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July 27, 2004.

WINSLOW SHAW, Petitioner

The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge


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


  Following a bench trial before the Honorable Samuel M. Lehrer of the Philadelphia County Court of Common Pleas, petitioner was convicted, on March 9, 1995, of rape, robbery, theft by unlawful taking, receiving stolen property, criminal trespass, indecent assault, possessing an instrument of crime, terroristic threats, unlawful restraint, simple assault, recklessly endangering another person and indecent exposure. Judge Lehrer denied post-trial motions and thereafter sentenced petitioner to an aggregate term of sixteen and one-half to thirty-four years imprisonment. Petitioner filed a timely appeal to the Pennsylvania Superior Court, who affirmed the judgments of sentence on October 10, 1996. Commonwealth v. Shaw, 687 A.2d 861 (Pa. Super. 1996). He did not seek allowance of appeal from the Pennsylvania Supreme Court.

  Petitioner filed a petition under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq., on July 11, 1997. Appointed counsel then filed an amended PCRA petition on November 19, 1998. Over two years later, counsel submitted a second amended PCRA petition. Upon consideration of petitioner's claims, the trial court found that petitioner's sentence for theft was illegally imposed since the crime of theft merges with robbery for sentencing purposes. Accordingly, the court reduced petitioner's aggregate sentence to a term of fifteen to thirty-one years imprisonment, and, on September 26, 2001, dismissed the remainder of the petition.

  On December 20, 2001, well past his time for filing an appeal, petitioner submitted an application for permission to appeal from the dismissal of his PCRA petition nunc pro tunc. The PCRA court granted this request on January 8, 2002, but the Superior Court, by way of opinion dated July 8, 2003, quashed the appeal. Specifically, it found that because the application to appeal nunc pro tunc had to be treated as petitioner's second PCRA petition, the request was untimely, thereby depriving the PCRA court of jurisdiction to grant the request. In so ruling, it declined to find that petitioner's claim of counsel ineffectiveness for failure to file an appeal to be an exception which would warrant a tolling of the time limitations. Commonwealth v. Shaw, 832 A.2d 543 (Pa. Super. 2003). On August 8, 2003, petitioner, acting through PCRA counsel, filed a Petition for Allowance of Appeal Nunc Pro Tunc with the Pennsylvania Supreme Court, which denied relief on December 9, 2003. Commonwealth v. Shaw, 841 A.2d 531 (Pa. 2003).

  On May 7, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, setting forth the following claims: 1. Verdict was contrary to or against the weight of the evidence; ineffective assistance of counsel for failure to preserve this claim;

2. Trial court error in imposing sentences on all charges; ineffective assistance of counsel for failure to preserve this claim;
3. Ineffective assistance of trial counsel for failing to subpoena three material defense witnesses at trial that would have provided exculpatory evidence;
4. Ineffective assistance of all counselfor failing to properly litigate petitioner's identification issue.
Respondent, in turn, argues that the entire petition is untimely and must be dismissed.


  Notwithstanding petitioner's allegation 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 prisoner has a one-year grace period subsequent to the effective date of April 24, 1996 to commence a habeas action. See Burns v. Morton, 134 F.3d 109, 111 (3d 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. § 2244 (d)(2). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d 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 (3d Cir.), cert. denied, 124 S.Ct. 317 (2003).

  In the case at bar, petitioner's conviction became final on November 10, 1996, thirty days*fn2 after the Pennsylvania Superior Court affirmed the judgment of sentence on direct appeal. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). Subsequently, he had one year — until November 9, 1997 — to file his federal habeas petition. On July 11, 1997, approximately eight months into his one-year limitations period, petitioner filed a PCRA petition which tolled the statute. That petition remained pending until October 26, 2001, thirty days after the PCRA court denied relief. Although petitioner was initially granted leave to file an appeal nunc pro tunc, the Pennsylvania Superior Court deemed that ruling in error. Treating the petitioner's request to appeal nunc pro tunc as a second PCRA petition, the Superior Court deemed it untimely, thereby making it not "properly filed" for purposes of statutory tolling under the AEDPA. Consequently, the federal statute of limitations resumed running on October 26, 2001, leaving petitioner four more months — until February 25, 2002 — to seek habeas relief. He failed to do so, however, until May 7, 2004, over two years too late.

  Even assuming arguendo that we were to deem petitioner's nunc pro tunc appeal "properly filed" for tolling purposes, his habeas petition would still be untimely. As noted above, petitioner used up eight months of his one-year limitations period prior to ever filing his PCRA petition. Thereafter, he filed his PCRA petition on July 11, 1997. Assuming that the petition remained pending until December 9, 2003, when the Pennsylvania Supreme Court denied the request for allowance for appeal, petitioner had only until April 8, 2004 to submit his habeas petition. Nonetheless, he failed to do until a month later.

  One avenue of relief remains for petitioner. The statute of limitations in the AEDPA is subject to equitable tolling, which is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (quotation omitted). The petitioner "must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. Mere excusable neglect is not sufficient." Id. at 618-19 (internal quotation omitted). The Third Circuit has set forth three circumstances permitting equitable tolling: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights, but has mistakenly ...

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