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George W. Welshimer v. Daniel Burns

May 30, 2012

GEORGE W. WELSHIMER, PETITIONER,
v.
DANIEL BURNS, SUPERINTENDENT; DISTRICT ATTORNEY OF MERCER COUNTY;
ATTORNEY GENERAL OF THE STATE OF PA, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER*fn1

On February 28, 2012, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. Service was made and the Court ordered Respondents to file an Answer, including addressing whether the Petition was timely under the one-year limitation period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Respondents filed their Answer on April 10, 2012 (ECF No. 8) wherein they concluded that the petition was timely filed. This Court's review of the relevant information, however, reveals that the State has miscalculated the limitations provision under AEDPA.

District courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006). Thus, if a court detects a clear computation error, it must accord the parties fair notice and an opportunity to present their positions. Id. at 210. To this end, on April 11, 2012, this court issued an Order to Show Cause why the Petition should not be dismissed as untimely (ECF No. 9). Petitioner filed responses to this Order on May 8, 2012 (ECF No. 14) and May 15, 2012 (ECF No. 15).

The following discussion shows that the Petition for Writ of Habeas Corpus is untimely. An appropriate Order follows.

A. Relevant Procedural History

On November 14, 2005, Petitioner pleaded guilty to one count of Recklessly Endangering Another Person; and two counts of DUI (a third offense). On April 7, 2006, he was sentenced to an aggregate term of from two (2) and one half (1/2) to twelve (12) years. Petitioner filed a timely appeal to the Superior Court of Pennsylvania from the judgment of his sentence. On June 11, 2007, the Pennsylvania Superior Court issued an order holding that Petitioner's claims were waived and that, nonetheless, the claims lacked merit. He did not seek review of this determination in the Supreme Court of Pennsylvania.

On June 12, 2008, Petitioner filed a petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9542. Attorney Jarrett K. Whalen was appointed to represent Petitioner through his PCRA proceedings. On June 13, 2011, Attorney Whalen filed a motion to withdraw Petitioner's PCRA Petition at Petitioner's request. On June 14, 2011, the Court granted this motion and the PCRA Petition was withdrawn. Petitioner's Petition for Writ of Habeas Corpus filed in this Court was executed on February 21, 2012.

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 retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...


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