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Bair v. Winstead

February 5, 2010

SHERRY LEE BAIR, PETITIONER,
v.
RHODA WINSTEAD, ET AL. RESPONDENTS.



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)

MEMORANDUM

On June 10, 2009, Petitioner Sherry Lee Bair, an inmate presently confined at the State Correctional Institution at Cambridge Springs, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Therein, she attacks a second degree murder conviction imposed by the Court of Common Pleas of Huntingdon County, Pennsylvania. A response to the petition was filed on January 6, 2010. (Doc. No. 12.) Petitioner filed a traverse on January 25, 2010. (Doc. No. 14.) Upon careful consideration of the parties' submissions, and for the reasons discussed below, the Court concludes that the petition is subject to dismissal because it is not timely filed. See 28 U.S.C. § 2244(d).

I. BACKGROUND

Petitioner is currently serving a sentence of two concurrent life sentences after pleading guilty to two counts of murder in the second degree on September 12, 1988. (Doc. No. 12 at 1.) No direct appeal was taken from the judgment of sentence. (Id. at 2.)

On February 9, 1993, Petitioner filed a petition for post-conviction collateral relief in the Court of Common Pleas of Huntington County. (Id.) The petition was denied on January 31, 1994. (Id.) On March 1, 1994, a notice of appeal of this denial was filed with the Pennsylvania Superior Court. (Id.) On November 15, 1994, the appeal was denied. (Id.) A petition for allowance of appeal of the Superior Court's decision to the Pennsylvania Supreme Court was filed on December 15, 1994, and was denied on May 18, 1995. (Id.) There also appears to have been a subsequent memorandum opinion issued by the Superior Court on March 19, 1999--although the substance of this opinion is not available in the record before the Court. (See Doc. No. 14, Ex. B; see also Doc. No. 12 at 2.)

II. DISCUSSION

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). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d)

(1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(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 of the time for seeking such review .

(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 toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). Thus, under § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

Petitioner pled guilty and was sentenced on September 12, 1988. She failed to pursue a direct appeal. Because Petitioner's conviction became final before AEDPA was passed, the one-year statute of limitation period began to run on the Act's passage date, April 24, 1996. See Taylor v. Horn, 504 F.3d 416, 426 (3d Cir. 2007). Therefore, absent any ...


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