On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 5-07-cv-05154 District Judge: The Honorable John R. Padova.
The opinion of the court was delivered by: Smith, Circuit Judge.
Before: AMBRO, SMITH, and MICHEL,*fn1Circuit Judges
This is a habeas action by a prisoner in state custody. The only question for our review is whether he timely filed his petition, a question which turns on whether the Supreme Court's decision in Cunningham v. California, 549 U.S. 270 (2007), applies retroactively to cases on collateral review. We hold that Cunningham is not retroactively applicable, and will affirm the judgment of the District Court.
In 1994, Petitioner Harvey Reinhold was convicted in Pennsylvania state court of kidnapping and related crimes, and was sentenced in the aggregate to 20 to 51 years in prison. The conviction and sentence were affirmed on direct appeal, and successive state collateral relief petitions were denied in the years following his conviction. Reinhold filed this federal action under 28 U.S.C. § 2254 on November 11, 2007, more than ten years after his conviction became final. Relying on Cunningham, he contends that his constitutional right to a trial by jury was violated when the sentencing judge relied on facts not found by a jury beyond a reasonable doubt to increase his sentence above Pennsylvania's standard sentencing range.
The District Court denied his habeas petition, concluding that it was untimely. Specifically, the District Court concluded that the Supreme Court's decision in Cunningham was not retroactively applicable to Reinhold's case. However, it granted a certificate of appealability for us to consider this question.
The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254, and we have jurisdiction under §§ 1291 and 2253. Our review of an order denying a habeas corpus petition as time-barred is plenary. McAleese v. Brennan, 483 F.3d 206, 212 (3d Cir. 2007) (citation omitted).
The statute of limitations for habeas petitions by prisoners in state custody is codified in 28 U.S.C. § 2244(d).*fn2 Reinhold concedes, as he must, that he filed this petition more than one year from the date his conviction became final. Id. § 2244(d)(1)(A).*fn3 He did, however, file the petition within one year of the Supreme Court's decision in Cunningham. The issue for our consideration is whether Cunningham recognized a new constitutional right, and, if so, whether it is retroactively applicable to cases on collateral review. Id. § 2244(d)(1)(C).
The Cunningham decision is one of a line of Supreme Court cases on sentencing, of which the seminal case is Apprendi v. New Jersey, 530 U.S. 466 (2000). There, the defendant was convicted of a crime punishable by five to ten years in prison; however, he was sentenced to twelve years based on the fact, not found by a jury, that he committed the crime with the purpose of intimidating protected groups. Id. at 470--71. The Court concluded that "any fact that increases the penalty for a ...