Opinion
CIVIL ACTION No. 04-27
May 20, 2004
ORDER
AND NOW, this 20th day of May, 2004, upon careful and independent consideration of John Green's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #1), the Commonwealth's response thereto, and the Report and Recommendation of the Honorable Diane M. Welsh (docket entry # 6) ("RR"), and upon consideration of Green's traverse to the Commonwealth's response and his objections to the Report and Recommendation (docket entry # 8), and the Court finding that:
(a) Judge Welsh correctly concluded that Green's state convictions became final on July 20, 1996, thirty days after the Pennsylvania Superior Court affirmed the convictions, because Green did not petition the Pennsylvania Supreme Court for allowance of appeal, see RR at 4;
(b) Though Green concedes that his conviction became final on July 20, 1996, he reads 28 U.S.C. § 2244(d) to mean that the statue of limitations begins to run on the date that his "State post-conviction petition" was finally resolved, not on the date when his conviction became final, see Pet.'s Traverse ¶¶ 7-8;
(c) Green reaches this conclusion because he interprets § 2244(d)(1)'s reference to the "latest" of several possible dates to include the date when a state post-conviction petition is finally resolved;
(d) In fact, § 2244(d)(1)'s reference to the "latest" of several possible dates includes only the four dates listed in sub-paragraphs (A) through (D) and does not include the date when a state post-conviction petition is finally resolved;
(e) Although § 2244(d)(2) recognizes the significance of a pending state post-conviction petition, that provision merely tolls a statute of limitations that has already begun to run after the "latest" of the dates listed in § 2244(d)(1), and it does not prevent the statute of limitations begins to run when the judgment of conviction becomes final;
(f) Green also implies that Judge Welsh erred in concluding that the statute of limitations expired on December 1, 2003 because she did not treat his PCRA petition as "pending" during the ninety day period when he could have petitioned the United States Supreme Court for review of the Pennsylvania Supreme Court's final denial of his PCRA petition,see Pet.'s Traverse ¶ 11;
(g) Our Court of Appeals has held "that the ninety day period during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year limitations period,"Stokes v. Districty Atty. of Cty. of Phila., 247 F.3d 539, 543 (3d Cir. 2001), so Judge Welsh correctly determined that the statute of limitations expired on December 1, 2003;
(h) Because Green did not mail his petition for writ of habeas corpus until December 29, 2003, he failed to file his petition within the statute of limitations, and we shall deny his petition; and
(i) Moreover, Green has not made a substantial showing of the denial of a constitutional right, so we shall not issue a certificate of appealability, see 28 U.S.C. § 2253 (c)(3);
It is hereby ORDERED that:
1. Green's objections are OVERRULED;
2. he Report and Recommendation is APPROVED and ADOPTED;
3. Green's petition for writ of habeas corpus is DENIED;
4. We DECLINE to issue a certificate of appealability; and
5. The Clerk shall CLOSE this civil action statistically.