United States District Court, W.D. Pennsylvania
CHRISTOPHER ANTHONY TARASI, a/k/a CHRISTOPHER ANTHONY TARRASI, Petitioner,
RANDALL E. BRITTON, Superintendent of the State Correctional Institute of Houtzdale, and STEPHEN A. ZAPPALA, District Attorney of Allegheny County, Pennsylvania, Respondents.
MEMORANDUM OPINION AND ORDER
CYNTHIA REED EDDY, Magistrate Judge.
Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner Christopher Anthony Tarasi, a/k/a Christopher Anthony Tarrasi. He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Allegheny County on May 11, 2004.
For the reasons set forth below, the petition is denied and a certificate of appealability is denied.
A. Relevant Background
On January 31, 2013, Petitioner, Christopher Anthony Tarasi, a/k/a Christopher Anthony Tarrasi, filed a petition for a writ of habeas corpus, through counsel,  pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") (ECF No. 1). In their Answer, Respondents contend that the petition must be dismissed because it is untimely under the statute of limitations set forth in AEDPA, which is codified in relevant part at 28 U.S.C. § 2244(d) (ECF No. 4). Petitioner filed a Traverse, also known as a "Reply, " in which he contends that he is entitled to equitable tolling (ECF No. 7). See Local Rule 2254(E)(2) (a petitioner "may file a Reply... within 30 days of the date the respondent files its Answer.").
AEDPA requires, with a few exceptions that are not applicable here, that habeas corpus petitions under 28 U.S.C. § 2254 be filed within one year of the date the petitioner's judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A).
Petitioner is challenging the May 11, 2004, judgment of sentence imposed upon him by the Court of Common Pleas of Allegheny County, to a term of imprisonment of not less than 78 months nor more than 156 months and a consecutive period of incarceration of not less than 13 months nor more than 26 months, for a total period of incarceration of not less than 91 months and not more than 182 months. Petitioner timely filed a direct appeal of his judgment of conviction to the Superior Court of Pennsylvania. On June 15, 2005, the Superior Court affirmed the judgment of conviction. On July 16, 2005, Petitioner filed a Petition for Allowance of Appeal ("PAA") with the Pennsylvania Supreme Court, which was denied on December 27, 2005. Petitioner did not file a Petition for writ of certiorari to the United States Supreme Court. Accordingly, his judgment of sentence became final on March 27, 2006. See Gonzales v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-56 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review); see also Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000).
On April 4, 2006, Petitioner timely filed a pro se Motion for Post Conviction Collateral Relief, which was filed eight (8) days after his judgment of sentence became final. On May 14, 2007, Petitioner, through counsel, filed an Amended Post Conviction Relief Act Petition ("PCRA"). On August 15, 2007, the PCRA court dismissed the petition. Petitioner appealed the dismissal to the Superior Court, which affirmed the dismissal on July 16, 2008. Petitioner filed a PAA with the Supreme Court of Pennsylvania, which was denied on December 9, 2008. AEDPA's limitations period began to run again the next day, on December 10, 2008. Because eight (8) days had already expired from the limitations period (March 27, 2006-April 4, 2006), Petitioner had 357 more days - until on or about December 2, 2009 - to file a timely federal habeas petition in compliance with the AEDPA. He did not file the instant habeas petition until January 31, 2013, making it untimely by 793 days.
2. Equitable Tolling
Petitioner acknowledges that the instant habeas petition was filed more than one year after his judgment became final, but argues that he is entitled to equitable tolling. The Supreme Court of the United States has held that AEDPA's statute-of-limitation period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631 (2010). A petitioner is entitled to equitable tolling only if he shows both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 2562. See also Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). "This conjunctive standard requires showing both elements before we will permit tolling." Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original).
On November 19, 2009, Petitioner, through counsel, attempted to file a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania, Erie Division. Petitioner provides the following explanation in his petition:
Instant counsel filed a timely petition pursuant to 28 U.S.C. § 2244(d)(1) on November 12, 2009 in the United States District Court for ...