United States District Court, M.D. Pennsylvania
GREGORY L. RICKS, Petitioner,
SUPT. JOHN THOMAS, Respondent.
Matthew W. Brann United States District Judge
L. Ricks, an inmate presently confined at the State
Correctional Institution, Chester, Pennsylvania,
(SCI-Chester), filed this pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254. Named as
Respondent is SCI-Chester Superintendent John Thomas. Service
of the Petition was previously ordered Petitioner was
convicted on January 20, 2009 of receiving stolen property;
being a person not to possess a firearm; delivery of a
controlled substance; and delivery and possession of a
controlled substance following a jury trial in the Court of
Common Pleas of Lycoming County, Pennsylvania. See Doc.
13-1, p. 1. On April 3, 2009, Ricks was sentenced to a seven
year, three month to fourteen and a half year term of
imprisonment. See id. at p. 4. Following a
direct appeal to the to the Superior Court of Pennsylvania,
Ricks' conviction and sentence were affirmed on March 4,
2010. See id. at p. 5. Ricks argued on appeal that
the evidence was insufficient to sustain a guilty verdict,
that the verdict was against the weight of the evidence, and
that the sentence constituted an abuse of discretion. The
Superior Court deemed the first two arguments waived because
they were not addressed in Ricks' appellate brief.
See id. at p. 11. A further appeal was not pursued.
April 22, 2010, Ricks filed a petition pursuant to
Pennsylvania's Post Conviction Relief Act (PCRA) alleging
ineffective assistance of counsel for failure to file a
suppression motion with respect to the discovery of the rifle
in his apartment. Counsel was appointed to represent the
Petitioner. On June 5, 2010, Petitioner's court appointed
counsel filed a no merit letter in accordance with
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). The sentencing court subsequently dismissed the PCRA
petition on August 10, 2010. See Id. at p. 30.
Petitioner did not appeal.
Petitioner filed a second PCRA action on January 10, 2011
which alleged the improper seizure of a firearm, failure to
properly serve the criminal complaint, and that the evidence
was insufficient to show that the weapon had been stolen in
light of the absence of a serial number on the rifle.
See Doc. 13-1, p. 32. Counsel was again appointed to
represent Ricks and a Finley/Turner letter
was thereafter submitted by counsel. The sentencing court
denied PCRA relief by decision dated May 3, 2011. By decision
dated February 21, 2012, the Superior Court affirmed that
denial on the basis that Petitioner's claims were either
waived, previously litigated, or otherwise inadequate.
See id. at p. 51. The Supreme Court of Pennsylvania
denied Ricks' petition for allowance of appeal on October
then filed a third PCRA action on November 14,
which sought relief on the grounds that PCRA counsel's
performance was deficient for failing to investigate his
mental illness; that he was illegally evicted from his
apartment; and that he was not in possession of the rifle
found in the apartment. See id. at p. 65. This
action was dismissed as untimely on January 22, 2013.
fourth PCRA petition filed by Ricks on April 28, 2014 was
likewise dismissed as untimely on July 1, 2014. See
id. at p. 69. This action asserted the evidence was
insufficient to establish that he was in possession of a
stolen rifle or was in possession of a controlled substance.
An appeal from that decision was dismissed by the Superior
Court on April 1, 2015. See id. at p. 70.
pending action before this Court argues that he is entitled
to federal habeas corpus relief on the grounds of newly
discovered evidence; denial of due process because he was
permitted to represent himself on appeal despite being
mentally unfit; and ineffective assistance of counsel.
seeks dismissal of the petition on the grounds that it was
untimely filed and because Ricks failed to exhaust his
available state court remedies. Alternatively, Respondent
argues that Petitioner's arguments are subject to
dismissal for lack of merit.
matter is now ripe for consideration. Although granted an
opportunity to do so, Petitioner has not filed a reply
addressing the Respondent's arguments for dismissal.
contends in part that Petitioner has not filed a timely
habeas corpus action. See Doc. 13, p. 14. Ricks'
pending § 2254 petition is dated May 20,
and will be deemed filed as of that date. See Houston v.
Lack, 487 U.S. 266 (1988)(a prisoner's action is
deemed filed at the time it is given to prison officials for
mailing to the Court.
2244(d) of Title 28 of the United States Code provides, in
relevant part, as follows:
(d)(1) A 1-year period of limitation 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 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
See generally, Jones v. Morton, 195 F.3d.
153, 157 (3d Cir. 1999).
the plain terms of § 2244(d)(1)(A), the period of time
for filing a habeas corpus petition begins to run when the
period for direct review expired. See Harris v.
Hutchinson, 209 F.3d 325, 327 (4th Cir.
2000)(“upon conclusion of direct review of a
judgment of conviction, the one year period within which to
file a federal habeas petition commences, but the running of
the period is suspended for the period when state
post-conviction proceedings are pending in any state
court.”)(emphasis in original).
running of the limitations period is suspended for the period
when properly-filed state post-conviction proceedings are
pending in any state court. See Fahy v. Horn, 240
F.3d 239, 243 (3d Cir. 2001)(an untimely PCRA petition does
not toll the statute of limitations for a federal habeas
corpus petition); Merritt v. Blaine, 326 F.3d 157,
165-66 & n. 6 (3d Cir. 2003)(federal courts are bound by
state court's determination that a PCRA petition was
untimely and thus not “properly filed”). However,
the period during which a Section 2254 applicant could have
filed a petition for writ of certiorari with the Supreme
Court of the United States from denial of an ...