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Erwin v. Vincent

August 1, 2008

SAMUEL ERWIN, PETITIONER,
v.
MARDI VINCENT AND THOMAS CORBETT, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER

Petitioner, Samuel Erwin, a state prisoner incarcerated at the State Correctional Institution at Laurel Highlands, Pennsylvania, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition will be dismissed as untimely because it was not filed within the one-year limitations period provided for under 28 U.S.C. § 2244(d).

A. Relevant Procedural History

On January 13, 2003, in the Court of Common Pleas of Indiana County, Pennsylvania, Petitioner pleaded guilty to counts of Attempted Homicide and Aggravated Assault. On March 31, 2003, Petitioner was sentenced to an aggregate term of from nine (9) to eighteen (18) years imprisonment. Petitioner did not file any direct appeal.

On December 17, 2003, Petitioner filed a petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9542. On May 12, 2005, the PCRA Court denied Petitioner's PCRA petition. Petitioner appealed and the Superior Court of Pennsylvania affirmed the PCRA Order by Order dated May 18, 2006. Petitioner filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on January 17, 2007. Petitioner's federal petition for writ of habeas corpus was executed on July 23, 2007.

B. Time Period for Filing Federal Habeas Corpus Petitions

The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under the one-year limitations period applicable to such petitions. In this regard, the federal habeas corpus laws were amended pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 142 Cong. Rec. H3305-01 (April 24, 1996), which provides as follows.

(d) (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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(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 ...


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