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Glushko v. Pa Bd. of Probation and Parole

United States District Court, M.D. Pennsylvania

February 7, 2017

ANDREW P. GLUSHKO, Petitioner
v.
PA BD. OF PROBATION AND PAROLE, et al., Respondents

          MEMORANDUM

          William J. Nealon United States District Judge.

         Petitioner, Andrew P. Glushko, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a conviction imposed by the Court of Common Pleas for Monroe County, Pennsylvania. (Doc. 1). Although the respondent filed a response to the petition, this Court finds that the statute of limitations bars consideration of the petition. Because the district court raises, sua sponte, the statute of limitations bar, Petitioner will be granted an opportunity to argue in favor of the timeliness of his petition.

         I. Background

         The following background has been extracted from the Pennsylvania Superior Court's April 28, 2014 Opinion, affirming the dismissal of Petitioner's first Post Conviction Relief Act (“PCRA”) petition. (Doc. 7-9, Opinion dated April 28, 2014).

On July 15, 2009, a jury found appellant guilty of multiple counts of unlawful contact with a minor, criminal attempt and criminal solicitation counts related to various sexual offenses, corruption of minors, and criminal use of a communication facility.
On March 19, 2012, appellant filed the instant PCRA petition pro se. Following a Grazier hearing, [1] on May 24, 2012, the PCRA court entered an order permitting appellant to represent himself. On August 3, 2012, an evidentiary hearing was held during which testimony was taken from appellant's trial and direct appeal attorneys. on March 1, 2013, the PCRA court denied the PCRA petition. This timely appeal followed.

         Appellant raises the following issues on appeal:

I. Was the lower court's ruling free from legal error and supported by the record when it denied Glushko's post conviction claim that his appellate counsel was ineffective for failing to raise a claim against the denial of his pre-trial motion for suppression of evidence based on an unlawful vehicle stop?
II. Was the lower court's ruling free form legal error and supported by the record when it denied Glushko's post conviction claim that his appellate counsel was ineffective for failing to preserve an insufficient evidence claim against all charges?

Id. By Memorandum Opinion dated April 28, 2014, the Superior Court affirmed the PCRA court's dismissal of Glushko's petition. Id. No further appeal or collateral challenges to his conviction or sentence were filed.

         On December 29, 2014, Petitioner filed the instant petition for writ of habeas corpus in which he raises various challenges to his conviction and sentence. (Doc. 1, petition). In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued formal notice to Glushko that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeal, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act (“AEDPA”). (Doc. 4).

         On March 6, 2015, upon consideration of Petitioner's failure to return this Court's Notice of Election, this Court issued an Order to show cause, directing a response be filed to the petition. (Doc. 5). On April 2, 2015, Respondents filed a response, arguing that the petition should be dismissed. (Doc. 7).

         Discussion

         A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. § 2254 must adhere to a statute of limitations ...


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