The opinion of the court was delivered by: (Judge Caldwell)
On July 15, 2011, William Santiago, currently confined at SCI-Greene, Waynesburg, Pennsylvania, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2005 conviction in the Court of Common Pleas of York County, Pennsylvania, for first-degree murder. Named as respondents are John Kerestes, the superintendent at SCI-Mahanoy, Frackville, Pennsylvania, where Santiago was incarcerated at the time he filed his petition, and the Attorney General for the Commonwealth of Pennsylvania.
On review of the petition, we ordered Respondents to file an answer. Instead, Respondents filed a motion to dismiss, arguing that the petition is barred by the statute of limitations. Petitioner opposes the motion. We conclude that the petition is timely.
On January 14, 2005, following a jury trial, Santiago was sentenced to life imprisonment.*fn1 The Superior Court of Pennsylvania affirmed the conviction on direct appeal, Commonwealth v. Santiago, 401 MDA 2005 (Pa. Super. Ct. July 31, 2006), and on November 28, 2007, the Supreme Court of Pennsylvania denied Santiago's Petition for Allowance of Appeal. Commonwealth v. Santiago, No. 1071 MAL 2006 (Pa.). Santiago then petitioned the United States Supreme Court for a writ of certiorari. On April 28, 2008, the Supreme Court denied the petition. Santiago v. Pennsylvania, No. 07-9564 (U.S. April 28, 2008).
On December 15, 2008, Santiago filed a timely pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act (PCRA). 42 Pa. Con. Stat. Ann. §§ 9541-9546. The trial court denied the PCRA petition on June 29, 2009. The superior court affirmed the dismissal on August 18, 2010. Commonwealth v. Santiago, 1346 MDA 2009 (Pa. Super. Ct.). On March 9, 2011, the Pennsylvania Supreme Court denied Santiago's petition for allowance of appeal. Commonwealth v. Santiago, No. 657 MAL 2010 (Pa.).
Santiago filed his federal habeas corpus petition on July 15, 2011.
There is a one-year statute of limitations on filing a 2254 petition. See 28 U.S.C. § 2244(d)(1). The statute begins to run from the date the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review. See Wall v. Kholi, U.S. , , 131 S.Ct. 1278, 1283, 179 L.Ed.2d 252 (2011) (citing 28 U.S.C. § 2244(d)(1)(A)); see also Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 1810, 161 L.Ed.2d 669 (2005). When on direct review of a conviction, a petitioner seeks certiorari review in the United States Supreme Court, "the judgment becomes final . . . when the [Supreme Court] affirms a conviction on the merits or denies a petition for certiorari." Gonzalez v. Thaler, U.S. , , 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012).
The limitations period is subject to statutory tolling.*fn2
Statutory tolling 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 . . . ." 28
U.S.C. § 2244(d)(2); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2000). The tolling period includes the time a petition for allowance
of appeal in PCRA proceedings is pending in the Pennsylvania Supreme
Court. Swartz, 204 F.3d at 421 ("'pending' includes the time for
seeking discretionary review, whether or not discretionary review is
sought"); see also Kindler v. Horn, 542 F.3d 70, 77 n.5 (3d Cir. 2008)
(noting that the petitioner's PCRA
petition remained pending at least through the date the Pennsylvania
Supreme Court denied his petition for review), rev'd on other grounds,
Beard v. Kindler, 558 U.S. 53, 130
S.Ct. 612, 175 L.Ed.2d 417 (2009).
B. Calculation of Santiago's Limitations ...