The opinion of the court was delivered by: Judge Vanaskie
This pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 was filed by Brett Sweeting ("Petitioner"), an inmate presently confined at the State Correctional Institution, Graterford, Pennsylvania ("SCI-Graterford").*fn1 Named as Respondent is SCI-Graterford Warden David Diguglielmo.*fn2
By Memorandum and Order dated December 18, 2008, 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 Respondent to file a response, addressing whether Sweeting's habeas petition was timely filed within the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). (Dkt. Entry # 5.) After being granted an enlargement of time, Respondent submitted a response asserting that Petitioner's action should be dismissed as untimely filed. (Dkt. Entry # 11, p. 4.) Although granted an opportunity to do so, Sweeting has not filed a reply.
Following a jury trial in the Lycoming County Court of Common Pleas, Sweeting was convicted of possession with intent to deliver cocaine, possession with intent to deliver marijuana, possession of marijuana, possession of cocaine, possession of a small amount of marijuana for personal use, conspiracy, and possession of drug paraphernalia. He was sentenced on November 3, 1994 to an aggregate ten (10) to twenty-seven (27) year term of incarceration.*fn3
By decision dated August 1, 1995, the Pennsylvania Superior Court affirmed Petitioner's conviction following his direct appeal. See Commonwealth v. Sweeting, 668 A.2d 1198 (Pa. Super 1995)(Table).*fn4 A petition for allowance of appeal was denied by Pennsylvania's Supreme Court on December 20, 1995. See Commonwealth v. Sweeting, 668 A.2d 1130 (Pa. 1995)(Table).*fn5
After completing service of an unrelated sentence, Sweeting was released from prison during October 1998 without serving his Lycoming County sentence. During an ensuing federal prosecution of Petitioner on money laundering charges, that omission was discovered and the state trial court issued an order on September 15, 1999 directing that Sweeting be taken into custody and transported to a state correctional facility to serve his sentence.
On January 26, 2006, Petitioner (while still in federal custody) filed a pro se state court petition challenging his Lycoming County conviction, which was subsequently construed as seeking relief pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C. S. A. § 9541, et seq. The trial court denied the PCRA petition as being untimely.
In a decision dated May 8, 2007, the Superior Court likewise denied Petitioner's request for PCRA relief as being untimely, but remanding ed the matter to the trial court with instructions for the clerk of court to correct the written order of sentence which appears in the record.*fn6 See Commonwealth v. Sweeting, 929 A.2d 248 (Pa. Super. 2007)(Table), (Dkt. Entry # 11-9 at 13.) On October 3, 2007, Sweeting's petition for allowance of appeal was denied by the Pennsylvania Supreme Court. (Dkt. Entry # 11-10.)
In his pending action, Petitioner claims that he is entitled to federal habeas corpus relief on the grounds that: (1) the PCRA court erred by dismissing his action as untimely without first conducting an evidentiary hearing; (2) the delay in execution of his state sentence constitutes a due process violation; and (3) police officers were permitted to give hearsay testimony regarding evidence given by confidential informants. Petitioner indicates that his hearsay claim was pursued in his direct appeal while his remaining two arguments were presented via a collateral state court petition. A supporting memorandum filed by Sweeting appears to be additionally asserting a claim that trial counsel was ineffective for failure to advise Petitioner that his direct appeal had been denied and that an illegal sentence had been imposed. (See Dkt. Entry # 2, p. 13.)
Sweeting's pending § 2254 petition is dated September 23, 2008, and will be deemed filed as of that date. See Houston v. Lack, 487 U.S. 266 (1988)(a prisoner's action is deemed filed at the time it is given to prison officials for mailing to the Court). The Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), amended the federal habeas statute by imposing a statute of limitations on prisoners requesting habeas corpus relief pursuant to 28 U.S.C. § 2254. Specifically, Section 2244(d) of Title 28 of the United States Code provides:
(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 ...