As the magistrate judge correctly noted, petitioner satisfies the “custody requirement” for 1

habeas corpus relief because he is under the supervision of the Pennsylvania Board of Probation

and Parole. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BARRAE CHOICE : CIVIL ACTION

:

 v. :

:

MICHAEL L. GREEN, et al. : NO. 05-0731

MEMORANDUM AND ORDER

DITTER, S.J. February 27, 2006

This case comes before the Court on a petition for a writ of habeas corpus brought by a

former state prisoner who is currently on probation. The matter was referred to United States 1

Magistrate Judge Peter B. Scuderi who recommended that the petition be dismissed as being

untimely filed, a recommendation that I will follow.

In October 1997, the petitioner was convicted by a jury of robbery, conspiracy, and the

possession of an instrument of crime. He was sentenced to serve five to ten years on the robbery

charge and two concurrent terms of five-years probation on the remaining convictions. On direct

appeal, the Pennsylvania Superior Court affirmed his convictions. 

On July 17, 2001, the petitioner filed a petition under the Pennsylvania Post-Conviction

Relief Act (PCRA), 42 Pa. Con. Stat. § 9541, et seq, based upon after-discovered evidence of police

misconduct. Specifically, on May 18, 2001, he was told that in another proceeding, the police 

Case 2:05-cv-00731-WD Document 15 Filed 02/28/06 Page 1 of 7
28 U.S.C.A. § 2244: 2

(d)(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

-2-

officers involved in his arrest had given information that might have cast doubt on the victim’s

identification testimony. 

Without hearing, the state court denied relief on February 15, 2002. The Superior Court

affirmed the denial of PCRA relief on August 7, 2003, and the Supreme Court of Pennsylvania

denied petitioner’s petition for an allowance of appeal on February 19, 2004.

On February 16, 2005, petitioner filed the instant petition for a writ of habeas corpus raising

the same claim set forth in his PCRA petition. Respondents have filed an answer asserting that the

petitioner is not entitled to federal habeas relief because the instant petition is time-barred by the

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).

Section 101 of the AEDPA amended habeas corpus law by imposing a one-year limitation

period on applications for a writ of habeas corpus filed by persons in state custody. 28 U.S.C.A.

§ 2244(d)(1). The one-year period of limitation beginsto run on the date on which the factual basis

for the claim in question could have been discovered through the exercise of due diligence. The

statute also provides that the time during which a properly filed application for state post-conviction

or other collateral review is pending shall not be counted toward the period of limitation.2

Case 2:05-cv-00731-WD Document 15 Filed 02/28/06 Page 2 of 7
(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. 

-3-

United States Magistrate Judge Scuderi correctly concluded that the starting point for the

statute of limitations was May 18, 2001, the day that petitioner was told by his attorney that there

was a question about the validity of his identification by the victim of the crime for which he had

been convicted. Sixty days later, on July 17, 2001, petitioner filed his PCRA petition, thereby tolling

the one-year limitation. 28 U.S.C. § 2244(d)(2). The one-year grace period began to run again on

February 19, 2004, when the Pennsylvania Supreme Court denied his petition for an allowance of

appeal. Petitioner therefore had three hundred and five days, or until December 21, 2004, to file a

timely § 2254 petition. See Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir. 2002) (the AEDPA’s

tolling provision does not reset the date from which the applicable one-year limitations period

begins). 

Petitioner submitted the instant motion for filing on February 16, 2005. He objects to the

conclusion of the magistrate judge that the petition was not filed on time and supports his contention

with three arguments.

First, he refers to 28 U.S.C. § 2244(d)(1)(B) which provides that the one-year limitation

period shall run from “... 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;” Petitioner contends that the failure of the prosecutor

to turn over exculpatory Brady material violated his Constitutional rights. He goes on to assert that

Case 2:05-cv-00731-WD Document 15 Filed 02/28/06 Page 3 of 7
-4-

the exhaustion of state remedies was an impediment to the presentation of that claim in federal

court. He then argues that the “impediment” to which he refers was removed when the Pennsylvania

Supreme Court denied review of his PCRA petition on February 19, 2004. Thus, he contends that

because his habeas petition was filed within one year of that date, it was filed in a timely manner.

Petitioner has mixed §§ 2244(d)(1)(B), 2244(d)(1)(A), and 2244(d)(1)(D) together and

predictably misreads the result. Section 2244(d)(1)(A) deals with the exhaustion of state remedies

and sets the time for the one-year statute to begin to run. Section 2244(d)(1)(B) defines when the

one-year statute will begin to run where its filing has been hindered or prevented by some

unconstitutional act for which the state is responsible. Section 2244(d)(1)(D) refers to the factual

basis for the claim – here, the date when petitioner learned of the alleged Brady violation. The term

impediment is only used in § 2244(d)(1)(B) and has nothing to do with the exhaustion of state

remedies or the factual predicate that is the basis for seeking relief. As petitioner has not made

reference to any state action which prevented his filing his application for habeas relief, there is no

merit in petitioner’s impediment argument.

Petitioner’s second argument is a continuation of his first, that is, that the magistrate judge

picked the wrong date for the commencement of the statute of limitations. Petitioner points to the

words “due diligence” in § 2244(d)(1)(D) and contends that the statute of limitation did not begin

to run on the date when he learned of the failure to provide the Brady material but only when he

would have filed his petition in the exercise of “due diligence.” He misreads the section. Plainly

the words “due diligence” refer to the discovery of the factual predicate for the claim, not the date

of the petition’s filing. In his determination that the one-year grace period begins to run on May 18,

2001, when petitioner learned of the Brady material, the magistrate judge followed Third Circuit

Case 2:05-cv-00731-WD Document 15 Filed 02/28/06 Page 4 of 7
-5-

precedent. He correctly cited Johnson, 314 F.3d at 162. A more recent case, LaCava v. Kyler, 398

F.3d 271 (3d Cir. 2005), is to the same effect as are numerous cases from this court as well as cases

from other circuits.

The petitioner’s second argument is without merit.

Petitioner’s third argument is that his petition was filed in a timelymanner because following

the denial of review by the Pennsylvania Supreme Court, he had ninety days in which to petition for

a writ of certiorari to the Supreme Court of the United States. He argues that although he did not

do so, the one-year period provided byCongress should be extended by ninety days because he could

have done so. In support of this argument he cites Abela v. Martin, 348 F.3d 164 (6 Cir. 2003), th

cert. denied, sub nom. Caruso v. Abela, 541 U.S. 1070 (2004).

Indeed, Abela holds that the one-year federal habeas limitations period is tolled from the

filing of an application for collateral relief until the conclusion of the time for seeking certiorari

review of the state’s final judgment, independent of whether the petitioner actually files a petition

for certiorari.

Abela has not been followed by other courts and is contrary to rulings by the Court of

Appeals for the Third Circuit. In Stokes v. Dist. Attorney of the County of Philadelphia, 247 F.3d

539 (3 Cir. 2001), the Court of Appeals held that the possibility that a prisoner could file a petition rd

for a writ of certiorari did not toll the running of the grace period. Stokes was cited with approval

in Miller v. Dragovich, 311 F.3d 574 (3 Cir. 2002), which held that the statute was not tolled during rd

the pendency of an actual petition for a writ of certiorari to the United States Supreme Court.

Although Stokes and Miller were both prior to Abela, I am confident that Abela will not find support

in the Third Circuit.

Case 2:05-cv-00731-WD Document 15 Filed 02/28/06 Page 5 of 7
-6-

 In conclusion, I reject the contentions of the petitioner that the learned magistrate judge erred

in his report and recommendation.

Despite Abela, there is no basis for an appeal. Binding precedent plainly disposes of the

issues raised by the petitioner. See Lawrence v. Florida, 421 F.3d 1221 (11 Cir. 2005), petition for th

cert. filed, (Jan. 26, 2006) (No. 05-8820).

Case 2:05-cv-00731-WD Document 15 Filed 02/28/06 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BARRAE CHOICE : CIVIL ACTION

:

 v. :

:

MICHAEL L. GREEN, et al. : NO. 05-0731

O R D E R

AND NOW, this 27 day of February, 2006, after careful and independent th

consideration of the Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, and

a review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, IT

IS HEREBY ORDERED:

1. The Objection of Barrae Choice to the Report and Recommendation is hereby

OVERRULED;

2. The Report and Recommendation is APPROVED AND ADOPTED;

3. The Petition for Writ of Habeas Corpus filed pursuant 27 U.S.C. § 2254 is DISMISSED;

and

4. There is no basis for the issuance of a certificate of appealability.

BY THE COURT:

/s/J. William Ditter, Jr. 

J. WILLIAM DITTER, JR., S.J.

OPINIONS\05-0731

Case 2:05-cv-00731-WD Document 15 Filed 02/28/06 Page 7 of 7