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Craig v. Diguglielmo

July 30, 2010

RUBEN RICHARD CRAIG, III, PETITIONER,
v.
DIGUGLIELMO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge

District Judge McLaughlin

Magistrate Judge Baxter

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Respondents' motion to dismiss [Document # 10] be denied.

II. REPORT

A. Relevant Procedural and Factual History*fn1

This is a petition for writ of habeas corpus filed by a state prisoner incarcerated at the State Correctional Institution at Graterford, Pennsylvania, where he is serving a sentence of 4 to 10 years of imprisonment, as a result of being found guilty of two counts of aggravated assault, and one count each of recklessly endangering another person and possessing instruments of crime. (Petition at ¶¶ 3-5). The sentence was imposed by the Erie County Court of Common Pleas on November 10, 2004. (Id. at ¶¶ 1-2). Petitioner filed a direct appeal of his conviction to the Pennsylvania Superior Court, which affirmed the conviction and sentence on May 9, 2006. (Id. at ¶ 9(a)-(d)). Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. (Id. at ¶ 9(g).

On May 30, 2006, Petitioner filed a timely petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA petition"), claiming ineffective assistance of trial counsel. This petition was denied on November 20, 2006. (Id. at ¶ 11(a)). Petitioner filed a timely appeal from the denial of his PCRA petition to the Pennsylvania Superior Court, which affirmed the denial on November 17, 2008. (Id. at ¶ 11(b)).

The instant Petition was received by this Court on November 2, 2009, and raises claims of ineffective assistance of counsel. Respondents have filed a motion to dismiss arguing that Petitioner's habeas petition was filed beyond the expiration of the applicable one-year statute of limitations and must be dismissed as untimely [Document # 10]. Petitioner has since filed a response to Respondents' motion to dismiss. [Document # 14]. Respondents' motion is now ripe for consideration.

B. Statute of Limitations

The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under the one-year limitations period applicable to such petitions. The applicable statute reads:

(d) (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 ...


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