The opinion of the court was delivered by: Judge Conner
Presently before the court is the pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 filed by Thomas Farrell ("Farrell"). For the reasons set forth below, the petition will be dismissed as untimely.
Upon preliminary review of the petition, the parties were directed to address whether the petition was barred by the one-year statute of limitations set forth in 28 U.S.C. §2244(d). Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1684 (2006); United States v. Bendolph, 409 F.3d 155 (3d Cir. 2005) (holding a district court has the authority in 2254 proceedings to raise the statute of limitations sua sponte after a respondent has filed an answer, provided that the petitioner is given notice of the court's intent to deny the petition on limitations grounds and is afforded an opportunity to respond to the court's analysis). Respondents filed an Answer. (Doc. 8). Farrell chose not to file anything further.
On December 21, 2006, a Memorandum and Order were entered dismissing the petition as untimely. (Doc. 9). Farrell filed a motion for reconsideration arguing that his post-sentence motion filed in the trial court was not considered. (Doc. 10). The motion was granted and the Memorandum and Order were vacated. At that time, respondents were directed to file a supplemental answer addressing the issue petitioner raised in the motion for reconsideration and Farrell was afforded the opportunity to file a supplemental reply. (Doc. 13). A supplemental answer with exhibits was filed on by respondents on June 14, 2007. (Doc. 14). Farrell filed nothing further.
On April 12, 2002, Farrell pled guilty to Neglect of Care of a Dependent Person and proceeded to immediate sentencing. On April 22, 2002, he filed a post-sentence motion entitled "Petition for Reconsideration." (Doc. 14-2, p. 11). On August 20, 2002, the post-sentence motion was denied by operation of law pursuant to PA. R. CRIM P. 720.*fn2 He failed to file a timely direct appeal.
On March 19, 2003, he filed a motion to file an appeal nunc pro tunc with the trial court. On that same date, he filed a nunc pro tunc appeal with the Pennsylvania Superior Court. Within days, the trial court denied the motion. On May 16, 2003, the superior court dismissed the appeal for failure to comply with procedural requirements.
Farrell filed a second notice of appeal nunc pro tunc in the trial court on July 9, 2003, which was denied on September 9, 2004. Three months later, Farrell appealed to the superior court. The Commonwealth sought to quash the appeal. On February 11, 2005, the superior court denied the Commonwealth's motion. In April, 2005, Farrell withdrew his appeal.
Also pursued by Farrell in the Supreme Court of Pennsylvania was an application for allowance of appeal, which was treated as a petition for review, and an application for appropriate relief. The applications were denied on August 12, 2004, and August 19, 2004, respectively.
The instant petition was filed on September 8, 2006.
Section 2244 establishes a one-year statute of limitations for federal habeas corpus petitions filed by a person in state custody. 28 U.S.C. §2244(d)(1). Section 2244(d)(1) states that "[a] 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a state court." A state-court criminal judgment becomes "final" within the meaning of § 2244(d)(1) by the conclusion of direct review or by the expiration of time for seeking such review, including the 90-day period for filing a petition for writ of certiorari in the United States Supreme Court. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.2000); Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999); SUP. CT. R. 13. The direct review notice of appeal shall be filed within thirty days after the entry of the order from which the appeal is taken. PA. R. APP. P. 903. "If a defendant does not pursue a timely direct appeal, his or her conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired." Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). In the instant case, the period of time for filing a habeas corpus petition commenced at the expiration of the time for filing his direct appeal, thirty days after August 20, 2002, the date on which his judgment of sentence became final. Accordingly, the limitations period began to run on or about September 19, 2002, and expired one year later. In computing the one year period, the time during which a properly filed application for state post-conviction relief, or other collateral review, shall not be counted toward any period of limitation. 28 U.S.C. §2244(d)(2). Because Farrell failed to properly file state post-conviction or collateral proceedings, the statute of limitations was not tolled and expired on or about September 19, 2003.*fn3
Consequently, the petition for writ of habeas corpus, which was not filed until September 8, 2006, ...