MEMORANDUM

MALACHY E. MANNION, District Judge.

Petitioner, Nathan Howard Deneau, an inmate confined in the Benner State Correctional Institution, Bellefonte, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He attacks a conviction imposed by the Court of Common Pleas for Franklin County, Pennsylvania. (Doc. 1). Following careful consideration of the parties' submissions, and for the reasons discussed below, the Court will dismiss the petition as untimely. See 28 U.S.C. §2244(d).

I. Background

On February 9, 2010, following a jury trial in the Court of Common Pleas of Franklin County, Petitioner was found guilty in Comm. of Pa. v. Deneau, CP-28-CR-0000852-2009, of robbery and criminal conspiracy to commit theft, and in Comm. of Pa. v. Deneau, CP-28-CR-853-2009 of robbery and theft by unlawful taking. (See Comm. of Pa. v. Deneau, CP-28-CR-852-2009, Comm. of Pa. v. Deneau, CP-28-CR-853-2009, Criminal Docket Sheets). On March 17, 2010, Deneau was sentenced to a term of incarceration of not less than 60 months, nor more than 120 months in Comm. of Pa. v. Deneau, CP-28-CR-852-2009 and a term of incarceration of not less than 66 months, nor more than 144 months, in Comm. of Pa. v. Deneau, CP-28-CR-853-2009. Id.

On August 26, 2010, Petitioner filed a direct appeal of both convictions to the Pennsylvania Superior Court. Id.

By Memorandum Opinion dated March 7, 2011, the Superior Court of Pennsylvania affirmed Deneau's judgment of sentence in both convictions. (Doc. 14 at 7, Superior Court Opinion). Deneau did not file for allowance of appeal to the Pennsylvania Supreme Court. (See Comm. of Pa. v. Deneau, CP-28-CR-852-2009, Comm. of Pa. v. Deneau, CP-28-CR-853-2009, Criminal Docket Sheets).

On December 19, 2011, Deneau filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§9541 et seq. (Doc. 14, at 25, Superior Court Opinion). Counsel was appointed, but rather than filing an amended PCRA petition, Deneau's counsel filed a Turner/Finley petition seeking permission to withdraw. Id.

On July 31, 2012, the PCRA Court provided Deneau with a notice of its intent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907. (Doc. 14 at 17, Order). Deneau did not respond to the Court's notice, and on September 18, 2012, the Court granted counsel's request to withdraw and dismissed Deneau's PCRA petition. Id.

On October 5, 2012, Deneau timely filed a pro se notice of appeal from the Court's September 18, 2012 dismissal. (Doc. 14 at 25, Superior Court Opinion). By Order of the same date, Deneau was granted twenty-one days within which to file a Statement of Errors Complained of on Appeal, pursuant to Pa.R.App.P. 1925(b)(2). (See Comm. of Pa. v. Deneau, CP-28-CR-852-2009, Comm. of Pa. v. Deneau, CP-28-CR-853-2009, Criminal Docket Sheets).

By Memorandum Opinion dated July 16, 2013, the Pennsylvania Superior Court, finding that Deneau failed to comply with the Order to file a Rule 1925(b) statement, found that all issues on appeal were waived and affirmed the PCRA Court's dismissal of Deneau's PCRA petition. (Doc. 14 at 24, Superior Court Opinion).

On June 22, 2015, Petitioner filed the instant petition for writ of habeas corpus in which he claims that he was "illegally charged of robbery", as well as "court interfered with plea negotiations." (Doc. 1, petition). On October 2, 2015, Respondents filed a motion to dismiss the petition as untimely. (Doc. 12). Petitioner filed briefs in opposition on October 22, 2015 and November 6, 2015. (Docs. 16, 17).

II. Discussion

A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. §2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

28 U.S.C. §2244(d)(1)-(2)(emphasis added); see generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999). Thus, under the plain terms of §2244(d)(1)(A), the period of time for filing a habeas corpus petition begins to run when direct review processes are concluded. See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000). ("[T]he AEDPA provides that upon conclusion of direct review of a judgment of conviction, the one year period within which to file a federal habeas corpus petition commences, but the running of the period is suspended for the period when state post-conviction proceedings are pending in any state court."); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998)(per curiam); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). It is not the conclusion of state post-conviction collateral review processes that starts the running of the limitations period. See Bunnell v. Yukins, No. 00-CV-73313, 2001 WL 278259, *2 (E.D. Mich. Feb 14, 2001)("Contrary to Petitioner's assertion, the limitations period did not begin to run anew after the completion of his post-conviction proceedings.").

As indicated above, section 2244(d)(2) operates to exclude only the time within which a "properly filed application" for post conviction relief is pending in state court. Thus, when a petition or appeal has concluded and is no longer pending, the one (1) year statute of limitations starts to run and the time is counted. A "properly filed application" for post conviction relief under §2244(d)(2) is one submitted according to the state's procedural requirements, such as rules governing time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). The Third Circuit Court of Appeals has defined "pending" as the time during which a petitioner may seek discretionary state court review, whether or not such review is sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000). "Pending," however, does not include the period during which a state prisoner may file a petition for writ of certiorari in the United States Supreme Court from the denial of his state postconviction petition. Stokes v. District Attorney of the County of Philadelphia, No. 99-1493, 2001 WL 387516, at *2 (3d Cir., April 17, 2001). Likewise, the statute of limitations is not tolled under §2244(d)(2) for the time during which a habeas petition is pending in federal court. Jones, 195 F.3d at 158.

The AEDPA statute of limitations also may be subject to equitable tolling. The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling only in extraordinary circumstances. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003). In Merritt, the Court of Appeals set forth two general requirements for equitable tolling: "(1) that the petitioner has in some extraordinary way been prevented from asserting his or her rights; and (2) that the petitioner has shown that he or she exercised reasonable diligence in investigating and bringing the claim." Id. (internal citations and quotations omitted).

A. Statutory Tolling

In this case, because Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court, his conviction became final on April 6, 2011, or thirty (30) days after the Pennsylvania Superior Court affirmed Petitioner's conviction and sentence. See 42 Pa.C.S.A. §9545(b)(3); Pa.R.App.P. 903; Pa.R.Crim.P. 720(a)(3). Thus, the clock for filing a federal habeas petition began running on April 6, 2011, and Deneau had until April 6, 2012 to file a timely habeas corpus petition. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).

Pursuant to 28 U.S.C. §2244(d)(2), when Deneau filed his timely PCRA petition on December 19, 2011, the AEDPA's filing period was statutorily tolled with approximately 108 days of the one (1) year filing period remaining. See Harris, 209 F.3d at 328. Petitioner's PCRA petition was pending until July 16, 2013, when the Superior Court affirmed the dismissal of that petition. Because Deneau did not seek relief from the Pennsylvania Supreme Court, his judgment of sentence became final on August 15, 2013, thirty days after the Pennsylvania Superior Court affirmed the judgment of sentence, and the time for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired. See 28 U.S.C. §2244(d)(1)(A); Pa. R. App. P. 1113; 42 Pa.C.S.A. §9545(b)(3). Accordingly, the remaining 108 days of the one-year limit for Petitioner to timely file a federal petition for writ of habeas corpus began on August 15, 2013 and expired on December 2, 2013. The instant petition was not filed until June 22, 2015, eighteen months after the limitations period expired. Thus, the petition for habeas corpus relief is barred by the statute of limitations, and should be dismissed as untimely, unless the statute of limitations is subject to statutory or equitable tolling.

B. Equitable Tolling

A habeas petitioner may also be entitled to equitable tolling of the AEDPA statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003), cert. denied, 540 U.S. 921 (2003) (holding that AEDPA's time limit is subject to the doctrine of equitable tolling, a judicially crafted exception). However, the habeas petitioner bears the burden of demonstrating his entitlement to equitable tolling and his due diligence. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Cooper v. Price, 82 Fed. Appx. 258, 260 (3d Cir. 2003). Moreover, the federal habeas statute of limitations is subject to equitable tolling only in extraordinary circumstances. See Merritt, 326 F.3d at 161. Thus, while equitable tolling is permitted in state habeas petitions under AEDPA, it is not favored. "Courts must be sparing in their use of equitable tolling" and only permit equitable tolling where "principles of equity would make rigid application of a limitation period unfair." Sistrunk v. Rozum, 674 F.3d 181, 189 (3d Cir. 2012).

In Merritt, the Third Circuit Court of Appeals set forth two general requirements for equitable tolling: "(1) that the petitioner has in some extraordinary way been prevented from asserting his or her rights; and (2) that the petitioner has shown that he or she exercised reasonable diligence in investigating and bringing the claims." Merritt, 326 F.3d at 168 (internal citations and quotations omitted). Mere excusable neglect is not sufficient. Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998). The Court of Appeals has identified additional circumstances in which equitable tolling is warranted: (1) the defendant has actively misled the plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum, and (4) the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him. See Yanes v. Nish, 2009 WL 1045884, *2 (M.D.Pa. 2009) (Caldwell, J.) (citing Jones, 195 F.3d at 159).

In the present matter, Petitioner does not specifically argue that he is entitled to equitable tolling and he presents no evidence to account for the delay in filing the instant federal petition for writ of habeas corpus. In the habeas petition, Petitioner merely states that he "alledge (sic) for equitable tolling to apply or request for that." (See Doc. 17, p. 14). However, he offers no further argument in support of this statement. Petitioner does not allege that he has been actively misled by Respondents or the Court, and the record reflects no basis for the argument.

Furthermore, it does not appear that Petitioner's rights were prevented in an extraordinary manner, he fails to allege that he exercised due diligence in investigating and bringing his claim, and he has not alleged that he asserted his rights in the wrong forum. As such, equitable tolling is inapplicable in this matter.

C. Actual Innocence

A claim of actual innocence may serve as both an exception to procedural default and as an equitable exception to the statute of limitations. See Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004); McQuiggin v. Perkins, ___ U.S. ___, ___, 133 S.Ct. 1924, 1931, 185 L.Ed.2d 1019 (2013). In McQuiggin, the United States Supreme Court held that a habeas petitioner who establishes a successful claim of actual innocence is excused from the procedural bar of the statute of limitations under the miscarriage of justice exception. A claim of actual innocence, if proved, is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Schlup v. Delo, 513 U.S. 298, 315 (1995) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). However, the Supreme Court in McQuiggin cautioned that, "tenable actual-innocence gateway pleas are rare." McQuiggin, 133 S.Ct. at 1928.

A habeas petitioner seeking to overcome the one-year statute of limitations in §2244(d)(1), upon a showing of "actual innocence", must support his allegations with "new, reliable evidence" that was not presented at trial and must demonstrate that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U. S. at 324-28 (internal citations omitted). This exception is limited to "certain exceptional cases involving a compelling claim of actual innocence." House v. Bell, 547 U.S. 518, 521 (2006); see also Schlup, 513 U.S. at 324 (stating that "experience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare"). "Actual innocence" in this context refers to factual innocence and not mere legal sufficiency. Bousley v. United States, 523 U.S. 614, 623-24 (1998).

Although not clear, Petitioner appears to claim that he is actually innocent of the crimes for which he was convicted based upon an April 22, 2009 video surveillance, which Deneau states will show that "no robbery occurred." (Doc. 16 at 1). This video, however, is not "new evidence" so as to satisfy the first step of an actual innocence claim. See Teagle v. Diguglielmo, 336 Fed. Appx. 209, 213 (3d Cir. 2009) (noting that evidence was not "new," as it was available at trial and defense counsel chose not to present it). As the video clearly existed in 2009, this evidence was available to trial counsel and PCRA counsel. Thus, Petitioner has not presented reliable, newly-discovered evidence, i.e., evidence that was not known at the time of trial. As such, Deneau fails to meet the actual innocence threshold requirement necessary to overcome the one-year statute of limitations.

III. Certificate of Appealability.

When a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, a certificate of appealability should issue only if (1) the petition states a valid claim for the denial of a constitutional right, and (2) reasonable jurists would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, reasonable jurists could not disagree that the instant petition is time-barred. It is statutorily barred, and neither statutory nor equitable tolling apply to the petition.

IV. Conclusion

In light of the foregoing, the petition for writ of habeas corpus will be DISMISSED, and the case will be CLOSED. An appropriate order will follow.

OPINION AND ORDER GRANTING MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

EDMUNDS, J.

I. Introduction

*1 Petitioner, an inmate at the Scott Correctional Facility in Plymouth, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that she is incarcerated in violation of her constitutional rights. Petitioner was convicted of second-degree murder following a jury trial in the Recorder's Court for the City of Detroit in 1990 and was sentenced to 20-30 years imprisonment.

This matter is before the Court on Respondent's motion to dismiss the habeas petition for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1). For the reasons set forth below, this Court concludes that Respondent's motion should be granted and that the habeas petition should be dismissed as untimely.

II. Procedural History

Following sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals, which affirmed her conviction and sentence. People v. Bunnell, No. 130974 (Mich.Ct.App. July 8, 1992) (unpublished, per curiam). Petitioner filed an application for leave to appeal with the Michigan Supreme Court which was denied. People v. Bunnell, No. 94653 (Mich. Dec. 30, 1992).

Petitioner filed a motion for relief from judgment with the trial court on June 12, 1996. The trial court denied the motion. People v. Bunnell, No. 90-000288 (Recorder's Ct. Oct. 30, 1996). Petitioner subsequently filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Bunnell, No. 200680 (Mich.Ct.App. Nov. 12, 1998). Petitioner also filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Bunnell, No. 113819 (Mich. July 27, 1999).

Petitioner filed the present federal petition for writ of habeas corpus, dated July 26, 2000, on that same date. Petitioner asserts that she is entitled to habeas relief on the following grounds: (1) the trial court failed to instruct the jury on the defense theory, (2) there was insufficient evidence to convict, (3) the verdict was against the great weight of the evidence, (4) she was denied the effective assistance of trial and appellate counsel, and (5) the trial judge erred at sentencing. Respondent filed the motion to dismiss the petition for failure to comply with the one-year statute of limitations on February 2, 2001. Petitioner filed reply to the motion on February 9, 2001.

III. Analysis

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996. The AEDPA governs the filing date for the habeas application in this case because Petitioner filed his application after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997). Among other things, the AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Matthews v. Abramajtys, 39 F.Supp.2d 871, 872 (E.D.Mich.1999). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244(d)(1)(A). The revised statute provides that:

*2 (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).

Petitioner's conviction became final before the AEDPA's April 24, 1996 effective date. Prisoners whose convictions became final prior to the AEDPA's effective date are given a one-year grace period in which to file their federal habeas petitions. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999). Accordingly, Petitioner was required to file her federal habeas petition on or before April 24, 1997, excluding any time during which a properly filed application for state post-conviction or collateral review was pending in accordance with 28 U.S.C. § 2244(d)(2).

Petitioner filed her state court motion for relief from judgment on June 12, 1996. At that juncture, 49 days of the one-year grace period had expired. Petitioner then pursued her state court remedies until the Michigan Supreme Court denied leave to appeal the denial of her motion for relief from judgment on July 27, 1999. The AEDPA's one-year statute of limitations period was thus tolled from June 12, 1996 to July 27, 1999 while Petitioner's motion for relief from judgment was properly filed and pending. The AEDPA's limitations period is only tolled while a prisoner has a properly filed post-conviction motion under consideration. 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson, 209 F.3d 325, 327-28 (4th Cir.2000); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir.1998); see also Hudson v. Jones, 35 F.Supp.2d 986, 988 (E.D.Mich.1999).

Once the Michigan Supreme Court denied Petitioner's application for leave to appeal the denial of her motion for relief from judgment, Petitioner had 316 days remaining before the one-year period expired. Contrary to Petitioner's assertion, the limitations period did not begin to run anew after the completion of his post-conviction proceedings. See, e.g., Cromwell v. Keane, 33 F.Supp.2d 282, 285 (S.D.N.Y.1999); Gray v. Walters, 26 F.Supp.2d 771, 772 (D.Md.1998). Petitioner was thus required to file her federal habeas petition by June 8, 2000. Petitioner did not file the instant habeas petition until July 26, 2000 (the date upon which she signed the petition)—more than six weeks after the expiration of the one-year period. Thus, Petitioner's present habeas petition is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d).

*3 Several courts have concluded that the limitations period is not a jurisdictional bar and may be subject to equitable modifications such as tolling. See, e.g., Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998); Miller v. New Jersey State Dept. of Corr., 145 F.3d 616, 617-19 (3rd Cir.1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.1998); Thomas v. Straub, 10 F.Supp.2d 834, 835-36 (E.D.Mich.1998). Petitioner, however, has not alleged any extraordinary circumstances which caused her to file the instant petition more than six weeks after the expiration of the one-year limitations period.

IV. Conclusion

This Court thus concludes that Petitioner failed to file her petition for writ of habeas corpus within the one-year grace period and has not alleged any extraordinary circumstances which caused her to file outside the applicable time frame.

Accordingly;

IT IS ORDERED that Respondent's motion to dismiss is GRANTED and that the petition for writ of habeas corpus is DISMISSED for failure to comply with the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1).

State prisoner filed a petition for habeas corpus. The United States District Court for the Eastern District of Pennsylvania, Marvin Katz, J., dismissed the petition as time-barred, and petitioner appealed. The Court of Appeals, Mansmann, Circuit Judge, held that the time 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 statute of limitations on filing a habeas petition.

Affirmed.

West Headnotes (1)

[1] Habeas Corpus

The time 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 statute of limitations on filing of federal habeas corpus petition. 28 U.S.C.A. § 2244(d)(1), (d)(1)(A), (d)(2).

443 Cases that cite this headnote

Attorneys and Law Firms

*540 Mary Gibbons, Toms River, NJ, Counsel for Appellant.

Donna G. Zucker, Michele S. Davidson, Marilyn F. Murray, Thomas W. Dolgenos, Ronald Eisenberg, Arnold H. Gordon, Lynne Abraham, Office of the District Attorney, Philadelphia, PA, Counsel for Appellees.

Before: MANSMANN, BARRY and COWEN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

**1 Willie Stokes appeals from an order of the District Court dismissing his petition for habeas corpus, filed pursuant to 28 U.S.C. § 2254, as time-barred. We address an issue of first impression for our court: Whether Stokes' time to file a federal habeas corpus petition under 28 U.S.C. § 2244(d)(1) was tolled under 28 U.S.C. § 2244(d)(2) for the ninety day period during which Stokes could have filed a petition for certiorari in the United States Supreme Court. We join all of the other Courts of Appeals to have decided this issue, holding that the ninety day period during which a certiorari petition may be filed does not toll the applicable statute of limitations. Accordingly, we will affirm the order of the District Court.

I.

On August 21, 1984 Stokes was convicted, following a jury trial in a Pennsylvania state court, of first degree murder and possession of an instrument of crime. He was sentenced to life imprisonment for the murder and to a concurrent term of years on the weapons count.

Stokes' conviction was affirmed on direct appeal in 1986 and the Pennsylvania Supreme Court denied his petition for allocatur in 1987. Shortly thereafter, Stokes filed a petition for relief under Pennsylvania's Post Conviction Hearing Act, 42 Pa. Const. Stat. § 9541 et seq. (repealed). Relief was denied in February 1991, and that decision was affirmed by the Pennsylvania Superior Court. Stokes did not file a petition for allocatur in the Pennsylvania Supreme Court.

On October 30, 1995, Stokes filed a second post-conviction request for relief pursuant to the Post Conviction Relief Act, 42 Pa. Cons. Stat § 9541 et seq. (1988). Relief was denied on January 3, 1996 and the denial was affirmed on December 26, 1996 by the Pennsylvania Superior Court. Allocator was sought and was denied by the Pennsylvania Supreme Court on July 2, 1997.

Stokes filed the petition for writ of habeas corpus underlying this appeal on September 30, 1998. The United States Magistrate Judge concluded that Stokes' petition was time-barred under the provisions of 28 U.S.C. § 2244(d)(1) and that Stokes had failed to establish any circumstance warranting application of equitable tolling. The District Court adopted the report and recommendation of the Magistrate Judge, dismissed the petition as time-barred, and denied a certificate of appealability.

Stokes filed a timely appeal. On September 14, 2000 we granted a certificate of appealability as to the limitations issue posed by Stokes' petition. This issue is *541 one of statutory construction subject to plenary review.

II.

In the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress amended the federal habeas statute by adding a one year statute of limitations for the filing of habeas corpus petitions. Section 2244(d)(1) provides in relevant 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 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.

* *2 * * * *

(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 section.

Although the statute itself did not provide for one, most courts of appeals, including ours, implied a one year grace period for petitioners whose convictions became final before the effective date of the AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998). Because Stokes' conviction became final in 1987, he was entitled to the grace period and, on the basis of that grace period alone, would have been required to file his section 2254 petition on or before April 23, 1997.

This April 23, 1997 date is not controlling here, however, because when the AEDPA amendments became effective, Stokes was actively pursuing a state collateral action. As a result, his time for filing the federal habeas petition at issue here was tolled under 28 U.S.C.§ 2244(d)(2), so long as the state petition was pending. As the defendants note, "[T]he question here is when the [state collateral proceeding] ceased to be `pending.'"

According to the defendants, that state proceeding ceased to be pending on July 2, 1997, the date on which the Pennsylvania Supreme Court denied Stokes' petition for allocator. Under this view, Stokes then had one year-until July 1, 1998 — to file the federal habeas petition. Stokes' petition was not filed until September 30, 1998.

Stokes takes a different view, contending that the state proceeding should be deemed to have been pending for an additional ninety days after the Supreme Court of Pennsylvania declined to grant discretionary review-these ninety days being the period during which he could have sought further review by the United States Supreme Court.

III.

Although we have yet to address the precise question posed here,1 we do not find ourselves in uncharted legal territory. *542 Arguments similar to the one raised here by Stokes have been considered by a number of our sister courts of appeals. These courts have concluded, without exception, that the time 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 statute of limitations under 28 U.S.C. § 2244(d)(2). See Snow v. Ault, 238 F.3d 1033 (8th Cir.2001); Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000), cert. denied, 532 U.S. 950, 121 S.Ct. 1421, 149 L.Ed.2d 361 (2001); Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir.2000), cert. denied, 531 U.S. 1166, 121 S.Ct. 1129, 148 L.Ed.2d 995 (2001); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000); Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999), cert. denied, 528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000). We now join these courts of appeals and conclude that Stokes' petition was properly dismissed as time-barred.

**3 We reach this conclusion for several reasons. First, we note that the language used in section 2244(d)(1)(A) differs from that found in section 2244(d)(2). "[U]nlike § 2244(d)(1)(A), which uses the phrase `became final by . . . expiration of the time for seeking [direct] . . . review,' a phrase that . . . takes into account certiorari proceedings, § 2244(d)(2) contains no such language." Snow v. Ault, 238 F.3d at 1035 (citation omitted). We agree with the Court of Appeals for the Sixth Circuit:

Isham v. Randle, 226 F.3d at 695. This reading of section 2244(d)(2) is consistent with the requirement that a petitioner exhaust state remedies prior to instituting a federal habeas petition. "Such exhaustion does not include seeking certiorari from the state court's denial of post-conviction relief." Snow v. Ault, 238 F.3d at 1036.

The result is also consistent with our precedent construing section 2244(d)(2). In Jones v. Morton, 195 F.3d 153 (3d Cir.1999), we considered whether a pending properly filed habeas petition tolls the statute of limitations under section 2244(d)(2) for purposes of filing a subsequent federal habeas petition.2 We concluded that it does not:

Congress clearly intended that the word "State" would be read to modify both "post conviction" and "other collateral review" so that tolling would be afforded under § 2244(d)(2) for various forms of state review only. We find nothing in § 2244(d)(2)'s language or legislative history, and nothing in the policy concerns behind AEDPA's enactment to suggest a contrary result.

Id. at 159. Our conclusion in Jones supports the conclusion here that the statute *543 of limitations was not tolled during the period when Stokes could have sought review in the Supreme Court.

Finally, we note the reasoning undertaken by the Court of Appeals for the Seventh Circuit in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.2000). There, the Court of Appeals held, as we do here, that the ninety days during which a petitioner could have filed a petition for certiorari in the United States Supreme Court did not toll the limitations period set forth in section 2244(d)(2). The Seventh Circuit's holding was narrower than the holdings of other courts to have considered this issue. The court in Gutierrez wrote:

Section 2244(d)(2) . . . provides that the limitations period is tolled during the time that "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending."

* * * *

Because Gutierrez never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never "properly filed." . . . [I]nstead of excluding time a pleading could have been filed, Congress explicitly required a "properly filed" pleading to toll the statute of limitations. Gutierrez did not properly file a petition for certiorari and, thus, the one-year limitations period was not tolled during the time [in] which he could have filed such a petition. Likewise, a petition for certiorari that is not actually filed cannot reasonably be considered "pending."

**4 233 F.3d at 491-92.

Stokes, like Gutierrez, never filed a petition for certiorari. Consequently, the reasoning underlying the decision in Gutierrez applies here as well, providing an alternate ground for our conclusion that Stokes' petition for a writ of habeas corpus was properly dismissed as untimely.

IV.

For the foregoing reasons, we hold 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 set forth at 28 U.S.C. § 2244(d)(2). Accordingly, we will affirm the order of the District Court.

Attorneys and Law Firms

Rogelio Yanes, Waymart, PA, pro se.

Mark S. Matthews, Office of the District Attorney, David Christine, Michael T. Rakaczewski, Stroudsburg, PA, for Respondents.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

*1 Petitioner, Rogelio Yanes, an inmate at the Waymart State Correctional Institution, Waymart, Pennsylvania, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Yanes challenges his 2002 Monroe County Court of Common Pleas convictions for rape, statutory sexual assault, and corruption of minors. We will deny Yanes' petition because we agree with Respondents that it is untimely under the one-year statute of limitations applicable to 2254 petitions.

II. Background

Yanes is serving a five- to ten-year sentence for rape, statutory sexual assault, and corruption of minors that was imposed by the Court of Common Pleas of Monroe County on December 9, 2002. On January 8, 2003, Yanes filed a direct appeal with the Superior Court of Pennsylvania. On September 29, 2003, the Superior Court affirmed his conviction. See Commonwealth v. Yanes, 160 EDA 2003 (Pa.Super.Sept. 29, 2003).1 Petitioner did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.

On February 17, 2004, Yanes filed a timely pro se petition for postconviction relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was appointed and an amended petition was filed on December 21, 2004. On May 2, 2005, the petition was denied. On May 26, 2005, an appeal was filed in the Superior Court. On March 14, 2006, the superior court denied the appeal. See Commonwealth v. Yanes, 1507 EDA 2005 (Pa.Super. March 14, 2006).2 Yanes did not further appeal to the Pennsylvania Supreme Court.

Yanes filed a second PCRA petition on June 24, 2008. On July 22, 2008, the trial court dismissed the second PCRA petition as untimely. Yanes did not appeal this decision to the superior court. Commonwealth v. Yanes, CP-45-CR-0000492-2001 (Monroe C.C.P.) (docket sheet).3

The present federal habeas corpus petition was filed on December 15, 2008. Yanes presents the following three claims: 1) there were no Hispanics in the jury pool; 2) trial counsel's ineffectiveness, including not striking a probation officer from the jury panel and failing to object to the prosecutor's use of ethnic slurs and to his improper reference to Petitioner's illegal-alien status; and 3) actual innocense of the crimes for which he is incarcerated.

III. Discussion

A petitioner confined under a state-court judgment has one year to file a 2254 petition challenging the judgment. 28 U.S.C. § 2244(d)(1). As relevant here, the limitations period 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." Id. at § 2244(d)(1)(A). This language applies to the right to seek discretionary review in state appellate courts and means that the judgment does not become final until the time period for seeking such review expires, even if review is not sought. See Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir.2000).

*2 The limitations period is tolled for the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending," 28 U.S.C. § 2244(d)(2) (emphasis added), but a state postconviction petition is not "properly filed" so that it could toll the running of the limitations period if it was untimely filed under state law, Pace v. DiGugliemo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 660 (2005), and a state court's determination that the petition was untimely is conclusive on a federal habeas court. Satterfield v. Johnson, 434 F.3d 185, 192 (3d Cir.2006) ("If a state court determines that a petition is untimely, that would be the end of the matter, regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was `entangled' with the merits.") (internal quotations omitted).

Applying these principles here indicates the 2254 petition is untimely. On direct appeal, the superior court affirmed Yanes' conviction on September 29, 2003. Yanes did not seek review in the Pennsylvania Supreme Court, so his conviction became final on October 29, 2003, the day on which his thirty-day period for seeking discretionary review in the Pennsylvania Supreme Court expired. See Pa. R.App. P. 1113(a). statute of limitations began running on that date, 111 days until it was tolled on February 17, 2004, Petitioner filed his first, timely PCRA petition.4 After the superior court on March 14, 2006, affirmed the trial court's denial of relief, the limitations period began running again on April 13, 2006, the day on which his thirty-day period for seeking review in the Pennsylvania Supreme Court expired. With 254 days remaining, in the limitations period at that point, the limitations period expired on December 24, 2006. The instant petition was filed on December 15, 2008, well beyond this deadline.5 Hence it is time-barred.

Petitioner seeks to avoid this result by arguing he is entitled to equitable tolling of the limitations period. The Third Circuit recognizes that equitable tolling is appropriate when "the principles of equity would make the rigid application of a limitations period unfair, [quoted case omitted] such as when a state prisoner faces extraordinary circumstances that prevent him from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims." LaCava v. Kyler, 398 F.3d 271, 275-276 (3d Cir.2005) (internal quotation marks omitted) (emphasis in LaCava)." Mere excusable neglect is not sufficient." Id. at 276. The court of appeals has identified four circumstances in which equitable tolling is justified: (1) when the defendant has actively misled the plaintiff; (2) when the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) when the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum; or (4) when the claimant received inadequate notice of his right to file suit, a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that he had done everything required of him. Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999). Equitable tolling is to be invoked "only sparingly." See United States v. Midgley, 142 F.3d 174, 179 (3d Cir.1998).

*3 In the present case, Yanes argues he is entitled to equitable tolling because his PCRA counsel failed to timely advise him that the superior court had affirmed the denial of his first PCRA. (Doc. 10, Traverse). Yanes maintains that neither his PCRA counsel nor the prothonotary of the superior court answered his letters inquiring about the status of his PCRA appeal. (Id.) In support, he offers the letters he wrote to each, dated June 3, 2007, and November 27, 2007, respectively. (Id., Ex. A and B). Yanes argues that the superior court and his PCRA counsel "robbed the petitioner of the knowledge that his 1507 EDA 2005, appeal ha[d] been decided. The lack of [this] information in turn robbed him of the opportunity to file a [timely] Writ of Habeas Corpus petition Action."(Id. at p. 3). Yanes asserts he did not learn of the superior court's decision until October 2008.

We reject the equitable tolling argument for the following reasons. First, his attorney's conduct in not responding to Petitioner's letter (or prior letters) is not an extraordinary circumstance. At most, this would amount to attorney error or negligence which does not rise to the level of extraordinary circumstances. Brown v. Shannon, 322 F.3d 768, 774 (3d Cir.2003); Cristin v. Wolfe, 168 Fed. Appx. 508, 511-12 (3d Cir.2006) (nonprecedential) (equitable tolling not warranted by the petitioner's postconviction counsel's alleged failure to tell her that he was no longer representing her and not filing a petition for allowance of appeal in the Pennsylvania Supreme Court). For attorney conduct to be an extraordinary circumstance, there must be some form of affirmative misconduct. Brown, supra, 322 F.3d at 774 (observing that lawyer's conduct in lying to client that a 28 U.S.C. § 2255 motion or a complaint had been filed may be sufficient to satisfy equitable tolling) (citing United States v. Wynn, 292 F.3d 226, 230-31 (5th Cir.2002) and Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 241-42 (3d Cir.1999)). Second, the prothonotary's alleged failure to respond to his letter is also not an extraordinary circumstance as the letter, listing the docket number of his direct appeal, gives no hint that Petitioner is inquiring about his PCRA appeal.

Moreover, Petitioner has not shown reasonable diligence. His lawyer may have been ignoring him, but he has presented only one attempt to learn from the court the status of the appeal of his first PCRA petition, the letter of November 27, 2007, which was sent some two and one-half years after May 26, 2005, the date the appeal was filed.

IV. Conclusion

We will issue an order denying Yanes' 2254 petition as untimely. We will also deny a certificate of appealability, based on the above analysis. However, Petitioner is advised that he has the right for thirty (30) days to appeal our order denying his petition, see 28 U.S.C. § 2253(a); Fed. R.App. P. 4(a)(1)(A), and that our denial of a certificate of appealability does not prevent him from doing so, as long as he also seeks, and obtains, a certificate of appealability from the court of appeals. See Fed. R.App. P. 22; Local Rule of Appellate Procedure 22.1.

ORDER

*4 AND NOW, this 20th day of April, 2009, it is ordered that:

1. The petition (doc. 1) for writ of habeas corpus under 28 U.S.C. § 2254 is denied as untimely.

2. A certificate of appealability is denied.

3. The Clerk of Court is directed to close this case.