United States District Court, W.D. Pennsylvania
A. Vernacchio Assistant District Attorney
J. Schwab United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy United States Magistrate Judge
respectfully recommended that the petition for writ of habeas
corpus be dismissed as untimely and a certificate of
appealability be denied.
Relevant and Procedural Background
before the Court is a petition for a writ of habeas corpus
filed by state prisoner Calvin Henderson
(“Petitioner” or “Henderson”), in
which he is challenging his 2006 convictions and judgment for
rape, involuntary deviate sexual intercourse, aggravated
indecent assault, kidnapping for ransom, unlawful restraint,
and simple assault. On November 15, 2006, Henderson was
sentenced to an aggregate sentence of 36 - 90 years
imprisonment. He timely appealed to the Superior Court of
Pennsylvania, which on September 3, 2008, affirmed
Henderson's convictions and judgment. On June 30, 2009,
the Pennsylvania Supreme Court accepted discretionary review.
On April 25, 2012, the Pennsylvania Supreme Court affirmed
the Superior Court's decision. Henderson, through
counsel, then filed a petition for writ of certiorari to the
Supreme Court of the United States. The Supreme Court denied
certiorari on October 9, 2012. Henderson's judgment,
therefore, became on October 9, 2012.
April 25, 2013, Henderson filed a timely pro se petition for
post-conviction collateral relief under the Post-Conviction
Relief Act (“PCRA”). (ECF No. 25-1). The PCRA
court denied the petition on June 25, 2014, and the Superior
court affirmed the PCRA court's decision on April 20,
2016. Henderson sought discretionary review by the
Pennsylvania Supreme Court, but his petition for allowance of
appeal was denied on September 27, 2016. (ECF No. 25-2).
Thereafter, Henderson filed a petition for certiorari with
the Supreme Court of the United States. On April 24, 2017,
the Supreme Court denied certiorari.
October 17, 2017, Henderson initiated this case by the filing
of a motion for leave to proceed in forma pauperis,
and attached a petition for writ of habeas corpus. The
certification signed by Henderson indicates that he placed
the petition in the prison mailing system on October 10,
2017. (ECF No. 6 at p. 15). Because Henderson's inmate
account statement reflected that he had sufficient funds to
pay the $5.00 filing fee, the motion for leave to proceed
in forma pauperis was denied on October 24, 2017.
(ECF No. 2). On November 16, 2017, Henderson paid the filing
fee and his petition was thereafter filed. (ECF No. 6).
January 19, 2018, Respondents filed an Answer in which they
argue that the petition is untimely and that Henderson pleads
no exceptional circumstances requiring the tolling of the
statute of limitations. (ECF No. 16). The Court ordered
Henderson to file a reply specifically addressing the
timeliness issue. (ECF No. 17). Henderson filed a timely
reply (ECF No. 25) and the matter is now ripe for
proceeding is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA), the federal habeas
statute applicable to state prisoners. AEDPA imposes a
one-year limitations period for a state prisoner to file a
federal habeas petition. 28 U.S.C. § 2244(d)(1).
Generally, the limitations period begins to run on the date
the judgment of sentence becomes final “by the
conclusion of direct review or upon the expiration of time
for seeking such review. Id. §
2244(d)(1)(A); see Gonzales v. Thaler, 565 U.S. 134
(2012). This ...