The opinion of the court was delivered by: PETER SCUDERI, Magistrate Judge
REPORT AND RECOMMENDATION
Before the court is a counseled petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254 by Asim Mack ("Petitioner"), an
individual currently incarcerated in the State Correctional Institution
in Frackville, Pennsylvania. For the reasons that follow, I recommend
that the petition be dismissed.
I. FACTS AND PROCEDURAL HISTORY
According to the facts determined at trial, this case involves the
robbery of an all-night mini-market in Philadelphia on January 30, 1995,
by Petitioner and two (2) co-conspirators, Michael Thomaston and Pierre
Mack, during which Thomaston shot and killed the twenty-five-(25-) year
old cashier, Ruben Sweeney. See Commonwealth v. Mack,
No. 0054 Phila. April Term 1995, at * 1 (Phila.C.C.P. Dec. 11, 1997).
Petitioner was tried in a bench trial by the Honorable Robert A.
Latrone, Court of Common Pleas of Philadelphia County. On November 18,
1996, Judge Latrone found Petitioner guilty of second-degree murder,
robbery and criminal conspiracy, and sentenced him to a mandatory term of
life imprisonment for murder, with a concurrent term of four (4) to eight
(8) years of imprisonment for conspiracy. Petitioner appealed his
conviction and sentence to the Pennsylvania Superior Court, which
affirmed on November 24, 1998. Commonwealth v. Mack,
734 A.2d 437 (Pa. Super. 1998) (table). Petitioner filed a petition for
allowance of appeal with the Pennsylvania Supreme Court, which was denied on
July 8, 1999. Commonwealth v. Mack, 740 A.2d 1145 (Pa. 1999)
On December 21, 1999, Petitioner filed a pro se
petition for collateral relief pursuant to Pennsylvania's Post Conviction
Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann.
§ 9541 et seq. Counsel was appointed, but filed
a "no merit" letter pursuant to Commonwealth v. Finley,
550 A.2d 213 (Pa. 1988), certifying that he had reviewed the record and
concluded that there were no issues of arguable merit to advance in an
amended petition. The PCRA court dismissed Petitioner's petition, and on
May 22, 2002, the Superior Court affirmed the dismissal.*fn1
Commonwealth v. Mack, 804 A.2d 57 (Pa., Super. 2002) (table).
Petitioner filed a petition for allowance of appeal with the Pennsylvania
Supreme Court, which was denied on October 30, 2002. Commonwealth v.
Mack, 812 A.2d 1228 (Pa. 2002) (table).
On August 29, 2003, Petitioner filed the instant petition for writ of
habeas corpus, followed three and one-half (3 ½) months later by a
memorandum of law in support of the petition. Respondents filed an answer
asserting that the petition is time-barred under the
Anti-Terrorism and Effective Death Penalty Act ("AEDPA").
Section 101 of the AEDPA, effective April 24, 1996, amended habeas
corpus law by imposing a one (1) year limitation period to applications
for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A.
§ 2244(d)(1). Section 2244, as amended, provides that the one (1)
year limitation period shall run 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. § 2244(d)(1). The amended statute also provides that
the time during which a properly filed application for state
post-conviction or other collateral review is pending shall not be
counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).
In the instant case, the applicable starting point for the statute of
limitations is "the date on which the judgment became final by the
conclusion of direct review or the
expiration of the time for seeking such review." Swartz v.
Meyers, 204 F.3d 417, 419 (3d Cir. 2000). Petitioner's conviction
became final on October 8, 1999, ninety (90) days after his judgment of
sentence was affirmed by the Pennsylvania Supreme Court on direct
appeal.*fn2 28 U.S.C. § 2101(c), 2244(d)(1)(A); see
Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999) (stating
direct review becomes final at the conclusion of petitioner's time for
seeking certiorari in the United States Supreme Court). As a result,
Petitioner would normally have had until October 8, 2000, to file his
§ 2254 petition. See 28 U.S.C. § 2244: Duncan v.
Walker, 533 U.S. 167 (2001); Burns, 134 F.3d at 111-12:
see also Miller v. New Jersey State Dep't of
Corrections, 145 F.3d 616, 617 (3d Cir. 1998).
On December 21, 1999, Petitioner filed a PCRA petition. By that time,
approximately 73 days of the one-(1-) year limitations period had run.
Because the PCRA petition was "properly filed," it tolled the limitations
period during the period in which it was "pending." See
28 U.S.C. § 2244(d)(2). Petitioner's PCRA application was pending from
December 21, 1999, until October 30, 2002, when the Pennsylvania Supreme
Court denied allocatur.*fn3 Therefore, the limitations period resumed