United States District Court, M.D. Pennsylvania
MATTHEW W. BRANN, District Judge.
This pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 was filed by Stephon Marsh, an inmate presently confined at the State Correctional Institution, Chester, Pennsylvania, (SCI-Chester). Marsh has been granted leave to proceed in forma pauperis. Service of the Petition was previously ordered.
Petitioner entered a guilty plea to a burglary charge in the Court of Common Pleas of Fulton County, Pennsylvania. On January 12, 2012, the Petitioner was sentenced to a sixteen (16) to sixty (60) month term of confinement. The parties acknowledge that Marsh did not file a direct appeal or seek collateral relief pursuant to Pennsylvania's Post Conviction Relief Act (PCRA).
Petitioner claims entitlement to federal habeas corpus relief on the grounds that: (1) an "illegal sentence" was imposed because "I should not have gotten more then 4 years as my backtime." and (2) ineffective assistance of counsel Doc. 1, ¶ 12, Ground One. With respect to ineffective assistance argument, Petitioner vaguely states "I started with one public defender who was running for judge and when I got sentenced I had another public defender who knew nothing about my case he only saw me for 15 minutes when I went back to county." Id. at Ground Two. As relief, Marsh asks that his sentence be reduced from five (5) years to (3) years (60 months to 36 months). See id. at p. 15.
Respondent seeks dismissal of Petitioner's action on the grounds that: (1) it is untimely filed; (2) Petitioner failed to exhaust his state court remedies; and (3) the claims for relief do not establish an unreasonable application of clearly established federal law. See Doc. 12, p. 4.
A § 2254 habeas corpus petition may be brought by a state prisoner who seeks to challenge either the fact or duration of his confinement in prison. See Preiser v. Rodriguez, 411 U.S. 475, 486-87 (1973). Federal habeas corpus review is available only "where the deprivation of rights is such that it necessarily impacts the fact or length of detention." Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). More recently, in Suggs v. Bureau of Prisons, Civil No. 08-3613, 2008 WL 2966740 *4 (D. N.J. July 31, 2008), the district court reiterated that in cases where "a judgment in Petitioner's favor would not affect the fact or duration of Petitioner's incarceration, habeas relief is unavailable."
Respondent initially asserts that since a direct appeal was not filed and there is no basis for equitable tolling, Marsh petition is untimely because it was not filed within one year of the expiration of the period for direct review in state court. See Doc. 12, p. 6. Although granted an opportunity to do so, Petitioner has not filed a reply addressing the untimeliness argument.
Section 2244(d) of Title 28 of the United States Code provides, in relevant part, as follows:
(d)(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 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 ...