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Rivera v. Ebbert

United States District Court, M.D. Pennsylvania

January 27, 2014

JOSE MICHAEL RIVERA, Petitioner,
v.
WARDEN DAVID EBBERT, Respondent.

MEMORANDUM[1]

MALACHY E. MANNION, District Judge.

Petitioner, Jose Michael Rivera, an inmate confined in the Canaan United States Penitentiary, Waymart, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks two separate convictions imposed by the Court of Common Pleas for York County, Pennsylvania. (Doc. No. 1). Following careful consideration of the parties' submissions, and for the reasons discussed below, the Court will dismiss the petition as untimely. See 28 U.S.C. § 2244(d).

I. Background

The following background has been extracted from the Pennsylvania Superior Court's March 9, 2012 Opinion, affirming the state court's denial of Rivera's petition under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S.A. §§9541, et seq. ("PCRA"). (Doc. No. 5, Ex. 7, Memorandum Opinion dated March 9, 2012).

On January 11, 1988, at case CP-67-CR-0002264-1987, Appellant entered a guilty plea to one count of delivery of drugs and one count of criminal conspiracy to deliver drugs. On April 28, 1988, the trial court sentenced Appellant to two concurrent terms of 2 to 4 years' imprisonment. Appellant did not file a direct appeal from the judgment of sentence.
On May 16, 1989, at case CP-67-0002659-1988, Appellant entered a guilty plea to one count of corrupt organizations. On May 16, 1989, the trial court sentenced Appellant pursuant to a plea bargain to 1 to 3 years' imprisonment. The sentence at CP-67-CR-0002659-1988 was ordered to rune consecutive to the sentence at CP-67-CR-0002264-1987. Appellant did not file a direct appeal from the judgment of sentence.
On August 4, 2009, Appellant filed a "Motion to Vacate Judgment and Sentence Pursuant to the [PCRA]." In this motion Appellant asserted that he was sentenced recently on Federal criminal charges, and alleged that his counsel was ineffective for inducing him to enter guilty pleas at case CP-67-CR-0002264-1987 and case CP-67-CR-0002659-1988. Specifically, Appellant alleged that his counsel was ineffective for failing to advise Appellant that as a result of the guilty pleas/convictions, he may receive an enhanced sentence if convicted of a crime in the future.
The PCRA court deemed Appellant's motion a PCRA petition, and on August 12, 2009, denied Appellant relief. The PCRA court concluded that Appellant was not entitled to relief because: (1) Appellant had completed his sentences imposed at case CP-67-CR-0002264-1987 and case CP-67-CR-0002659-1988, and (2) Appellant's PCRA petition was untimely. Appellant filed a notice of appeal to this Court, and we dismissed the appeal because Appellant failed to file a docketing statement under Pa.R.A.P. 3517. Thereafter, Appellant took no further action concerning his appeal.
On June 13, 2011, Appellant filed his second PCRA petition, essentially asserting the same allegations that he advanced in his first PCRA. In response, the Commonwealth filed a motion to dismiss. On June 221, 2011, the PCRA court granted the Commonwealth's motion to dismiss, concluding that Appellant was not entitled to relief because: (1) Appellant completed his sentences imposed at case CP-67-CR-0002264-1987 and case CP-67-CR-0002659-1988, (2) Appellant's PCRA petition was untimely, and (3) Appellant's claims of ineffective assistance of counsel was previously litigated. However, prior to granting the Commonwealth's motion, the PCRA court did not provide Appellant with the twenty day notice of its intent to dismiss the PCRA petition as required by Pa.R.Crim.P. 907(1).
On July 18, 2011, Appellant filed a timely notice of appeal. Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.
On appeal, Appellant contends that the PCRA court erred in dismissing his PCRA petition and abused its discretion by failing to issue the requisite twenty day notice under Pa.R.Crim.P. 907(1).

Id. By Memorandum Opinion dated March 9, 2012, the Pennsylvania Superior Court affirmed the PCRA court's order denying Rivera's second PCRA petition, even though the PCRA court failed to issue the notice required by Pa.R.Crim.P. 907(1). Id . Petitioner then filed for allowance of appeal to the Pennsylvania Supreme Court, which was denied on August 22, 2012. (Doc. No. 5, Ex. 6, Appeal Docket Sheet). No further appeal or collateral challenges to his conviction or sentence were filed.

On August 23, 2013, Rivera filed the instant petition for writ of habeas corpus. (Doc. No. 1, petition). He once again challenges his guilty pleas at case CP-67-CR-0002264-1987 and case CP-67-CR-0002659-1988. Specifically, Rivera raises the following three grounds for relief: (1) Ineffective assistance of counsel; (2) lower court error in considering the PCRA petition as untimely; and (3) lower court error in failing to serve notice of intent to dismiss the petition. Id.

By Order dated October 31, 2013, this court raised, sua sponte , the statute of limitations bar, and directed the parties to address the timeliness of the instant petition. (See Doc. No. 4, Order).

On November 22, 2013, Respondent filed an answer to the petition, arguing that the statute of limitations bars the petition, and the Petitioner is no longer serving a sentence in these cases. (Doc. No. 5, answer). No reply has been filed by Petitioner.

II. Discussion

A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(d)(1) A one-year period of limitations 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 for seeking such review...
(d)(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)(emphasis added); see generally, Jones v. Morton , 195 F.3d. 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), the period of time for filing a habeas corpus petition begins to run when direct review processes are concluded. See Harris v. Hutchinson , 209 F.3d 325, 327 (4th Cir. 2000)("[T]he AEDPA provides that upon conclusion of direct review of a judgment of conviction, the one year period within which to file a federal habeas corpus petition commences, but the running of the period is suspended for the period when state post-conviction proceedings are pending in any state court.")(emphasis in original); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998)( per curiam ); Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). It is not the conclusion of state post-conviction collateral review processes that starts the running of the limitations period. See Bunnell v. Yukins, No. 00-CV-73313 , 2001 WL 278259, *2 (E.D. Mich. Feb 14, 2001)("Contrary to Petitioner's assertion, the limitations period did not begin to run anew after the completion of his post-conviction proceedings.").

As indicated above, section 2244(d)(2) operates to exclude only the time within which a "properly filed application" for post conviction relief is pending in state court. Thus, when a petition or appeal has concluded and is no longer pending, the one (1) year statute of limitations starts to run and the time is counted. A "properly filed application" for post conviction relief under § 2244(d)(2) is one submitted according to the state's procedural requirements, such as rules governing time and place of filing. Lovasz v. Vaughn , 134 F.3d 146, 148 (3d Cir. 1998). The Third Circuit Court of Appeals has defined "pending" as the time during which a petitioner may seek discretionary state court review, whether or not such review is sought. Swartz v. Meyers , 204 F.3d 417 (3d Cir. 2000). "Pending, " however, does not include the period during which a state prisoner may file a petition for writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition. Stokes v. District Attorney of the County of Philadelphia, No. 99-1493 , 2001 WL 387516, at *2 (3d Cir., April 17, 2001). Likewise, the statute of limitations is not tolled under § 2244(d)(2) for the time during which a habeas petition is pending in federal court. Jones , 195 F.3d at 158.

The AEDPA statute of limitations also may be subject to equitable tolling. The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling only in extraordinary circumstances. See Merritt v. Blaine , 326 F.3d 157, 161 (3d Cir. 2003). In Merritt, the Court of Appeals set forth two general requirements for equitable tolling: "(1) that the petitioner has in some extraordinary way been prevented from asserting his or her rights; and (2) that the petitioner has shown that he or she exercised reasonable diligence in investigating and bringing the claim." Id . (internal citations and quotations omitted).

In this case, because Petitioner failed to file a direct appeal, his January 11, 1988 conviction at CP-67-CR-0002264-1987 became final on February 11, 1988 and his May 16, 1988 conviction at CP-67-CR-0002659-1988 became final on June 16, 1989, at the expiration of the thirty-day period to file a direct appeal to the Pennsylvania Superior Court. See 42 Pa.C.S.A. §9545(b)(3); Pa.R.App.P. 903; Pa.R.Crim.P. 720(a)(3). However, where, as here, a prisoner's conviction became final on direct review prior to the effective date of the AEDPA (April 24, 1996), the limitations period began running on April 24, 1996. Burns v. Morton , 134 F.3d 109, 111 (3d Cir. 1998); see also Harris , 209 F.3d at 328. Thus, the clock for filing a § 2254 petition began on April 24, 1996, and Rivera had until April 23, 1997, to file a timely habeas corpus petition. Burns , 134 F.3d at 111. The instant petition was not filed until August 23, 2013, more than sixteen years after the limitations period expired. As such, the petition for habeas corpus relief under § 2254 appears to be barred by the statute of limitations, and should be dismissed as untimely, unless the statute of limitations is subject to statutory or equitable tolling.

As noted above, the one-year statute of limitations is tolled during the time petitioner had pending in state courts a properly filed PCRA petition. Petitioner filed his first PCRA petition on August 4, 2009, more than twelve years after the AEDPA statute of limitations expired. Petitioner's PCRA petition does not toll an already expired statute of limitations. See Long v. Wilson , 393 F.3d 390, 395 (3d Cir.2004) (petitioner's untimely PCRA petition did not statutorily toll the statute of limitations because, inter alia, "the limitations period had already run when it was filed").

Petitioner's second PCRA petition, filed on June 13, 2011, also was filed after the expiration of the AEDPA statute of limitations and, therefore, does not toll the statute of limitations. Additionally, on June 21, 2011, the PCRA court dismissed the second PCRA petition as untimely. Case law is clear that an untimely PCRA petition is not "properly filed" and, therefore, does not toll the statute of limitations. See Pace v. Diguglielmo , 544 U.S. 408, 417 (2005) ("Because the state court rejected petitioner's PCRA petition as untimely, it was not properly filed, ' and he is not entitled to statutory tolling under § 2254(d)(2)."). See also Merritt v. Blaine , 326 F.3d at 167-68. Consequently, the AEDPA statute of limitations is not subject to statutory tolling.

Moreover, although the AEDPA's one-year filing requirement is a statute of limitations, not a jurisdictional rule, and thus a habeas petition should not be dismissed as untimely filed if there exists an equitable basis for tolling the limitations period, Petitioner presents absolutely no evidence to account for the delay in filing the instant petition for writ of habeas corpus. Consequently, equitable tolling is inapplicable in this matter and the petition will be dismissed.

Finally, the Court may "entertain an application for a writ of habeas corpus on 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). While the "in custody" requirement is liberally construed for purposes of habeas corpus, a petitioner must be in custody under the very order he is attacking when the petition is filed, in order for this Court to have jurisdiction. See Spencer v. Kemna , 523 U.S. 1, 7 (1998); Maleng v. Cook, 490 U.S. 488, 490-92 (1989) ( per curiam ). No court has held that a habeas petitioner is in custody when a sentence imposed by the order he is challenging had fully expired at the time the petition was filed. Indeed, the Supreme Court held that its decision in Carafas v. LaVellee , 391 U.S. 234 (1968) "strongly implies the contrary." Maleng , 490 U.S. at 491. In Carafas, the Supreme Court noted that the unconditional release of petitioner raised a substantial issue' as to whether the statutory in custody' requirement was satisfied. Maleng , 490 U.S. at 491 (citing Carafas , 391 U.S. at 238). The Court ultimately found the in custody requirement was satisfied in Carafas, not because of the collateral consequences of a conviction, but due to the fact that petitioner had been in physical custody pursuant to the challenged conviction at the time the petition was filed. Maleng , 490 U.S. at 492 (citing Carafas , 391 U.S. at 238). Thus, the clear implication of the Supreme Court's holding is "that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody' for purposes of a habeas attack upon it."[2] Maleng , 490 U.S. at 492.

Here, it is evident that Rivera's 1988, and 1989, state court convictions, resulting in a seven year maximum sentence, had fully expired before he filed for federal habeas relief on August 23, 2013. Thus, Rivera fails to satisfy the "in custody" requirement under § 2254. As the Morgan Court indicated, "[t]he United States Supreme Court has clearly stated that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual in custody' for the purposes of a habeas attack upon it.'" Id., at * 3(citing Maleng , 490 U.S. at 492). See also Rodland v. Shannon, 2007 WL 1217852, *1 (M.D. Pa.) (this Court found that it did not have jurisdiction under § 2254(a) to consider a habeas petition in which Petitioner was seeking to challenge an expired sentence for which he was no longer in custody, and which expired prior to his filing of his habeas petition, based on his claim that his illegal 1996 conviction was used to enhance his sentence he was serving when he filed his habeas petition).[3]

III. Certificate of Appealability.

When a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability should issue only if (1) the petition states a valid claim for the denial of a constitutional right, and (2) reasonable jurists would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel , 529 U.S. 473, 484 (2000). In this case, reasonable jurists could not disagree that the instant petition is time-barred. It is statutorily barred, and neither statutory nor equitable tolling apply to the petition. Additionally, this Court is without jurisdiction because Petitioner is no long in custody on his challenged convictions.

OPINION AND ORDER GRANTING MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

EDMUNDS, J.

1. Introduction

*1 Petitioner, an inmate at the Scott Correctional Facility in Plymouth, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that she is incarcerated in violation of her constitutional rights. Petitioner was convicted of second-degree murder following a jury trial in the Recorder's Court for the City of Detroit in 1990 and was sentenced to 20-30 years imprisonment.

This matter is before the Court on Respondent's motion to dismiss the habeas petition for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. 2244(d)(1). For the reasons set forth below, this Court concludes that Respondent's motion should be granted and that the habeas petition should be dismissed as untimely.

II. Procedural History

Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed her conviction and sentence. People v. Bunnell, No. 130974 (Mich.Ct.App. July 8, 1992) (unpublished, per curiam). Petitioner filed an application for leave to appeal with the Michigan Supreme Court which was denied. People v. Bunnell, No. 94653 (Mich. Dec. 30, 1992).

Petitioner filed a motion for relief from judgment with the trial court on June 12, 1996. The trial court denied the motion. People v. Bunnell, No. 90-000288 (Recorder's Ct. Oct. 30, 1996). Petitioner subsequently filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Bunnell, No. 200680 (Mich.Ct.App. Nov. 12, 1998). Petitioner also filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Bunnell, No. 113819 (Mich. July 27, 1999).

Petitioner filed the present federal petition for writ of habeas corpus, dated July 26, 2000, on that same date. Petitioner asserts that she is entitled to habeas relief on the following grounds: (1) the trial court failed to instruct the jury on the defense theory, (2) there was insufficient evidence to convict, (3) the verdict was against the great weight of the evidence, (4) she was denied the effective assistance of trial and appellate counsel, and (5) the trial judge erred at sentencing. Respondent filed the motion to dismiss the petition for failure to comply with the one-year statute of limitations on February 2, 2001. Petitioner filed reply to the motion on February 9, 2001.

III. Analysis

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996. The AEDPA governs the filing date for the habeas application in this case because Petitioner filed his application after the effective date of the AEDPA. Lindh v. Murphy , 521 U.S. 320, 336 (1997). Among other things, the AEDPA amended 28 U.S.C. 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Matthews v. Abramaitys, 39 F.Supp.2d 871, 872 (E.D.Mich.1999). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244(d)(1)(A). The revised statute provides that:

*2 (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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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).

Petitioner's conviction became final before the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final prior to the AEDPA's effective date are given a one-year grace period in which to file their federal habeas petitions. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999). Accordingly, Petitioner was required to file her federal habeas petition on or before April 24, 1997, excluding any time during which a properly filed application for state post-conviction or collateral review was pending in accordance with 28 U.S.C. 2244(d)(2).

Petitioner filed her state court motion for relief from judgment on June 12, 1996. At that juncture, 49 days of the one-year grace period had expired. Petitioner then pursued her state court remedies until the Michigan Supreme Court denied leave to appeal the denial of her motion for relief from judgment on July 27, 1999. The AEDPA's one-year statute of limitations period was thus tolled from June 12, 1996 to July 27, 1999 while Petitioner's motion for relief from judgment was properly filed and pending. The AEDPA's limitations period is only tolled while a prisoner has a properly filed post-conviction motion under consideration. 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir.2000); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir.1998); see also Hudson v. Jones, 35 F.Supp.2d 986, 988 (E.D.Mich.1999).

Once the Michigan Supreme Court denied Petitioner's application for leave to appeal the denial of her motion for relief from judgment, Petitioner had 316 days remaining before the one-year period expired. Contrary to Petitioner's assertion, the limitations period did not begin to run anew after the completion of his post-conviction proceedings. See, e.g., Cromwell v. Keane, 33 F.Supp.2d 282, 285 (S.D.N.Y.1999); Gray v. Walters, 26 F.Supp.2d 771, 772 (D.Md.1998). Petitioner was thus required to file her federal habeas petition by June 8, 2000. Petitioner did not file the instant habeas petition until July 26, 2000 (the date upon which she signed the petition)-more than six weeks after the expiration of the one-year period. Thus, Petitioner's present habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d).

*3 Several courts have concluded that the limitations period is not a jurisdictional bar and may be subject to equitable modifications such as tolling. See, e.g., Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998); Miller v. New Jersey State Dept. of Corr. 145 F.3d 616, 617-19, 3rd Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Thomas v. Straub, 10 F.Supp.2d 834, 835-36 (E.D.Mich.1998). Petitioner, however, has not alleged any extraordinary circumstances which caused her to file the instant petition more than six weeks after the expiration of the one-year limitations period.

IV. Conclusion

This Court thus concludes that Petitioner failed to file her petition for writ of habeas corpus within the one-year grace period and has not alleged any extraordinary circumstances which caused her to file outside the applicable time frame.

Accordingly;

IT IS ORDERED that Respondent's motion to dismiss is GRANTED and that the petition for writ of habeas corpus is DISMISSED for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1).

*540 Mary Gibbons, Toms River, NJ, Counsel for Appellant.

Donna G. Zucker, Michele S. Davidson, Marilyn F. Murray, Thomas W. Dolgenos, Ronald Eisenberg, Arnold H. Gordon, Lynne Abraham, Office of the District Attorney, Philadelphia, PA, Counsel for Appellees.

Before: MANSMANN, BARRY and COWEN, Circuit Judges.

OPINION OF THE COURT

MAN SMANN, Circuit Judge.

Willie Stokes appeals from an order of the District Court dismissing his petition for habeas corpus, filed pursuant to 28 U.S.C. § 2254, as time-barred. We address an issue of first impression for our court: Whether Stokes' time to file a federal habeas corpus petition under 28 U.S.C. 2244(d)(1) was tolled under 28 U.S.C. § 2244(d)(2) for the ninety day period during which Stokes could have filed a petition for certiorari in the United States Supreme Court. We join all of the other Courts of Appeals to have decided this issue, holding that the ninety day period during which a certiorari petition may be filed does not toll the applicable statute of limitations. Accordingly, we will affirm the order of the District Court.

I.

On August 21, 1984 Stokes was convicted, following a jury trial in a Pennsylvania state court, of first degree murder and possession of an instrument of crime. He was sentenced to life imprisonment for the murder and to a concurrent term of years on the weapons count.

Stokes' conviction was affirmed on direct appeal in 1986 and the Pennsylvania Supreme Court denied his petition for allocatur in 1987. Shortly thereafter, Stokes filed a petition for relief under Pennsylvania's Post Conviction Hearing Act, 42 Pa. Const. Stat. § 9541 et seq. (repealed). Relief was denied in February 1991, and that decision was affirmed by the Pennsylvania Superior Court. Stokes did not file a petition for allocatur in the Pennsylvania Supreme Court.

On October 30, 1995, Stokes filed a second post-conviction request for relief pursuant to the Post Conviction Relief Act, 42 Pa. Cons. Stat § 9541 et seq. (1988). Relief was denied on January 3, 1996 and the denial was affirmed on December 26, 1996 by the Pennsylvania Superior Court. Allocator was sought and was denied by the Pennsylvania Supreme Court on July 2, 1997.

Stokes filed the petition for writ of habeas corpus underlying this appeal on September 30, 1998. The United States Magistrate Judge concluded that Stokes' petition was time-barred under the provisions of 28 U.S.C. § 2244(d)(1) and that Stokes had failed to establish any circumstance warranting application of equitable tolling. The District Court adopted the report and recommendation of the Magistrate Judge, dismissed the petition as time-barred, and denied a certificate of appealability.

Stokes filed a timely appeal. On September 14, 2000 we granted a certificate of appealability as to the limitations issue posed by Stokes' petition. This issue is *541 one of statutory construction subject to plenary review.

II.

In the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress amended the federal habeas statute by adding a one year statute of limitations for the filing of habeas corpus petitions. Section 2244(d)(1) provides in relevant part:

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 section.

Although the statute itself did not provide for one, most courts of appeals, including ours, implied a one year grace period for petitioners whose convictions became final before the effective date of the AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998). Because Stokes' conviction became final in 1987, he was entitled to the grace period and, on the basis of that grace period alone, would have been required to file his section 2254 petition on or before April 23, 1997.

This April 23, 1997 date is not controlling here, however, because when the AEDPA amendments became effective, Stokes was actively pursuing a state collateral action. As a result, his time for filing the federal habeas petition at issue here was tolled under 28 U.S.C. § 2244(d)(2), so long as the state petition was pending. As the defendants note, "[T]he question here is when the [state collateral proceeding] ceased to be pending.'"

According to the defendants, that state proceeding ceased to be pending on July 2, 1997, the date on which the Pennsylvania Supreme Court denied Stokes' petition for allocator. Under this view, Stokes then had one year-until July 1, 1998-to file the federal habeas petition. Stokes' petition was not filed until September 30, 1998.

Stokes takes a different view, contending that the state proceeding should be deemed to have been pending for an additional ninety days after the Supreme Court of Pennsylvania declined to grant discretionary review-these ninety days being the period during which he could have sought further review by the United States Supreme Court.

III.

Although we have yet to address the precise question posed here, FN1 we do not find ourselves in uncharted legal territory. *542 Arguments similar to the one raised here by Stokes have been considered by a number of our sister courts of appeals. These courts have concluded, without exception, that the time during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d)(2). See Snow v. Ault, 238 F.3d 1033 (8th Cir.2001); Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000), cert. denied, 532 U.S. 950, 121 S.Ct. 1421, 149 L.Ed.2d 361 (2001); Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000), cert. denied, 531 U.S. 1201 , 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir.2000) cert. denied, 531 U.S. 1166 , 121 S.Ct. 1129, 148 L.Ed.2d 995 (2001); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert. denied, 529 U.S. 1099 , 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999), cert. denied, 528 U.S. 1084 , 120 S.Ct. 808, 145 L.Ed.2d 681 (2000). We now join these courts of appeals and conclude that Stokes' petition was properly dismissed as time-barred.

FN1 In our decision in Swartz v. Meyers, 204 F.3d 417 (3d Cir.2000), we concluded that "pending" as that word is used in section 2244(d)(2) includes the time during which a petitioner seeks discretionary state court review, whether or not review is sought. Our holding in that case was tied to finality for purposes of habeas review: "If [the petitioner] had attempted to seek federal habeas relief while there was still time to seek allowance of appeal, the petition would be dismissed for failure to exhaust state remedies." Id. at 422. In Swartz, we specifically reserved for another day the issue which we confront in this appeal: "We need not delve into the issue whether pending' includes the time to file a petition for writ of certiorari in the United States Supreme Court because that question is not presented by this appeal. Other courts have addressed this issue and find that the time does not toll." Id. at 421 n. 5.

We reach this conclusion for several reasons. First, we note that the language used in section 2244(d)(1)(A) differs from that found in section 2244(d)(2). "[U]nlike 2244(d)(1)(A), which uses the phrase became final by... expiration of the time for seeking [direct]... review, ' a phrase that... takes into account certiorari proceedings, §. 2244(d)(2) contains no such language." Snow v. Ault, 238 F.3d at 1035 (citation omitted). We agree with the Court of Appeals for the Sixth Circuit:

[I]t seems clear that Congress intended to exclude potential Supreme Court review as a basis for tolling the one year limitations period. See Hohn v. United States, 524 U.S. 236, 249-50, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (observing that by including particular language in one section of an act but omitting it in another section of the same act, it is presumed that Congress intended to exclude the language).

Isham v. Randle, 226 F.3d at 695. This reading of section 2244(d)(2) is consistent with the requirement that a petitioner exhaust state remedies prior to instituting a federal habeas petition. "Such exhaustion does not include seeking certiorari from the state court's denial of post-conviction relief." Snow v. Ault, 238 F.3d at 1036.

The result is also consistent with our precedent construing section 2244(d)(2). In Jones v. Morton, 195 F.3d 153 (3d Cir. 1999), we considered whether a pending properly filed habeas petition tolls the statute of limitations under section 2244(d)(2) for purposes of filing a subsequent federal habeas petition.FN2 We concluded that it does not:

FN2. There is a split in the circuits with regard to the issue decided in Jones. This split is highlighted in Walker v. Artuz, 208 F.3d 357 (2d Cir.2000), cert. granted in part by Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 480, 148 L.Ed.2d 454 (2000). The Supreme Court has agreed to deter mine whether a prior federal habeas corpus petition is an "application for State-post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2).
Congress clearly intended that the word "State" would be read to modify both "post conviction" and "other collateral review" so that tolling would be afforded under § 2244(d)(2) for various forms of state review only. We find nothing in § 2244(d)(2)'s language or legislative history, and nothing in the policy concerns behind AEDPA's enactment to suggest a contrary result. Id. at 159. Our conclusion in Jones supports the conclusion here that the statute *543 of limitations was not tolled during the period when Stokes could have sought review in the Supreme Court.

Finally, we note the reasoning undertaken by the Court of Appeals for the Seventh Circuit in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000). There, the Court of Appeals held, as we do here, that the ninety days during which a petitioner could have filed a petition for certiorari in the United States Supreme Court did not toll the limitations period set forth in section 2244(d)(2). The Seventh Circuit's holding was narrower than the holdings of other courts to have considered this issue. The court in Gutierrez wrote:

Section 2244(d)(2)... provides that the limitations period is tolled during the time that "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending."
* * * *
Because Gutierrez never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never "properly filed."... [I]nstead of excluding time a pleading could have been filed, Congress explicitly required a "properly filed" pleading to toll the statute of limitations. Gutierrez did not properly file a petition for certiorari and, thus, the one-year limitations period was not tolled during the time [in] which he could have filed such a petition. Likewise, a petition for certiorari that is not actually filed cannot reasonably be considered "pending."
233 F.3d at 491-92.

Stokes, like Gutierrez, never filed a petition for certiorari. Consequently, the reasoning underlying the decision in Gutierrez applies here as well, providing an alternate ground for our conclusion that Stokes' petition for a writ of habeas corpus was properly dismissed as untimely.

IV.

For the foregoing reasons, we hold that the ninety day period during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year limitations period set forth at 28 U.S.C. § 2244(d)(2). Accordingly, we will affirm the order of the District Court.

IV. Conclusion

In light of the foregoing, the petition for writ of habeas corpus will be DENIED, and the case will be CLOSED. An appropriate order will follow.


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