The opinion of the court was delivered by: Judge Caldwell
On April 23, 2012, James Emery filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2008 convictions in the Court of Common Pleas of Dauphin County, Pennsylvania, for carrying a firearm without a license, possession with intent to deliver, unlawful possession of drug paraphernalia, simple assault and criminal conspiracy.*fn1 Named as Respondents are Jame McGrady, Superintendent of SCI-Retreat where Emery is incarcerated, and the Attorney General for the Commonwealth of Pennsylvania.
On preliminary review, we have decided that the petition may be untimely and will require Petitioner to address that issue. See Day v. McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 1683-84, 164 L.Ed.2d 376 (2006)(district courts have the authority to consider, sua sponte, the timeliness of a state prisoner's habeas petition); United States v. Bendolph, 409 F.3d 155, 166-67 (3d Cir. 2005)(en banc)(district court may raise the one-year statute of limitations on its own motion, provided the petitioner is afforded notice and an opportunity to respond).
On October 23, 2008, following a guilty plea, Emery was sentenced to serve an aggregate term of sixty-one months to twelve years in a state correctional institution. Doc. 2, Mem. in Supp. Habeas Corpus Pet. at pp. 10-11.*fn2 No post-sentence motions were filed and no direct appeal was taken. Id. at p. 11. On March 11, 2009, Emery filed a timely pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Con. Stat. Ann. §§ 9541-9546 (West 2007 & Supp. 2012). The trial court denied the PCRA petition on September 8, 2009. The superior court affirmed the dismissal on September 22, 2010. See Commonwealth v. Emery, No. 1638 MDA 2009 (Pa. Super. Ct.). Emery did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.
On October 26, 2010, Emery filed a second pro se PCRA petition. See Commonwealth v. Emery, CP-22-0001283-2008 (Pa. Common Pleas Ct. - Dauphin Cnty.).*fn3 On May 11, 2011, the Court advised Emery of its intent to dismiss his PCRA petition. The petition was dismissed on August 16, 2011, after Emery failed to file an Answer to the Court's May 11, 2011, order. See Doc. 2 at p. 24. Emery did not appeal the dismissal of his second PCRA petition to the superior court.
On April 23, 2012, Emery filed in the state supreme court a petition for leave to file a petition for allowance of appeal nunc pro tunc challenging the superior court's September 22, 2010, order affirming the denial of his first PCRA petition. See Doc. 2 at pp. 28-29 and p. 38.
A petitioner confined under a state-court judgment has one year to file a 2254 petition challenging the judgment. See 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. In Pennsylvania, where no direct appeal is taken, the sentence becomes final thirty days after sentencing when the criminal defendant's opportunity to file a direct appeal with the superior court expires. See 42 Pa. Cons. Stat. § 9545(b)(3); Pa. R. App. P. 903; Pa. R. Crim P. 720(a)(3).
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 . . . ." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); 28 U.S.C. § 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)"). Likewise, an untimely petition for allowance of appeal, filed nunc pro tunc, with the Pennsylvania Supreme Court is not "properly filed." See Douglas v. Horn, 359 F.3d 257, 262 (3d Cir. 2004).
The limitations period may be subject to equitable tolling when 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, 177 L.Ed.2d 130 (2010); see also Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012)(also considering the possibility of equitable tolling by way of actual innocence). Specifically, the Third Circuit has identified four circumstances in which equitable tolling is justified: (1) when the defendant has actively misled the plaintiff; (2) when the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) when the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum; or (4) when the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel ...