United States District Court, W.D. Pennsylvania
R. Hornak District Judge.
REPORT AND RECOMMENDATION
Pupo Lenihan United States Magistrate Judge.
reasons that follow, it is respectfully recommended that the
Motion to Dismiss the Petition for Writ of Habeas Corpus (ECF
No. 4) be granted and that the Petition for Writ of Habeas
Corpus (ECF No. 1) be dismissed as untimely. It is further
recommended that a Certificate of Appealability be denied.
Stevenson (“Petitioner”) has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(“Petition”) challenging his judgment of sentence
entered by the Lawrence County Court of Common Pleas on June
3, 2015 after he was resentenced to an aggregate term of
incarceration of 3 to 8 years and a consecutive 1-year term
of probation. (ECF Nos. 1, 4-2.) Petitioner's judgment of
sentence stems from his April 20, 2010 conviction for two (2)
counts each of possession of a controlled substances,
possession of a controlled substance with intent to deliver,
and delivery of a controlled substance, and one (1) count of
criminal use of communication facility. Commonwealth v.
Stevenson, CP-37-CR-0000665-2009 (Lawrence County Com.
Pl.). Following his resentencing, Petitioner did
not file a direct appeal.
2, 2016, Petitioner filed a petition pursuant to the
Pennsylvania Post Conviction Relief Act (“PCRA”),
42 Pa. C.S.A. § 9541, et seq., and it was
dismissed by the PCRA court on October 7, 2016. (ECF No.
4-3.) Petitioner appealed the denial of PCRA relief to the
Pennsylvania Superior Court at 1797 WDA 2016, and on April
21, 2017, the Superior Court dismissed the appeal due to
Petitioner's failure to file a brief. (ECF No. 4-4.)
to the prisoner mailbox rule, Petitioner instituted the
instant habeas corpus proceedings on February 26, 2018, the
date his Petition is postmarked. Respondents answered by
filing a Motion to Dismiss the Petition on April 5, 2018.
(ECF No. 4.) Petitioner responded to the Motion to Dismiss on
April 20, 2018. (ECF No. 7.) The Motion is now ripe for
imposes a one-year limitations period for state prisoners
seeking federal habeas review. It is codified at 28 U.S.C.
§ 2244(d) and it provides:
(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;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was