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Johnson v. Tennis

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


November 9, 2009

JESSE O. JOHNSON, JR., PETITIONER
v.
FRANKLIN J. TENNIS AND ATTORNEY GENERAL OF PENNSYLVANIA, RESPONDENTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 9th day of November, 2009, upon consideration of the petition (Doc. 1) for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 on December 4, 2008, wherein petitioner seeks to collaterally attack a state-court judgment that became final on June 6, 2005, (see Doc. 15 at A3, A6), and respondents' motion (Doc. 26) to dismiss the petition as untimely, and it appearing that petitioner did not directly appeal this state-court judgment, and made no attempt to challenge the judgment until March 12, 2008, when he filed a petition for writ of habeas corpus in the York County Court of Common Pleas, (see Doc. 2, Ex. 3; Doc. 15 at A8), and it further appearing that petitioner offers no explanation for his failure to pursue a direct appeal of his conviction, (see Doc. 1 at 3), and the court recognizing that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations for filing a habeas corpus petition pursuant to § 2254, see 28 U.S.C. § 2244(d), that this one-year period is triggered on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,"*fn1 § 2244(d)(1)(A), and that the one-year period in the above-captioned matter therefore expired on June 6, 2006,*fn2 and the court concluding that equitable tolling is not appropriate to the matter at hand,*fn3 see Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003) (explaining that equitable tolling is applicable only if the petitioner "has in some extraordinary way been prevented from asserting his or her rights"), it is hereby

ORDERED that:

1. Respondents' motion (Doc. 26) to dismiss the petition (Doc. 1) for writ of habeas corpus is GRANTED and the petition (Doc. 1) is DISMISSED as untimely. See 28 U.S.C. § 2244(d).

2. A certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(1).

3. The Clerk of Court is directed to CLOSE this case.

CHRISTOPHER C. CONNER United States District Judge


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