The opinion of the court was delivered by: (Judge Munley)
Petitioner Anthony M. Seabolt ("petitioner"), a state inmate currently incarcerated at the State Correctional Institution at Frackville (SCI Frackville), Pennsylvania, initiated this action pursuant to 28 U.S.C. § 2254, on April 26, 2012, challenging his Court of Common Pleas of York County, Pennsylvania, November 25, 2008, plea of guilty to "vehicular homicide while DUI" and "aggravated assault while DUI." (Doc. 1; Doc. 9-7, at 2.)
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). Therefore, on May 1, 2012, the parties were notified that the petition appeared to be untimely and respondents were 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 May 22, 2012, respondents filed a motion to dismiss the petition as untimely. (Doc. 9). Petitioner filed a reply on June 4, 2012. (Doc. 10). For the reasons set forth below, the petition will be dismissed as untimely.
In September 2007, petitioner was arrested in York County, Pennsylvania, and charged with Homicide by Vehicle While Driving Under the Influence, Aggravated Assault by Vehicle While Driving Under the Influence, and other related charges. (Doc. 9-7, at 2; see also, Electronic Docket No. CP-67-CR-0003003-2008, http://ujsportal,pacourts.us; Doc. 9-1, at 2.) He pled guilty to the homicide and aggravated assault charges on September 26, 2008. (Doc. 9-7, at 2.) The plea was taken under advisement and additional information was requested by the trial court. (Id.) After assembly of the additional information, the plea was rejected, and petitioner was permitted to withdraw his plea of guilty. (Id.) Petitioner, however, declined to do so and allowed his plea to stand. (Id.)
On November 25, 2008, the trial court sentenced him to 52 to 120 months imprisonment on the vehicular homicide charge, and 20 to 60 months imprisonment on the aggravated assault charge, to run consecutive to the vehicular homicide sentence. (Doc. 9-1, at 8; Doc. 9-7, at 2.) No direct appeal followed. (Id.)
On or about April 17, 2009, petitioner filed his first petition for post conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 9-7, at 3.) Following a hearing, the petition was denied by the PCRA court on June 1, 2009. (Id.) A notice of appeal was filed with the Superior Court of Pennsylvania and, on February 22, 2010, the Superior Court affirmed the PCRA court's decision. ((Doc. 9-7, at 3; Doc. 9-3.) On October 14, 2010, the Pennsylvania Supreme Court denied allocatur review. (Doc. 9-5; Doc. 9-7, at 3, citing Commonwealth v. Seabolt, 996 A.2d 15 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 8 A.3d 899 (Pa. 2010); Certified Record (C.R.) at 40, 41.)
While the first PCRA was still pending, petitioner filed a second PCRA petition. On receipt of the second PCRA petition, the PCRA court noted that the first PCRA proceeding was still pending appellate review and it therefore lacked jurisdiction to entertain and act upon that application. (Doc. 9-7, at 3; Doc. 9-1, at 13.) The second PCRA petition was therefore dismissed on July 8, 2010. (Id.)
A third PCRA petition was filed in mid-October 2010, which was amended on November 5, 2010. (Doc. 9-7, at 4; Doc. 9-1, at 14.) The Commonwealth moved to dismiss the petition as untimely. (Doc. 9-7, at 4.) Following a hearing, the PCRA court dismissed petitioner's third petition as untimely on January 7, 2011. (Id.) Petitioner appealed and, on December 27, 2011, the Superior Court affirmed the January 7, 2011 Order dismissing the petition as untimely. (Doc. 9-7, at 11.)
The instant petition was filed on April 26, 2012. (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 ...