United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, District Judge.
I. Introduction and Procedural History
Bobby Madden, an inmate at the State Correctional Institution in Coal Township, Pennsylvania, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. In 2009, a jury in the Court of Common Pleas of Dauphin County, Pennsylvania, convicted Petitioner of the following four offenses: burglary, robbery, alteration (or obliteration) of a manufacturer's number on a firearm, and possession of a firearm with an altered manufacturer's number. He was sentenced to an aggregate term of seven and one-half to fifteen years of incarceration.
Petitioner presents the following grounds for relief, all challenging his conviction for alteration of a firearm's manufacturer's number. In his first ground, Petitioner claims trial counsel was ineffective in not challenging at trial or on direct appeal the conviction for altering a manufacturer's number on a firearm because 18 Pa. Con. Stat. Ann. § 6117(b), the statute of conviction, was repealed in 2008 before his 2009 trial. In support, he asserts there was insufficient evidence to establish beyond a reasonable doubt that Petitioner ever owned or possessed the altered firearm.
In his second ground, Petitioner claims his PCRA counsel was ineffective in not filing an appeal from the Pennsylvania Superior Court's decision affirming the trial court's denial of Petitioner's first PCRA petition in regard to the section 6117(b) conviction. Petitioner asserts there was no evidence introduced at trial that he had scratched the serial numbers off the firearm, and thus there was a violation of his due process right to be convicted only on evidence showing guilt beyond a reasonable doubt. Petitioner also asserts PCRA counsel should have known that section 6117(b) had been repealed.
In his third ground for relief, Petitioner claims the state-court rulings sustaining his section 6117(b) conviction are unconstitutional because the section had been repealed so Petitioner was convicted of a crime that did not exist. Further, without the section 6117(b) offense, there would have been no offense under 18 Pa. Con. Stat. Ann. § 6110.2(a), possession of an altered firearm, just possession of a firearm.
In his fourth ground for relief, Petitioner claims the section 6117(b) conviction is unconstitutional, reiterating that the statutory provision was repealed and that there was no proof at trial concerning who removed the manufacturer's number from the firearm. He also asserts that the section 6110.2(a) offense was never proven.
Our initial review of the petition indicated that it might be barred by the one-year statute of limitations for filing 2254 petitions. We gave Respondents an opportunity to brief the limitations issue before requiring an answer on the merits. Respondents did so, and Petitioner filed a reply brief. After review of the parties' positions and the grounds for relief presented in the petition, it appeared that Petitioner had an additional argument on the timeliness of his petition in regard to his conviction for altering a manufacturer's number on a firearm. Specifically, we thought he might be able to benefit from McQuiggin v. Perkins, ___U.S. ___, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013), where the Supreme Court held that a convincing claim of actual innocence overcomes the bar of the statute of limitations. We gave Petitioner an opportunity to address whether the petition was timely in light of McQuiggin and Respondents an opportunity to file an opposition brief. The parties have submitted their filings, and we now address the timeliness of the petition.
A. Relevant Law
There is a one-year statute of limitations for filing section 2254 petitions. See 28 U.S.C. § 2244(d)(1). In pertinent part, the statute begins to run from the latest of two events. First, the statute can run from the date the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review. See Wall v. Kholi, 562 U.S. 545, ___, 131 S.Ct. 1278, 1283, 179 L.Ed.2d 252 (2011)(citing 28 U.S.C. § 2244(d)(1)(A)); see also Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 1810, 161 L.Ed.2d 669 (2005). This language applies to the right on direct review to seek discretionary review in state appellate courts, and means that the judgment does not become final until the time period for seeking such review expires, even if review is not sought. See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000). It also applies to the right on direct review to seek certiorari review in the United States Supreme Court so that if review is sought in the state's highest court, the judgment does not become final until the ninety-day period for seeking certiorari review expires. See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013)(citing Gonzalez v. Thaler, ___U.S. ___, ___, 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012)).
Second, the statute begins to run from "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...." 28 U.S.C. § 2244(d)(1)(B). The limitations period is subject to statutory tolling. Jenkins, supra, 705 F.3d at 85. Statutory tolling occurs during the time "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); Swartz, supra, 204 F.3d at 419.
Statutory tolling applies to those periods when an application for discretionary review is pending in a state appellate court from the denial of postconviction relief, see Kindler v. Horn, 542 F.3d 70, 77 n.5 (3d Cir. 2008)(noting that the petitioner's PCRA petition was pending at least through the date the Pennsylvania Supreme Court denied his petition for review), rev'd on other grounds, Beard v. Kindler, 558 U.S. 53, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). It also applies to the time period for seeking state-court appellate review from the denial of postconviction relief even if such review is not sought. Jenkins, supra, 705 F.3d at 85 n.4. However, it does not apply to the time the petitioner has for seeking certiorari review from the United States Supreme Court, id. n.5, or the time period during which such an application has actually been filed and is pending. Lawrence v. Florida, 549 U.S. 327, 329, 127 S.Ct. 1079, 1081, 166 L.Ed.2d 924 (2007)(a state application for postconviction relief is not pending under section 2244(d)(2) "when the state courts have entered a final judgment in the matter but a petition for certiorari has been filed" in the Supreme Court).
The limitations period is also subject to equitable tolling, Jenkins, supra, 705 F.3d at 88-89, and to an equitable exception established in McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013). In McQuiggin, the Supreme Court held that a convincing claim of actual innocence ...