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Rivera v. Krysevic

June 24, 2008

WILLIAM VENEGAS RIVERA, PETITIONER,
v.
MARK KRYSEVIC, SUPT. SCI CRESSON, RESPONDENT



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

On March 14, 2007, Petitioner, an inmate presently confined at the State Correctional Institution at Cresson, Cresson, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 (Doc. No. 1.) Therein, he attacks an involuntary manslaughter conviction imposed by the Court of Common Pleas of Susquehanna County. An answer to the petition, brief in support of the answer, and exhibits were filed on August 10, 2007. (Doc. Nos. 11, 12, 14.) Petitioner filed a traverse on August 27, 2007. (Doc. No. 15.) Upon 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 four to ten years for involuntary manslaughter that was imposed by the Court of Common Pleas of Susquehanna County on January 20, 2000. (Doc. No. 14-3, at 24.) No direct appeal was taken from the judgment of sentence.

On January 19, 2001, he filed a timely petition for post-conviction collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. The petition was amended on January 25, 2001 (Id. at 59.) On August 19, 2002, the petition was denied. (Doc. No. 14-4, at 26.) A timely appeal to the Superior Court of Pennsylvania followed. The Superior Court affirmed the denial of PCRA relief on September 29, 2003. (Id. at 80.) He failed to petition the Supreme Court of Pennsylvania for allowance of appeal.

More than two years later, on December 27, 2005, he filed a second PCRA. (Id. at 90.) On February 7, 2006, the lower court granted the petition to the extent that Petitioner's rights to file for an allowance of appeal to the Supreme Court of Pennsylvania were reinstated. (Doc. No. 14-5, at 71.) The petition for allowance of appeal was denied on July 13, 2006. (Id. at 83.)

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).

Following his January 10, 2000 conviction for involuntary manslaughter, Petitioner was convicted and sentenced on January 20, 2000. He failed to pursue a direct appeal. Consequently, his conviction became final on February 19, 2000, 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 ...


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