United States District Court, M.D. Pennsylvania
JOHN E. JONES, III, District Judge.
On March 2, 2009, Petitioner Darsean Mosley ("Mosley"), pled guilty to two counts of first degree Robbery in the Court of Common Pleas of Lycoming. (Doc. 21-1, pp. 1-3). On April 28, 2014, he filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his guilty plea. (Doc. 1). Respondents filed a Response (Doc. 20) and Memorandum of Law (Doc. 21) on October 14, 2014, raising, inter alia, the untimeliness of the petition. Mosley's request to amend his petition was granted. (Doc. 23). He filed an amended petition on June 15, 2015. (Doc. 26). For the reasons set forth below, the petition and amended petition will be dismissed as untimely pursuant to 28 U.S.C. § 2244(d).
On March 2, 2009, following his guilty plea, Mosley was sentenced to forty to eighty months imprisonment in a state correctional institution. (Doc. 21-1, pp. 1-3). No direct appeal was filed.
On November 5, 2009, he filed a petition for post conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 21-4, pp. 1-12). The PCRA court issued an order indicating its intent to dismiss the petition, finding it to be without merit. (Doc. 21-5; Doc. 21-6). Mosley did not respond to the proposed dismissal of the petition. ( Id. ) Consequently, the petition was dismissed on December 22, 2011. ( Id. ). He pursued an appeal to the Superior Court of Pennsylvania, which affirmed the PCRA court's denial of relief on February 21, 2012. (Doc. 21-6). His request for reargument or reconsideration was denied on March 1, 2013. (Doc. 21-7). Thereafter, he filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was denied on October 10, 2013. (Doc. 21-8).
The instant petition was filed on April 28, 2014. (Doc. 1).
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.").
Mosley was sentenced on March 2, 2009, and no direct appeal was filed. His judgment became final thirty days later, on April 2, 2009, when his time to seek direct appellate review expired. The one-year period for the statute of limitations commenced running as of that date and expired on April 2, 2010, Hence, the federal petition filed on April 28, 2014, 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 United ...