Opinion
Civil Action No. 04-2642.
October 25, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus. Petitioner is presently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania. Respondents contend that the petition should be dismissed because the petition is time-barred by the one-year statute of limitations for the filing of a habeas corpus petition. For the reasons set forth below, this court recommends that Respondents' request that the petition be dismissed be DENIED, and that Respondents file a detailed answer and accompanying memorandum of law within twenty (20) days from the date of that order.
On October 14, 2004, petitioner filed a motion seeking an extension of time to file a reply to Respondents' answer to the petition. (Document No. 8.) Because this court recommends that the district court deny Respondents' request that to dismiss the petition as time-barred, petitioner's motion should be denied as moot.
I. BACKGROUND
On October 29, 1997, petitioner and a co-defendant entered negotiated guilty pleas to the charges of third-degree murder, robbery, violating the Uniform Firearms Act and criminal conspiracy. The Commonwealth recommended sentences of twenty-three to forty-six years imprisonment. On that same day, the Honorable Jane Cutler Greenspan of the Court of Common Pleas for Philadelphia County, accepted the pleas and imposed the negotiated sentences. Petitioner did not file a direct appeal to the Superior Court of Pennsylvania. (Petition ¶ 8.)
The court obtained the factual and procedural history for this case from the Commonwealth's Response to the petition, which is consistent with the information in the petition. See Response at 1-4.
On January 21, 1998, petitioner filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. New counsel appointed to represent petitioner filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.Ct. 1988). Judge Greenspan dismissed the petition, and petitioner appealed. On March 3, 2002, the Pennsylvania Superior Court ruled in an unpublished memorandum opinion that the no-merit letter was defective and remanded for the appointment of new counsel.Commonwealth v. Casillas, 754 A.2d 15 (Pa.Super.Ct. 2000) (table).
New counsel was appointed and also filed a no-merit letter. On November 30, 2000, Judge Greenspan again dismissed petitioner's PCRA petition. Petitioner appealed. On September 19, 2001, the Superior Court again ruled that the no-merit letter was defective and remanded for the appointment of new counsel and an evidentiary hearing. Commonwealth v. Casillas, 788 A.2d 1026 (Pa.Super.Ct. 2001) (table).
On May 14, 2002, new counsel, after obtaining discovery from the District Attorney's Office and reviewing the trial preparation materials of trial counsel, filed an amended PCRA petition. At hearings on May 15 and 16, 2002, petitioner testified, as well as trial counsel and family and friends who had been present when petitioner accepted the plea agreement. Judge Greenspan concluded that there was no evidence that petitioner was unlawfully induced to enter his guilty plea. Petitioner again appealed. On July 9, 2003, the Superior Court affirmed in an unpublished memorandum opinion. Commonwealth v. Casillas, 832 A.2d 534 (Pa.Super.Ct. 2003) (table). Petitioner did not seek review from the Supreme Court of Pennsylvania.
On June 16, 2004, petitioner filed his petition for a writ of habeas corpus. The petition bears an execution date of June 11, 2004. Petitioner contends that he was denied his right to direct appeal, that trial counsel was ineffective for failing to pursue a direct appeal, and that his guilty plea was unlawfully induced and not knowingly or voluntarily made. (Petition ¶ 12). On October 4, 2004, the District Attorney of Philadelphia County filed a response to the petition requesting that the petition be dismissed as untimely because it was not filed within the one-year statute of limitations as required by 28 U.S.C. § 2244(d).
II. DISCUSSION
Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, in relevant part 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 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.
(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). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998).
Petitioner's conviction became final on November 28, 1997. This date represents thirty days after entry of his judgment of sentence. See Pa. R.A.P. 903(a) (notice of appeal to Superior Court "shall be filed within 30 days after the entry of the order from which the appeal is taken"). Thus, in accordance with 28 U.S.C. § 2244(d)(1), petitioner had until November 27, 1998 to file a timely habeas petition.
28 U.S.C. § 2244(d)(1)(A) provides that the statute of limitations runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." None of the other possible "start dates" listed in § 2244(d)(1)(B)(C) and (D) apply here.
The one-year statute of limitations is tolled during the time petitioner had pending in the state courts a properly filed PCRA petition. See 28 U.S.C. § 2244(d)(2) (providing that the time during which a "properly filed" petition for collateral relief is pending is not counted toward the one-year statute of limitations.) Petitioner's PCRA petition, filed on January 21, 1998, tolled the one-year grace period, but only while it was pending. At the time the first PCRA petition was filed, 55 days expired on the limitations period, and 310 days remained. The PCRA petition remained pending until thirty days after the Superior Court affirmed the dismissal of the PCRA petition on July 9, 2003. See Pa. R.A.P. 1113 (a petition for allowance of appeal to Pennsylvania Supreme Court shall be filed "within 30 days of the entry of the order of the Superior Court . . . sought to be reviewed"). See also Swartz v. Meyers, 204 F.3d 417, 424-25 (3d Cir. 2000) ("[T]he period of limitation tolls during the time a prisoner has to seek review of the Pennsylvania Superior Court's decision[,] whether or not review is actually sought."). Thus, the limitations period resumed running on August 8, 2003, with 310 days remaining and giving petitioner until June 12, 2004 to file a timely habeas petition.
Petitioner's instant petition is dated June 11, 2004, which is when he executed the petition and presumably delivered it to the prison authorities for mailing. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (a habeas petition is deemed filed when a prisoner gives the petition to prison officials). Accordingly, the petition is not time-barred by the AEDPA's statute of limitations.
As stated above, the Commonwealth has requested that the petition be dismissed because it was not filed within the applicable one-year statute of limitations. Although the Commonwealth did not supply the state court record to the court, the court does not dispute the controlling dates contained in the Commonwealth's response. Specifically, the court agrees that petitioner's conviction became final on November 28, 1997, petitioner filed his PCRA petition on January 21, 1998 tolling the statute of limitations, the statute of limitations resumed running on August 8, 2003, and petitioner signed his habeas petition on June 11, 2004. These dates are consistent with the dates contained in the petition. However, the court differs with the Commonwealth in the calculation of the running of the statute of limitations period. In its response, the Commonwealth states that the statute of limitations commenced running on November 28, 1997. (Response at 5.) Next, the Commonwealth maintains that "186 days later," petitioner filed a PCRA petition. Id. However, the Commonwealth admits that petitioner filed his PCRA petition on January 21, 1998. Id. at 2. The time elapsed from November 28, 1997 to January 21, 1998, is fifty-five days, not 186. When the statute of limitations resumed running on August 8, 2003, see Response at 5, there were 310 days remaining in the statute of limitations, not 179 as the Commonwealth asserts. Id. at 6. Consequently, petitioner had until June 12, 2004, not February 3, 2004, to file a timely habeas petition. The Commonwealth simply erred in calculating the running of the statute of limitations.
For all the above reasons, the court finds that the petition is not time-barred by the AEDPA's statute of limitations and Respondents' request that the petition be dismissed should be denied. Accordingly, the court makes the following:
RECOMMENDATION
AND NOW, this 25th day of October, 2004, the court respectfully recommends that Respondents' request that the petition be dismissed as time-barred be DENIED and that Respondents be ordered to file a detailed answer and memorandum of law within twenty (20) days from the date of the court's order.