The opinion of the court was delivered by: Chief Judge Kane
Petitioner Joyce Knox ("Knox"), a state inmate incarcerated at the State Correctional Institution at Cambridge Springs, Pennsylvania, initiated this habeas corpus action pursuant to 28 U.S.C. § 2254. In the petition, Knox challenges her Court of Common Pleas of Adams County, Pennsylvania, conviction on drug-related charges. Upon preliminary review of the petition 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"). On October 23, 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. Petitioner was afforded the opportunity to file a reply. (Doc. No. 4). On November 5, 2012, Respondents filed an answer to the petition addressing only the timeliness of the petition and the application of any tolling provisions. (Doc. No. 6.) The relevant time period has expired and Knox has not filed any reply to Respondents' filing. For the reasons set forth below, the habeas petition will be dismissed as untimely.
Knox pled guilty on December 30, 2008, in the Court of Common Pleas of Adams County, Pennsylvania in criminal case No. CP-01-CR-0001318-2007, to two counts of possession with intent to deliver a controlled substance (Schedule II Narcotic), 35 P.S. §780-113(a)(30); two counts of possession with intent to deliver marijuana, 35 P.S. § 780-113(a)(30); and criminal conspiracy, 18 Pa.C.S. § 903. Knox was sentenced on March 11, 2009, to an aggregate term of 121/2 -36 years in a state correctional facility. Thereafter, a motion to modify sentence was filed wherein Knox requested that she be made eligible for the Recidivism Risk Reduction Incentive ("RRRI") program. The court granted the motion to modify sentence to make her eligible for RRRI by order dated April 9, 2009. No direct appeal was filed. A motion to modify sentence nunc pro tunc was filed on September 8, 2009. The Adams County Court of Common Pleas denied the motion on September 18, 2009, for lack of jurisdiction.
A timely petition for post-conviction relief was filed by Knox on March 8, 2010. Following a hearing, the petition was denied on July 28, 2010. An appeal from the denial of PCRA relief was filed raising the sole issue of whether the court erred in failing to find counsel ineffective for failing to interview material witnesses. The Pennsylvania Superior Court affirmed the denial of post-conviction relief and granted the petition of post-conviction relief counsel for leave to withdraw. See Commonweal v. Knox, 1379 MDA 2010 (May 24, 2011).
On July 28, 2011, Knox filed a pro se "Petition for Relief from Judgment, Petition for Habeas Corpus, Motion for Nunc Pro Tunc Status." The Adams County Court of Common Pleas construed the filing to be a second petition for post-conviction relief. On August 5, 2011, the court filed a notice of intent to dismiss the filing without a hearing in that the issues raised by Knox had been waived and also the filing was beyond the jurisdictional time period set forth by 42 Pa.C.S. §9545. The court afforded Knox until August 31, 2011 to show cause why her petition should not be dismissed. In response thereto, Knox filed a rambling and incoherent 10-page document. On September 13, 2011, the second petition for post -conviction relief was ultimately dismissed. On July 9, 2012, the Pennsylvania Superior Court affirmed the denial of PCRA relief. See Commonwealth v. Knox, No. 1828 MDA 2011 (July 9, 2012). The instant federal habeas petition dated July 28, 2012 by Knox was docketed by the Clerk of Court on August 6, 2012.
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. 12214 (Ar. 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 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).
Knox was sentenced on March 11, 2009. She timely filed a motion to modify her sentence. The motion was granted, and the sentence modified by order entered April 9, 2009. For purposes of calculating the federal limitations period, the sentence became final "at the expiration of the time for seeking" direct appeal. See 28 U.S.C. § 2244(d)(1)(A). Pursuant to the Pennsylvania Rules of Court, a notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a)(West 2012). Because Knox did not pursue a direct appeal, the judgment of sentence became final 30 days after the modification of her sentence on April 9, 2009, or May 11, 2009.*fn1 The one-year federal limitations deadline commenced May 12, 2009, when the judgment of sentence became final, and expired one year later, on May 12, 2010. Hence, the instant ...