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Gunter v. Kane

United States District Court, W.D. Pennsylvania

May 22, 2015

CLARENCE GUNTER, Petitioner,
v.
KATHLEEN G. KANE, et al., Respondents.

MEMORANDUM OPINION AND ORDER

CYNTHIA REED EDDY, Magistrate Judge.

Presently before the Court is the Motion to Dismiss filed by Respondents (ECF No. 22), to which Petitioner has responded in opposition (ECF Nos. 31 and 32) For the reasons that follow, the Motion will be granted and the petition for a writ of habeas corpus be dismissed with prejudice because Petitioner's claims are untimely. A certificate of appealability will be denied.

The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF Nos. 11 and 33.

Relevant Background

On August 26, 2010, Petitioner, Clarence Gunter, entered into a plea agreement wherein he agreed to plead guilty to two counts of Aggravated Indecent Assault, Sexual Assault, Indecent Assault, Indecent Assault, Indecent Exposure, Simple Assault, Unlawful Restraint, and Criminal Trespass. The parties agreed to a sentence of five to ten years incarceration. The Court accepted the plea and sentenced Petitioner to 5 to 10 years imprisonment, to be followed by 7 years of probation. No post-sentencing motions were filed and Petitioner did not file a direct appeal.

On January 3, 2011, Gunter filed a pro se motion under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541, et seq. The PCRA Court appointed Patrick K. Nightingale, Esquire, to represent him. PCRA counsel filed a No Merit Letter on April 14, 2011. After providing the required notice, on May 11, 2011, the PCRA Court dismissed the PCRA petition.

On June 21, 2011, Gunter, pro se, filed a Notice of Appeal to the Pennsylvania Superior Court. On May 16, 2012, the Pennsylvania Superior Court issued an Order affirming the PCRA Court's decision to dismiss the PCRA Petition. Gunter did not file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. Rather, on October 1, 2012, Gunter filed, pro se, what appeared to be a second, or subsequent PCRA Petition. The PCRA court issued a notice of its intent to dismiss the petition on October 18, 2012, as the Petition was time barred.

Prior to the PCRA Court issuing a final order dismissing the October 1, 2012 Petition, Gunter filed another PCRA petition on October 30, 2012. On December 14, 2012, the PCRA Court determined that Gunter's petition was untimely and issued an order denying him post-conviction relief.[1]

On January 23, 2013, Petitioner, pro se, filed a Notice of Appeal with the Pennsylvania Superior Court. On November 20, 2012, the Pennsylvania Superior Court affirmed the PCRA's Order entered on January 2, 2013, dismissing Gunter's PCRA petition(s) as untimely. Gunter did not file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court.

On January 5, 2015, Gunter filed in this Court, pursuant to the prisoner mail box rule, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

Respondents have filed a motion to dismiss Petitioner's habeas petition arguing that the petition should be dismissed because it is untimely under the statute of limitations set forth in AEDPA, which is codified in relevant part at 28 U.S.C. § 2244(d). (ECF No. 22.)

Discussion

A. Timeliness

AEDPA requires, with a few exceptions that are not applicable here, that habeas corpus petitions under 28 U.S.C. § 2254 be filed within one year of the date the petitioner's judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A).[2] It also provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim ...


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