United States District Court, Middle District of Pennsylvania
Hon. John E. Jones III
April 27, 2015 On May 1, 2013, the instant counseled habeas corpus petition pursuant to 28 U.S.C. § 2254, was filed on behalf of Petitioner, James Charles Barnes (“Barnes” or “Petitioner”). (Docs. 1, 4). Barnes challenges his 2007 convictions imposed by the Monroe County Court of Common Pleas. (Doc. 4, p. 1). After careful consideration of the parties’ submissions, and for the reasons discussed below, the petition will be dismissed as untimely pursuant to 28 U.S.C. § 2244(d).
On May 8, 2007, following a jury trial, Barnes was convicted of multiple counts of rape and related offenses stemming from the sexual assault of two minors. (Doc. 4, p. 1; see Court of Common Pleas of Monroe County electronic docket number CP-45-CR-0001132-2006 (“Monroe County electronic docket”)). On August 7, 2007, he was sentenced to an aggregate term of thirty-four to sixty-eight years. (Doc. 4, p. 1). He filed a timely notice of appeal. (Id. at 2). The Pennsylvania Superior Court denied the appeal on July 15, 2008. (See Monroe County electronic docket, p. 39). Barnes did not pursue a petition for allowance of appeal.
On July 2, 2009, Barnes filed a petition for post conviction collateral relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 4, p. 3; see Monroe County electronic docket, p. 39). The petition was denied on May 19, 2010, following multiple evidentiary hearings. (Doc. 4, p. 3, 6; see Monroe County electronic docket, pp. 41-44). He pursued an appeal to the superior court, which affirmed the PCRA court’s denial of relief on September 7, 2011. (Doc. 4, p. 6; 18-24). Thereafter, he filed a petition for allowance of appeal with the Pennsylvania Supreme Court. (Doc. 4, p. 7; see Pennsylvania Supreme Court electronic docket number 890 MAL 2011 (“Supreme Court electronic docket”)). The petition was denied on May 15, 2012. (See Supreme Court electronic docket, pp. 2-3).
The instant petition was filed on April 30, 2013. (Doc. 1). Respondents seek to dismiss the petition as untimely. (Doc. 18). A traverse was filed on December 20, 2013. (Doc. 21).
A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:
(d)(1) A one-year period of limitations 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 . . .
(d)(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 generally, Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). 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). Thus, the period of time for filing a habeas corpus petition begins to run when direct review processes are concluded. See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000) (stating that “the AEDPA provides that upon conclusion of direct review of a judgment of conviction, the one year period within which to file a federal habeas corpus petition commences, but the running of the period is suspended for the period when state post-conviction proceedings are pending in any state court.”).
Barnes was sentenced on August 7, 2007, and his direct appeal proceedings concluded on July 15, 2008. His judgment became final ninety (90) days later, on October 13, 2008, when his time to seek United States Supreme Court review of his direct appeal proceedings expired. The one-year period for the statute of limitations commenced running as of that date and expired on October 13, 2009. Hence, the federal petition filed on April 30, 2013, is patently untimely. However, this does not conclude the court’s analysis as it is necessary to consider both statutory and equitable tolling.
A. Statutory Tolling
Section 2244(d)(2) tolls the one year 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). The Third Circuit Court of Appeals has defined “pending” as the time during which a petitioner may seek discretionary state court review, whether or not such review is sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000). “Pending, ” however, does not include the period during which a state prisoner may file a petition for writ of certiorari in the ...