United States District Court, M.D. Pennsylvania
ALBERT E. BROOKE, Petitioner,
COMMONWEALTH OF PENNSYLVANIA, et al., Respondents.
John E. Jones III, Judge
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.
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.
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.
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.
23, 2017, he initiated federal habeas proceedings. (Doc. 1).
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
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 ...