The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
Richard Shipe, an inmate presently confined at the Retreat
State Correctional Institution, Hunlock Creek, Pennsylvania,
filed this pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner was previously granted leave to
proceed in forma pauperis and service of the petition was
Shipe states that he pled guilty to charges of robbery,
burglary (4 counts), and unauthorized use of a motor vehicle in
the Northumberland County Court of Common Pleas. He was sentenced
to a ten (10) to thirty-five (35) year term of incarceration on
December 29, 1997. His present petition claims entitlement to federal habeas
corpus relief on the grounds that: (1) his trial counsel provided
ineffective assistance by not filing a direct appeal; (2) the
Northumberland County Clerk of Court denied him access to the
courts by rejecting his pro se Post Conviction Relief Act
(PCRA) petition; and (3) trial counsel was ineffective for not
filing a motion to withdraw his guilty plea. The Respondents
argue that Shipe's petition is barred by the applicable statute
The Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) amended the federal habeas statute by imposing a statute
of limitations on prisoners requesting habeas corpus relief
pursuant to 28 U.S.C. § 2254. Specifically,
28 U.S.C. § 2244(d)(1)-(2) provides, in relevant part, as follows:
(d)(1) A one-year period of limitations 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 for seeking such review . . . (d)(2) The
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. (emphasis added); see generally, Jones v. Morton, 195 F.3d.
153, 157 (3d Cir. 1999). Thus, under the plain terms of §
2244(d)(1)(A), the period of time for filing a habeas corpus
petition begins to run when the direct appeal is concluded. See
Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)
("[T]he AEDPA provides that upon conclusion of direct review
of a judgment of conviction, the one year period within which to
file a federal habeas corpus petition commences, but the running
of the period is suspended for the period when state
post-conviction proceedings are pending in any state court.")
(emphasis in original).
However, a one year grace period existed for applicants whose
convictions became final before the April 23, 1996 effective date
of the AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
1998). Shipe was convicted and sentenced on December 29, 1997,
well after the effective date of the AEDPA. Petitioner
acknowledges that a direct appeal was not filed. According to the
Respondents, Shipe was required to seek federal habeas corpus
relief on or before December 29, 1998.
However, Respondents' computation failed to consider the period
during which Shipe could have filed a timely direct appeal. The
Petitioner's conviction became final on direct review on January
29, 1998 after he failed to initiate a direct appeal.
Accordingly, Shipe had until January 29, 1999 in which to seek
federal habeas corpus relief. As indicated above, § 2244(d)(2) operates to exclude only the
time within which a "properly filed application" for post
conviction relief is pending in state court. Thus, when a
petition or appeal has concluded and is no longer pending, the
one (1) year statute of limitations starts to run and the time is
counted. A "properly filed application" for post conviction
relief under § 2244(d)(2) is one submitted according to the
state's procedural requirements, such as rules governing time and
place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir.
1998). The Third Circuit Court of Appeals has defined "pending"
as the time during which a petitioner may seek discretionary
state court review, whether or not such review is sought. Swartz
v. Meyers, 204 F.3d 417 (3d Cir. 2000). "Pending," however, does
not include the period during which a state prisoner may file a
petition for writ of certiorari in the United States Supreme
Court from the denial of his state post-conviction petition.
Stokes v. District Attorney of the County of Philadelphia, No.
99-1493, 2001 WL 387516, at *2 (3d Cir., April 17, 2001).
Likewise, the statute of limitations is not tolled under §
2244(d)(2) for the time during which a habeas petition is pending
in federal court. Jones, 195 F.3d at 158.
In Nara v. Frank, 264 F.3d 310, 316 (3d Cir. 2001), the Third
Circuit recognized that a motion to withdraw a guilty plea nunc
pro tunc "was a `properly filed application for state
post-conviction or other collateral review' within the meaning of § 2244(d)(2)." However, a subsequent ruling by the
Third Circuit held that an untimely PCRA petition was not a
properly filed action for purposes of the AEDPA and therefore did
not toll the statute of limitation for the filing of a federal
habeas petition. Merritt v. Blaine, 326 F.3d 157 (3d Cir.
Recently, in Schleueter v. Varner, 2004 WL 2035180 (3d Cir.
Sept. 14, 2004), the Third Circuit established that a state court
ruling dismissing a PCRA petition as untimely was controlling for
purposes of a determination under Merritt. The Court of Appeals
added that tolling was not permissible "merely because petitioner
unsuccessfully has sought the right to appeal nunc pro tunc
years after his unexercised right to file a timely direct appeal
has expired." Id. at p. 6.
In the present case, Petitioner states that he attempted to
file a nunc pro tunc PCRA petition. See Record document no.
1, ¶ IV(B). However, his petition was purportedly rejected by the
Northumberland County Clerk of Court. The Respondents maintain
that Shipe tried to file a nunc pro tunc appeal to the
Pennsylvania Supreme Court. See Record document no. 10, ¶
Under the standards announced in Merritt and Schleueter, it
is the conclusion of this Court that Shipe is not entitled to
statutory tolling for the period that his nunc pro tunc
submission was pending in state court. Since Shipe's pending §
2254 petition was not filed until September, 2004 it was still
initiated well beyond the one year limitations period established by § 2244.
However, the AEDPA's "one-year filing requirement is a statute
of limitations, not a jurisdictional rule, and thus a habeas
petition should not be dismissed as untimely filed if the
petitioner can establish an equitable basis for tolling the
limitations period." Jones, 195 F.3d at 159, citing Miller v.
New Jersey State Department of Corrections, 145 F.3d 616 (3d
Cir. 1998). The Jones court held that "extraordinary" and
"rare" circumstances are required for the granting of equitable
tolling.*fn1 "In non-capital cases, attorney error,
miscalculation, inadequate research, or other ...