The opinion of the court was delivered by: Judge Caputo
On May 5, 2010, Victor Patterson, a federal inmate confined at LSCIAllenwood, White Deer, Pennsylvania, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254.*fn1 In his habeas petition, he challenges his 1994 Dauphin county Court of Common Pleas conviction for possession with intent to manufacture or deliver a controlled substance. Mr. Patterson claims his guilty plea was involuntary, that his attorney was ineffective, and that his illegal conviction was later used to enhance his current federal sentence. (Docs. 1 and 2, Pet. and Mem. in Supp.)
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 May 7, 2010, we notified the parties of our concerns and provided them with an opportunity to address the timeliness issue. (Doc. 5.) Respondent and Mr. Patterson both filed briefs in response to our Order. See Doc. 10, Respondent's Response, and Doc. 11, Mr. Patterson's Response. The limitations issue, raised sua sponte by the Court, has been briefed by the parties, and is ripe for review.
Following a guilty plea in the Dauphin County Court of Common Pleas, Victor Patterson was convicted of unlawful delivery of a controlled substance.*fn2 He was sentenced on April 11, 1994, to a term of imprisonment of three and one half ( 3 1/2 ) to seven (7) years. Mr. Patterson did not file a direct appeal with the Superior Court of Pennsylvania. Id.; see also Doc. 11, CM/ECF p. 4.*fn3
On October 29, 2008, Victor Patterson filed a petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541 et seq. On December 24, 2008, the Dauphin County Court of Common Pleas dismissed the petition. On September 15, 2009, the Superior Court of Pennsylvania affirmed the trial court's denial of the petition. See Doc. 10-2, CM/ECF pp. 4-5, Commonwealth v. Patterson, 986 A.2d 1262 (Pa. Super. September 15, 2009)(Table, No. 321 MDA 2009). The Superior Court determined Mr. Patterson was not "eligible for PCRA relief" because:
Patterson is not currently serving a sentence of imprisonment, probation, or parole for the offense named in his petition. On April 11, 1994, he was sentenced to three and one-half to seven years imprisonment following his plea of guilty to unlawful delivery of a controlled substance. As such he completed his sentence on or before April 11, 2001. Because he is not currently serving a sentence of imprisonment, probation of parole, we find that he is not eligible for PCRA relief. (Id.) On March 29, 2010, the Pennsylvania Supreme Court denied his petition for allowance of appeal. See Commonwealth v. Patterson, 992 A.2d 124 (Pa. 2010)(Table, No.876 MAL 2009).
Mr. Patterson filed his habeas petition on May 5, 2010.
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). Additionally, section 2244 further provides that the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation". See 28 U.S.C. § 2244(d)(2).
The one-year federal limitations period is subject to both statutory and equitable tolling. 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)"). 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).
In this case, Victor Patterson was sentenced in the Dauphin County Court of Common Pleas on April 11, 1994. He did not file a direct appeal with the Superior Court, thus, his conviction became final on May 11, 1994, 30 days after the period for him to appeal to the Superior Court of Pennsylvania expired. See 42 Pa. C.S. § 9545(b)(3); Pa. R. App. P. 903; Pa. R. Crim. P. 720(a)(3). However, federal habeas corpus applicants whose conviction became final before the April 24, 1996, effective date of the AEDPA, were given a one year grace period to file their habeas petitions. Thus, absent any tolling, Victor Patterson had until April 24, 1997 to file his § 2254 petition challenging his Dauphin County drug conviction. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Clearly the time for filing his federal habeas corpus petition expired several years before he commenced the present action in May 2010. Moreover, his 2008 PCRA petition did not statutorily toll the federal limitations period because the federal habeas filing deadline expired long before he ever sought relief in the state court system.*fn4 Unfortunately, the Court cannot toll the time period from 2008 through 2010, the time during which Mr. Patterson's state court collateral proceedings were pending because his PCRA action was rejected by the state courts as being not "properly filed". See Satterfield, 434 F.3d at 192.
Since Victor Patterson did not seek federal habeas corpus relief until May 2010, his action is clearly untimely under the application of § 2244(d) and its statutory tolling provisions. As noted earlier, Mr. Patterson was given the opportunity to show why his case should not be dismissed on timeliness grounds, and yet he did not make a single argument for equitable tolling of the limitations period. He offers no reasonable explanation as to why he could not have pursued review of his ...