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Stoss v. Lane

United States District Court, M.D. Pennsylvania

July 24, 2017

ARTHUR F. STOSS, SR., Petitioner
v.
JAY LANE, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents

          MEMORANDUM

          Christopher C. Conner, Chief Judge

         Petitioner Arthur Stoss Sr (“Stoss”) an inmate presently confined at the Fayette State Correctional Institution LaBelle Pennsylvania filed the instant petition for writ of habeas corpus pursuant to 28 USC § 2254 (Doc 1) Stoss attacks a conviction imposed by the Court of Common Pleas of Luzerne County Pennsylvania (Id.) Presently before the court is Stoss' request to stay the proceedings pending exhaustion of his state court remedies (Id.) For the reasons that follow this action will be stayed

         I. Background

         In March 2011 Stoss was charged with first degree murder and criminal homicide Commonwealth v Stoss CP-40-CR-0001540-2011 (criminal docket sheet) At the conclusion of a five-day trial a jury convicted Stoss of first-degree murder (Id.) On June 12 2012 the trial court sentenced him to life in prison (Id.) Stoss filed a timely appeal to the Pennsylvania Superior Court (Id.) On August 7 2013 the Superior Court affirmed his judgment of sentence Commonwealth v Stoss 2013 WL 11256473 No 1374 MDA 2012 (Pa Super Aug 7 2013) On September 5 2013 Stoss filed a petition for allowance of appeal with the Pennsylvania Supreme Court Commonwealth v Stoss No 676 MAL 2013 (Pa Sept 5 2013) On January 21 2014 the Pennsylvania Supreme Court denied Stoss' petition for allowance of appeal Commonwealth v Stoss 623 Pa 762 (Pa Jan 21 2014)

         On March 10 2014 Stoss filed his first pro se petition pursuant to the Post Conviction Relief Act (“PCRA”) 42 Pa Cons Stat §§ 9541 et seq collaterally attacking his conviction Commonwealth v Stoss CP-40-CR-0001540-2011 (criminal docket sheet) The PCRA court appointed counsel and PCRA counsel filed a supplemental petition on November 13 2014 See Commonwealth v Stoss 2016 WL 5930533 *2 (Pa Super 2016) On April 21 2015 an evidentiary hearing was held on Stoss' PCRA petition See id On September 14 2015 the PCRA court dismissed the petition See id PCRA counsel filed a timely appeal See id On September 8 2016 the Superior Court affirmed the PCRA court's order denying post-conviction relief Commonwealth v Stoss 2016 WL 5930533 (Pa Super 2016)

         On January 20 2017 Stoss filed a second pro se PCRA petition Commonwealth v Stoss CP-40-CR-0001540-2011 (criminal docket sheet) Stoss' second PCRA petition is currently pending in state court (Id.)

         On June 26 2017 Stoss filed the instant petition for writ of habeas corpus (Doc 1)

         II. Discussion

         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:

(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 of the time for seeking such review; . . .
(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 Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). Thus, 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); see also Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000) (“[T]he AEDPA provides that 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).

         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). Thus, when a petition or appeal has concluded and is no longer pending, the one year statute of limitations starts to run and the time is counted. A “properly filed application” for post-conviction relief under § 2244(d)(2) is one submitted according to the state's procedural requirements, such as rules governing time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). 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 States Supreme Court from the denial of his state post-conviction ...


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