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Strausser v. Warden, Sci-Pittsburgh

United States District Court, M.D. Pennsylvania

October 29, 2014

KENNETH C. STRAUSSER, JR. Petitioner
v.
WARDEN, SCI-PITTSBURGH, et al., Respondents.

MEMORANDUM

EDWIN M. KOSIK, District Judge.

Petitioner, Kenneth C. Strausser, Jr. ("Petitioner"), a state inmate incarcerated at the State Correctional Institution at Pittsburgh, Pennsylvania, initiated this habeas corpus action pursuant to 28 U.S.C. § 2254. In the petition, he challenges his conviction following a guilty plea for Homicide by Vehicle and Reckless Endangerment in the Court of Common Pleas of Monroe County, Pennsylvania. 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 September 24, 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 afforded the opportunity to file a reply. (Doc. 4). On October 10, 2014, Respondents filed a response to the court's order addressing the timeliness of the petition. (Doc. 8.) The relevant time period has expired, and Petitioner has not filed a reply to Respondents' filing. After considering the record, the habeas petition will be dismissed as untimely for the reasons set forth below.

I. Background

On July 7, 2011, Petitioner entered a plea of guilty in the Monroe County Court of Common Pleas to Homicide by Vehicle, a felony of the third degree, and Recklessly Endangering Another Person, a misdemeanor of the second degree. He was sentenced on August 31, 2011 to 36-84 months confinement. On September 8, 2011, Petitioner filed a motion for reconsideration of the sentence. The motion was denied on September 16, 2011 by the sentencing court. Petitioner did not thereafter pursue a direct appeal from the conviction and sentence with the Pennsylvania Superior Court.

A petition pursuant to the Post-Conviction Relief Act ("PCRA") was filed on December 8, 2011. The PCRA petition was ultimately denied on March 22, 2012. Petitioner filed an appeal with the Pennsylvania Superior Court on April 2, 2012. On January 28, 2013, the Superior Court affirmed the lower court's denial of the PCRA. No petition for allowance of appeal was filed with the Pennsylvania Supreme Court.

While Petitioner's appeal of the denial of this first PCRA petition was pending before the Pennsylvania Superior Court, Petitioner filed another PCRA petition on May 24, 2012 with the sentencing court. The sentencing court treated this filing as a second PCRA petition and dismissed it due to the pendency of Petitioner's appeal with the Superior Court.

On February 27, 2013, Petitioner filed what would technically be considered his third PCRA petition. On August 27, 2013, the petition was dismissed as untimely. Petitioner filed an appeal with the Pennsylvania Superior Court on September 16, 2013. The appeal was dismissed on March 7, 2014 due to Petitioner's failure to file a brief. He filed the instant federal habeas corpus petition challenging his conviction and sentence on July 7, 2014.[1]

II. Discussion

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 (Apr. 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 sentenced on August 31, 2011. The trial court denied his motion for reconsideration of the sentence on September 16, 2011. He did not thereafter file a direct appeal with the Pennsylvania Superior Court. As such, for purposes of calculating the federal limitations period, the sentence became final thirty (30) days from the denial of his motion for reconsideration, on October 16, 2011, the expiration of the time period when Petitioner could have pursued an appeal with the Superior Court. The one-year federal limitations period began to run at this time, and was set to ...


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