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Lance Rucker v. Warden Michael Curley; the District Attorney of the County of Allegheny and the

August 30, 2011

LANCE RUCKER, PETITIONER,
v.
WARDEN MICHAEL CURLEY; THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY AND THE
ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA RESPONDENTS.



The opinion of the court was delivered by: Lisa Pupo Lenihan Magistrate Judge

MEMORANDUM OPINION AND ORDER

Petitioner, Lance Rucker, a state prisoner incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. For the reasons that follow, the Petition should be dismissed as untimely because it was not filed within the one-year limitations period provided for under 28 U.S.C. ' 2244(d).

A. Relevant Procedural History

The record evidence reveals the following. On April 23, 2001, in the Court of Common Pleas of Allegheny County, Pennsylvania, Petitioner was convicted by a jury of Second Degree Murder and related charges and was sentenced to life imprisonment. Petitioner filed a timely notice of appeal and on August 20, 2002, the Superior Court of Pennsylvania affirmed his judgment of sentence. Petitioner filed a timely Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied on March 7, 2006.

On September 21, 2006, Petitioner filed a petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. ' 9542. On November 1, 2006, the PCRA Court denied Petitioner=s PCRA Petition. Petitioner filed a timely Notice of Appeal and on January 8, 2008, the Superior Court of Pennsylvania affirmed the Trial Court=s determination denying Petitioner PCRA relief. On September 12, 2008, the Supreme Court of Pennsylvania denied Petitioner=s Petition for Allowance of Appeal.

On October 31, 2008, Petitioner filed a second pro se Motion for Post Conviction Collateral Relief. On December 22, 2008, this Petition was dismissed as untimely. Petitioner did not file any appeal from this order.

On June 17, 2009, Petitioner filed a third pro se Motion for Post Conviction Collateral Relief. On July 7, 2009, this Petition was dismissed as untimely. Petitioner filed a timely Notice of Appeal and on August 13, 2010, the Superior Court of Pennsylvania affirmed the Trial Court=s determination denying Petitioner PCRA relief.

Petitioner=s federal Petition for Writ of Habeas Corpus was executed on January 20, 2011.

B. Time Period for Filing Federal Habeas Corpus Petitions

The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under the one-year limitations period applicable to such petitions. In this regard, the federal habeas corpus laws impose a one-year limitations period applicable to state prisoners, which provides as follows.

(d) (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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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