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Shaner v. McGrady

July 13, 2010

ROBERT RAY SHANER, DU-9569, PETITIONER,
v.
MR. MCGRADY, ET AL.,



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

MEMORANDUM and ORDER

Mitchell, M.J.

Robert Ray Shaner has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Shaner is presently incarcerated at the State Correctional Institution-Retreat serving a six to twenty year sentence following his conviction, upon a plea of guilty, to charges of criminal attempt - rape, robbery and unlawful restraint at No. 1046 of 1997, in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on December 4, 1998.*fn1 No appeal was pursued until Shaner submitted a petition for a writ of habeas corpus to the Common Pleas Court on May 5, 2010.*fn2

In support of the instant petition, Shaner alleges he is entitled to relief on the grounds that he recently learned that he:

[G]ot an on legal sentence because the sentencing guild lines show that I should have got 2 1/2 -to-5 years for the robbery and 1-to-2 years for each criminal attempt-rape that I got and 1 1/2 -to-3 years for the unlawful restraint that's 12 years all together. I should have got and I will be happy with time served (sic.)*fn3

It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:

(1) A 1-year period of limitation shall apply to the 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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(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.

In the instant case, the petitioner was sentenced on December 4, 1998 and no appeal was pursued. In Kapral v. United States, 166 F.3d 565 (3d Cir.1999), the Court noted that in the absence of the filing of a petition for review, the judgment becomes final when the time period in which to seek that review expires. Thus, the petitioner's conviction became final on January 3, 1999.*fn4 The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner did not ...


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