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Stewart v. Giroux

United States District Court, M.D. Pennsylvania

May 11, 2018

SADE O. STEWART, Petitioner,
v.
NANCY GIROUX, Respondent.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge.

         I. BACKGROUND

         Sade O. Stewart, an inmate presently confined at the State Correctional Institution, Muncy, Pennsylvania, (SCI-Muncy), filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. Named as Respondent is Superintendent Nancy Giroux of SCI-Muncy. Service of the Petition was previously ordered.

         On October 28, 2010, Petitioner was convicted of attempted homicide, aggravated assault (2 counts), simple assault, and possession of a firearm by a prohibited person following a jury trial in the Court of Common Pleas of Dauphin County, Pennsylvania. Stewart was sentenced on December 15, 2010 to an aggregate ten (10) to twenty (20) year term of imprisonment.

         Following a direct appeal, Stewart's conviction and sentence were affirmed by a September 20, 2011 decision of the Superior Court of Pennsylvania. See Commonwealth v. Stewart, 34 A.3d 232 (Pa. Super 2011)(Table). A petition for allowance of appeal was denied on March 23, 2012 by the Supreme Court of Pennsylvania. See Commonwealth v. Stewart, 40 A.3d 1236 (Pa. 2012)(Table). Stewart did not seek further review from the Supreme Court of the United States.

         On October 24, 2012, Stewart filed a timely pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA). See 42 Pa. Cons. Stat. Ann. § 9541 et seq. The PCRA “permits motions for post-conviction collateral relief for allegations of error, including ineffective assistance of counsel, unlawfully induced guilty pleas, improper obstruction of rights to appeal by Commonwealth officials, and violation of constitutional provisions.” Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).

         Stewart's PCRA petition alleged that her trial counsel provided ineffective assistance for neglecting to call certain individuals as witnesses. Following appointment of counsel, submission of an amended petition, and an evidentiary hearing, the state trial court issued an Order denying PCRA relief on December 4, 2013. The Superior Court affirmed the PCRA denial on August 6, 2014. See Commonwealth v. Stewart, 106 A. 3d 153 (Pa. Super. 2014)(Table). A petition for allowance of appeal was then denied by the Pennsylvania Supreme Court on February 3, 2015. See Commonwealth v. Stewart, 108 A.3d 35 (Pa. 2015)(Table). This federal habeas corpus petition followed.

         Petitioner claims entitlement to federal habeas corpus relief on the grounds that her trial counsel's performance was deficient for neglecting to call witnesses on her behalf, as noted above. With respect to the issue of timeliness, a supporting memorandum accompanying the petition contends that the one year limitations period began to run on June 21, 2012. See Doc. 2, p. 3. After passage of one hundred and twenty-six (126) days, Stewart states that she filed her PCRA action which tolled the limitations period until February 3, 2015 when she was denied leave to appeal by the Pennsylvania Supreme Court. Since the limitations period did not expire until December 27, 2015 Petitioner argues that her action is timely. See id.

         II. DISCUSSION

         Respondent has filed a partial answer which seeks dismissal of the petition on the grounds that it is untimely filed. Petitioner has not filed a reply.

         Section 2244(d) of Title 28 of the United States Code provides, in relevant part, as follows:

(d)(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 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 ...

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