The opinion of the court was delivered by: Judge McClure
Petitioner Vincent V. Huntley, an inmate presently confined at the State Correctional Institution at Retreat ("SCI-Retreat") in Hunlock Creek, Pennsylvania, commenced this action by filing a pro se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Record document no. 1.) Huntley challenges his 2004 conviction in the Dauphin County Court of Common Pleas of Murder of the First Degree and related offenses. Also pending is Respondent's motion for leave to file a partial answer. (Record document no. 8.) For the reasons set forth below, the motion will be granted nunc pro tunc, and the petition will be dismissed as untimely.
PETITION FOR WRIT OF HABEAS CORPUS
The relevant background was summarized by the Pennsylvania Superior Court as follows in its July 11, 2007 Memorandum affirming the denial of Huntley's petition under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541, et seq. ("PCRA"):
On November 1, 2004, Appellant entered a negotiated plea of nolo contendere to, inter alia, charges of first-degree murder, conspiracy, aggravated assault, endangering the welfare of a child, and abuse of a corpse. The charges were based on Appellant's abuse, murder, and concealment of a 7-year old child while Appellant was living with the child's mother.*fn1 In exchange for Appellant's plea, he was sentenced to life in prison, plus an aggregate consecutive term of 23 1/2 to 47 years incarceration. (Record document no. 9-3 at 43.) On November 8, 2004, Huntley filed a pro se motion to withdrawn his plea. (See Docket of the Dauphin County Court of Common Pleas for Commonwealth v. Vincent Vandele Huntley, No. CP-22-CR-3066-2003, Record document no. 9-3 at 15.) However, on December 29, 2004, Huntley moved to withdraw his motion. (See id. at 16.) Following a hearing on January 7, 2005, the trial court entered an Order dated January 10, 2005 granting Huntley's request to withdraw his post-sentence motion. (See id.)
On October 13, 2005, Huntley filed a PCRA petition that was dismissed on August 23, 2006. (See id. at 17, 20; PCRA petition, Record document no. 9-3 at 26.) On July 11, 2007, the Pennsylvania Superior Court affirmed the denial of PCRA relief. (See Record document no. 9-3 at 43.) On December 20, 2007, the Pennsylvania Supreme Court denied Huntley's petition for allowance of appeal. (See id. at 52.)
On October 15, 2008, Huntley filed the instant petition for writ of habeas corpus (Record document no. 1) and memorandum of law (Record document no. 2). On October 27, 2008, in accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued a formal notice to Huntley that he either could have his petition ruled on as filed, or withdraw it and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Record document no. 5.) On November 24, 2008, Huntley filed a notice of election requesting that the Court rule on the petition as filed. (Record document no. 6.) Accordingly, an Order to Show Cause was issued on December 16, 2008 and served on Respondent James McGrady, the Warden of SCI-Retreat, Respondent the Pennsylvania Office of Attorney General, and the Dauphin County District Attorney's Office. (Record document no. 7.)
On December 23, 2008, Respondents filed a motion for leave to file a partial answer limited to the issue of the timeliness of Huntley's petition. (See Record document no. 8.) Respondents asserted that the petition is untimely, and thus it would be a waste of time and judicial resources to submit an answer addressing the merits of the petition. (See id.) On December 31, 2008, Respondents filed a partial answer to the petition (Record document no. 9-1); a memorandum of law (Record document no. 9-2) limited to the issue of the petition's timeliness; and accompanying exhibits (Record document no. 9-3). Huntley filed his reply on January 14, 2009. (Record document no. 11.) Thereafter, on January 21, 2009, Respondents filed a sur-reply. (Record document no. 12.) Accordingly, the matter is ripe for disposition.
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). Section 2244 establishes a one-year statute of limitations for federal habeas corpus petitions filed by a person in state custody. 28 U.S.C. § 2244(d)(1). In this case, Huntley had thirty (30) days from the January 10, 2005 Order granting his request to withdraw his post-sentence motion to file a direct appeal from his judgment of sentence. See Pa. R. Crim. P. 720A(2)(c). Huntley did not file a direct appeal. Accordingly, his judgment of sentence became final on February 9, 2005, thirty (30) days after the trial court's January 10, 2005 Order. Accordingly, Huntley had one year from February 9, 2005, or until February 9, 2006, to file his federal habeas petition. See 28 U.S.C. § 2244(d)(1).
While Huntley's petition and accompanying memorandum of law were received by the Clerk of Court in Scranton on October 15, 2008, the mailing label on the petition indicates that the petition was mailed on October 14, 2008. (See Record document no. 1 at 28.) Under the prison mailbox rule, the date on which a pro se prisoner transmits documents to prison authorities for delivery to a court is to be considered the actual filing date for those documents. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (applying the rule to the filing of habeas petitions). Accordingly, the petition is deemed to have been filed on October 14, 2008, which was 978 days beyond the expiration of the statute of limitations on February 9, 2006.
However, the Third Circuit Court of Appeals has held that "[t]he statute of limitations for federal habeas petitions is subject to two exceptions: (1) statutory tolling during the time a 'properly filed' application for post-conviction review is pending in state court and (2) equitable tolling, a judicially crafted exception." Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003) (citing Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999)); see also Schlueter v. Varner, 384 F.3d 69, 75-76 (3d ...