Opinion
C.A. No. 99-761-SLR
May 23, 2000
Gregory Bratcher, pro Se.
Thomas E. Brown, Esquire, Deputy Attorney General, of the Department of Justice, Wilmington, Delaware, attorney for respondents.
MEMORANDUM OPINION
I. INTRODUCTION
Petitioner is an inmate at the Greenville Correctional Center in Jarrat, Virginia. (D.I. 2 at 2) In September 1999, petitioner instituted this action, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 2) Petitioner seeks habeas corpus relief on a variety of grounds, including but not limited to (1) he was illegally arrested, (2) the trial court lacked subject matter jurisdiction, (3) the admittance at trial of unconstitutionally obtained evidence, (4) ineffective assistance of counsel, and (5) the trial court's allowance of the entry of nolle prosegui as to the original charges and subsequent reindictment, all of which he alleges "violated his 4th, 5th, 6th and 14th Amendments, due process, and the Double Jeopardy Clause." (D.I. 2) Respondents filed an answer, asserting that petitioner's application is untimely under 28 U.S.C. § 2244 (d)(1)(A) and, therefore, must be dismissed. (D.I. 9) For the reasons stated below, the court will dismiss the petition and deny the requested relief.
II. BACKGROUND
In October 1995, petitioner was convicted by a Delaware Superior Court of possession with intent to deliver a narcotic schedule II controlled substance, resisting arrest, and tampering with physical evidence. (D.I. 2 at 2) The Superior Court ultimately declared petitioner a habitual offender pursuant to Del. Code Ann. tit. 11, § 4214(a) and sentenced him to 15 years of imprisonment on the charge of possession with intent to deliver, followed by three years of decreasing levels of probation as to the other counts. On November 25, 1996, the Delaware Supreme Court affirmed petitioner's conviction and sentence on direct appeal. See Bratcher v. State, No. 33, 1996, 1996 WL 710887 (Del. Nov. 25, 1996)
On July 10, 1997, petitioner filed a motion for state post-conviction relief pursuant to Superior Court Criminal Rule 61. The Superior Court referred the matter to a commissioner, who issued a report and recommendation on June 16, 1998. The commissioner concluded that petitioner's application should be dismissed as procedurally barred and for failure to prove either cause or prejudice. See State v. Bratcher, 1998 WL 439656 (Del. July 14, 1998). Petitioner appealed the commissioner's report, contending that his counsel had been ineffective at every stage of the proceedings. See id. After conducting a de novo review of the record, the Superior Court on July 14, 1998 denied petitioner's application, determining that his claims were either procedurally barred or without merit. See id. Petitioner subsequently appealed, and the Delaware Supreme Court affirmed the Superior Court's denial of his application on November 10, 1998. See Bratcher v. State, No. 331, 1998, 1998 WL 984055 (Del. Nov. 11, 1998).
Petitioner's instant application for a writ of habeas corpus is dated September 24, 1999. (D.I. 2) The Clerk of the District Court received the petition on October 12, 1999. (D.I. 2) The Clerk docketed petitioner's habeas application as filed on November 9, 1999.
III. DISCUSSION
On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). AEDPA amended the standards for reviewing state court judgments in § 2254 proceedings. Since petitioner' s judgment of conviction became final and his habeas petition was filed following the enactment of AEDPA, the court will apply the amended standards set forth in AEDPA to petitioner's claims for federal habeas corpus relief. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).
AEDPA imposes a one-year statute of limitations on the filing of a federal habeas petition by a state prisoner. See 28 U.S.C. § 2244 (d) (1); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 n. 1 (3d Cir. 1998) (holding that the one-year limitations period set forth in § 2244(d)(1) is a statute of limitations subject to equitable tolling, not a jurisdictional bar). The one-year limitations period begins to 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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id. AEDPA further provides that the statute of limitations is tolled during the time that a state prisoner is attempting to exhaust his claims in state court. See id. § 2244(d)(2). Section 2244(d)(2) states that "[t]he 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." Id. A "properly filed application" under § 2244(d)(2) is a petition "submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Such a petition is considered "pending" within the meaning of § 2244(d) (2) during the time a state prisoner is pursuing his state post-conviction remedies, including the time for seeking discretionary review of any court decisions whether or not such review was actually sought. See Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).
Applying these standards to the case at bar, the statute of limitations with respect to petitioner began to run on February 24, 1997, the date on which petitioner's time for filing a timely petition for certiorari review expired. See U.S. Supr. Ct. R. 13; Kapral v. United States, 166 F.3d 565, 575, 577 (3d Cir. 1999) (holding that a judgment becomes "final" in the context of § 2254 and § 2255 "on the later of (1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denies the defendant's timely filed petition forcertiorari, or (2) the date on which the defendant's time for filing a timely petition for certiorari review expires"); Morris v. Horn, 187 F.3d 333, 337 n. 6 (3d Cir. 1999). Petitioner filed his petition for collateral state post-conviction relief in the Delaware Superior Court on July 10, 1997. As of the day before, July 9, 1997, petitioner had "used" 136 days of his allotted 365 days. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) ("AEDPA's statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case 'pending' during that interval."); Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998) (holding that the period between the time a conviction becomes final and the time a state post-conviction application is properly filed counts against the one-year limitation period).
Adding 90 days after November 25, 1996, the resulting deadline for filing the petition for certiorari fell on Sunday February 23, 1997. Under Rule 6 of the Federal Rules of Civil Procedure, the last day of computation for a filing date shall not be included if it falls on a Saturday or Sunday. Fed.R.Civ.P. 6(a). Consequently, the deadline for filing the petition fell on Monday, February 24, 1997.
On November 10, 1998, the Delaware Supreme Court affirmed the Superior Court's July 14, 1998 denial of petitioner's state habeas petition. Because petitioner was properly pursuing his state collateral remedies, AEDPA's statute of limitations was tolled during the period from July 10, 1997 to November 10, 1998. Following the Delaware Supreme Court's denial of his motion for post-conviction relief, petitioner had 229 days before the one-year statute of limitations set forth in § 2244(d) (2) would expire. See Rashid v. Khulmann, 991 F. Supp. 254, 259 (S.D.N Y 1998) (stating that the "tolling provision does not . . . 'revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run"); Gray v. Winters, 26 F. Supp.2d 771, 772 (D. Md. 1998) ("Certainly, the limitations period does not begin to run anew for a year following denial of the state post conviction remedies.")
Petitioner's federal habeas petition is dated September 24, 1999 —— 318 days after the Delaware Supreme Court affirmed the lower court's denial of petitioner's state habeas petition. The Third Circuit has held that a pro se prisoner's § 2254 petition is deemed filed for purposes of satisfying § 2244(d)(1) "the moment he delivers it to prison officials for mailing to the district court." Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). In the instant action, petitioner has not presented the court with proof of the date upon which he delivered his application to prison officials for mailing. The petition, however, is dated September 24, 1999, and it was received by the court on October 12, 1999. (D.I. 2) As such, the court finds that petitioner delivered the petition to prison officials sometime between September 24 and October 12, 1999. Absent proof of the exact date of mailing, the court will treat September 24, 1999 as the filing date. See Murnhy v. Snyder, C.A. No. 98-415-JJF, at 4 (D. Del. Mar. 8, 1999) (unpublished opinion).
Treating September 24, 1999 as the filing date of petitioner's application for federal habeas relief, the court calculates that a total of 454 days elapsed between the date petitioner's conviction became final and the filing of the instant habeas petition, excluding the time the limitation period was tolled. Since 454 days exceeds one year, petitioner's instant application for habeas corpus relief is untimely.
IV. CONCLUSION
For the foregoing reasons, the court finds that petitioner's application for federal habeas corpus relief is timed barred under § 2244(d)(1). The complaint, therefore, shall be dismissed and the writ of habeas corpus denied.