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November 9, 2005.

FRANK GILLIS, Respondent.

The opinion of the court was delivered by: JAMES McCLURE JR., District Judge



Anthony Gonzalez ("Petitioner"), an inmate presently confined at the State Correctional Institution, Coal Township, Pennsylvania ("SCI-Coal Twp."), initiated this pro se petition for writ of habeas corpus. Named as Respondent is SCI-Coal Twp. Superintendent Frank Gillis. The York County, Pennsylvania District Attorney's office has filed an answer to the petition.

  Gonzalez was convicted of second degree murder, unlawful restraint, aggravated assault, criminal conspiracy, and two (2) counts of robbery following a jury trial in the York County Court of Common Pleas. On May 1, 1995, he was sentenced to a term of life imprisonment plus 7 to 14 years. Following a direct appeal to the Pennsylvania Superior Court, his conviction was affirmed on May 10, 1996. See Record document no. 15, Exhibit C. The Pennsylvania Supreme Court denied his request for allowance of appeal on January 7, 1997. See Commonwealth v. Gonzalez, 687 A.2d 376 (Pa. 1997) (Table).

  On December 29, 1997, the Petitioner initiated an action pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). His petition was denied by the trial court on July 21, 1998. The record indicates Petitioner attempted to file a pro se appeal. However, the notice of appeal was apparently forwarded by the York County Clerk of Court to Petitioner's PCRA counsel. Thereafter, a series of confusing events transpired which included the trial court's revocation of the appointments of both Petitioner's original and substitute PCRA counsel. According to the record, the end result was that a timely PCRA appeal was not filed.

  A submission made by the Petitioner on March 18, 2002 was deemed a second PCRA petition by the trial court. Gonzalez's filing requested reinstatement of his appellate rights with respect to his initial PCRA action. Gonzalez's second PCRA petition was dismissed as being untimely filed by both the trial court and the Superior Court. See Record document no. 15, Exhibit J. On July 27, 2004, the Pennsylvania Supreme Court denied Petitioner's request for allowance of appeal. See Commonwealth v. Gonzalez, 858 A.2d 108 (Pa. 2004) (Table).

  Gonzalez filed his present § 2254 petition on August 10, 2004. Petitioner claims that he is entitled to federal habeas corpus relief on the grounds that: (1) his conviction was the result of actions taken by an unconstitutionally selected and impaneled jury; (2) he received ineffective assistance from his trial and PCRA counsel; and (3) the imposition of a mandatory life sentence for felony murder violated both his due process and equal protection rights. The Respondent argues that Gonzalez's petition is barred by the applicable statute of limitations.


  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). Gonzalez was convicted and sentenced in 1995. However, the Pennsylvania Supreme Court did not deny his request for allowance of appeal on January 7, 1997, after the AEDPA's effective date. According to the Respondent, Gonzalez was required to seek federal habeas corpus relief on or before April 7, 1998 (one year from the expiration of "the time period within which to file for writ of certiorari with the United States Supreme Court expired"). Record document no. 14, ¶ 6.

  Respondent's computation properly considers the period during which Gonzalez could seek review from the United States Supreme Court. See Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999). Accordingly, this Court agrees that Petitioner's conviction became final when the time period for seeking certiorari expired. Accordingly, Gonzalez had until April 7, 1998 in which to timely 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. 2003).

  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 ...

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