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Garrett v. Brittain

United States District Court, M.D. Pennsylvania

May 31, 2018

IZEL WALTER GARRETT, Petitioner,
v.
KATHY BRITTAIN, PA STATE ATTORNEY GENERAL, Respondents.

          MEMORANDUM

          Hon. John E. Jones III

         On 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.[1] (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 a reply.

         The petition is ripe for disposition and, for the reasons set forth below, will be dismissed as untimely.

         I. Background

         On 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 17).

         Garrett 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.

         Garrett 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).

         On March 16, 2018, Garrett filed the instant federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         II. Discussion

         The 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 subsection.

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 ยง 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has ...


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