The opinion of the court was delivered by: Judge Conner
On November 27, 2009, petitioner Thomas J. Martin, Sr. ("Martin"), an inmate presently confined at the State Correctional Institution at Huntingdon, Huntingdon, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Therein, he attacks his convictions for Former Convict Not to Own Firearm in violation of 18 PA. CONS. STAT. ANN. §6105, Criminal Mischief in violation of 18 PA. CONS. STAT. ANN. §3304, and Theft From a Motor Vehicle in violation of 18 PA. CONS. STAT. ANN. §3934. Respondents move to dismiss the petition as untimely. (Doc. 14.) Following 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).
Following a jury trial in the Court of Common Pleas of Schuylkill County, petitioner was found guilty of Former Convict Not to Own Firearm in violation of 18 PA. CONS. STAT. ANN. §6105, Criminal Mischief in violation of 18 PA. CONS. STAT. ANN. §3304 and Theft From a Motor Vehicle in violation of 18 PA. CONS. STAT. ANN. §3934 on June 21, 2003. (Doc. 1, at 1.) He was sentenced to a term of imprisonment of 3 1/2 to 7 years on March 25, 2003. (Id.) Shortly thereafter, he filed post trial motions, which were denied on June 24, 2003. (Court of Common Pleas Electronic Docket Sheet, CP-54-CR-0000984-2000, at 23-24.)
On July 16, 2003, he filed a direct appeal with the Superior Court of Pennsylvania. (Id. at 25.) On May 10, 2004, the superior court affirmed his conviction and judgment of sentence. (Superior Court of Pennsylvania Electronic Docket Sheet, 1160 MDA 2003, at 3.) He filed a timely Petition for Allowance of Appeal with the Supreme Court of Pennsylvania, which was denied on December 29, 2004. (Supreme Court of Pennsylvania Electronic Docket Sheet, 226 MAL 2008.) He did not pursue further relief in the United States Supreme Court.
Rather, on May 26, 2005, he filed a timely petition for post-conviction collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Court of Common Pleas Electronic Docket Sheet, CP-54- CR-0000984-2000, at 27.) The petition was denied on December 12, 2008. (Superior Court of Pennsylvania Electronic Docket Sheet, 86 MDA 2007, at 2.) An appeal was filed in the Pennsylvania Superior Court. The PCRA court's order was affirmed on March 5, 2008. (Id. at 4.) He sought further review in the Pennsylvania Supreme Court. On August 26, 2008, the supreme court denied his petition for allowance of appeal. (Supreme Court of Pennsylvania Electronic Allocatur Docket Sheet, 226 MAL 2008.)
Martin filed a second PCRA petition on April 21, 2008. (Court of Common Pleas Electronic Docket Sheet, CP-54-CR-0000984-2000, at 48.) On June 26, 2008, the second PCRA was quashed. (Id. at 51.) An appeal was taken to the superior court. (Id.) The appeal was quashed in that it was "Disposed Before Decision," on February 13, 2009. (Superior Court of Pennsylvania Electronic Docket Sheet, 1386 MDA 2008, at 3-4.) He filed a petition for allowance of appeal, which the supreme court treated as a petition for review. The petition for review was denied on October 22, 2009. (Supreme Court of Pennsylvania Electronic Miscellaneous Docket Sheet, 155 mm 2009, at 3.)
The present federal petition was filed in this court on November 27, 2009. (Doc. 1.)
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"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). 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 the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal ...