United States District Court, Western District of Pennsylvania
REPORT AND RECOMMENDATION
Robert C. Mitchell, United States Magistrate Judge
It is respectfully recommended that the respondents' motion to dismiss (ECF 7) be granted, and that the petition be dismissed as time barred.
Jamal Johnson, by his counsel, has submitted a petition for a writ of habeas corpus which the respondents have now moved to dismiss.
Johnson is presently serving a sentence of life plus twenty to forty year imposed following his conviction by a jury on charges of first degree murder, kidnapping, burglary, robbery and criminal conspiracy at No. CC 2003-09986 and CC 2003-15425 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on April 25, 2005. An appeal was taken to the Superior Court which affirmed the judgment of sentence on July 21, 2008 and relief was not sought from the Supreme Court of Pennsylvania. A timely post-conviction petition was filed in the Court of Common Pleas on June 18, 2009. Relief was denied on January 4, 2011; the denial of relief was affirmed by the Superior Court on August 14, 2012 and allowance of appeal was denied by the Pennsylvania Supreme Court on February 13, 2013. The instant counseled petition was filed on February 13, 2014.
It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:
(1) A 1-year period of limitation shall apply to the 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 ...