The opinion of the court was delivered by: Judge Vanaskie
This habeas corpus proceeding under 28 U.S.C. § 2254 was initiated by Mitchell Trivitt during his prior confinement at the Mahanoy State Correctional Institution, Frackville, Pennsylvania.*fn1 Petitioner's in forma pauperis application was previously granted.
By Memorandum and Order dated July 9, 2009, this Court, exercising the discretion afforded under Day v. McDonough, 547 U.S. 198, 209-11 (2006), and United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc), directed Petitioner to file a response addressing the issues of whether his habeas corpus petition was untimely pursuant to the provisions of Section 2244(d) of Title 28 of the United States Code and/or subject to dismissal on the basis of mootness as contemplated in Levya v. Williams, 504 F.3d 357, 363 (3d Cir. 2007).*fn2 (Dkt. Entry # 5.) On August 3, 2009, Petitioner submitted his response. (Dkt. Entry # 6.)
Trivitt was convicted of rape, statutory rape, and involuntary deviate sexual intercourse on November 10, 1995, in the Court of Common Pleas of Adams County. On December 12, 1995, he was sentenced to a 5 1/2 to 11 year term of imprisonment. His conviction and sentence were affirmed by the Pennsylvania Superior Court on June 4, 1997. See Commonwealth v. Trivitt, 700 A.2d 1029 (Pa. Super. 1997)(Table). An appeal to the Pennsylvania Supreme Court was denied on April 28, 1998. See Commonwealth v. Trivitt, 717 A.2d 533 (Pa. 1998)(Table). He began service of his sentence on May 21, 1998.
In his present action, Petitioner challenges the legality of his state conviction on the basis that newly obtained evidence shows that the victim's trial testimony was untruthful or mistaken. (Dkt. Entry # 1, ¶ 12.) Trivitt also claims that counsel who represented him with respect to a proceeding under Pennsylvania's Post Conviction Relief Act (PCRA) provided ineffective assistance.*fn3
In his response, Trivitt states that his present petition is based upon newly discovered evidence regarding the victim's past sexual conduct which was brought to his attention on or about September 13, 2004. (Dkt. Entry # 6, ¶ 4.) Based upon this evidence, Petitioner initiated a pro se action pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C. S. A. § 9541, et seq. on November 3, 2004. (Id. at ¶ 5.) He was provided court-appointed counsel. His pending federal Petition indicates that his PCRA action was "dismissed without a hearing" by the Court of Common Pleas on September 13, 2005. (Dkt. Entry # 1, ¶ 11(a)(7).) The Superior Court affirmed dismissal of Petitioner's PCRA action on March 31, 2006. See Commonwealth v. Trivitt, 898 A.2d. 1135 (Pa. Super. 2006)(Table).*fn4 Thereafter on October 5, 2006, the Pennsylvania Supreme Court denied relief. See Commonwealth v. Trivitt, 909 A.2d 304 (Pa. 2006).
Trivitt's Petition next asserts that he filed a second PCRA action on November 30, 2006. This action was dismissed as time-barred by the Court of Common Pleas on June 8, 2007. (Id. at ¶ 11(b)(8).) The Superior Court affirmed the dismissal on statute of limitations grounds on March 14, 2008.*fn5 Commonwealth v. Trivitt, 953 A.2d 607 (Pa. Super. 2008)(Table). On August 27, 2008, the Pennsylvania Supreme Court denied his petition for allowance of appeal. See Commonwealth v. Trivitt, 956 A.2d 434 (Pa. 2008) (Table).
Trivitt argues that his PCRA actions caused statutory tolling of the running of the limitations period. In th alternative, Petitioner contends that he is entitled to equitable tolling because he timely asserted his rights in the wrong forum and can establish that an extraordinary event stood in his way. (Dkt. Entry # 6, ¶ 7.)
Section 2244(d) of title 28 of the United States Code provides, in relevant part, 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 for seeking such 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.
(d)(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 ...