United States District Court, M.D. Pennsylvania
John E. Jones III
March 16, 2018, Petitioner Izel Walter Garrett
(“Garrett”) filed the instant petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his Court of Common Pleas of Luzerne County,
Pennsylvania convictions for second degree murder,
conspiracy, robbery, and possessing a firearm with an altered
serial number. (Docs. 1, 2). On April 19, 2018, an Order
issued directing Respondents to submit a memorandum
concerning the timeliness of the petition and file pertinent
state court documents. (Doc. 3). Respondents complied with
the order on May 11, 2018. (Doc. 6). Petitioner has not filed
petition is ripe for disposition and, for the reasons set
forth below, will be dismissed as untimely.
December 15, 2011, a jury convicted Garrett of second degree
murder, conspiracy, robbery, and possession of a firearm with
an altered serial number. (Doc. 6, pp. 12, 16). The trial
court imposed sentence on March 1, 2012. (Id. at
filed a notice of appeal on March 16, 2012. (Id.)
The Superior Court of Pennsylvania affirmed the conviction
and sentence on July 12, 2013. (Id. at 28). He filed
a petition for allowance of appeal in the Supreme Court of
Pennsylvania; the Supreme Court denied the petition on
December 4, 2013. (Id.) 40). He did not seek review
in the Supreme Court of the United States.
then filed a Post Conviction Relief Act (“PCRA”)
petition pursuant to 42 Pa. Cons. Stat. §§ 9541-46,
on August 14, 2014. (Id. at 19). The PCRA court
denied the petition on December 18, 2015. (Id. at
21). Garret pursued an appeal; the Superior Court affirmed
the PCRA court's denial of relief on March 10, 2017.
(Id. at 22; see also Superior Court Docket
154 MDA 2016).
March 16, 2018, Garrett filed the instant federal petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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 ...