The opinion of the court was delivered by: (Judge Conner)
Petitioner Clinton James Ayres ("petitioner"), a state inmate incarcerated at the State Correctional Institution at Cresson (SCI Cresson), Pennsylvania, initiated this action pursuant to 28 U.S.C. § 2254, on March 16, 2011, challenging his Court of Common Pleas of Bradford County, Pennsylvania, January 4, 2007 convictions for corruption of minors (Docket No. CP-08-CR-0000355-2006) and resisting arrest (PA Criminal Docket No. Docket No. CP-08-CR-0000363-2006). (Doc. 1.)
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 March 30, 2011, 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. 4.) On April 13, 2011, respondent filed an answer (Doc. 5) and, on May 2, 2011, petitioner filed a traverse (Doc. 7). In accordance with an Order of Court, respondent filed a supplemental response on July 12, 2011, to include any and all Court of Common Pleas of Bradford County, Superior Court of Pennsylvania, and Supreme Court of Pennsylvania orders and opinions relating to the petitioner's PCRA proceedings initiated in Court of Common Pleas of Bradford County criminal cases bearing docket numbers CP-08-CR-0000355-2006 and CP-08-CR-0000363-2006. (Doc. 9.) For the reasons set forth below, the petition will be dismissed as untimely.
In June, 2006, petitioner was arrested in Bradford County, Pennsylvania, and charged with multiple counts of child rape, child rape forcible compulsion, involuntary deviate sexual intercourse with child, involuntary deviate sexual intercourse forcible compulsion with child and corruption of minors. (See Electronic Docket No. CP-08-CR-0000355-2006 found at http://ujsportal,pacourts.us; Doc. 9, at 5-24.) In 2006 he was also charged with aggravated assault, simple assault, recklessly endangering another person, resist arrest/other law enforcement, and disarming law enforcement officer - without lawful authorization. (See Electronic Docket No. CP-08-CR-0000363-2006 found at http://ujsportal,pacourts.us; Doc. 9, at 25-42.)
On December 11, 2006, he entered pleas of guilty to resisting arrest and corruption of minors and the sentencing hearing was scheduled for January 4, 2007. (Id.) On January 4, 2007, he was sentenced to a term of imprisonment of two years and eleven months to seven years. (Doc. 1, at 1.) According to the electronic docket sheets, within days, he filed motions to modify his sentence, which were denied on January 11, 2007. No direct appeal was filed.
After the passage of more than twenty months, on October 13, 2008, he filed a petition for post conviction collateral relief, which he titled "Motion to Correct Plea Agreement," pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. On March 26, 2009, he was directed to file an amended pleading on or before April 23, 2009. An amended PCRA was filed on that date. (Doc. 9, at 3.) On June 2, 2009, the PCRA was dismissed for lack of jurisdiction. (Doc. 9, at 2.)
The instant petition was filed on March 16, 2011. (Doc. 1.)
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 ...