The opinion of the court was delivered by: Judge Caldwell
Raymond Ziomek has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1981 conviction for first-degree murder. He raises the following three grounds. First, he has newly discovered evidence in the form of the owner's manual for the handgun used in the crime which demonstrates that the gun can accidently discharge, thereby negating his first-degree murder conviction. Second, he did not knowingly waive his right to a jury trial and was not advised that he could receive consecutive sentences, or the total sentence that could be imposed. Third, he was denied his right to withdraw his waiver of a jury trial and to withdraw his guilty plea.
We are considering whether the petition should be dismissed as untimely under the one-year statute of limitations for § 2254 petitions. We raised the issue sua sponte and gave Petitioner an opportunity to respond. For the following reasons, the petition will be dismissed as time-barred.
On February 4, 1981, Ziomek pled guilty to murder, abuse of a corpse, and criminal mischief in the Luzerne County Court of Common Pleas for the November 1979 fatal shooting of John McNulty and his attempts to dispose of McNulty's body by dismembering it. In February 1981, after a degree-of-guilt hearing, the court found Ziomek guilty of first-degree murder.
In May 1981, he was sentenced to an aggregate term of life plus two- to four-years imprisonment. (Doc. 1, Petition, Attachment, Commonwealth v. Ziomek, 889 A.2d 121 (Pa. Super. Oct. 26, 2005)). Petitioner filed a timely direct appeal to the Superior Court of Pennsylvania which affirmed his conviction and sentence on May 7, 1982. (Id.; see also Commonwealth v. Ziomek, 446 A.3d 671 (Pa. Super. 1982) (table)). On August 2, 1982, the Pennsylvania Supreme Court denied Ziomek's appeal. (Doc. 1, Petition, Attach., Commonwealth v. Ziomek, 889 A.2d 121 (Pa. Super. Oct. 26, 2005)).
On September 9, 1987, Ziomek filed the first of three petitions for post-conviction relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9545, and its precursor, the Post Conviction Hearing Act. (Id.) After Ziomek was appointed counsel, an evidentiary hearing was held and the petition was denied on April 5, 1989. (Id.) Ziomek's appeal to the superior court was denied on September 11, 1990. The Pennsylvania Supreme Court denied Ziomek's petition for allowance of appeal on February 12, 1991. See Commonwealth v. Ziomek, 583 A.2d 837, 406 (Pa. Super. Sept. 11, 1990)(Table, No. 01441 PHL 89), appeal denied, 590 A.3d 297, 527 Pa. 610 (Pa. Feb. 12, 1991)(Table, No. 937 E.D. 1990)).
On January 3, 1997, Ziomek filed his second petition for collateral relief pursuant to the PCRA. (Doc. 1, Petition, Attachment, Commonwealth v. Ziomek, 889 A.2d 121 (Pa. Super. Oct. 26, 2005); Doc. 7-2, Notice of Intention to Dismiss for Collateral Relief). Ziomek's second PCRA petition was denied by the PCRA court on February 25, 1997, on the merits. (See Doc. 7-3, pp. 5-6). Ziomek did not file an appeal of the PCRA court's denial of his second petition.
On September 19, 2003, Ziomek filed his third PCRA petition. On January 7, 2005, the PCRA court dismissed the petition as untimely. The superior court affirmed the decision on October 27, 2005. In doing so, the court rejected Petitioner's argument that his PCRA petition was timely because he had only recently discovered that the handgun could accidently discharge. The superior court found that this was information available to Petitioner at the time of his potential trial and ultimate guilty plea. (Doc. 1, Petition, Attach., Commonwealth v. Ziomek, 889 A.2d 121 (Pa. Super. Oct. 26, 2005)). The Pennsylvania Supreme Court denied Ziomek's petition for allowance of appeal on September 20, 2006. (Id., see also Commonwealth v. Ziomek, 889 A.3d 121 (Pa. Super. Oct. 27, 2005)(Table, No. 267 MDA 2005), appeal denied by, 907 A.2d 1102, 589 Pa. 721 (Pa. Sept. 20, 2006)(Table, No. 1001 MAL 2005)). Ziomek did not seek certiorari review from the United States Supreme Court.
On September 20, 2007, Ziomek filed his § 2254 petition. The Court sua sponte raised the limitations issue, ordered Respondents to address it and gave Petitioner an opportunity to respond in a reply brief. See United States v. Bendolph, 409 F.3d 155 (3d Cir. 2005)(en banc)(holding that a district court may sua sponte raise the statute of limitations so long as the habeas petitioner is given notice and afforded an opportunity to respond to the limitations issue).
On October 12, 2007, Respondents filed a response arguing that the petition was untimely. (Doc. 5, Response).
Petitioner did not file a reply but he had addressed the timeliness of his petition in response to a question on the form 2254 motion he used to initiate these proceedings. (Doc. 1, ¶ 18). Ziomek asserted that he was entitled to equitable tolling of the limitations period because the handgun manual was newly discovered evidence found only after the ...