Opinion
Civil Action No. 02-6679.
April 19, 2005
MEMORANDUM AND ORDER
Now before the Court is the pro se Petition of John William Sumter ("Petitioner") for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated in the State Correctional Institution at Pittsburgh, Pennsylvania ("SCI-Pittsburgh"). For the reasons that follow, the Petition will be denied and dismissed as untimely.
I. Procedural History
On November 25, 1992, Petitioner was found guilty of burglary, various theft charges, and criminal trespass. He was subsequently sentenced to three to ten years imprisonment. On August 20, 1993, Petitioner was convicted of additional theft charges, and sentenced to a term of two to seven years imprisonment.
Petitioner neither appealed the convictions nor sought collateral relief under the Pennsylvania Post-Conviction Relief Act, 42. Pa.C.S. § 9545, et. seq. ("PCRA"). See Declaration of Respondent District Attorney's Office of Philadelphia County. However, on August 8, 2002, Petitioner filed the instant Petition for Writ of Habeas Corpus attacking both convictions.
The Court designated United States Magistrate Judge Charles B. Smith to submit a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B); Local R. Civ. P. 72.1(I)(b). Magistrate Judge Smith has recommended that the Court deny the Petition as time-barred. Because Petitioner has objected to the Magistrate Judge's Report and Recommendation, the Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Having reviewed the Report and Recommendation and Petitioner's Objections thereto, the Court will approve and adopt the Report and Recommendation.
II. Legal Standard
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 et seq., which provides in pertinent part:
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 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 . . .28 U.S.C. § 2244(d)(1). The statute is tolled during the time in which "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
The statute of limitations is subject to equitable tolling when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (internal quotations omitted). "This unfairness generally occurs when the petitioner has in some extraordinary way . . . been prevented from asserting his or her rights." Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (internal quotations omitted). The petitioner "must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. Mere excusable neglect is not sufficient." Id. at 618-19 (internal quotations omitted).
III. Analysis
In his report and recommendation, Magistrate Judge Smith found that although the challenged convictions became final on December 24, 1992, and September 19, 1993 respectively, the one year period for bringing a habeas petition did not begin to accrue until April 24, 1996, the effective date of AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (holding that a prisoner has a one-year grace period from the effective date of AEDPA to commence a habeas action). Petitioner's § 2254 motion, which was filed on August 8, 2002, clearly was beyond the applicable deadline. Since Petitioner failed to explain the delay, Magistrate Judge Smith concluded that he was not entitled to equitable tolling and recommended that Petitioner's § 2254 motion be dismissed. Petitioner's objections to the Report and Recommendation fail to identify any extraordinary circumstances that prevented him from filing his habeas petition in a timely manner. Morton, 195 F.3d at 159. Accordingly, Petitioner's Objection is without merit and will be overruled.
IV. Conclusion
The Petition must be dismissed because it was filed outside the applicable limitations period without any adequate explanation for the delay. An appropriate Order follows.
ORDER
AND NOW, this 19th day of April, 2005, upon consideration of the Report and Recommendation of United States Magistrate Judge Charles B. Smith (docket no. 11) and Petitoner's Objection thereto (docket no. 12), and after de novo review of the pleadings and record in this case, it is ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, is DENIED and DISMISSED;
3. There is no probable cause to issue a certificate of appealability.