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Jay Allen Hench v. Commonwealth of Pennsylvania

July 2, 2011

JAY ALLEN HENCH,
PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, ET AL., RESPONDENTS



The opinion of the court was delivered by: (Judge Munley)

MEMORANDUM

Petitioner Jay Allen Hench ("petitioner"), a state inmate incarcerated at the State Correctional Institution at Rockview (SCI Rockview), Bellefonte, Pennsylvania, initiated this action pursuant to 28 U.S.C. § 2254, on November 28, 2011, in the United States District Court for the Western District of Pennsylvania, challenging his Court of Common Pleas of Cumberland County, Pennsylvania, convictions for Involuntary Deviate Sexual Intercourse, Sexual Assault, Indecent Assault, Sale of Liquor or Malt or Brewed Beverages to Minors. (See Doc. 1; Doc. 13, at ¶ 2; see also Electronic Docket No. CP-21-CR-0002430-2008 found at http://ujsportal,pacourts.us) The petition was electronically transferred to this court on May 31, 2012. (Docs. 2, 7, 9, 10.)

Upon preliminary review of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, see R. GOVERNING § 2254 CASES R. 4, it appeared that the petition may be barred by the statute of limitations, see United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc) (holding that district courts may sua sponte raise AEDPA's one-year statute of limitations, provided that the petitioner is provided with notice and an opportunity to respond) set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc) (holding that district courts may sua sponte raise AEDPA's one year statute of limitations, provided that the petitioner is provided with notice and an opportunity to respond). On June 5, 2012, the parties were notified that the petition appeared to be untimely and respondent was directed to file a response concerning the timeliness of the petition and any applicable statutory and/or equitable tolling of the AEDPA statute of limitations, and petitioner was afforded the opportunity to file a reply. (Doc. 12.) On June 13, 2011, respondent filed an answer (Doc. 13). Petitioner has not filed a reply. For the reasons set forth below, the petition will be dismissed as untimely.

I. Background

On February 23, 2009, petitioner pled guilty to Involuntary Deviate Sexual Intercourse, Sexual Assault, Indecent Assault, and Sale of Liquor or Malt or Brewed Beverages to Minors in the Court of Common Pleas of Cumberland County. On June 16, 2009, he was sentenced to an aggregate sentence of eighteen to thirty-six years imprisonment as per a plea agreement. (Doc. 13, at ¶ 3.) He filed a post sentence motion to withdraw his guilty plea on July 22, 2009. (See Electronic Docket No. CP-21-CR-0002430-2008 at 8.) The motion was amended on November 18, 2009. (Id. at 10.) After a November 19, 2009 hearing, the motion was denied. (Id. at 11.) No direct appeal was filed and petitioner did not pursue post conviction collateral relief.

As noted above, the instant petition was filed in the United States District Court for the Western District of Pennsylvania on November 28, 2011, and electronically transferred to this court on May 31, 2012. (Docs. 2, 7, 9, 10.)

II. Discussion

The court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d) (1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(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 time for seeking such review. .

(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.

28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

Following pleas of guilty to Involuntary Deviate Sexual Intercourse, Sexual Assault, Indecent Assault, and Sale of Liquor or Malt or Brewed Beverages to Minors, petitioner was sentenced on June 16, 2009, to a term of imprisonment of eighteen to thirty-six years. Thereafter, he filed a motion to withdraw his guilty plea, which was denied on November 19, 2009. He had thirty days to seek direct review by the Superior Court of Pennsylvania.

Pa.R.A.P. 903. No direct appeal was filed. His judgment therefore became final thirty days later, on or about December 19, 2009. The one-year period for the statute of limitations commenced running as of that date and expired on December 19, 2010. Hence, the federal petition, which was filed November 28, 2011, appears to be untimely. However, the Court's analysis ...


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