United States District Court, W.D. Pennsylvania
MEMORANDUM AND SHOW CAUSE ORDER
Pupo Lenihan United States Magistrate Judge.
the Court is a Petition for Writ of Habeas Corpus filed by
Frederick Taylor (“Petitioner”) pursuant to 28
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). He
is challenging the judgment of sentence imposed upon him by
the Court of Common Pleas of Westmoreland County on September
appears to the Court that the Petition is subject to
dismissal under AEDPA's one-year statute of limitations,
which is codified at 28 U.S.C. § 2244(d). Respondents
incorrectly addressed the AEDPA statute of limitations in
their Answer calculating the one-year to run from the date
Petitioner's PCRA action became final. That is the
incorrect calculation. Petitioner's judgment of sentence
became final on December 26, 2011, which was 90 days after
his Petition for Allowance of Appeal was denied by the
Pennsylvania Supreme Court. See Swartz v. Meyers,
204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment
becomes final at the conclusion of direct review or the
expiration of time for seeking such review, including the
time limit (90 days) for filing a writ of certiorari in the
Supreme Court). Absent any tolling of the statute of
limitations, Petitioner had one year from that date, or until
December 26, 2012, to file his Petition for Writ of Habeas
Corpus. It appears that his one-year statute of limitations
expired before he filed his first PCRA petition on March 27,
the Court may raise the issue sua sponte as long as
Petitioner is given fair notice and an opportunity to respond
and is not prejudiced. Day v. McDonough, 547 U.S.
198, 205-10 (2006); United States v. Bendolph, 409
F.3d 155, 161-70 (3d Cir. 2005) (en banc). See also Wood
v. Milyard, ___ U.S. ___, 132 S.Ct. 1826, 1834 (2012).
This Memorandum gives him the required notice. Pursuant to
the attached Order, both parties are provided with the
opportunity to set forth their positions regarding the
statute of limitations. Petitioner in particular must show
cause why his claims should not be dismissed for failure to
meet the statutory deadline.
Petitioner can demonstrate in his response to the Court's
show cause order that AEDPA's limitations period
commenced for any of his claims on a date set forth in §
2244(d)(1)(B)-(D) and/or that equitable tolling or the
fundamental miscarriage of justice exception applies during
the relevant time period, this Court will dismiss the
Petition as untimely.
appropriate Order follows.
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
NOW, this 21st day of June, 2018; IT IS HEREBY ORDERED that,
on or before July 20, 2018, Petitioner may file a response to
this Court's Memorandum and show cause why his claims
should not be dismissed for failure to file them within the
one-year limitations period. On or before that same date,
Respondents may submit a response setting forth their
 The statute of limitations is set out
in 28 U.S.C. § 2244(d) and must be applied on a
claim-by-claim basis. Fielder v. Varner, 379 F.3d
113 (3d Cir. 2004), cert denied, 543 U.S. 1067
(2005). In analyzing whether a petition for writ of habeas
corpus has been timely filed under the one-year limitations
period, a federal court must undertake a three-part inquiry.
First, the court must determine the “trigger
date” for the one-year limitations period pursuant to
section 2244(d)(1). Second, the court must determine whether
any “properly filed” applications for
post-conviction or collateral relief were pending during the
limitations period that would toll the statute pursuant to
section 2244(d)(2). Third, the court must determine whether
any of the other statutory exceptions or equitable tolling
should be applied on the facts presented.
 Respondents should address
Petitioner's claim that he is actually innocent of the
crimes for which he was found guilty. This is so because the
United States Supreme Court has held that “actual
innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural
bar . . . or  . . . expiration of the statute of
limitations.” McQuiggin v. Perkins, 133 S.Ct.
1924, 1928 (2013).
 The U.S. Supreme Court has held that
AEDPA's statute-of-limitation period "is subject to
equitable tolling in appropriate cases." Holland v.
Florida, 560 U.S. 631, 645 (2010). A petitioner is
entitled to equitable tolling only if he shows both that (1)
he has been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented
timely filing. Id. at 2562. See also United
States v. Thomas, 713 F.3d 165, 174-75 (3d Cir. 2013);
Ross v. Varano, 712 ...