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Smith v. Common Pleas Allegheny County

United States District Court, W.D. Pennsylvania

June 5, 2015

RICHARD LEE SMITH, SR., Petitioner,
v.
COMMON PLEAS ALLEGHENY COUNTY, and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Respondents.

MEMORANDUM OPINION AND ORDER

Cynthia Reed Eddy United States Magistrate Judge

Presently before the Court is the Motion to Dismiss filed by Respondents (ECF No. 7). For the reasons that follow, the Motion will be granted and the petition for a writ of habeas corpus will 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. 10 and 11.

Relevant Background

On January 8, 2015, Petitioner, Richard Lee Smith, Sr. (“Petitioner” or “Smith”), filed, pursuant to the prisoner mail box rule, a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (ECF No. 1). He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Allegheny County on October 15, 2008. Respondents have filed a Motion to Dismiss arguing that the petition must 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. 4). Petitioner was ordered to file a response to the Motion by May 27, 2015. The time for responding has now passed; therefore, in the absence of any timely response by Petitioner, the Court will deem the motion to dismiss to be ripe for resolution.

For the reasons set forth below, Respondents are correct that the petition is untimely. Accordingly, their Motion to Dismiss (ECF No. 7) will be granted and the habeas petition will be dismissed.

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).[1]

Petitioner was convicted following a jury trial of multiple sexual offenses against his daughter, to wit: three counts each of Involuntary Deviate Sexual Assault, Aggravated Indecent Assault, Indecent Assault, and two counts each of Rape of Child, Corruption of Minors, and Endangering the Welfare of Child. On October 15, 2008, Petitioner was sentenced by the Court of Common Pleas of Allegheny County, to an aggregate sentence of 45 to 90 years imprisonment.

Smith filed a counseled direct appeal of his judgment of conviction to the Superior Court of Pennsylvania. On January 10, 2011, the Superior Court affirmed the judgment of conviction. Commonwealth v. Smith, 23 A.3d 1079 (Pa. Super. 2011) (unpublished memorandum), appeal denied, 25 A.3d 328 (Pa. 2011). The Pennsylvania Supreme Court denied Smith’s Petition for Allowance of Appeal (“PAA”) on July 28, 2011. Petitioner did not file a Petition for writ of certiorari to the United States Supreme Court. Accordingly, his judgment of sentence became final October 25, 2011. See Gonzales v. Thaler, ___U.S. ___, 132 S.Ct. 641, 653-56 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review); see also Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000).

Approximately 261 days later, on July 13, 2012, Smith timely filed a pro se motion under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq.[2] The PCRA Court appointed Scott Coffey, Esquire, to represent him. PCRA counsel filed a No Merit Letter on November 28, 2012. After providing the required notice, on November 28, 2012, the PCRA court granted Coffee leave to withdraw as counsel and dismissed the PCRA petition. Smith pursued a pro se appeal to the Superior Court. On November 27, 2013, the Superior Court affirmed the PCRA Court’s decision. Petitioner filed a PAA with the Supreme Court of Pennsylvania, which was denied on June 24, 2014. After that date, AEDPA’s limitations period began to run again. Since the PCRA petition statutorily tolled AEDPA’s statute of limitations period, Smith would have only 104 days to file a timely habeas petition in federal court once his PCRA proceeding concluded.

As set forth above, Smith’s PCRA proceeding concluded on June 24, 2014. After that date, the limitations period began to run again, and Smith, having 104 days remaining before the statute of limitations expired, had until Wednesday, October 5, 2014, to submit a federal habeas petition to the prison mail system in order to file a timely federal habeas petition with this Court. He did not initiate ...


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