmed Hopkins's conviction and sentence. Hopkins did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
On January 16, 1997, Hopkins, through counsel, filed his first petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), arguing that Hopkins's trial counsel rendered ineffective assistance by failing to challenge Hopkins's conviction and sentence on constitutional grounds. On December 30, 1997, the PCRA court denied Hopkins's petition. Hopkins appealed, and on July 13, 1998, the Superior Court affirmed the denial the petition on the merits. Hopkins did not seek review by the Pennsylvania Supreme Court.
On June 26, 2001, Hopkins, again through counsel, filed a second PCRA petition, arguing that the trial court's jury instructions regarding 18 Pa. C.S.A. § 3301 were unconstitutional in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). On March 22, 2002, the PCRA court dismissed the petition as untimely. Hopkins appealed, and on June 3, 2003, the Superior Court affirmed dismissal of Hopkins's second PCRA petition as untimely. Hopkins filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied by order of December 2, 2003.
On August 1, 2006, Hopkins, acting pro se, filed a third PCRA petition arguing (i) that his sentence was beyond the maximum allowed by statute; (ii) that the trial court erred by allowing the admission of hearsay in violation of the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004); and (iii) that the findings of the fire investigation report used as evidence against him at trial were "contradictive to the law of nature, physics and human experience" and he therefore should be permitted to have an arson expert conduct further investigation. By order of December 28, 2006, the PCRA court dismissed the petition as untimely. The Superior Court affirmed this dismissal by order of August 9, 2007. Hopkins did not appeal the denial of this third PCRA petition to the Pennsylvania Supreme Court.
On September 18, 2007, Hopkins filed his current petition for writ of habeas corpus under § 2254, raising the following grounds for relief: (i) that the mandatory sentencing provisions of the arson statute violate due process and equal protection; (ii) that his life sentence is prohibited in light of his acquittal of second degree murder; (iii) that his trial counsel was ineffective for failing to challenge the mandatory sentencing provisions of the arson statute; and (iv) that the prosecutor failed to disclose exculpatory evidence that the fire started in a way other than described by law enforcement officers at trial. By memorandum and order of May 27, 2009, the Court sua sponte noted that the petition appears to be untimely, but pursuant to United States v. Bendolph, 409 F.3d 155 (3d Cir. 2005), gave Hopkins notice of the statute of limitations problem and the opportunity to respond. Hopkins has filed additional briefs addressing the statute of limitations issue. (Docs. 24, 26.)
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), § 2254 petitions are subject to a one-year limitations period which runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C.A. § 2244(d)(1).
Usually, unless one of the exceptions in § 2244(d)(1)(B)-(D) apply, AEDPA's statute of limitations begins to run on the date a petitioner's conviction became final. However, because Hopkins's conviction became final prior to the enactment of AEDPA, he had one year from AEDPA's enactment date of April 24, 1996, that is until April 24, 1997, to file his habeas petition. Burns v. Morton, 134 F.3d 109, 110 (3d Cir. 1998). Thus, absent a later start date or tolling of the statute, Hopkins's § 2254 petition, filed on September 18, 2007, is untimely.
A. Start Date for the Statute of Limitations
Hopkins first argues that § 2244(d)(1)(C) provides a later starting date because he is raising a claim based on Apprendi. However, that section is inapplicable because "Apprendi does not apply retroactively to cases on collateral review" where judgment became final before Apprendi was decided. United States v. Swinton, 333 F.3d 481, 491 (3d Cir.2003); see also Lloyd v. United States, 407 F.3d 608, 612 n.3, 615-16 (3d Cir. 2005) (noting that "[t]he courts of appeals have unanimously held that while Apprendi set forth a new rule of criminal procedure, that rule is not retroactively applicable to cases on collateral review where the judgments had already become final when Apprendi was decided" and holding that United States v. Booker, 543 U.S. 220 (2005) also does not apply retroactively to cases on collateral review). Neither Apprendi nor Booker apply retroactively to the collateral review of Hopkins's conviction and sentence.
Hopkins cites to Schriro v. Summerlin, 542 U.S. 348 (2004) for the proposition that Apprendi applies retroactively on collateral review. In that case, the Supreme Court decided "whether Ring v. Arizona, 536 U.S. 584 (2002), applies retroactively to cases already final on direct review." Schriro, 542 U.S. at 349. In Ring, which was decided in the wake of Apprendi, the Supreme Court struck down an Arizona law permitting a judge, rather than a jury, to find aggravating factors that would warrant imposition of the death penalty. Id. (citing Ring, 536 U.S. at 603-09). As an initial matter, Hopkins does not raise any argument under Ring. In his case, the sentencing judge did not find any facts for purposes of sentencing, but merely applied the mandatory sentencing provisions of Pennsylvania's arson statute. See 18 Pa. C.S.A. § 3301(b). Regardless, however, the Supreme Court in Schriro held that "Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review," 542 U.S. at 358 (emphasis added), and thus even if Hopkins were raising a claim under Ring, such an argument would not provide for a later starting date for the running of the limitations period under § 2244(d)(1)(C).
Finally, even ignoring the clear precedent holding that none of Apprendi, Booker, or Ring apply retroactively to cases on collateral review, Hopkins's petition would still be time-barred. Even if he were correct that the Supreme Court held Apprendi to be retroactively applicable to cases on collateral review in its June 24, 2004 decision in Schriro, Hopkins would have had, at the very most, one year from that date to file his petition. He did not do so until September 18, 2007, and therefore, his petition would still be untimely.
Hopkins next argues for a later start date to the limitations period under § 2244(d)(1)(D), which provides that the limitations period begins to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." The "factual predicate" of a claim consists of the "vital facts" underling that claim. McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007) (citing Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004), cert. denied, 544 U.S. 1037 (2005)). Section 2244(d)(1)(D) applies only if such vital facts could not have been known. Schlueter, 384 F.3d at 74. "By its language, the one-year period of limitation commences under section 2244(d)(1)(D) when the factual predicate of a claim could have been discovered through the exercise of due diligence, not when it actually was discovered. Due diligence does not require the maximum feasible diligence, but it does require reasonable diligence in the circumstances." Id.
Hopkins states that he "recently obtained a copy of the Fire Investigation Report, prepared by P.S.P. [Pennsylvania State Police] Officials" and "discovered several paganations[sic]/maskings on the Report." (Doc. 26 at 25.) Hopkins states that "[u]pon reviewing such information at these several paganations [sic]/ maskings, the Petitioner can see through such, when held up to the light, exculpatory evidence that was not presented at trial or on appeal." (Id.) Hopkins submitted a copy of the fire investigation report (see Doc. 26-2 at 18-21), and from this document it is clear that by "pagination" he means redactions, as several parts of the report appear to be blacked out. Hopkins does not state precisely what "exculpatory evidence" he knows or believes to be redacted from the report. Instead, in support of his "newly discovered evidence" claim, he summarizes facts from trial which he believes support his theory of how the fire started and contradict the prosecution's theory. (Doc. 26 at 20-22.) He suggests that the unspecified "new evidence" is consistent with his theory. (Id. at 21.) Hopkins argues that the fire investigator testified falsely at his trial, that the testimony of a "snitch" was not believable, that "common sense and human decency" suggest that the fire started in some other way than that testified to by investigators, and that the investigators' conclusion is "contradictive to the law of nature, physics and human experience". (See Doc. 26 at 19-22; Doc. 15 at 7.) Hopkins requests an unredacted copy of the fire investigation report because it "may prove to have ... exculpatory ... value[]," and requests appointment of a fire investigation expert who "may possibly arrive at a conclusion that this fire did not start the way PSP stated it did." (Doc. 26 at 20, 22.)
Section 2244(d)(1)(D) does not apply in these circumstances. Hopkins "has confused the facts that make up his claims with evidence that might support his claims." McAleese, 483 F.3d at 214. He does not point to any "vital facts" which he could not have discovered through the exercise of due diligence, but rather seeks to conduct additional discovery and investigation to find facts that support his claims. "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)." Id. (quoting Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004).
Although cast, at times, as a Brady claim, Hopkins's claim is in realty that the evidence at trial was insufficient to sustain his conviction. Hopkins was clearly aware of all the "vital facts" underlying such a claim; they are set forth in detail in his petition. Moreover, Hopkins previously and repeatedly made these same claims before the state courts and, therefore, was fully aware of them. In his direct appeal, Hopkins challenged the weight and sufficiency of the evidence, asserting that "contradictions" and "inconsistencies" rendered the evidence presented by the prosecution unreliable and insufficient to support his conviction. (See Doc. 16-2 at 6-7.) In his third PCRA petition, filed on August 1, 2006, Hopkins presented almost identical arguments to those made in his current § 2254 petition. There, Hopkins argued, as he does here, that the findings of the fire investigators are "contradictive to the law of nature, physics and human experience" and that he should be permitted to have an arson expert conduct an investigation because this expert "may reveal key-major errors in P.S.P.'s investigation, that may prove the fire was started by something other than the Petitioner." (Doc. 16-17 at 20, 24.) Thus, at the very latest, by August 1, 2006 -- more than a year before filing the current petition -- Hopkins had actual knowledge of the factual predicate for his claims.
Construing Hopkins's claim as a Brady claim does not alter this conclusion. Hopkins does not point to any exculpatory evidence which was not revealed to him, let alone vital facts which he could not have discovered through reasonable diligence. Even assuming that the redacted portions of the fire investigation report contain exculpatory evidence, Hopkins should have been aware of any problems regarding such "masked" evidence long ago. He concedes that his trial counsel had a copy of the report, seventeen years before he filed the current habeas petition. (Doc. 15 at 8.) The investigation into the cause of the fire was at the very heart of the case, and Hopkins should have discovered the factual predicate underlying any Brady claim regarding the fire investigation report long ago through the exercise of reasonable due diligence. Section 2244(d)(1)(D) does not provide a later start date for the limitations period on Hopkins's petition.
Finally, Hopkins argues that he may pursue his claims through a petition under 28 U.S.C. § 2241. As an initial matter, Hopkins expressly elected to have his current petition ruled on as a petition filed under 28 U.S.C. § 2254. (Doc. 4.) Moreover, a petitioner cannot circumvent the one-year statute of limitations for a § 2255 motion by proceeding under § 2241. A state prisoner challenging the fact or duration of his incarceration pursuant to a state conviction must use § 2254. See Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001). A petitioner may not resort to § 2241 unless a § 2254 petition would be "inadequate or ineffective," that is "where the petitioner demonstrates that some limitation of scope or procedure would prevent a § [2254] proceeding from affording him a full hearing and adjudication of his wrongful detention claim." Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). A § 2254 motion "is not inadequate or ineffective merely because ... the one-year statute of limitations has expired," id. at 539, and a petitioner may not resort to § 2241 to circumvent the restrictions on a § 2254 petition, Coady, 251 F.3d at 484-85. Hopkins has presented no reason why a § 2254 petition is inadequate or ineffective, other than the running of the statute of limitations, and therefore, may not proceed under § 2241.
Hopkins has presented no grounds for the statute of limitations to run from any point other than the date on which his conviction became final under § 2244(d)(1)(A). Therefore, absent tolling of the statute, his petition is time-barred.
B. Equitable Tolling
Hopkins argues that he is entitled to equitable tolling of the statute of limitations. "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).*fn1 "Mere excusable neglect is not sufficient." Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (quoting Miller, 145 F.3d at 618-19). "[E]quitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair." Id. (quoting Miller, 145 F.3d at 618). The Third Circuit has explained that "that equitable tolling may be appropriate if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has 'in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." Id. (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). "In the final analysis, however, '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.'" Id.
Hopkins argues that he is entitled to equitable tolling because after Apprendi was decided, he relied on his former attorney's decision to file a second PCRA petition on June 26, 2001, raising an Apprendi claim, and to pursue appeals of the denial of that petition. Hopkins states that his attorney then promised to file a federal habeas petition on his behalf, but that by April 2006, he learned that his attorney would not do so. These facts cannot give rise to equitable tolling, however, because the limitations period on Hopkins's petition had already run by the time these events occurred. See Schlueter 384 F.3d at 79; see also, e.g., Washington v. Vaughn, C.A. No. 01-1045, 2002 WL 1200410, at *4 (E.D. Pa. June 3, 2002) (rejecting petitioner's claim of equitable tolling based on prison's seizure of computer disks containing his legal files because the seizure occurred after the limitations period had run).
As noted above, Hopkins had one year from AEDPA's enactment, that is until April 24, 1997, to file his habeas petition. Under 28 U.S.C.A. § 2244(d)(2), the statute of limitations for Hopkins's petition was tolled from the filing of his first PCRA petition from April 24, 1997 until its denial became final on August 12, 1998. Hopkins, therefore, had one year from the latter date, or until August 12, 1999, to file his § 2254 petition.*fn2 The limitations period had thus already run by the time the events occurred which Hopkins relies on to invoke equitable tolling.
Hopkins's allegations also do not warrant equitable tolling because both the Supreme Court and the Third Circuit have made clear that mere attorney error is not a sufficient ground to invoke equitable tolling. See, e.g., Lawrence v. Florida, 549 U.S. 327, 337-38 (2007) ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel."); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.) cert. denied sub nom. Horn v. Fahy, 534 U.S. 944 (2001) ("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."). Counsel's choice to pursue a state-court post-conviction relief before filing a federal petition or his (in fact, correct) advice to Hopkins that a federal petition would be barred by AEDPA's statute of limitations do not warrant equitable tolling. See Brown v. Shannon, 322 F.3d 768, 774 (3d Cir. 2003) (holding attorney's failure to file an appeal from the denial of a PCRA petition and to file a federal habeas petition does not justify equitable tolling).
The Third Circuit has also held, however, that there are "narrow circumstances in which misbehavior of an attorney may merit such equitable relief." Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). Potentially helpful to Hopkins is Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), in which the Third Circuit held that an evidentiary hearing was warranted with respect to the petitioner's equitable tolling claims where his attorney effectively abandoned him and prevented him from filing the habeas petition on time by failing to inform him when the Pennsylvania Supreme Court denied review of his motion to withdraw his guilty plea; refusing to remove herself as appointed counsel after the Pennsylvania Supreme Court decision, thus preventing him from moving his case forward; leading him to believe that she was going to file the federal habeas petition on his behalf; and telling him that there were no time constraints for filing a petition.
Hopkins's claims, however, while in some respects loosely analogous to those in Nara, do not involve the same "extraordinary" circumstances or combination of attorney errors presented in that case. From the correspondence between Hopkins and his attorney appended to his brief in support of the petition, it appears that it was counsel who actually approached Hopkins about making a claim under Apprendi and offered to do so without charge to Hopkins. (Doc. 26-2 at 1.) Hopkins's attorney then filed a second PCRA petition on his behalf raising the Apprendi claims, kept Hopkins apprised of other cases addressing the Apprendi issue, and promptly informed him of the decisions on his second PCRA petition. (See Doc. 26-2 at 2-5.) Far from preventing Hopkins from "moving his case forward, counsel pursued Hopkins's second PCRA petition through to the Pennsylvania Supreme Court. Hopkins appears to have been well aware of what was happening with his case, and was pleased with his attorney's efforts, stating "I hope you know how deep my appreciation goes. Words can never express my thanks." (Id. at 5.) When the petition for allowance of appeal regarding Hopkins's second PCRA petition was denied, his attorney raised the possibility of proceeding with a federal habeas petition. (Id. at 6.) Hopkins's counsel, however, correctly concluded that such a petition would be barred by AEDPA's statute of limitations unless Apprendi was made retroactively applicable to cases on collateral review, and he stressed to Hopkins that he had "no confidence" a federal petition would prevail. (Id. at 6-7.) Nonetheless, counsel offered to file a federal petition (id. at 7), and Hopkins took him up on this offer (id. at 8). In April 2004, Hopkins's attorney advised him that he hoped to have the petition ready in the next 30 days, but again stressed that the petition might be found to be untimely. (Id. at 11.) Perhaps because of the timeliness issue or because of Hopkins's inability to pay for representation (see id. at 8-9, 11) -- the reasons are not apparent from the record -- Hopkins's attorney did not prepare a federal petition for him, and by April 2007, had turned the case file over to Hopkins. (Id. at 16.)
Although it would appear that Hopkins relied on his attorney's offer to prepare a federal habeas petition, this fact is not an "extraordinary circumstance" warranting equitable tolling. First, it was the law, not the attorney's failure to prepare a petition, that stood in the way of Hopkins's success. Hopkins's petition would have been time-barred if it had been filed in May 2004, and Hopkins is in the same position now as he would have been had his attorney filed the petition as he promised. Any error by Hopkins's attorney caused no harm to his claims. Furthermore, unlike cases such as Seitzinger, 165 F.3d at 241-42, where an attorney "affirmatively lied" to his client, leading her to believe a petition had been filed, Hopkins's attorney was forthright about the low probability of success of a federal petition, unless and until Apprendi was found to be applied retroactively, and after deciding, for unknown reasons, not to file a petition, promptly turned the file over to Hopkins. Cf. Brown, 322 F.3d at 773-74 (rejecting petitioner's claim that equitable tolling was warranted on grounds that his attorney "abandoned" him by withdrawing representation without filing a federal habeas petition inter alia because attorney informed petitioner of his lack of progress on the petition and was candid about withdrawing). The record here does not reveal any attorney misconduct that rises to the level of an "extraordinary" circumstance warranting equitable tolling.
Even if such an extraordinary circumstance were presented, equitable tolling would not be appropriate here because Hopkins failed to exercise reasonable diligence in filing his petition. Hopkins states that he was aware in April 2006 that his former attorney was not going to file a federal petition on his behalf. (Doc. 26 at 10.) Yet Hopkins waited until September 2007, almost a year-and-a-half later, before filing his petition. See, e.g., Saleem v. Hendricks, 306 Fed. Appx. 739, 741 (3d Cir. 2009) (holding petitioner did not act diligently in waiting 20 months to bring a state-court petition after his federal petition was dismissed without prejudice for failure to exhaust state remedies). Moreover, in considering Hopkins's diligence, the argument that he relied on his attorney's promise to file a petition making an Apprendi argument is largely a red herring. The grounds for relief raised in his petition -- that the sentencing provision of the Pennsylvania arson statute is unconstitutional on its face and as applied in his case, that his trial counsel was ineffective for failing to raise that claim, that the evidence at trial was insufficient, and that the prosecutor withheld exculpatory evidence -- are based, if at all, only tangentially on Apprendi. (See, e.g., Doc. 26 at 23 where Hopkins argues that "prior to the holding of Apprendi, Pa. Arson Statute was in conflict with clearly established Federal Law"). Hopkins was, or should have been, aware of these claims long ago and, in fact, with the exception of his purported Brady claim, raised them in his direct appeal and first PCRA petition. The denial of Hopkins's first PCRA petition became final on August 12, 1998, but Hopkins waited over nine years to file a federal habeas petition raising essentially the same issues. Under these circumstances, the Court cannot conclude that Hopkins was pursuing his rights diligently as required to trigger equitable tolling.
Hopkins also argues that his trial and appellate counsel's ineffectiveness in failing to raise his claims for relief before the state courts constitutes "cause and prejudice" for his lack of diligence. The Court construes this argument as a further asserted ground for equitable tolling, but finds that it too fails. As an initial matter, Hopkins's appellate and post-conviction counsel did, in fact, raise on appeal and in his first PCRA petition essentially the same arguments he makes in his § 2254 petition: that his sentence and the Pennsylvania arson statute are unconstitutional and that the evidence was insufficient to convict. Moreover, as with Hopkins's claim of error by his post-conviction counsel in not filing a federal petition, any purported ineffectiveness by his trial or appellate counsel in failing to raise the new or different arguments, if any, that Hopkins now asserts does not constitute an extraordinary circumstance warranting equitable tolling. Nor do such errors, allegedly made more than a decade ago, justify Hopkins's lack of diligence in waiting so long after the purported ineffectiveness to raise the issues in a federal habeas petition.
Finally, Hopkins argues that his conviction and sentence are a "miscarriage of justice." (Doc. 26 at 12-13.) In light of the substance of Hopkins's claims and his citation to Schlup v. Delo, 513 U.S. 298 (1995), the Court will construe this assertion as an argument for equitable tolling based on a claim of actual innocence. The Third Circuit has yet to decide whether a claim of actual innocence can equitably toll the AEDPA statute of limitations. See McKeever v. Warden SCI-Graterford, 486 F.3d 81, 84 n. 5 (3d Cir. 2007). The decisions of other courts of appeals on this issue are not uniform. See Horning v. Lavan, 197 Fed. Appx. 90, 92-93 (3d Cir. 2006); Knecht v. Shannon, 132 Fed. Appx. 407, 409 n.2 (3d Cir. 2005). Even assuming that the AEDPA statute of limitations may be equitably tolled on the basis of an actual innocence claim, however, Hopkins's claim would fail.
"To establish actual innocence, petitioner must demonstrate that, 'in light of all the evidence,' 'it is more likely than not that no reasonable juror would have convicted him.'" Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup, 513 U.S. at 327-328). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." Schlup, 513 U.S. at 324. The petitioner must show "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623. This standard"is demanding and permits review only in the 'extraordinary' case." House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327). "[C]laims of actual innocence are rarely successful," and "in virtually every case, the allegation of actual innocence has been summarily rejected." Schlup, 513 U.S. at 324 (citation omitted). In this case, Hopkins does not identify any "new reliable evidence" demonstrating his factual innocence. He supports his actual innocence claim only by pointing to the redacted portions of the fire investigation report and arguing that the prosecution's evidence and witnesses were "contradictive to the laws of nature, physics and human experience." In fact, at base, Hopkins's claim is not that new evidence proves he is innocent, but that the prosecution's theory of how the fire started was wrong and that he should be allowed to search for evidence to prove this contention. This does not meet the "demanding" standard for a claim of actual innocence, and presents no extraordinary circumstance to disregard the limitations period.
Further, assuming that an actual innocence claim may toll the AEDPA statute of limitations, and assuming that Hopkins presented a viable actual innocence claim, his petition would still be time-barred. A petitioner seeking equitable tolling through an actual innocence claim must still prove that he exercised reasonable diligence in bringing his claim. Horning, 197 Fed. Appx. at 93-94. As discussed above, Hopkins has not demonstrated such reasonable diligence. He offers no explanation for why he waited more than 18 months to file his petition after learning that former counsel would not draft an Apprendi claim on his behalf, nor does he explain why he waited more than 9 years after the denial of his first PCRA petition to assert his other claims. Hopkins has presented no grounds warranting equitable tolling.
C. Prejudice
For the foregoing reasons, the Court finds that Hopkins's petition is untimely and is not saved by statutory or equitable tolling. However, because the issue of timeliness was raised sua sponte and after the petition had passed the Rule 4 stage, the Court must consider the prejudice to Hopkins. Bendolph, 409 F.3d at 168.
The Court first looks to how late in the case the limitations issue was raised. Id. at 169. The Court sua sponte raised the timeliness of Hopkins's petition in its May 27, 2009 memorandum and order, one year and eight months after Hopkins filed his petition. This delay is less than the nearly two years found not to constitute prejudice in Bendolph, and during this time, Hopkins suffered no diminution in his ability to present his case. In fact, some of the delay was occasioned by the Court going to some length to ensure that Hopkins was provided with all at-issue materials and given opportunities for additional and supplemental briefing. (See Docs. 17, 19, 25.)
Next, the Court must look to whether the petitioner had sufficient opportunity to respond to the statute of limitations issue once raised. Bendolph, 409 F.3d at 169. Here, Hopkins was granted 30 days in which to file a supplemental brief addressing the issue. (Doc. 23.) He filed such a brief. (Doc. 24.) When it was determined that Hopkins was referring to another brief that he mistakenly thought had been filed, he was given an additional 15 days to file that brief or reiterate the arguments he thought he had already made. (Doc. 25.)
Hopkins filed another copy of the brief. (Doc. 26.) Thus, no problem is presented regarding Hopkins's opportunity to address the statute of limitations issue.
Finally, the Court must consider whether the government acted in bad faith. Bendolph, 409 F.3d at 169. Although some of the delay in this case was occasioned by the government's initially incomplete response to the petition and late supplemental response, such inadvertence does not equal bad faith, id. (quoting Long, 393 F.3d at 401), and this neglect did not harm Hopkins's chances of success.
In sum, the Court finds no prejudice to Hopkins from its sua sponte raising the statute of limitations and that Hopkins had sufficient notice and opportunity to respond to the issue.
For the foregoing reasons, Hopkins's petition will be dismissed with prejudice as untimely.
When a district court issues a final order denying a § 2254 application, the court must also decide whether to issue a certificate of appealability ("COA"). 3d Cir. R. 22.2. A certificate of appealability is appropriate "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, a COA should issue only if the petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. at 484.
Reasonable jurists would not find debatable the conclusion that Hopkins's petition is time-barred. Therefore, the Court declines to issue a certificate of appealability.
An appropriate final order will be entered.
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Well, it was a live feed.
A traffic reporter for Fox 45 in Baltimore was supposed to be reporting road conditions Thursday, but got caught on the air ordering at a McDonald's drive-thru.
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5.0 out of 5 based on 1 Reviews
8th April 2012
8th April 2012
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What if those front teeth were less prominent, or maybe a bit more even? Or if that missing tooth could be replaced? Or those broken teeth were no longer chipped and/or stained?
These days, restorative dentistry isn't limited to "movie stars" or "young women" and, it can be very conservative. But a smile makeover can pay huge dividends in terms of self-esteem. Many people have experienced thrilling improvements in their appearance from some of the simplest cosmetic dental implants. The one regret? They hadn't done it years earlier!
21st Century materials (onlays, inlays and veneers) and procedures (cosmetic laser dentistry) exist now that can put a bright smile within everyone's reach. Not only that, new restorative dentistry techniques continue to advance-rapidly! Make sure your cosmetic dental care team keeps up with these techniques by reading clinical journals and participating in Continuing Education courses. Also, be sure to ask your cosmetic dentist about new discoveries so that you can stay informed as well.