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July 14, 2004.

DONALD T. VAUGHN, et. al. Respondents.

The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge


Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Dallas, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.


  On September 29, 1989, petitioner pled guilty before the Honorable Theodore A. McKee to four counts of aggravated assault, one count of burglary, and three first-degree misdemeanors. On April 6, 1990, petitioner was sentenced to twenty-three to fifty years imprisonment for these offenses. A concurrent sentence totaling eighteen to forty years was also recorded on the docket.

  Both petitioner and respondent filed petitions to modify the sentence. On January 10, 1991, the trial court denied both petitions, but corrected the docket to reflect the original sentence of twenty-three to fifty years.

  Petitioner directly appealed his sentence to the Superior Court of Pennsylvania, alleging the correction of the recording error violated double jeopardy. On August 11, 1992, the Superior Court held that the correction of a clerical error did not violate the constitutional guarantee against double jeopardy. Commonwealth v. Everett, 617 A.2d 388 (Pa. Super. 1992). Petitioner's request for allocatur was denied on February 12, 1993. Commonwealth v. Everett, 622 A.2d 1375 (Pa. 1993).

  Petitioner then filed a petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq, which was dismissed as untimely on January 3, 1992.

  On July 13, 1994, petitioner filed a second PCRA petition alleging the following:
(1) The trial court misled the Superior Court as to the sentence that was originally imposed;
(2) Petitioner's rights were grossly violated by the sentencing process;
(3) The correction of petitioner's sentence violated double jeopardy protections;
(4) Petitioner's counsel was ineffective for influencing his guilty plea;
(5) The trial court failed to explain the range of sentences;
(6) Petitioner did not knowingly or intelligently enter a guilty plea;
(7) Petitioner had knowledge he could have used as a defense during his guilty plea; and
(8) Due to unusual circumstances, petitioner should be permitted the opportunity to withdraw his guilty plea.
  Court appointed counsel filed a no merit letter pursuant to Commonwealth v. Finley, 379 Pa. Super. 390, 393-94, 550 A.2d 213, 215 (1988). On January 30, 1995, the PCRA court dismissed the petition as meritless.

  Petitioner appealed to the Pennsylvania Superior Court, which found that his brief precluded meaningful review. On April 9, 2001, petitioner filed a third PCRA petition, which was subsequently dismissed as untimely. Petitioner appealed to the Pennsylvania Superior Court, which affirmed the dismissal on September 16, 2002. Commonwealth v. Everett, 813 A.2d 901 ( Pa. Super. 2002). Petitioner's request for allowance of appeal was denied by the Pennsylvania Supreme Court on December 18, 2001. Commonwealth v. Everett, 814 A.2d 676 (Pa. 2002).

  On January 21, 2003, petitioner filed the instant Petition for Writ of Habeas Corpus, raising the following claims:
(1) The sentencing process constitutes a violation of double jeopardy;
(2) The correction of petitioner's sentence amounted to cruel and unusual punishment;
(3) Petitioner's original sentence was misrepresented; and
(4) A miscarriage of justice occurred because petitioner never received the decision on his appeal before the Honorable Alex Bonaritacola dated February 22, 1995.
  Respondent retorts that the petition is time-barred, and thus petitioner is not entitled to habeas relief.


  Notwithstanding petitioner's allegations of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
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;*fn1
28 U.S.C. § 2244 (d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective date, then under Third Circuit precedent, a petitioner has a one-year grace period subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998).

  The statute, however, creates a tolling exception, which notes 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. § 2254(d)(2). A "properly filed application" is "one 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 (3rd Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3rd Cir. 2003).

  In the case at bar, petitioner's conviction became final on May 11, 1993. Thus, petitioner had until April 23, 1997 to file a petition for Writ of Habeas Corpus. Petitioner's first habeas petition was not docketed until January 21, 2003, nearly six years after the deadline. Having thus failed to comply with the statute, this court has no ...

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