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Posey v. Bickel

United States District Court, Third Circuit

November 4, 2013

HERMAN POSEY, III, Petitioner,
v.
TABB BICKEL, Respondent.

MEMORANDUM OPINION Re: ECF No. 7.

MAUREEN P. KELLY, Magistrate Judge.

Herman Posey, III, ("Petitioner") is a state prisoner who has filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"), which is untimely and must be dismissed as such.

Petitioner was convicted of Aggravated Assault, 18 Pa.C.S.A. § 2702, by a jury in the Court of Common Pleas of Allegheny County. On July 12, 2004, Petitioner was sentenced to 5½ to 11 years of incarceration. Petitioner filed an untimely appeal which was quashed by the Pennsylvania Superior Court on February 28, 2005. Petitioner then filed a petition pursuant to the Pennsylvania Post Conviction Relief Act (the "first PCRA Petition") on May 27, 2005. The PCRA Court denied the first PCRA Petition on October 27, 2006. Petitioner did not file an appeal. Waiting for more than two years, Petitioner filed a second PCRA Petition (the "second PCRA Petition") on April 3, 2009. On November 29, 2009, the PCRA Court denied the second PCRA Petition for failing to make a strong prima facie showing that a miscarriage of justice occurred. Waiting for more than three years thereafter, Petitioner filed the present Petition. Respondent filed a Motion to Dismiss, ECF No. 7, pointing out that the Petition violates the one year statute of limitations. Because the Respondent is correct, the Petition will be dismissed as time barred.

A. PROCEDURAL HISTORY

Petitioner is proceeding pro se. After the Petition was filed, ECF No. 4, Respondent filed a Motion to Dismiss the Petition, wherein they raised the statute of limitations defense. ECF No. 7. The Court ordered Petitioner to file a response to the Motion to Dismiss. ECF No. 10. Petitioner complied and filed a very brief Response to the Motion to Dismiss. ECF No. 12. The parties have filed their consent to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 9 and 11.

B. THE PETITION IS TIME BARRED.

1. The AEDPA Statute of Limitations

The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because the Petition in this case was filed after its effective date, the AEDPA is applicable to this case. Werts v. Vaughn , 228 F.3d 178, 195 (3d Cir. 2000).

Respondent pointed out in the Motion to Dismiss that this Petition is untimely under the AEDPA. Respondent is correct. The AEDPA requires that state prisoners file their federal habeas petition within one year after their conviction became final.[1] Specifically, the AEDPA provides that:

(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 ...

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