The opinion of the court was delivered by: William W. Caldwell United States District Judge
Petitioner, Rogelio Yanes, an inmate at the Waymart State Correctional Institution, Waymart, Pennsylvania, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Yanes challenges his 2002 Monroe County Court of Common Pleas convictions for rape, statutory sexual assault, and corruption of minors. We will deny Yanes' petition because we agree with Respondents that it is untimely under the one-year statute of limitations applicable to 2254 petitions.
Yanes is serving a five- to ten-year sentence for rape, statutory sexual assault, and corruption of minors that was imposed by the Court of Common Pleas of Monroe County on December 9, 2002. On January 8, 2003, Yanes filed a direct appeal with the Superior Court of Pennsylvania. On September 29, 2003, the Superior Court affirmed his conviction. See Commonwealth v. Yanes, 160 EDA 2003 (Pa. Super. Sept. 29, 2003).*fn1 Petitioner did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.
On February 17, 2004, Yanes filed a timely pro se petition for post-conviction relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9546. Counsel was appointed and an amended petition was filed on December 21, 2004. On May 2, 2005, the petition was denied. On May 26, 2005, an appeal was filed in the Superior Court. On March 14, 2006, the superior court denied the appeal. See Commonwealth v. Yanes, 1507 EDA 2005 (Pa. Super. March 14, 2006).*fn2 Yanes did not further appeal to the Pennsylvania Supreme Court.
Yanes filed a second PCRA petition on June 24, 2008. On July 22, 2008, the trial court dismissed the second PCRA petition as untimely. Yanes did not appeal this decision to the superior court. Commonwealth v. Yanes, CP-45-CR-0000492-2001 (Monroe C.C.P.)(docket sheet).*fn3
The present federal habeas corpus petition was filed on December 15, 2008. Yanes presents the following three claims: 1) there were no Hispanics in the jury pool; 2) trial counsel's ineffectiveness, including not striking a probation officer from the jury panel and failing to object to the prosecutor's use of ethnic slurs and to his improper reference to Petitioner's illegal-alien status; and 3) actual innocense of the crimes for which he is incarcerated.
A petitioner confined under a state-court judgment has one year to file a 2254 petition challenging the judgment. 28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. at § 2244(d)(1)(A). This language applies to the right to seek discretionary review in state appellate courts and means that the judgment does not become final until the time period for seeking such review expires, even if review is not sought. See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000).
The limitations period is tolled for the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending," 28 U.S.C. § 2244(d)(2)(emphasis added), but a state post-conviction petition is not "properly filed" so that it could toll the running of the limitations period if it was untimely filed under state law, Pace v. DiGugliemo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 660 (2005), and a state court's determination that the petition was untimely is conclusive on a federal habeas court. Satterfield v. Johnson, 434 F.3d 185, 192 (3d Cir. 2006) ("If a state court determines that a petition is untimely, that would be the end of the matter, regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was 'entangled' with the merits.") (internal quotations omitted).
Applying these principles here indicates the 2254 petition is untimely. On direct appeal, the superior court affirmed Yanes' conviction on September 29, 2003. Yanes did not seek review in the Pennsylvania Supreme Court, so his conviction became final on October 29, 2003, the day on which his thirty-day period for seeking discretionary review in the Pennsylvania Supreme Court expired. See Pa. R. App. P. 1113(a). Thus, the statute of limitations began running on that date, and ran for 111 days until it was tolled on February 17, 2004, when Petitioner filed his first, timely PCRA petition.*fn4 After the superior court on March 14, 2006, affirmed the trial court's denial of relief, the limitations period began running again on April 13, 2006, the day on which his thirty-day period for seeking review in the Pennsylvania Supreme Court expired. With 254 days remaining, in the limitations period at that point, the limitations period expired on December 24, 2006. The instant petition was filed on December 15, 2008, well beyond this deadline.*fn5 Hence it is time-barred.
Petitioner seeks to avoid this result by arguing he is entitled to equitable tolling of the limitations period. The Third Circuit recognizes that equitable tolling is appropriate when "the principles of equity would make the rigid application of a limitations period unfair, [quoted case omitted] such as when a state prisoner faces extraordinary circumstances that prevent him from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims." LaCava v. Kyler, 398 F.3d 271, 275-276 (3d Cir. 2005)(internal quotation marks omitted)(emphasis in LaCava). "Mere excusable neglect is not sufficient." Id. at 276. The court of appeals has identified four circumstances in which equitable tolling is justified: (1) when the defendant has actively misled the plaintiff; (2) when the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) when the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum; or (4) when the claimant received inadequate notice of his right to file suit, a motion for appointment of ...