Opinion
C.A. No. 99-848-SLR
June 8, 2000
Loren C. Meyers, Esquire, Deputy Attorney General, of the Department of Justice, Wilmington, Delaware, attorney for respondent.
MEMORANDUM OPINION
I. INTRODUCTION
Petitioner Joseph M. Henshaw is an inmate at the Multi-Purpose Criminal Justice Facility in Wilmington, Delaware. (D.I. 2 at 2) In November 1999, petitioner instituted this action, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 2) In his application, petitioner advances three grounds for relief: (1) his counsel did not advise him that his Delaware sentence would run consecutively to, not concurrently with, the Maryland sentence he was then serving; (2) in the absence of any indication otherwise in the May 1996 sentence order, his Delaware prison term must be construed to be concurrent to his Maryland sentence; and (3) since the May 1996 sentence order sets the effective date of his sentence as May 21, 1996, he has completed his Delaware prison term. (D.I. 2) Petitioner does not specify which of his constitutional rights he believes to have been violated.
Respondents filed an answer, asserting that petitioner's application is untimely under 28 U.S.C. § 2244 (d)(1)(A) and, therefore, must be dismissed. (D.I. 7) For the reasons stated below, the court will dismiss the petition and deny the requested relief.
II. BACKGROUND
On October 16, 1995, the grand jury indicted petitioner on charges of second and third degree burglary, criminal mischief, felony and misdemeanor theft, and two counts of second degree conspiracy. (D.I. 9, October 16, 1995 Indictment) Pursuant to the Interstate Agreement on Detainers, petitioner was brought from Maryland, where he was then incarcerated, to Delaware in April 1996. (D.I. 9, Agreement on Detainers) On May 21, 1996, petitioner pled guilty to third degree burglary and felony theft. (D.I. 9, May 21, 1996 Truth in Sentencing Guilty Plea Form) Consistent with the plea agreement, the Delaware Superior Court sentenced petitioner to a total of five years imprisonment, suspended after two years for three years probation, the effective date of the sentence being May 21, 1996. (D.I. 9, May 21, 1996 Plea Agreement and Sentencing Order) Following his sentencing, petitioner was returned to Maryland to finish his sentence there. Petitioner did not appeal his conviction or sentence to the Delaware Supreme Court.
In March 1999, petitioner filed an application with the Superior Court, seeking to alter or amend the May 1999 sentence. (D.I. 9, August 1998 Indictment) Specifically, petitioner sought removal of the detainer placed against him on the ground that, based upon an effective date of May 21, 1996, he had completed the Delaware sentence. (D.I. 9) On March 22, 1999, the Superior Court denied petitioner's application on the ground that "[a]ll sentences imposed in the State of Delaware, by law, must run consecutive." (D.I. 9) Petitioner did not appeal that decision to the Delaware Supreme Court.
The application is not dated; it was, however, received by the Superior court on March 9, 1999. (D.I. 9)
On October 4, 1999, petitioner was returned to Delaware to begin serving his May 1996 sentence. That same month he filed an application for state post-conviction relief with the Superior Court. (D.I. 9, Petition for Writ of Habeas Corpus) In his application, petitioner alleged that he was being "deprived of his constitutionally protected liberty interests" by "Respondents refusal to properly transfer [him] from Supervision Level 5, to Supervision Level's 2 and 3, as Ordered by the Sentencing Court." (D.I. 9, Petition for Writ of Habeas Corpus) On October 19, 1999, the Superior Court denied petitioner's request for post-conviction relief:
Delaware sentences do not run concurrent with any other state. Thus, while the language of the sentencing order may be effective May 21, 1996, that sentence must run consecutive to any other Level 5 sentence you are serving, including any sentences from another state.
(D.I. 9) Petitioner did not appeal the Superior Court's decision.
Petitioner's instant application for a writ of habeas corpus is dated November 18, 1999. (D.I. 2) The Clerk of the District Court received the petition on November 22, 1999. (D.I. 2)
III. DISCUSSION
Before turning to the merits of petitioner's claims, the court must determine, as a threshold matter, whether the petition is time barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Effective April 24, 1996, AEDPA amended § 2254 to impose a one-year statute of limitations on the filing of a federal habeas petition by a state prisoner. See 28 U.S.C. § 2244 (d)(1); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 619 n. 1 (3d Cir. 1998) (holding that the one-year limitations period set forth in § 2244(d)(1) is a statute of limitations subject to equitable tolling, not a jurisdictional bar). The one-year limitations period begins to run from the latest of:
Since petitioner's judgment of conviction was rendered on May 21, 1996 and he filed his habeas petition in November 1999, AEDPA applies to petitioner without any retroactivity problem. See Lindh v. Murphy, 521 U.S. 320 (1997).
(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.Id.
AEDPA further provides that the statute of limitations is tolled during the time that a state prisoner is attempting to exhaust his claims in state court. See id. § 2244(d)(2) Section 2244(d)(2) states 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." Id. A "properly filed application" under § 2244(d)(2) is a petition "submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Such a petition is considered "pending" within the meaning of § 2244(d) (2) during the time a state prisoner is pursuing his state post-conviction remedies, including the time for seeking discretionary review of any court decisions whether or not such review was actually sought. See Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000).
In the instant action, petitioner was adjudged guilty on May 21, 1996. Although petitioner had the right to appeal the Superior Court's judgment of conviction, state law required him to do so within thirty (30) days after his sentence was imposed. Del. Supr. Ct. R. 6(a) (ii). Thus, petitioner was obligated to file and serve his direct appeal by June 20, 1996. Because petitioner failed to file a timely notice of appeal, his judgment of conviction became final on June 20, 1996, the date of "the expiration of the time for seeking [direct] review." 28 U.S.C. § 2244 (D)(1). Thus, the time for filing his federal habeas petition expired on June 19, 1997.
Had petitioner appealed his conviction to the Delaware Supreme Court, the statute of limitations would have started to run on the date on which his time for filing a timely petition for certiorari review expired. See U.S. Supr. Ct. R. 13; Kapral v. United States, 166 F.3d 565, 575, 577 (3d Cir. 1999) (holding that a judgment becomes "final" in the context of § 2254 and § 2255 "on the later of (1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denies the defendant's timely filed petition for certiorari, or (2) the date on which the defendant's time for filing a timely petition for certiorari review expires"); Morris v. Horn, 187 F.3d 333, 337 n. 6 (3d Cir. 1999).
Since petitioner's motion to amend and his petition for state habeas corpus relief were filed long after the expiration of the limitations period of § 2244(d)(1), the tolling mechanism of § 2244(d)(2) is not implicated. Similarly, § 2244(d)(1)(D) is not implicated in the instant action.
The Third Circuit has held that a pro se prisoner's § 2254 petition is deemed filed for purposes of satisfying § 2244(d)(1) "the moment he delivers it to prison officials for mailing to the district court."Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). In the instant action, petitioner has not presented the court with proof of the date upon which he delivered his application to prison officials for mailing. The petition, however, is dated November 18, 1999 and it was received by the court on November 22, 1999. (D.I. 2) As such, the court finds that petitioner delivered the petition to prison officials sometime between November 18 and November 22, 1999. Absent proof of the exact date of mailing, the court will treat November 18, 1999 as the filing date. See Murphy v. Snyder, C.A. No. 98-415-JJF, at 4 (D. Del. Mar. 8, 1999) (unpublished opinion).
Treating November 18, 1999 as the filing date, the court concludes that petitioner's instant application for habeas corpus relief is untimely as it was filed long after the June 19, 1997 deadline.
IV. CONCLUSION
For the foregoing reasons, the court finds that petitioner's application for federal habeas corpus relief is timed barred under § 2244(d)(1). The complaint, therefore, shall be dismissed and the writ of habeas corpus denied.