United States District Court, W.D. Pennsylvania
MEMORANDUM and ORDER
ROBERT C. MITCHELL, Magistrate Judge.
Gregory Bacon, an inmate at the State Correctional Institution - Retreat, has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.
Bacon is presently serving a life sentence imposed following his conviction by a jury of first degree murder and carrying a firearm without a license at No. 4967 C 2006 in the Court of Common Pleas of Westmoreland County, Pennsylvania. This sentence was imposed on January 30, 2008. An appeal was taken to the Superior Court and the judgment of sentence was affirmed on November 25, 2008 at Superior Court docket No. 287 WDA 2008. Leave to appeal to the Pennsylvania Supreme Court was denied on July 22, 2009 at Docket No. 598 WAL 2008.
In his petition Bacon states that no further relief was sought. Based on this representation, the petition executed on October 21, 2013 was dismissed as untimely on December 26, 2013. On appeal, it was learned that in fact the petitioner did seek post-conviction relief, and the Court of Appeals remanded the matter for a determination of whether the petition was time barred and if so whether the petitioner is entitled to equitable tolling. As a result, the case was reopened and the respondent directed to reply.
Historically, August 10, 2009, Bacon filed a post-conviction petition. The latter petition was dismissed on October 21, 2011. An appeal to the Superior Court followed and on August 10, 2012, the latter court affirmed the denial of post-conviction relief on the merits. Leave to appeal to the Pennsylvania Supreme Court was not sought.
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 toward any period of limitation under this subsection.
An untimely post-conviction petition is not "properly filed". Pace v. DiGulglielmo , 544 U.S. 408 (2005).
In the instant case, leave to appeal to the Pennsylvania Supreme Court was denied on July 22, 2009 and certiorari was not sought. For this reason, his conviction became final on October 20, 2009 when the time in which to seek such review expired. Gonzalez v. Thaler , 132 S.Ct. 641 (2012). The effective date of the Antiterrorism and Effective Death Penalty Act which imposed the one year statute of limitations is April 24, 1996 and thus it is applicable here. The petitioner filed a post-conviction petition on August 10, 2009. That petition was dismissed on October 21, 2011; the denial of post-conviction relief was affirmed by the Superior Court on August 10, 2012; leave to appeal to the Pennsylvania Supreme Court was not ...