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Passmore v. Commonwealth

June 18, 2008

LEROY A. PASSMORE, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, ET AL., RESPONDENTS



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

(Chief Judge Kane)

MEMORANDUM

On April 15, 2008, Petitioner, an inmate presently confined at the State Correctional Institution at Waymart, Waymart, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Therein, he attacks a Snyder County Court of Common Pleas conviction for forgery, 18 PA. CONS. STAT. § 4101(a)(2). Preliminary review of the petition revealed that it may be barred by the statute of limitations. See United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc). Therefore, an order was entered affording the parties the opportunity to address the timeliness of the petition and any applicable tolling of the statute of limitations. (Doc. No. 4.) Petitioner filed a "Response" on April 24, 2008, in which he stated that because he was diagnosed as bipolar, and was on medication, he was hampered in his pursuit of his petition. (Doc. No. 6.) Respondents filed their response on May 14, 2008, asserting that the petition was untimely and that Petitioner had failed to set forth any facts or circumstances that would justify the tolling of the statute of limitations. (Doc. No. 9, at 3.) Following careful consideration of the parties' submissions, and for the reasons discussed below, the Court concludes that the petition is subject to dismissal because it is not timely filed. See 28 U.S.C. § 2244(d).

I. BACKGROUND

Petitioner is currently serving a sentence of one to five years for forgery that was imposed by the Court of Common Pleas of Snyder County on November 21, 2005. (Doc. No. 1, at 1.) No direct appeal was taken from the judgment.

On July 18, 2006, Petitioner filed a timely petition for post-conviction collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. No. 9, at 2, ¶ 8.) The petition was withdrawn on September 28, 2006. (Id.) There was no further litigation in state court.

The present federal petition was filed in this court on April 15, 2008.

II. DISCUSSION

The court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d) (1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(1) A 1-year period of limitation 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 of the time for seeking such review. . . .

(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.

28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

Petitioner was sentenced on November 21, 2005. He failed to pursue a direct appeal. Consequently, his conviction became final on December 21, 2005, when his time to appeal expired, and the one-year period for the statute of limitations commenced running as of that date. However, the Court's analysis does not end ...


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