United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
CYNTHIA REED EDDY UNITED STATES MAGISTRATE JUDGE.
before the Court is a counseled petition for a writ of habeas
corpus filed on behalf of state prisoner Anwar Rizvi
(“Petitioner”), in which he challenges the
judgment of sentence imposed on him by the Court of Common
Pleas of Allegheny County, Pennsylvania, on August 11, 2009.
Respondents have filed their Answer to the Petition (ECF No.
14), in which they argue, inter alia, that the
Petition is untimely and should be dismissed on that ground.
After careful consideration of the parties' submissions,
and for the reasons discussed below, the Petition will be
dismissed as untimely pursuant to 28 U.S.C. § 2244(d)
and a certificate of appealability will be denied.
August 11, 2009, Petitioner, Anwar Rizvi, was sentenced to 15
- 30 years incarceration after a jury convicted him of
attempted homicide. He filed a direct appeal to the
Pennsylvania Superior Court. Prior to the Superior
Court's disposition of his direct appeal, Rizvi was
transferred to a correctional institution in the Commonwealth
of Virginia as part of an agreement between the Virginia
Department of Corrections (“VA DOC”) and the
Pennsylvania Department of Corrections (“PA
DOC”), whereby Virginia agreed to house 1, 000
Pennsylvania male prisoners.
January 10, 2011, the Pennsylvania Superior Court affirmed
Rizvi's judgment of sentence. He did not file a petition
for appeal by allowance with the Pennsylvania Supreme Court.
Accordingly, Rizvi's judgment of sentence became final on
February 9, 2011. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 1113(a) (judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for
to Rizvi, it was during the time that he was incarcerated in
Virginia that he encountered difficulties with conducting
legal research which made preparation of a timely PCRA
petition and federal habeas petition impossible. He claims,
inter alia, that the Virginia correctional facility in which
he was housed contained an underequipped library that could
only accommodate several inmate researchers at a time,
impeding his ability to conduct meaningful conventional or
computer-based research and that his ability to access the
prison's legal resources and law library was limited, at
February 2012, Rizvi returned to the PA DOC's custody and
was housed at SCI-Graterford. On March 28, 2012, Rizvi filed
a pro se motion entitled “Motion for Court
Order to Permit Appellant a First PCRA Opinion Nunc Pro
Tunc, ” which was properly construed by the court
as a PCRA petition and counsel was appointed to represent
Rizvi. In this motion, Rizvi requested that the
PCRA court confirm that it would apply equitable tolling
principles and the PCRA's government interference
exception to the statutory time-bar to find his petition
timely. In his motion, Rizvi raised almost identical issues
to the ones raised in the instant federal petition - that
inadequacies within the VA DOC prison system made legal
research and preparation of a timely appeal impossible.
October 17, 2012, court-appointed counsel filed a “no
merit” letter advising the court that the petition had
no arguable merit. Counsel also stated that while the
petition was filed late, the delay was beyond Rivzi's
control due to “mail delay” and because the court
had granted Rivzi's nunc pro tunc motion, the
petition had been timely filed. By Order of October 23, 2012,
the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907
of its intent to dismiss the petition as meritless. On
November 13, 2012, the PCRA court issued a summary final
order dismissing the PCRA petition, but did not give any
explanation as to why the petition was denied.
January 13, 2013, Rizvi filed a pro se notice of
appeal to the Pennsylvania Superior Court, sixty-six days
after the final order dismissing the PCRA petition was
entered. By Order dated April 24, 2013, the PCRA court
recommended that the appeal be quashed due to the Notice of
Appeal being filed beyond the 30 day time period set forth in
Pa.R.A.P. 903(a). On September 25, 2013, Chris Rand Eyster, a
privately retained attorney, entered his appearance on
Rizvi's behalf to represent him on appeal. The Superior
Court affirmed the dismissal of the PCRA petition by Order
dated June 16, 2014, finding that the dismissal was proper as
the motion was an untimely first PCRA petition:
Additionally, a petitioner asserting a timeliness exception
must file a petition within sixty (60) days of the date the
claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2). “As such, when a PCRA petition is not filed
within one year of the expiration of the direct review, or
not eligible for one of the three limited exceptions, or
entitled to one of the exceptions, but not filed within 60
days of the date that the claim could have been first
brought, the trial court has no power to address the
substantive merits of a petitioner's PCRA claims.”
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753
A.2d 780, 783 (2000).
Instantly, Appellant's judgment of sentence became final
on February 9, 2011, upon expiration of the time to file a
petition for allowance of appeal with our Supreme Court. See
Pa.R.A.P. 1113 (allowing thirty days to file petition for
allowance of appeal). Appellant file his pro se motion on
April 9, 2012, more than one (1) year after his judgment of
sentence became final. Therefore, Appellant's petition is
patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Additionally, Appellant's PCRA petition fails to
establish any cognizable exception to the PCRA timeliness
requirements. See 42 Pa.C.S.A. § 9545(b)(1).
Accordingly, the PCRA court properly dismissed the petition.
(ECF No. 1-18 at 4-5).
through counsel, filed an application for reargument before
the Superior Court en banc. This request was denied
on August 19, 2014, and the following month, on September 17,
2014, counsel filed a petition for appeal by allowance
(“PAA”) with the Pennsylvania Supreme Court. The
PAA was denied on February 18, 2015.
a year later, on January 17, 2016, Petitioner, through
present counsel, Craig M. Cooley, filed a second PCRA
petition.Rizvi argued that both equitable
tolling principles and statutory exceptions to the time bar
applied to except his otherwise patently untimely petition
from the PCRA's timeliness requirements. The PCRA court
issued a Rule 907 Notice of its intent to dismiss the second
petition because it was untimely. Through counsel, Rizvi
filed objections to the Notice, but on October 26, 2016, the
PCRA court entered its final dismissal order.
Attorney Cooley filed a timely notice of appeal to the
Superior Court. By Opinion filed June 19, 2017, the Superior
Court affirmed the dismissal of the PCRA petition, finding no
error with the PCRA court's dismissal of the second
petition as untimely, as the court was without jurisdiction
to review the merits of the claims.
November 15, 2016, while the appeal of his second PCRA
petition was pending, Petitioner, through Attorney Cooley,
filed the instant federal habeas petition in this Court (ECF
No. 1), with brief in support (ECF No. 3). Contemporaneously
with filing the Petition, Rizvi requested and was granted a
stay of the proceedings in this Court pending exhaustion of
his state court remedies. On September 12, 2017, Attorney
Cooley advised the Court that on June 19, 2017, the Superior
Court affirmed the dismissal of the second PCRA ...