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MACK v. VAUGHAN

January 30, 2004.

ASIM MACK
v.
DONALD T. VAUGHAN, et al.



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 Page 2 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) (table).

  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 Page 3 Anti-Terrorism and Effective Death Penalty Act ("AEDPA").

 II. DISCUSSION:

  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 Page 4 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).

  A. Statutory Tolling

  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 its Page 5 countdown ...


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