The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
The Petitioner, Marcus Carder, is a state prisoner who is currently incarcerated at the State Correctional Institution in Huntingdon, Pennsylvania. He is serving an aggregate term of incarceration of 34 months to 10 years imposed on January 30, 2007, by the Court of Common Pleas of Erie County. Pending before the Court is his Petition for Writ of Habeas Corpus, which he has filed pursuant to 28 U.S.C. § 2254. [ECF No. 3]. Respondents have filed a motion to dismiss [ECF No. 8] contending, inter alia , that the petition is untimely. Petitioner has filed two replies [ECF Nos. 14, 16] and the motion is now ripe for review. For the reasons set forth below, the Court shall grant Respondents' motion, deny the petition as untimely, and direct the Clerk of Courts to close this case.
On December 19, 2006, Petitioner pleaded guilty to the crimes of criminal conspiracy, receiving stolen property, and access device fraud. He was represented by Dennis Williams, Esq. At the plea hearing, Petitioner was informed of his appellate rights and of the applicable deadlines. (Plea Hr.'g Tr. at 5-6). The trial court imposed his sentence on January 30, 2007, and at that time he once again was advised of his appeal rights and applicable deadlines. (Sentence Hr'g Tr. at 2-4).
Petitioner did not file post-sentence motions or an appeal. Accordingly, his judgment of sentence became final on or around March 1, 2007, the date on which the 30-day period to file an appeal expired. Pa.R.App.P. 903; Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (a judgment of sentence becomes final at the conclusion of direct review or the expiration of time for seeking such review).
On August 10, 2007, Petitioner, acting pro se , filed a motion for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 P A.C ONS.S TAT. § 9541 et seq . He raised a number of claims, including a claim that Williams was ineffective for failing to file post-sentence motions and a direct appeal. (SCR No. 8). The PCRA Court appointed William J. Hathaway, Esq., to represent him. (SCR No. 9).
Hathaway subsequently filed a supplemental PCRA motion. In this supplement, Hathaway indicated that after having reviewed the record, it was his opinion that the only claim that had arguable merit was Petitioner's allegation that Williams was ineffective for failing to file post-sentence motions and a direct appeal. (SCR No. 13). Hathaway asserted that as relief, the court should reinstate Petitioner's direct appeal rights.
The Commonwealth opposed the requested relief. (SCR No. 16). The PCRA Court scheduled a hearing limited to the issue of whether Williams was ineffective for failing to file post-sentence motions and a direct appeal. It denied Petitioner's other claims without a hearing. (SCR Nos. 20, 22).
The PCRA Court presided over the hearing on January 17, 2008. Williams, Petitioner, and his sister, Bessie Carder, testified. Williams stated that at the sentencing hearing he discussed post-sentence and appellate rights with Petitioner. He said that he "received no communication from [Petitioner] in the courtroom or thereafter with regard to his desire to appeal[.]" (PCRA Hr'g Tr. at 31-33). Petitioner acknowledged that he was made aware of his post-sentence and appellate rights at sentencing, but stated that Williams did not personally explain those rights. He also testified that immediately after sentencing he requested that Williams file a post-sentence motion and a direct appeal. He claimed to have made numerous unsuccessful attempts to contact Williams. (Id. at 5-6). Bessie Carder testified that she was present at the sentencing hearing and heard her brother request that Williams file a direct appeal. (Id. at 21).
Following the evidentiary hearing, the PCRA Court issued an order denying Petitioner's request to file post-sentence motions and an appeal nunc pro tunc . (SCR No. 21). It explained:
Considering all the testimony presented by the parties and the manner in which it was presented, the Court was required to make a determination with regard to what testimony would be accepted as true and would be regarded as untrue or inaccurate. It is the Court's opinion that [Petitioner's] and his sister's testimony was not believable. In particular, the Court noted that given the way in which the courtroom at issue is laid out, it was highly unlikely that Bessie Carder's testimony that she overheard her brother asking Mr. Williams to file an appeal was true. In addition, the Court believes that Mr. Williams' recitation of the facts is accurate and that he did not receive a request from [Petitioner] to file an appeal. The record before the Court indicates that Mr. Williams had been diligent in responding to the [Petitioner's] concerns prior to his plea and sentencing and the record is insufficient to conclude that Mr. Williams was not truthful or accurate in his representation that a request for an appeal had not been made. (SCR No. 28 at pp. 1-2).
Petitioner, through Hathaway, filed an appeal with the Superior Court. (SCR Nos. 24, 27). On December 3, 2008, the Superior Court issued a Memorandum affirming the PCRA Court's decision. (SCR No. 29). Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. ...