The opinion of the court was delivered by: Judge Caputo
On April 6, 2010, Petitioner Alfonso F. Carter, an inmate presently confined at FCI-Oxford, Oxford, Wisconsin, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, Pet.) Therein, he attacks a Dauphin County Court of Common Pleas, Pennsylvania, January 12, 1999, conviction for the possession with the intent to manufacture or deliver a controlled substance, 35 Pa.C.S. § 780-113(a)(30).
The Court undertook a preliminary review of the Petition as mandated by Rule 4, Rules Governing Section 2254 Cases (2010), and believed it subject to summary dismissal as time-barred. 28 U.S.C. § 2244(d); see Day v. McDonough, 547 U.S. 198, 209-210, 126 S.Ct. 1675, 1684, 164 L.Ed.2d 376 (2006) (district court are authorized to consider sua sponte, the timeliness of a state prisoner's habeas petition, but must accord the parties fair notice and an opportunity to present their positions); see also U.S. v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005)(en banc)(before addressing the merits of a state inmate's request for federal habeas relief, a district court may determine whether the petition is barred by the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). On April 14, 2010, the Court notified the parties of our concerns and provided them with an opportunity to address the timeliness issue. (Doc. 5.) While the Respondents filed a response to the Court's order (doc. 6), Mr. Carter did not. The limitations issue, raised sua sponte by the Court, has been briefed by the parties, is ripe for review.
Alfonso Carter is presently serving a 5 to 10 year sentence following a January 12, 1999, conviction for the possession with the intent to manufacture or deliver a controlled substance, 35 Pa.C.S. § 780-113(a)(30).*fn1 On October 22, 1999, the Superior Court of Pennsylvania affirmed the judgment and conviction on direct appeal. See Commonwealth v. Carter, 748 A.2d 767 (Pa. Super. Oct. 22, 1999)(Table, No. 330 MDA 99).*fn2 He did not file a petition for review with the Pennsylvania Supreme Court or seek certiorari with the United States Supreme Court.
On September 11, 2000, Mr. Carter filed a petition for post-conviction relief with the Dauphin County Court of Common Pleas pursuant to the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9501-9546. The PCRA petition was denied on May 29, 2002. However, on October 29, 2004, the Superior Court of Pennsylvania reversed the denial of the PCRA petition and remanded the matter for a new trial. See Commonwealth v. Carter, 861 A.2d 957 (Pa. Super. 2004). Upon petition by the Commonwealth, the Pennsylvania Supreme Court granted review on June 28, 2005. See Commonwealth v. Carter, 583 Pa. 678, 877 A.2d 459 (2005)(Table, No. 1068 MAL 2004). The Pennsylvania Supreme Court held that "the Superior Court erred in reversing the denial of PCRA relief," and reversed the Superior Court's order and remanded to the Superior Court for consideration of Mr. Carter's "open PCRA issues." Commonwealth v. Carter, 593 Pa. 562, 575-76, 932 A.2d 1261, 1269 (2007). On remand, the Superior Court affirmed the dismissal of Mr. Carter's collateral petition. See Commonwealth v. Carter, 953 A.2d 595 (Pa. Super. 2008)(Table, No. 912 MDA 2002). Alfonso Carter's appeal to the Pennsylvania Supreme Court was denied on September 18, 2008. See Commonwealth v. Carter, 599 Pa. 686, 960 A.2d 836 (2008)(Table, No. 253 MAL 2008). The United States Supreme Court denied his petition for writ of certiorari on April 20, 2009. See Commonwealth v. Pennsylvania, U.S., 129 S.Ct. 2005, 173 L.Ed.2d 1101 (2009).
On April 6, 2010, Mr. Carter filed the instant 2254 petition.
A petitioner confined under a state-court judgment has one year to file a 2254 petition challenging the judgment. 28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. at § 2244(d)(1)(A). This language applies to the right to seek discretionary review in state appellate courts and means that the judgment does not become final until the time period for seeking such review expires, even if review is not sought. See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000).
The one-year federal limitations period is subject to both statutory and equitable tolling. First, statutory tolling for a federal habeas claim occurs during the time "a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending...." Id., § 2244(d)(2). A properly filed state petition "is one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998); see also Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005)(where the state court rejects petitioner's PCRA petition as untimely, the petition "was not 'properly filed' and [petitioner is] not entitled to statutory tolling under § 2244(d)(2)"). Furthermore, a state court's determination that the petition was untimely is conclusive on a federal habeas court. Satterfield v. Johnson, 434 F.3d 185, 192 (3d Cir. 2006) ("If a state court determines that a petition is untimely, that would be the end of the matter, regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was 'entangled' with the merits.") (internal quotations omitted).
Next, the United States Supreme Court allows for equitable tolling of the limitations period where the petitioner shows that he "has been pursuing his rights diligently," and yet "some extraordinary circumstances stood in his way and prevented timely filing." Holland v. Florida, U.S.,, 130 S.Ct. 2549, 2562, L.Ed.2d (2010); see also Miller v. New Jersey Dep't of Corr., 145 F.3d 616, 617-18 (3d Cir. 1998)(same).
Applying these principles here indicates the 2254 petition is untimely. Mr. Carter's conviction was final on November 22, 1999,*fn3 and the federal limitations period expired one year later, or on November 22, 2000, absent tolling pursuant to 28 U.S.C. § 2244(d)(2). Thus, the statute of limitations began to run on that date, and ran for 294 days until it was tolled on September 11, 2000, when he filed his timely PCRA petition.*fn4 The limitations period began to run once again on September 18, 2008, when the Superior Court of Pennsylvania affirmed the entry of dismissal,*fn5 and with 71 days remaining. The AEDPA one-year limitations period expired on November 28, 2008. The instant petition was filed on April 6, 2010, well beyond the AEDPA's one-year deadline. Hence it is time-barred.
As Respondent point out, Mr. Carter has not argued that he was actively mislead or that anyone prevented him from asserting his right to file a habeas petition. The fact that he erroneously believed the limitations period was tolled during the pendency of his petition to the United States Supreme Court for writ of certiorari and consequently erred in calculating the applicable federal habeas one-year limitations period based on this mistaken assumption, while regrettable, does not rise to the level of an extraordinary circumstance required for equitable tolling of the limitations period ...