The opinion of the court was delivered by: Anita B. Brody, United States District Judge
The petitioner's conviction for robbery and murder became final on
March 24, 1979, and thus petitioner's one year time period for filing his
habeas petition began running on April 24, 1996, and so he was required
to file his federal habeas action by April 23, 1997. Petitioner filed his
petition on May 4, 2000 in the Middle District of Pennsylvania, and the
petition and record were transferred to this district by order dated
August 2, 2000 and recorded on the docket on August 9, 2000. Magistrate
Judge Reuter found, therefore, that petitioner's habeas corpus petition
was untimely. Magistrate Judge Reuter also denied petitioner's writ of
habeas corpus because petitioner's second petition under the Pennsylvania
Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541
et. seq., filed on June 17, 1996, was not "properly filed," and therefore
did not toll the one year statute of limitations provided for by the
Antiterrorism and Effective Death Penalty Act of 1996 Title
28 U.S.C. § 2244(d)(2) (providing that the time during which a
"properly filed" petition for collateral relief is pending is not counted
toward the one year statute of limitations). I fully adopt Magistrate
Judge Reuter's report and recommendation and supplement it insofar as it
rejects the petitioner's claim that the petitioner's second PCRA appeal
was "properly filed" for the purposes of tolling the statute of
limitations period under § 2254(d)(2).
The Court of Appeals for the Third Circuit follows a "flexible
approach" in determining whether a petition is "properly filed" for
purposes of § 2244(d)(2). Nara v. Frank, 264 F.3d 310, 315 (3d Cir.
2001). A "properly filed" application is one that is "submitted according
to the state's procedural requirements, such as the rules governing the
time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir.
1998). Also, the question whether an application has been properly filed
"is quite separate from the question whether the claims contained in the
application are meritorious and free of procedural bar." Artuz v.
Bennett, 531 U.S. 4, 9 121 S.Ct. 361 (2000).
Under the law of the Third Circuit, the federal courts must defer to
the State courts when they specifically rule that a petition is untimely
as a matter of State law. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
2001) (holding that Fahy's petition was not "properly filed" for the
purposes of § 2244(d)(2) because "the Pennsylvania Supreme Court has
specifically ruled that Fahy's PCRA petition was not properly filed as a
matter of state law . . . Fahy's petition was therefore not statutorily
tolled because his PCRA petition was not properly filed").*fn2
Therefore, as Magistrate Judge Reuter determined, it is clear that
because petitioner's second PCRA petition was not "properly filed," it
did not toll the one-year statute of limitations on petitioner's instant
habeas corpus petition filed on May 4, 2000. The petitioner's writ of
habeas corpus will be dismissed. An appropriate Order follows.
AND NOW, this 1st day of October 2002, upon careful and independent
consideration of the pleadings and record therein, and after review of
the Report and Recommendation of United States Magistrate Judge Thomas
J. Reuter, it is hereby ORDERED:
(1) The Report and Recommendation is APPROVED and ADOPTED
(2) The petition for a writ of habeas corpus is DISMISSED; and
(3) A certificate of appealability is ...