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Smith v. PA State Attorney General

November 20, 2008

WILSON SMITH, JR., PETITIONER
v.
PA STATE ATTORNEY GENERAL, LAWLER, RESPONDENT



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

On July 14, 2008, petitioner, an inmate presently confined at the State Correctional Institution at Huntingdon, Huntingdon, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Therein, he attacks his convictions for Murder in the Third Degree, Aggravated Assault and Recklessly Endangering Another Person. 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. 5.) Respondents filed their response on September 5, 2008, asserting that the petition is untimely. (Doc. 9.) 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 time-barred. See 28 U.S.C. § 2244(d).

I. Background

Petitioner is currently serving an aggregated sentence of twenty to forty years incarceration for Murder in the Third Degree, Aggravated Assault, and Recklessly Endangering Another Person that was imposed by the Court of Common Pleas of York County on August 27, 2003. (Doc. 1.) Shortly thereafter, he filed a request for modification of his sentence, which was denied. (Doc. 9-2, at 16.)

On October 16, 2003, he filed a direct appeal with the Superior Court of Pennsylvania. (Id.) On September 24, 2004, the superior court affirmed his conviction and judgment of sentence. (Doc. 9-2, at 32.) He filed a timely petition for allowance of appeal with the Supreme Court of Pennsylvania, which was denied on May 3, 2005. (Doc. 9-2, at 33, 38.) He did not pursue further relief in the United States Supreme Court.

On November 21, 2005, he filed a timely petition for post-conviction collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 9-2, at 21.) Counsel was appointed and an amended petition was filed. (Doc. 9-2, at 21, 22.) On January 25, 2006, the petition was denied. (Id. at 22.) An appeal was filed in the Pennsylvania Superior Court. The appeal was denied on February 28, 2007. He sought further review in the Pennsylvania Supreme Court. On October 11, 2007, the supreme court denied his petition for allowance of appeal. (Doc. 9-2, at 49.)

The present federal petition was filed in this court on July 14, 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 ยง 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal ...


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