United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
THOMAS M. BLEWITT United States Magistrate Judge
On July 18, 2013,  Petitioner Wise Justice, an inmate at SCI-Rockview, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). Petitioner attached Exhibits to his habeas petition. (Id.) Petitioner also filed a Motion to proceed in forma pauperis. (Doc. 2). On October 16, 2013, Petitioner paid the filing fee. (Doc. 7). On October 24, 2013, we issued a Show Cause Order and directed service of the habeas petition on Respondents. (Doc. 8).
On October 30, 2013, Respondents filed a Motion to file, nunc pro tunc, a Motion to Dismiss the habeas petition as untimely. (Doc. 9). Respondents also simultaneously filed their Motion to Dismiss the habeas petition as untimely filed under the AEDPA. (Doc. 14).
On October 31, 2013, we granted Respondents’ Motion to file, nunc pro tunc, a Motion to Dismiss the habeas petition as untimely. (Doc. 11). We also directed Respondents to file a brief in support of their Motion to Dismiss the habeas petition as untimely. We afforded Petitioner ten days after he was served with Respondents’ brief to file an opposition brief. We stated that Respondents would not be required to respond to the merits of Petitioner‘s claims raised in his habeas petition until the Court decided if the habeas petition was timely filed. Further, we denied as moot Petitioner‘s Motion to proceed in forma pauperis since he paid the filing fee.
On November 27, 2013, Respondents filed their brief in support of their Motion to Dismiss the habeas petition as untimely with relevant state court records attached as Exhibits, including, Petitioner‘s Court of Common Pleas of Northumberland County Criminal Docket Number CP-49-CR-0000877-2008. (Doc. 13). We note that the Northumberland County Court’s Docket Sheet in Petitioner‘s case can also be accessed at http://ujsportal.pacourts.us.
On January 8, 2014, Petitioner filed a letter concerning the filing of his brief and filing procedures. (Doc. 15).
Respondents’ Motion to Dismiss Petitioner’s habeas petition as untimely is now ripe for review. (Doc. 9).
II. STATE PROCEDURAL BACKGROUND.
In his habeas petition, Petitioner challenges his July 22, 2009 convictions (after a jury trial) and October 13, 2009 judgment of sentence of six to twenty years in a state correctional institution imposed by Court of Common Pleas of Northumberland County. (Doc. 13-25). Petitioner was convicted of two counts of Delivery of a Controlled Substance, two counts of Criminal Use of a Communication Facility, two counts of Intentional Possession of a Controlled Substance by a Person not Registered, and one count of Possession of Drug Paraphernalia. Id.
Subsequently, Petitioner timely filed a direct appeal of his judgment of sentence with the Superior Court of Pennsylvania (Doc. 14, pp. 17).
On October 20, 2010, the Superior Court of Pennsylvania affirmed Petitioner‘s judgment of sentence. (Doc. 13-10). Petitioner filed his PA Post Conviction Relief Act (“PCRA”) on August 3, 2011. (Doc. 13-12). On November 17, 2011 the Court of Common Pleas of Northumberland County denied Petitioner’s Petition for Post-Conviction Collateral Relief for lack of basis upon which the requested relief could be granted. (Doc. 13-17). On December 16, 2011 the Court of Common Pleas of Northumberland County directed Petitioner to file of record with the Clerk of Courts a concise statement of the matters complained of on appeal of the Order dismissing his PCRA petition, entered on November 17, 2011, within twenty-one days. (Doc. 13-18). Petitioner’s statement of matters complained of on appeal was filed with the Court of Common Pleas of Northumberland County on January 3, 2012. (Doc. 13-19).
Petitioner appealed, pro se, from the order entered on November 17, 2011. Id. On August 10, 2012, the Superior Court of Pennsylvania affirmed the Northumberland County Court of Common Pleas denial of Petitioner’s timely-filed Post Conviction Relief Act Petition without a hearing. (Doc 13-20). Petitioner filed a Petition for Allowance of Appeal on September 6, 2012 in The Supreme Court of Pennsylvania. (Doc. 13-21). The Supreme Court denied Petitioner’s Request for Allowance to Appeal the Superior Court’s denial of relief on his PCRA on February 4, 2013. (Doc. 13-22). Petitioner filed a Petition for Writ of Habeas Corpus on July 19, 2013. (Doc. 1).
For purposes of §2244(d)(1)(A) and the one-year statute of limitations under the AEDPA to file a §2254 habeas petition, we agree with Respondents that Petitioner’s time began to run after The Pennsylvania Superior Court Opinion affirmed the sentence on direct appeal on October 20, 2010, excluding the 30 day time in which an appeal could be filed with the PA Supreme Court. See Fletcher v. Lawlor, 2011 WL 1288689, *2 (E.D. Pa. 2-22-11) adopted by 2011 WL 1288702 (E.D. Pa. 4-5-11)(since Petitioner did not seek review on direct appeal in the PA Supreme Court after the PA Superior Court affirmed his judgment of sentence, for purposes of §2244(d)(1)(A), Petitioner‘s conviction became final when the 30-day deadline for seeking review in the Pennsylvania Supreme Court expired); Albritton v. Sauers, Civil No. 11-869, M.D. Pa. Thus, Petitioner’s conviction became final 30 days after October 20, 2010, and his AEDPA statute of limitations commenced to run on that day.
On August 3, 2011, Petitioner, pro se, filed a Petition under the PA Post Conviction Relief Act (“PCRA”), pursuant to 42 Pa.C.S. §§ 9541, et seq., which the Northumberland County Court of Common Pleas denied on November 17, 2011. Respondents state in their Motion to Dismiss that since Petitioner‘s conviction became final on October 20, 2010, “255 days” expired on Petitioner’s one-year AEDPA statute of limitations because Petitioner did not have any properly filed state court appeals (either direct or collateral) pending from October 20, 2010, until August 2, 2011. See 28 U.S.C. §2244(d)(2). As such, Respondents contend that about eight (8) months and fourteen (14) days lapses on Petitioner’s one-year AEDPA statute of limitations (excluding the 30 day period).
Petitioner filed an appeal from the Northumberland County Court’s November 17, 2011, decision denying his PCRA Petition to the Superior Court of Pennsylvania. (Doc. 13-17). The Superior Court affirmed the decision of the Northumberland County Court. (Doc 13-20). The PA Supreme Court denied Petitioner’s request for Allowance to Appeal the Superior Court’s denial of relief on his PCRA on February 4, 2013. Petitioner filed his Habeas Corpus Petition on July 19, 2013. Thus, an additional one hundred and sixty four (164) days ran on Petitioner’s one-year AEDPA statute of limitations. In total, ...