The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
Vasiliy O. Romanishyn has filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his
convictions, among others, in the Court of Common Pleas of York
County, Pennsylvania, for five counts of burglary after pleas of
guilty. He was sentenced to eight to twenty-three months of
incarceration. As grounds for relief, Petitioner argues, among
other things, that his trial counsel was ineffective for failing
to investigate hearsay statements of various witnesses and for
not advising him that he would be deported as a consequence of
his guilty pleas.
Romanishyn is a native of Ukraine and became a permanent
resident alien after coming to the United States with his family
in 1996. He is under a final order of removal from federal immigration authorities based on his York County
convictions and another conviction for burglary in the Court of
Common Pleas of Cumberland County, Pennsylvania.*fn1
Respondents argue that the petition should be denied because
Petitioner failed to meet the one-year statute of limitations for
filing a 2254 petition and because he failed to exhaust
state-court remedies. We agree with Respondents that the petition
is untimely and will therefore deny it on that basis without
considering the exhaustion issue.*fn2
As relevant to the disposition of this petition, the record
reveals the following. On July 1, 2003, Petitioner was sentenced
on his York County convictions. He took no direct appeal. Petitioner's minimum sentence date expired on December 7,
2003. "[W]hen the day came close, he received the detainer" from
the federal government based on his convictions. (Doc. 9, amended
2254 petition, p. 2). On September 1, 2004, an immigration judge
ordered his removal, and on February 18, 2005, the Board of
Immigration Appeals affirmed. (Doc. 1, 2241 petition, ¶¶ 12 and
14, Romanishyn v. Chertoff, No. 4:CV-05-0687 (M.D. Pa.).
On March 2, 2005, Petitioner filed a petition in York County
under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.
C.S.A. §§ 9541-9546, challenging his convictions on essentially
the same grounds as presented here. On April 23, 2005, the trial
court dismissed the petition for being untimely under state
law.*fn3 Petitioner did not appeal the denial. These 2254
proceedings were started on March 28, 2005, using the date
Petitioner avers he gave the petition to prison authorities for
mailing.*fn4 III. Discussion.
There is a one-year statute of limitations for filing a 2254
petition. In relevant part, it reads as follows:
(d)(1) A 1-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
(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;. . . . 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.
28 U.S.C. § 2244(d)(1)(A) and (D).
Respondents' argument that the petition is time-barred is based
on starting the period from the date Petitioner's conviction
became final, July 31, 2003, the date the thirty-day period for
taking a direct appeal under Pennsylvania law expired. Under this
analysis, the one-year limitations period ended on August 2, 2004, well before the filing date of March 28,
We agree that the petition is time-barred, even if we assume
that subsection 2244(d)(1)(D) applies here. That subsection
starts the limitations period from the date a petitioner could
have first discovered the factual predicate of his claim.
Arguably, Petitioner may not have been able to discover the
factual predicate for his claim that counsel failed to tell him
of the immigration consequences of his convictions until December
7, 2003, the date Petitioner informs us came closely after he
received the detainer from federal immigration authorities based
on his convictions.*fn6 Assuming that Petitioner could only
have discovered on that date the factual predicate of his
claim,*fn7 Petitioner still had to file his petition by December 7, 2004. Thus, even under this later deadline, his
petition is untimely.*fn8
We will issue an order dismissing the 2254 petition as
time-barred. We will also deny a certificate of appealability,
based on the above analysis. However, Petitioner is advised that
he has the right for thirty (30) days to appeal our order denying
his petition, see 28 U.S.C. § 2253(a); Fed.R.App.P.
4(a)(1)(A), and that our denial of a certificate of appealability
does not prevent him from doing so, as long as he also seeks a
certificate of appealability from the court of appeals. See
Federal Rule of Appellate Procedure 22; Local Rule of Appellate
Procedure 22.1. ORDER
AND NOW, this 17th day of November, 2005, it is ordered that:
1. The amended petition (doc. 9) under
28 U.S.C. § 2254 is dismissed as untimely.
2. A certificate of appealability is denied.
3. The Clerk ...