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Brooke v. Commonwealth

United States District Court, M.D. Pennsylvania

November 2, 2017

ALBERT E. BROOKE, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA, et al., Respondents.

          MEMORANDUM

          Hon. John E. Jones III, Judge

         Albert E. Brooke (“Brooke”) initiated the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, on May 23, 2017. (Doc. 1). On June 9, 2017, an Order issued directing Respondents to submit a memorandum concerning the timeliness of the petition. (Doc. 6). Respondents filed a timely Response on July 21, 2017. (Doc. 13). The issue of the timeliness of the petition is ripe for disposition and, for the reasons set forth below, the petition will be dismissed as untimely.

         I. Background

         On August 11, 2004, Brooke entered a plea of nolo contendere to one count of Aggravated Indecent Assault in violation of 18 Pa.C.S.A. § 3125, two counts of Corruption of Minors in violation of 18 Pa.C.S.A. § 6301, and two counts of Endangering the Welfare of a Child in violation of 18 Pa.C.S.A. § 4304, in Court of Common Pleas of Carbon County criminal case CP-13-CR-0000128-2003, and was sentenced to “20 years special probation 8 years state prison.” (Doc. 1, p. 1; Doc. 13, p. 1). According to the electronic docket found at https://ujsportal.pacourts.us, this plea set off years of post-plea motions. (See Court of Common Pleas of Carbon County criminal case CP-13-CR-0000128-2003 (hereinafter “Carbon County Electronic Docket”) pp. 40, 60)). Upon conclusion of the post-plea motions, Brooke pursued a direct appeal to the Pennsylvania Superior Court, which affirmed the judgment of conviction on March 1, 2007. (Id. at 62). He did not appeal to the Pennsylvania Supreme Court.

         He filed a Post Conviction Relief Act (“PCRA”) petition pursuant to 42 Pa. Cons. Stat. §§ 9541-46, on May 21, 2017. (Carbon County Electronic Docket, p. 63). The petition was amended on November 6, 2007. (Id. at 64). On November 6, 2008, following a hearing, the PCRA court denied relief. (Id. at 67). Brooke appealed to the Superior Court and, on May 6, 2010, the Superior Court affirmed the PCRA court's denial of relief. (Id. at 69).

         On April 25, 2011, based on a motion to revoke the term of special probation, the trial court modified Brooke's sentence. (Id. at 74). He pursued an appeal of the modification of sentence on July 18, 2011. (Id. at 77). On October 14, 2011, the Superior Court quashed the appeal as untimely. (Id. at 82). This was followed by the filing of a PCRA, which granted Brooke, nunc pro tunc, the ability to appeal the modification of his sentence. (Id. at 86). Brooke appealed and, on June 28, 2013, the Superior Court affirmed the modification of sentence. (Id. at 91). On November 4, 2013, the Supreme Court denied his petition for allowance of appeal. (Id.)

         On May 23, 2017, he initiated federal habeas proceedings. (Doc. 1).

         II. Discussion

         The court shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d) (1). Specifically, a state prisoner requesting habeas corpus relief pursuant to § 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 ยง 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has ...


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