United States District Court, W.D. Pennsylvania
ORDER RE: ECF No. 1.
MAUREEN P. KELLY, Magistrate Judge.
Jarred Burton Knight ("Petitioner"), is a state prisoner incarcerated in the State Correctional Institution at Coal Township ("SCI Coal Township"). Petitioner is represented by counsel. Counsel has filed a "Request for Extension of Time to File Habeas Corpus Petition" ("the Motion"). ECF No. 1. In the Motion, counsel explains that Petitioner wants to challenge the judgment of sentence imposed upon him by the Court of Common Pleas of Butler County on June 17, 2009. Counsel also asserts that the "time for filing Petitioner's Petition for Habeas Corpus Relief under 28 U.S.C.A. § 2254 expires on July 22, 2014." ECF No. 1, ¶ 5. Counsel also asserts that while she has represented Petitioner throughout the Post Conviction Relief Act ("PCRA") proceedings in state court, Petitioner is actively seeking new counsel to represent him in the habeas corpus proceedings. Id., ¶ 6. Counsel requests a 30 day extension for filing the habeas petition in this Court. In support of this Court's authority to grant the extension, Counsel cites to 28 U.S.C.A. § 2263(b)(3). Section 2263 is not applicable herein, as it addresses Special Habeas Corpus Procedures in Capital Cases but this is not a capital case.
Moreover, it appears that Counsel has calculated the statute of limitations incorrectly. From this Court's quick review of the dockets of the State Courts, it appears that Petitioner's conviction became final on or about December 10, 2010, which is ninety days after the Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal on direct appeal. Johnson v. Hendricks , 314 F.3d 159, 161 (3d Cir. 2002). Petitioner filed his PCRA petition on or about September 2, 2011, which would toll the running of the statute of limitations. Between the date Petitioner's conviction became final, i.e., December 10, 2010, and the date on which he filed his PCRA petition, i.e., September 2, 2011, a total of 266 days of the one year statute of limitations ran which leaves about 99 days remaining. The Pennsylvania Supreme Court denied the Petition for Allowance of Appeal in Petitioner's PCRA proceedings on June 24, 2014, which means that the statute of limitations began to run again on June 25, 2014.
The Court shall dismiss the Motion because it is premature. Before this Court may consider issues related to the timeliness of a petition for a writ of habeas corpus, Petitioner must properly commence this case by actually filing the petition for a writ of habeas corpus and the required: (1) the $5.00 filing fee; or, (2) a motion for leave to proceed in forma pauperis.
Based upon all of the foregoing, this 5th day of August 2014, IT IS HEREBY ORDERED that:
1. The "Request for Extension of Time to File Habeas Corpus Petition, " ECF No. 1 is DISMISSED as premature;
2. The Clerk of Court shall mark this case CLOSED;
3. Petitioner may reopen this case if he:
(a) files a Petition for Writ of Habeas Corpus; and,
(b) either: (1) pays the $5.00 filing fee; or, (2) files a motion for leave to proceed in forma pauperis accompanied by the following two documents:
(i) a certificate from the Superintendent or other appropriate officer at SCI Coal Township showing the amount of money or securities that the he has in any account in the institution; and,
(ii) a certified copy of his institutional account statement from every jail or prison at which he was confined for the 6-month period leading up to the date the account statement is submitted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, ...