The opinion of the court was delivered by: (Judge Rambo)
Petitioner Tabu N. McClure ("McClure"), who is presently incarcerated at the State Correctional Institution at Pine Grove in Indiana, Pennsylvania, initiated this action by filing a pro se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 1.) In the petition, McClure challenges his October 18, 2006 conviction for firearms charges in the Court of Common Pleas of Dauphin County, Pennsylvania ("trial court" or "Dauphin County court").
Upon preliminary review of the habeas corpus petition pursuant to 28 U.S.C. § 2254, see Rules Governing § 2254 Cases Rule 4, it appeared that the habeas petition might be barred by the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (holding that district courts may sua sponte raise AEDPA's one-year statute of limitations, provided that the petitioner is given notice and an opportunity to respond). On June 27, 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. (Doc. 8.) McClure was afforded the opportunity to file a reply. (Id.) On July 17, 2012, Respondents filed a response to the habeas petition. (Doc. 13.) McClure has not filed any reply to Respondents' filing, and the time for doing so has expired. For the reasons set forth below, the habeas petition will be dismissed as untimely.
On October 18, 2006, McClure was sentenced in the Dauphin County court for firearms charges to a term of imprisonment of three (3) to eight (8) years. See Commonwealth v. McClure, CP-22-CR-0003208-2005, available at http://ujsportal.pacourts.us (last visited Aug. 1, 2012). After he filed a direct appeal, on July 13, 2007, the Pennsylvania Superior Court affirmed McClure's judgment of sentence, and on January 30, 2008, the Pennsylvania Supreme Court denied his petition for allowance of appeal. See id.
On November 3, 2008, McClure filed a petition for post conviction collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. See id. The Dauphin County court, now acting as the PCRA court, dismissed the PCRA petition on August 31, 2009. See id. On June 22, 2010, the Pennsylvania Superior Court affirmed the dismissal of McClure's PCRA petition. See Commonwealth v. McClure, 932 A.2d 257 (Pa. Super. Ct. 2007) (table). McClure did not timely file a petition for allowance of appeal to the Pennsylvania Supreme Court. He filed the instant federal habeas petition on May 14, 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 AEDPA. 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:
(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;
(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 has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
McClure was sentenced to 3 to 8 years on October 18, 2006. On July 13, 2007, the Pennsylvania Superior Court affirmed McClure's judgment of sentence, and on January 30, 2008, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Therefore, McClure's judgment became final on or about April 30, 2008, or after the 90-day period to file a petition for a writ of certiorari in the United States Supreme Court had expired. See 42 Pa. Cons. Stat. Ann. § 9545(b)(3) ("judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review"). The one-year period for the statute of limitations commenced running as of that date, and expired on April 30, 2009. Hence the federal ...