The opinion of the court was delivered by: JAMES MELINSON, Chief Magistrate Judge
REPORT AND RECOMMENDATION
Before this court is a petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. Petitioner, Earl Best, is currently
incarcerated at the State Correctional Institution at Graterford,
Pennsylvania. For the reasons below, it is recommended that Best's
petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On September 15, 1982, following a jury trial in the Court of Common
Pleas of Philadelphia County, Best was found guilty of three counts of
second-degree murder, and two counts of arson. On May 11, 1983,
post-verdict motions were denied and Best was sentenced to three
consecutive terms of life imprisonment for his murder convictions, and
two consecutive terms of ten (10) to twenty (20) years' imprisonment on
the arson counts.
The Superior Court affirmed judgment of sentence on February 6, 1985.
Commonwealth v. Best, 491 A.2d 915 (Pa. Super. 1985) (table). Best did
not file a timely petition for review in the Supreme Court of
Pennsylvania. In September, 1985, Best filed a pro se petition for
collateral relief pursuant to Pennsylvania's Post Conviction Hearing Act
("PCHA"), 42 Pa. C.S.A. § 9541 et seq. This petition was dismissed, and on October
12, 1989, the Superior Court affirmed the order of the PCHA court.
Commonwealth v. Best. 570 A.2d 585 (Pa. Super. 1989) (table). Best did
not seek further review.
On September 26, 2003, Best filed the instant pro se petition for a
writ of habeas corpus. On April 2, 2004, the Commonwealth filed its
response asserting that the petition is untimely.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
imposes a one year limitation period for filing applications for writs of
habeas corpus. 28 U.S.C.A. § 2244(d)(1). Specifically,
28 U.S.C. § 2244(d)(1) provides as follows:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
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 appeal; 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.
Section 2244 further provides that "[t]he time during which a properly
filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under
this subsection." 28 U.S.C. § 2244(d)(2).
Following the enactment of this one-year period of limitations, the
Third Circuit Court of Appeals interpreted this amendment to provide for
a "one year grace period" following its effective date of April 24,
1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) ("applying §
2244(d)(1) to bar the filing of & habeas petition before April 24,
1997, where the prisoner's conviction became final before April 24,
1996, would be impermissibly retroactive"). As a result, a petitioner
whose conviction was final prior to the enactment of the limitations
period was permitted to file for federal habeas corpus relief on or before
April 23, 1997.
Best's judgment of sentence became final on March 8, 1985, thirty (30)
days after the Superior Court of Pennsylvania affirmed the judgment of
sentence and the time to seek review in the Supreme Court expired. See
Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999) (citing Kapral v.
United States, 166 F.3d 565, 577 (3d Cir. 1999) (judgment final after the
expiration of the time for seeking certiorari has expired whether or not
review is actually sought)). Therefore, he was required to file the
instant petition by April 23, 1997.
The earliest date the instant petition can be deemed filed is September
24, 2003, the date on which Best's petition was signed. Burns. 134 F.3d
at 113 ("a pro se prisoner's petition is deemed filed at the moment he
delivers it to prison officials for mailing to the district court").
Thus, this petition is untimely and must be dismissed unless Best can
establish that the limitations period was tolled through September 24,
The limitations period may be tolled during the time a state collateral
proceeding is pending if the collateral petition was properly filed under
state law. 28 U.S.C. § 2244(d)(2). A properly filed state petition is one that is "submitted according to the
state's procedural requirements, such as the rule governing the time and
place for filing." Lovasz v. Vaughn, 134 F.3d 146, 148(3d Cir. 1998).
A review of the procedural history in this case reveals that Best has
not filed any challenges to his convictions for more than fourteen years.
Thus, there is no state proceeding that might toll the limitations
This court must also conclude that Best does not satisfy any of the
exceptions to the period of limitations set forth in §
2244(d)(1)(B)-(D). Best does not allege any state action that prevented
him from filing his petition; he does not assert any claim that relies on
a new rule of retroactively applicable constitutional law; and the
factual predicates upon which his claims are based concern ...