UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LARRY CAIN, : CIVIL NO. 4:05-CV-0354

:

Petitioner : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

ATTORNEY GENERAL OF THE :

STATE OF PENNSYLVANIA, :

:

Respondent :

REPORT AND RECOMMENDATION

On February 18, 2005, the petitioner, a state prisoner

proceeding pro se, filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The Antiterrorism Effective Death

Penalty Act (AEDPA) imposes a one year statute of limitations on

petitions for a writ of habeas corpus. Petitioners, in order

to avoid being time barred must file a habeas corpus petition

within one year of the date on which the judgment of conviction

becomes final. 

The 28 U.S.C. § 2254 petitioner, Larry Cain, was convicted

of first degree murder in the Court of Common Pleas of Dauphin

County on February 7, 1983. Doc. 1. He took an appeal to the

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Superior Court of Pennsylvania. On January 17, 1986, the

judgment of sentence was affirmed by the Superior Court. 

Doc. 11. A petition to the Supreme Court of Pennsylvania for

the allowance of an appeal was denied by the Supreme Court on

December 29, 1986. Doc. 11. A petition for relief under the

Pennsylvania Post Conviction Hearing Act was filed by the

petitioner on June 24, 1987. The PCHA court denied relief on

September 28, 1987. Doc. 11. On June 21, 1988, the Superior

Court remanded the case to the PCHA court for an evidentiary

hearing. The PCHA court denied relief, after an evidentiary

hearing, on July 8, 1988. The Superior Court affirmed, on

November 22, 1989. Doc. 11. The Supreme Court denied a

petition for the allowance of an appeal, on November 3, 1989. 

On March 25, 2003, a petition for relief was filed by the

petitioner pursuant to the Pennsylvania Post Conviction Relief

Act. Doc. 11. That petition was dismissed as untimely. 

Doc. 10. The order dismissing the PCRA petition was affirmed by

the Superior Court, on April 16, 2004. No further filing was

made in state court(s). Doc. 11. 

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The respondent asserts that this petition should be

dismissed as untimely because the petitioner had one year from

April 24, 1996 in which to file a 28 U.S.C. § 2254 habeas corpus

petition and did not do so. 

The Antiterrorism and Effective Death Penalty Act

establishing a one-year limitation upon the right to file a 28

U.S.C. § 2254 habeas corpus petition challenging a state court

conviction became effective on April 24, 1996. The Third

Circuit Court of Appeals held that the first date on which a

habeas corpus petition could consistent with ex post facto

principles be deemed barred by that Act was April 23, 1997. 

Burns v. Morton, 134 F.3d 109 (3d Cir. 1998). April 23, 1997

was when the petitioner’s right to bring a 28 U.S.C. § 2254

habeas corpus petition expired under the new Act. 

The petitioner’s 28 U.S.C. § 2254 petition is untimely

under 28 U.S.C. § 2244(d)(1). Therefore, it is recommended that

the petition be dismissed. 

/s/ J. Andrew Smyser 

J. Andrew Smyser

Magistrate Judge

Dated: May 9, 2005.

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