MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the Respondents' motion to dismiss (ECF No. 8) be granted, that the claims raised in the petition for a writ of habeas corpus (ECF No. 4) filed by Scott A. Black pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), be dismissed, and that a certificate of appealability be denied with respect to all claims.

II. REPORT

A. Relevant Background

On February 12, 2014, Black pleaded guilty to two counts of second degree murder in the Court of Common Pleas of Forrest County. That same day, the court sentenced him to two consecutive terms of life imprisonment. Fred D. Hummel, Esq., and John M. Ingros, Esq., were his attorneys.

No direct appeal was filed in the case. Accordingly, Black's judgment of sentence became final for the purpose of determining the timeliness of his petition for a writ of habeas corpus no later than on or around March 14, 2014. Pa.R.Crim.P. 720(A); Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review).

On May 22, 2015, Black filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. (ECF No. 8, Ex. A). His PCRA petition was based on the March 17, 2015, decision of the Court of Common Pleas of Forrest County on a "Petition to Set Aside Nomination Petition of Elizabeth A. Ziegler for District Attorney of Forest County Pursuant to the Pennsylvania Election Code, 25 P.S. § 2937," which had alleged that Ziegler no longer resided in Forest County and was thus ineligible to run for re-election. A court had found that Ziegler owned a piece of property that was located partially in Warren County and partially in Forest County, with one structure in each county. It also had found that Ziegler was no longer living in the Forest County structure at the time of the hearing. On that basis, that court had ordered that Ziegler's nomination petitions for the May 19, 2015, primary election be set aside, which removed Ziegler from the ballot for that election. In his PCRA petition, Black contended that Ziegler's removal from the ballot in the 2015 election retroactively rendered her entire tenure as District Attorney of Forest County null and void, and that all convictions under her tenure, including in his case, should be set aside on that basis.

The PCRA court appointed Joan M. Fairchild, Esq., to represent Black. She subsequently filed a petition for leave to withdraw and an accompanying "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) (en banc). The PCRA court granted Fairchild's request and dismissed Black's petition. (ECF No. 8, Ex. B).

Black filed an appeal with the Superior Court of Pennsylvania. On August 4, 2016, the Superior Court issued a memorandum in which it affirmed the PCRA's court decision. (ECF No. 8, Ex. C). Black did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania. (ECF No. 8, Ex. D). Accordingly, his PCRA proceeding concluded on or around September 5, 2016, when the time for him to do so expired. Pa.R.A.P. 1113(a); Lawrence v. Florida, 549 U.S. 327, 331-36 (2007); Swartz v. Meyers, 204 F.3d 417, 420-21 (3d Cir. 2000).

Black filed his petition in his case, at the very earliest, on November 7, 2017, which is the date he placed it in the prisoner mailing system. He claims, as he did in the PCRA proceeding, that Ziegler was not eligible to prosecute him. He also claims that his trial counsel provided him with ineffective assistance.1 (ECF No. 1 at 16-19).

In their motion to dismiss (ECF No. 8), the Respondents contend that Black's claims must be denied because they are untimely under AEDPA's one-year statute of limitations, which is set forth at 28 U.S.C. § 2244(d)(1). Black did not file a reply. Local Rule 2254.E.2 ("Although not required, the petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files its Answer.")

B. Discussion

The Respondents are correct that Black's claims are untimely. AEDPA imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and it provides, in relevant part:

The statute also provides that "[t]he 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)(2).2

Black's claims that his trial counsel were ineffective must be evaluated under § 2244(d)(1)(A). As set forth above, Black's judgment of sentence became final on March 14, 2014. Accordingly, he had one year from that date-until on or around March 14, 2015-to raise those claims in a federal petition for a writ of habeas corpus.3 He did not meet that deadline and, therefore, his ineffective assistance of trial counsel claims are untimely and should be denied for that reason.

As for Black's claim premised upon Ziegler's eligibility to hold office, it can be evaluated under the statute of limitation set forth in § 2244(d)(1)(D), which, as set forth above, provides that the one-year limitations period starts to run on the date "on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." In his PCRA petition, Black maintained that he did not discover the factual predicate for this claim until April 18, 2015. (ECF No. 8, Ex. A at 3). He filed his PCRA petition on May 22, 2015. In accordance with § 2244(d)(2), that PCRA proceeding statutorily tolled AEDPA's limitations period on that date. At that point, approximately 34 days (from April 18, 2015 to May 22, 2015) had already expired from AEDPA's statute of limitations. As explained above, Black's PCRA proceeding concluded on or around September 5, 2016. AEDPA's limitations period began to run again the next day, on September 6, 2016. Since 34 days had already expired from the limitations period, Black had 331 more days-until on or around August 3, 2017-to file a timely federal habeas petition and raise his claim pertaining to Ziegler's eligibility to hold office. He did not meet that deadline and, therefore, that claim is also untimely and should be denied for that reason.

C. Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. 28 U.S.C. § 2253 provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, jurists of reason would not find it debatable whether Black's claims should be denied as untimely. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Respondents' motion to dismiss (ECF No. 8) be granted, that Black's claims be dismissed because he filed them outside AEDPA's statute of limitations, and that a certificate of appealability be denied with respect to all claims.

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).