United States District Court, M.D. Pennsylvania
EDWIN M. KOSIK, District Judge.
Petitioner, Bernard McMillion, an inmate incarcerated at the Federal Correctional Complex in Petersburg, Virginia, initiated this habeas corpus action pursuant to 28 U.S.C. § 2254 on May 27, 2014. In the petition, he challenges his Court of Common Pleas of Dauphin County, Pennsylvania, conviction on theft by unlawful taking charges. Upon preliminary review of the petition pursuant to 28 U.S.C. § 2254, see R. Governing § 2254 Cases R. 4, it appeared that the petition may be barred by the statute of limitations, see United States v. Bendolph , 409 F.3d 155, 169 (3d Cir. 2005)(en banc)(holding that district courts may sua sponte raise AEDPA's one-year statute of limitations, provided that the petitioner is provided with notice and an opportunity to respond) set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). On June 16, 2014, the parties were notified that the petition appeared to be untimely, and Respondents were directed to file a response concerning the timeliness of the petition and any applicable statutory and/or equitable tolling of the AEDPA statute of limitations. Petitioner was also afforded the opportunity to file a reply. (Doc. 5). Following an enlargement of time, Respondents filed an answer addressing only the timeliness of the petition on July 28, 2014. (Doc. 11.) Petitioner filed a reply thereto on August 11, 2014. (Doc. 13.) The matter is now ripe for consideration and, for the reasons set forth below, the habeas petition will be dismissed as untimely.
Petitioner is currently an inmate of FCC-Petersburg serving a 1-to-2 year sentence with a concurrent federal sentence in docket 1-CR-08-205-01. He pled guilty to theft by unlawful taking on October 3, 2011. (Doc. 11-1, Dauphin County Court of Common Pleas Docket CP-22-CR-0003733-2010.) He did not file a direct appeal to the Superior Court of Pennsylvania from his state conviction.
On October 18, 2012, he filed a petition for post-conviction relief ("PCRA") with the Dauphin County Court of Common Pleas. (Id.) Under the PCRA, see 42 Pa.C.S.A. § 9545(b)(1), a timely PCRA petition must be filed within one year of the defendant's sentence becoming final. On April 22, 2013, the Dauphin County Court dismissed his petition, and this dismissal was affirmed by the Superior Court of Pennsylvania on October 21, 2013. (Doc. 11-2, Superior Court Docket 788 MDA 2013.) Petitioner thereafter filed a petition for allowance of appeal to the Supreme Court of Pennsylvania on November 18, 2013. (Id.) The Supreme Court denied the allowance of appeal on April 29, 2014. (Id.) The instant federal habeas corpus petition was filed on May 27, 2014.
The court may "entertain an application for a writ of habeas corpus in 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). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pub.L. No. 104-132, 110 Stat. 12214 (April 24, 1996). See 28 U.S.C. § 2244(d)(1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:
(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....
(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); see Jones v. Morton , 195 F.3d 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank , 264 F.3d 310, 314 (3d Cir. 2001).
Petitioner was convicted and sentenced by the Dauphin County Court on October 3, 2011. He did not file a direct appeal to the Pennsylvania Superior Court. As such, his conviction became final on November 2, 2011. The one-year federal limitations deadline commenced on this date, and expired one year later, on November 2, 2012. Hence, the instant federal petition filed on May 27, 2014 appears to be untimely. However, the court's analysis does not end here. Consideration of both statutory and equitable tolling must be undertaken.
A. Statutory Tolling
Section 2244(d)(2) tolls the statute of limitations with respect to 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." 28 U.S.C. § 2244(d)(2). On October 18, 2012, Petitioner filed a petition for post conviction collateral relief pursuant to the Post Conviction Relief Act. While it is true that a properly filed PCRA petition tolls the running of AEDPA's statute of limitations, the PCRA petition must be filed before the limitations period runs out, otherwise there is nothing left to be tolled. See Tinker v. Moore , 255 F.3d 1331, 1333 (11th Cir. 2001)("properly filed' state-court [post-conviction] petitions must be pending' in order to toll the limitations period. Thus, a state court petition like Tinker's that is filed following the expiration of the federal [AEDPA] limitations period cannot toll that period because there is no period remaining to be tolled.")(some internal quotations omitted), reh'g denied, 273 F.3d 1123 (11th Cir. 2001). A ...