The opinion of the court was delivered by: Judge Caputo
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Robert Jenkins has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2005 York County Court of Common Pleas convictions for possession with intent to deliver a controlled substance; conspiracy to commit possession with intent to deliver a controlled substance; simple possession; and false identification to law enforcement. (Doc. 1, Pet.) Petitioner has paid the filing fee in this matter. Named as respondents are the Superintendent of Laurel Highlands where Mr. Jenkins is incarcerated, and the Attorney General for the Commonwealth of Pennsylvania.
On November 21, 2005, Mr. Jenkins was sentenced to a term of 11 to 22 years of imprisonment following a jury trial.*fn1 Robert Jenkins filed a direct appeal which culminated in the Pennsylvania Supreme Court denying his Petition for Allowance of Appeal. See Commonwealth v. Jenkins, 594 Pa. 676, 932 A.2d 1286 (Pa. September 28, 2007)(Table, No. 390 MAL 2007). Robert Jenkins then filed a timely petition for collateral review on October 1, 2008. On November 10, 2009, the Superior Court of Pennsylvania affirmed the trial court's denial of the petition.
See Commonwealth v. Jenkins, 988 A.2d 721 (Pa. Super. November 10, 2009)(Table, No. 2229 MDA 2008). Mr. Jenkins filed his habeas petition on May 7, 2010. Upon reviewing the file, it appears that the petition may be barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1).
Pursuant to the United States Supreme Court's decision in Day v. McDonough, 547 U.S. 198. 209-210, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006), a district court has the authority to consider, sua sponte, the timeliness of a state prisoner's habeas petition. In doing so, the parties must be afforded "fair notice and an opportunity to present their positions." Id. at 210, 126 S.Ct. at 1684. Similarly, in U.S. v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005)(en banc), the Third Circuit Court of Appeals held that a district court may raise the one-year statute of limitations on its own motion, provided the petition is afforded notice and an opportunity to respond. Thus, in accordance with Day and Bendolph, this Court will require the parties to submit briefs on the question of the timeliness of the petition. The Court will resolve the limitations issue prior to requiring Respondents to address the merits of the petition.
AND NOW, this 11th day of MAY, 2010, it is ORDERED that:
1. The Clerk of Court is directed to serve a copy of the petition (doc. 1) and this Order on the Superintendent of SCI-Laurel Highlands, the Attorney General for the Commonwealth of Pennsylvania and the District Attorney of York County.
2. Within twenty-one (21) days of this Order, Respondents shall file a response addressing whether Petitioner's habeas petition is timely filed.
3. Petitioner is granted fifteen (15) days from the date of Respondents' submission to file a reply.
4. The Clerk of Court is to note the address of the Attorney General for the Commonwealth of Pennsylvania and the District Attorney for York County on the front of the docket sheet in this case.
5. All documents filed by the parties and by the Court shall be served upon the Superintendent of SCI-Laurel Highlands, the Attorney General for the Commonwealth of Pennsylvania, and the District Attorney for York County.
A. RICHARD CAPUTO United States ...