MEMORANDUM

MALACHY E. MANNION, District Judge

On April 20, 2015,1 petitioner, Terry Kuehner, an inmate confined in the State Correctional Institution at Hunlock Creek, Pennsylvania ("PA"), filed another petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). He attached exhibits to his petition. Petitioner again attacks his October 2, 2008 judgment of sentence imposed by the Court of Common Pleas for Carbon County, PA, criminal case number CP-13-CR-0000691-2005.2 On May 26, 2015, petitioner completed and filed a Miller/Mason Notice of Election indicating that he labeled his petition as one under § 2254, and that he chose to have the court rule on it as filed. (Doc. 6). See United States v. Miller, 197 F.3d 644 (3d Cir. 1999); Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). On August 31, 2015, petitioner filed a memorandum in support of his petition with additional exhibits. (Doc. 13, Doc. 13-1).

After a show cause order was issued, (Doc. 8), an extension of time was granted respondent Carbon County District Attorney to file a response to the habeas petition. However, respondent inadvertently filed the response in a closed prior habeas case of Kuehner, Civil No. 13-1735, M.D.Pa. On January 29, 2016, the court granted respondent's motion, (Doc. 14), to transfer his response to the proper docket number and accept it as timely filed. (Doc. 15). On February 8, 2016, Kuehner filed objections to the court's January 29, 2016, order claiming he was not served with respondent's Doc. 14 motion and Doc. 16 response. (Doc. 17). On February 10, 2016, the court directed respondent to serve Kuehner with its stated motion and response. (Doc. 18). The court also permitted Kuehner to file a traverse within 14 days after he was served with respondent's response. Kuehner was then served with both documents. (Doc. 19). On March 2, 2016, Kuehner filed a response styled as a "Motion of Traverse" in support of his objections to respondent's motion to transfer his response to the proper docket number and for the court to accept it as timely filed. (Doc. 21). Kuehner attached exhibits to his response.

To the extent Kuehner seeks the court to reconsider its January 29, 2016, order claiming that his due process rights were violated and requests that the court dismiss respondent's response to his habeas petition and order his immediate release from prison, his request is DENIED. There was no undue delay caused when respondent inadvertently filed his response in Kuehner's prior habeas case, Civil No. 13-1735, and there was no prejudice to Kuehner in allowing respondent to file his response in the proper case after the fact.

Kuehner's habeas petition will again be dismissed as untimely, and he has failed to show that he is entitled to equitable tolling.

I. Background

This court largely repeats the detailed procedural background of Kuehner's relevant criminal case as stated in its December 2, 2013 Memorandum dismissing his prior habeas case (Civil No. 13-1735) as untimely. The events which transpired after the court's prior memorandum are also discussed.

The following background has been extracted from the Pennsylvania Superior Court's October 22, 2012, Memorandum vacating the trial court's decision denying Kuehner's petition for writ of habeas corpus and remanding for the appointment of counsel. Commonwealth of PA v. Kuehner, No. 524 EDA 2012, Superior Court Opinion. (See Doc. 1, at 45).3

Trial Court Opinion (T.C.O.), 5/23/12, at 1-2.

In its October 22, 2012 Memorandum, the Superior Court treated Kuehner's petition for writ of habeas corpus as an untimely PCRA petition, and remanded the case to the Court of Common Pleas of Carbon County for the appointment of counsel. Relying on the holding in Commonwealth v. Stout, 978 A.2d 984, 988 (Pa.Super. 2009), the Superior Court found that "regardless of whether a petitioner has filed a PCRA petition that is untimely on its face, or whether such a petition is mischaracterized as a writ of habeas corpus or some other alternative form of relief, Pa.R.Crim.P. 904(B) requires that an indigent petitioner seeking collateral relief for the first time following a conviction is entitled to the appointment of counsel. Stout." The Superior Court then remanded Kuehner's case to the trial court for appointment of PCRA counsel.5

Upon remand, attorney Joseph V. Sebelin, Jr., was appointed as counsel to represent Kuehner on February 19, 2013, and was provided forty-five (45) days within which to review Kuehner's filings, including the timeliness of Kuehner's challenge to his October 2, 2008 sentencing, and either seek to withdraw, after filing a "no-merit' letter, or file an amended PCRA petition raising those claims deemed meritorious by counsel. On August 6, 2013, Sebelin filed a motion to withdraw as counsel. (Doc. 16 at 46). On August 13, 2013, the Carbon County Court (i.e., trial court) denied the motion since counsel failed to file a "No Merit Letter." (Doc. 1 at 8).

As noted above, Kuehner filed a habeas petition in federal court challenging his October 2, 2008 judgment of sentence on June 24, 2013, and its was dismissed as untimely by this court on December 2, 2013. Civil No. 13-1375, M.D.Pa.

On August 26, 2013, Sebelin filed an amended motion to withdraw alleging Kuehner refused to communicate with him and because he found Kuehner's petition lacked merit. Sebelin also included a "No Merit Letter" in which he concluded that Kuehner's habeas petition treated as a PCRA petition was untimely and failed to raise any meritorious claims. On December 3, 2013 the court issued a Notice of Intention to Dismiss Kuehner's PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 since it was untimely. Kuehner was afforded an opportunity to respond to the notice and he filed a response on December 20, 2013. On December 31, 2013, the court dismissed Kuehner's PCRA petition as untimely and allowed Sebelin to withdraw as counsel. Kuehner then filed an appeal to the Superior Court. (Doc. 1 at 9). On November 5, 2013, the Superior Court affirmed the trial court's order dismissing Kuehner's PCRA petition as untimely.

Kuehner then filed with the Superior Court a "Petition for Appealibility (sic) to the Supreme Court for Want of Jurisdiction of a Writ of Habeas Corpus and Writ of Error." On December 10, 2013, the Superior Court determined that Kuehner intended to file a petition for allowance of appeal in the PA Supreme Court. Thus, the Superior Court transferred the petition to the PA Supreme Court. (Doc. 1 at 31). On April 15, 2015, the PA Supreme Court denied the petition for allowance of appeal.

On April 20, 2015, Kuehner then filed the instant habeas petition with this court under § 2254 challenging his October 2, 2008 judgment of sentence insofar as the court imposed a sentence on the simple assault charge (case no. 691-CR-2005) to run consecutive to a prior sentence he received in January 2006 in Carbon County after being convicted of three counts of aggravated assault (case no. CP-13-CR-0000637-2004).6 (Doc. 1 at 32). In his case no. 637-CR-2004, Kuehner was sentenced to an aggregate term of imprisonment of not less than 18 months and not more than 10 years. In his case no. 691-CR-2005, Kuehner was sentenced to a term of imprisonment of not less than 6 months and not more than 12 months to run consecutively to his sentence in his case no. 637-CR-2004. The trial court stated that Kuehner's sentence in case no. 691-CR-2005 was in accordance with a plea agreement executed by both Kuehner and his counsel. (Doc. 1 at 33).

In his present habeas petition, Kuehner requests this court to vacate his October 2008 sentence and to order the trial court to re-sentence him so that his sentence on the simple assault charge runs concurrent to his sentence on the aggravated assault charges in his earlier case. He basically claims that the running of his October 2008 sentence consecutive to his 2006 sentence violated his due process rights, was a breach of his plea agreement, and was the result of ineffective assistance of trial counsel. He claims, without support, that newly discovered evidence renders his habeas petition as timely. Respondent contends that the habeas petition is untimely under the AEDPA's one-year limitations period. The court agrees it is untimely.

II. Discussion

This court has jurisdiction over this case under 28 U.S.C. § 2254(a).

Kuehner's judgment of sentence became final on November 1, 2008, 30 days after he could have filed a direct appeal of his October 2, 2008 judgment of sentence and he filed his instant habeas petition after the effective date of the AEDPA. Thus, his habeas petition is governed by the AEDPA's one year statute of limitations. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).

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.")(emphasis in original); 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 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 post-conviction collateral petition. Stokes v. Dist. Attorney of Phila., 247 F.3d 539, 542 (3d Cir. 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, since Kuehner did not file a direct appeal after his October 2, 2008 judgment of sentence was imposed, his conviction became final 30 days later on November 1, 2008. Kuehner did not file any appeal regarding his judgment of sentence until almost three years later when he filed his petition for writ of habeas corpus, construed as a PCRA petition, with the trial court on August 15, 2011. In this petition, Kuehner claimed that the running of his October 2008 sentence consecutive to his earlier conviction violated his due process rights, was a breach of his plea agreement and was as a result of ineffective assistance of trial counsel. This petition was ultimately dismissed as untimely and none of the exceptions to timeliness were found to have applied by the state courts. See 42 Pa.C.S.A. § 9545(b).

The clock for filing a federal habeas petition began running on November 2, 2008, and Kuehner then had one year to file a timely habeas corpus petition. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). No doubt that Kuehner's one-year limitation period expired on November 2, 2009, since he did not have any properly filed appeals pending in the state courts during this time. See Almazan v. Commonwealth of PA, 80 F.Supp.3d 602, 605 (E.D.Pa. 2015). Thus, Kuehner's subsequent PCRA petition which was dismissed by the state court as untimely did not subject his limitations period to statutory tolling. Kuehner does not appear to dispute that his habeas petition is untimely but he claims that equitable tolling should extend the limitations period in his case. As such, his petition for habeas corpus relief under § 2254 is barred by the statute of limitations, and should be dismissed as untimely, unless the statute of limitations is subject to equitable tolling.

B. Equitable Tolling

The court must now examine whether the AEDPA statute of limitations should be equitably tolled to consider Kuehner's petition timely filed. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 540 U.S. 826, 124 S.Ct. 48, 157 L.Ed.2d 49 (2003)(citing Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617-618 (3d Cir.1998). The limitation period may be tolled when the principles of equity would make the rigid application of a limitation period unfair. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560 (2010)("Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2254(d) is subject to equitable tolling in appropriate cases."); Satterfield v. Johnson, 434 F.3d 185, 195 (3d Cir.2006); Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999).

To be entitled to equitable tolling, [petitioner] must show "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 130 S.Ct. at 2562 (quoting Pace, 544 U.S. at 418); Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079 (2007) (quoting id.). Both elements must be established before equitable tolling is permitted. Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (citation omitted). Courts must be sparing in their use of equitable tolling. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999). In fact, the United States Court of Appeals for the Third Circuit has held that equitable tolling is proper "only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice." United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998).

In Jones, 195 F.3d at 159, the Third Circuit stated that equitable tolling "may be appropriate if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." (citations omitted).

Kuehner states that he is entitled to equitable tolling with respect to his claim that his 2008 sentence on the simple assault charge (second degree misdemeanor) should have run concurrently with his 2006 sentence on his aggravated assault conviction (second degree felony) instead of consecutively. Kuehner contends that the trial court's October 2, 2008 sentence on his plea to the simple assault charge which "added a mandated linked consecutive sentence of a [24-month minium sentence from his prior felony aggravated assault sentence] modifie[d] the structure of the 6 to 12 months [sentence]" he received on the simple assault charge and unlawfully modified his sentence on the simple assault charge. Kuehner explains that the state courts violated his due process rights by denying his PCRA petition as untimely since he had an exception to the time requirement based on his illegal sentence. He also states that he can prove governmental interference and a "pattern of events by the lower court judges" in both of his Carbon County cases. He further states that his October 2008 sentence violated double jeopardy since the only charge to which he pled in that case was simple assault and all of the other charges were "nol/void", and since he was sentenced based on his felony aggravated assault conviction in his prior case.

Kuehner has failed to show any extraordinary circumstances and that he was reasonably diligent in acting once he discovered his claim. He has not shown that "in some extraordinary way" he was prevented from asserting his rights. Kuehner has not shown any governmental interference nor has he shown any improper conduct by the state courts. In fact, this court found that Kuehner was not entitled to equitable tolling with respect to his prior habeas corpus petition he filed in June 2013, Civil No. 13-1735, M.D.Pa., in which he raised similar contentions as he raises in his present petition. As such, his prior petition was dismissed an untimely.

In Pabon v. Mahanoy, 654 F.3d 385, 401 (3d Cir. 2011), the Third Circuit stated that the relevant question "is not whether the circumstance alleged to be extraordinary is unique to the petitioner, but how severe an obstacle it creates with respect to meeting AEDPA's one-year deadline." In Almazan, 80 F.Supp.3d at 608, the court stated that "an equitable tolling inquiry has two prongs—extraordinary circumstances and reasonable diligence—and both must be satisfied." See also Sistrunk, 674 F.3d at 190 (`[Petitioner] needed to show both diligence and extraordinary circumstances to succeed on his equitable tolling argument.") Thus, in order to establish that he is entitled to equitable tolling, a petitioner must allege enough facts to satisfy the extraordinary circumstances prong and "he must also show that he was reasonably diligent in bringing his claims." Almazan, 80 F.Supp.3d at 608.

The facts of this case do not constitute the Third Circuit's "high standard" for extraordinary circumstances for purposes of equitable tolling of the AEDPA's one-year deadline. See Sistrunk, 674 F.3d at 190. In determining whether extraordinary circumstances exist to warrant the application of equitable tolling, this court must also examine petitioner's due diligence in pursuing the matter under the specific circumstances he faced. Traub v. Folio, No. 04-386, 2004 WL 2252115, at *2 (E.D. Pa. Oct.5, 2004) (citing Schleuter v. Varner, 384 F.3d 69 (3d Cir. 2004)) (affirming dismissal of habeas petition as time barred and not entitled to equitable tolling because lengthy periods of time had elapsed following his conviction before he sought relief). It is petitioner's burden to show both that he acted with reasonable diligence and that extraordinary circumstances caused his petition to be untimely. Id.

Further, Kuehner "has not shown enough to satisfy the reasonable diligence prong of the equitable tolling test, his claims are not subject to equitable tolling." Almazan, 80 F.Supp.3d at 609; see also Sistrunk, 674 F.3d at 190. Accordingly, the petition is time-barred and will be dismissed.

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, (Doc. 1), will be DISMISSED as untimely, 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. Abrainaitvs, 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 ofthe 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 Hodson 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. Nell' Jersey State Dept. o'Corr. 145 F.3d 616 617-19 3rd Cir.1998; Miller v. Mari; 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).

Boyman Traub, Waynesburg, PA, Plaintiff Pro Se.

Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, for Defendant.

MEMORANDUM

BAYLSON, J.

I. Introduction

*1 Petitioner Boyman Traub filed a pro se Petition for Habeas Corpus in this Court on January 28, 2004 and this Court referred the case to Magistrate Judge Thomas J. Rueter ("the Magistrate Judge") on February 2, 2004. On April 13, 2004 the Magistrate Judge issued a Report and Recommendation ("R & R") pursuant to 28 U.S.C. § 636(b)(1)(c) suggesting that this Court dismiss the Petition as time-barred by the one-year statute of limitations for the tiling of a habeas corpus petition. On September 10, 2004, Petitioner filed objections to the R & R. On September 20, 2004, the Government filed a Response. Upon independent and thorough consideration of the administrative record and all filings in this Court, Petitioner's objections are overruled and the recommendations by the Magistrate Judge are accepted.

II. Background and Procedural History

A summary of the background and procedural history follows.

*March 3, 1994

Petitioner is convicted of murder, robbery, and related offenses in the Court of Common Pleas for Philadelphia County. Petitioner was sentenced to a mandatory life sentence.

*July 29, 1996

Petitioner filed a pro se motion under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. §§ 9541, et seq., seeking to have his direct appeal rights reinstated nunc *pro tunc.

*August 27, 1998

The State Court reinstated Petitioner's direct appeal rights.

*December 7, 1999

Pennsylvania Superior Court affirmed Petitioner's conviction.

*January 6, 2000

30 days after Superior Court's decision and conviction becomes final. No timely request for review filed by Petitioner. Statute of Limitations begins to run for filing of habeas petition.

*February 11, 2000

Petitioner claims to receive first Notice of Pennsylvania Superior Court's decision affirming conviction. Petitioner claims a 60 day mail delay and cause for the statute to be equitably tolled.

*March 2000

Petitioner filed a Petition for Allowance of Appeal nunc pro tunc.

*August 10, 2000

Petitioner's appeal denied.

*January 6, 2001

End of Statute of Limitations for filing habeas corpus petition.

*March 7, 2001

Alternate end of Statute of Limitations if equitably tolled for 60 days.

*March 27, 2001

Petitioner filed second PCRA.

*September 26, 2002

Petitioner's second PCRA is dismissed. Petitioner did not appeal the decision to the Superior Court.

*January 28, 2004

Petitioner filed the present habeas petition.

*March 31, 2004

The Government filed a response to the petition arguing it should be dismissed as untimely because it was not filed within the one-year statute of limitations as required by 28 U.S.C. 2244.

III. Summary of Magistrate Judge's Report and Recommendation

The Magistrate Judge concluded in his R & R that this habeas corpus petition should be dismissed as time-barred. This conclusion is based upon the determination that the statute of limitations started to run on January 6, 2000, thirty days after the Pennsylvania Superior Court affirmed Petitioner's conviction. As a result, Petitioner had until January 6, 2001 to comply with the one-year statute of limitations specified in 28 U.S.C. § 2244(d)(1)1 in order to file a timely habeas petition. (R & R at 4).

*2 While it is true that before the statute of limitations expired, Petitioner filed a Petition for Allowance of Appeal in March 2000; the Magistrate Judge pointed out that under controlling Third Circuit case law, a Petition for Allowance of Appeal nunc pro tune does not toll the statute of limitations. See Douglas v. Horn, 359 F.3d 257, 262 (3d Cir.2004) (noting that time during which Mine pro tune request for allowance of appeal is pending does not toll statute of limitation). However, the one-year statute of limitations is tolled during the time a properly filed PCRA petition is filed in the state courts. See 28 U.S.C. 2244(d)(2). In this case, Petitioner's second PCRA petition, filed March 27, 2001, did not toll the statute of limitations because it was filed after the habeas statute of limitations expired on January 6, 2001. Thus, this habeas petition, filed January 28, 2004, is time-barred under 28 U.S.C. 2244(d).

The Magistrate Judge further concluded that Petitioner has not alleged any facts to warrant the statute of limitations be equitably tolled. Under controlling Third Circuit precedent, the federal habeas statute of limitations is subject to equitable tolling in only extraordinary circumstances. See Miller v. New Jersey State Dop't of Corrections 145 F.3d 616, 618 (3d Cir., 1998). The Third Circuit has defined extraordinary circumstances to exist only when:

1. The state has actively misled the petitioner;

2. The petitioner has in some extraordinary way been prevented from asserting his rights; or

3. The petitioner has timely asserted his rights but in a wrong forum.

See Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999). The Magistrate Judge determined that the mail delay claimed by Petitioner did not fall into any of these categories. In his Objections, Petitioner contends that he was prevented from asserting his rights due to the prison mailroom's mishandling of his legal correspondence from December 7, 1999 until February 11, 2000. The Magistrate Judge concluded that this alleged mistake does not constitute the extraordinary circumstances required for equitable tolling.

In determining whether extraordinary circumstances exist, the district court must examine Petitioner's due diligence in pursuing the matter under the specific circumstances he faced. See Schlueter v. Varner, 2004 WL 2035180 at *21 (3d Cir. June 25, 2004) (affirming district court's dismissal of inmate's habeas corpus petition as time barred and not entitled to equitable tolling since lengthy periods of time had elapsed following his conviction before he sought relief). The Petitioner must also show that he acted with reasonable diligence, and that the extraordinary circumstances caused his petition to be untimely. Id. With this standard in mind, the court notes that even though the alleged delay may have affected Petitioner's ability to file a timely appeal to the Superior Court, it had no effect on Petitioner's ability to file a timely PCRA or habeas petition. Petitioner offers no reason for his thirteen month delay in filing his second PCRA after being notified that the Superior Court affirmed his conviction. Petitioner also waited sixteen months to file this habeas petition after his second PCRA petition was denied. These delays indicate a lack of reasonable diligence on Petitioner's part. Because the circumstances did not cause this petition to be untimely, Petitioner was not prevented in an extraordinary way from asserting his rights and is, therefore, not entitled to equitable tolling of the statute of limitations.

*3 Even if Petitioner were entitled to equitable tolling for 60 days due to the mail delay, the statute of limitations for filing his habeas petition would be extended only until March 7, 2001. Petitioner would still be time-barred because he did not file his second PCRA petition until March 27, 2001.

IV. Conclusion

Because Petitioner did not file his habeas petition within the one-year statute of limitations period required by 28 U.S.C. § 2244, he is not entitled to equitable tolling, and his habeas petition is dismissed as time-barred. Even if the court decided that Petitioner has articulated extraordinary circumstances to warrant the equitable tolling of the statute of limitations, his petition would still be time-barred.

An appropriate order follows.

ORDER

AND NOW, this _____ day of __________, 2004, upon careful and independent consideration of the pleadings and record herein, and after review of the Report and Recommendation of the United States Magistrate Judge Thomas J. Rueter pursuant to 28 U.S.C. § 636(b)(1)(c), it is hereby

ORDERED

1. The Report and Recommendation is APPROVED and ADOPTED;

2. The petition for writ of habeas corpus is DISMISSED;

3. A certificate of appealability is not granted; and

4. The Petitioner's objections to the Report and Recommendation are OVERRULED.