The opinion of the court was delivered by: William W. Caldwell United States District Judge
On October 10, 2006, Petitioner, Keynen Guider, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging a sentence imposed on him by the Court of Common Pleas of Dauphin County, Pennsylvania, on July 23, 2003, after his parole was revoked. Guider asserts the sentence violates: (1) state sentencing law because it exceeds the sentence originally imposed as part of a plea agreement; (2) the Double Jeopardy Clause because he has been given multiple punishments for the same offense; and (3) the Eighth Amendment because it is cruel and unusual punishment.
The commonwealth has moved to dismiss the petition on the basis that it is time-barred by the one-year statute of limitations applicable to section 2254 petitions. We agree with the commonwealth and will dismiss this petition as untimely.
The commonwealth's partial answer to the petition provides the pertinent procedural history. On November 7, 1996, Guider was sentenced in Dauphin County court to twelve months' probation, a fine of $250, and restitution in the amount of $40, after a guilty plea to a charge of theft by unlawful taking, docketed at No. 2181 C.D. 1996. On October 13, 1999, Guider was sentenced in Dauphin County court to concurrent sentences of probation for twelve months, and fines of $50, after a plea of guilty to two counts of theft of leased property, docketed at No. 2214 C.D. 1999 and No. 2456 C.D. 1999.
After other revocation proceedings, on July 9, 2003, Guider's probationary sentences were revoked at all three dockets. On July 23, 2003, he was resentenced to imprisonment for one to three years at each docket, to be served consecutively, and additional fines of $100, for an aggregate sentence of three to fifteen years and $300 in fines.
At the July 23, 2003, hearing, Petitioner was represented by a public defender. At the close of the hearing, the prosecutor advised Petitioner that he had ten days to file a post-sentence motion, and if he did not file such a motion, thirty days to file an appeal of his sentence. He was also advised that the public defender would assist him in pursuing those rights. Guider indicated he understood his rights. (Doc. 9, transcript of July 23, 2003, proceedings, p. 19).
Guider did not appeal from the judgment of sentence entered on July 23, 2003. However, he did make several pro se filings in the various cases. In No. 2181, he filed motions "for time credit" on December 29, 2003, January 23, 2004, April 6, 2004, and June 10, 2004. He filed motions for transcripts on May 3, 2004, and September 28, 2006. (Doc. 15, Ex. A). In No. 2214, he filed a motion for time credit on February 23, 2004, and motions for transcripts on August 28, 2006, and September 28, 2006. (Id. Ex. B). In No. 2456, he filed motions for transcripts on May 6, 2004, August 28, 2006, and September 28, 2006. (Id. Ex. C).*fn1
On November 17, 2004, Guider filed in state court a "Petition for Writ of Habeas Corpus, or Motion for Modification of Sentence," challenging the July 23, 2003, sentence. (Doc. 15, Ex. D). On February 8, 2005, the commonwealth answered the Petition by asserting it should be denied as an untimely petition for Relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9146. The PCRA has a one-year period for filing petitions once a criminal judgment becomes final. See 42 Pa.C.S. § 9545(b)(1), (3). On March 24, 2005, the trial court, by an order dated March 10, 2005, denied the Petition for Writ of Habeas Corpus. (Doc. 15, Ex. F). Guider did not appeal that denial.
As noted, Guider filed the instant section 2254 petition on October 10, 2006.*fn2
Under 28 U.S.C. § 2244(d)(1), a state defendant has one year to file a 2254 petition. For our purposes, that period starts to run from the date the conviction becomes final, defined in section 2244(d)(1)(A) as "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."
As the commonwealth argues, Petitioner had thirty days to appeal the July 23, 2003, sentence, see Pa. R. App. P. 903(a); see also Pa R. Crim. P. 720(A)(3), but did not do so. Thus, his judgment of sentence became final on August 22, 2003, thirty days later. In turn, his one-year period for filing a section 2254 petition expired on August 23, 2004.*fn3 Hence, the petition was untimely when filed on October 10, 2006, more than two years after the expiration of the deadline, unless the period ...