1Previously this court had dismissed without prejudice a petition filed by

Urrutia pursuant to 28 U.S.C. § 2254. See Urrutia v. Lavan, No. 03-CV-2192,

(M.D. Pa. Apr. 23, 2004) (McClure, J.) Petitioner indicates that since our dismissal

he returned to the state courts.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DON CARLOS URRUTIA, :

:

Petitioner, : Case No. 4: 05-CV-1426

:

v. :

:

JAMES WYNDER & PA STATE : (Judge McClure)

 ATTORNEY GENERAL, :

:

Respondents. :

O R D E R

April 27, 2006

BACKGROUND:

This pro se petition for a writ of habeas corpus was initiated by Don Carlos

Urrutia, an inmate presently confined at the State Correctional Institution, Dallas,

Pennsylvania. Petitioner filed the instant petition initiating a collateral challenge to

his state conviction pursuant to 28 U.S.C. § 2254 on July 18, 2005.1 On

September 2, 2005, Urrutia filed a notice of election indicating he wished to

proceed with his petition as filed, but Urrutia also filed a motion for an extension of

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time to file a supplemental petition. We granted his motion to file a supplemental

petition, which Urrutia filed on or about October 21, 2005. On March 16, 2005, we

ordered service upon the respondents and directed them to answer.

On April 12, 2006, respondents filed their answer asserting that Urrutia’s

petition is barred under the one-year statute of limitations found at 28 U.S.C. §

2244(d)(1)(A), (2). For the following reasons we agree with the defendants and will

dismiss Urrutia’s petition.

DISCUSSION:

I. RELEVANT LEGAL STANDARD

The court may “entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely

filed under the stringent standards set forth in the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr.

24, 1996). See 28 U.S.C. § 2244(d)(1). Additionally, we may only reach the merits

of a petitioner’s federal claims if each claim in his petition (1) has been exhausted in

the state courts, and (2) is not procedurally defaulted. See 28 U.S.C.

§ 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Slutzker v.

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Johnson, 393 F.3d 373, 379-81 (3d Cir. 2004). Exhaustion is required because it

gives the state the “opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting

Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)) (internal quotations and

additional citations omitted). In order to provide the state with the opportunity to

address the prisoner’s federal claims, a state prisoner must “‘fairly present’ his

claim in each appropriate state court (including a state supreme court with powers

of discretionary review), thereby alerting that court to the federal nature of the

claim. Id. (citing Duncan, 513 U.S. at 365-66.) 

II. TIMELINESS OF HABEAS PETITION UNDER SECTION 2254

The relevant language that discusses the time limits applicable to Urrutia’s §

2254 petition states that:

(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;

. . . 

(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.

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28 U.S.C. § 2244(d).

Urrutia was found guilty of aggravated assault by a jury sitting in the Dauphin

County Court of Common Pleas on June 7, 2000. He was sentenced to

imprisonment for 10 to 20 years, a fine of $1,000, and payment of the costs of

prosecution on August 11, 2000. On October 8, 2000, the trial court granted a

motion by the Commonwealth and modified the sentence to include restitution in

the amount of $7,901.25.

On December 28, 2001, the Superior Court of Pennsylvania affirmed the

judgment of sentence; Urrutia did not file a petition for allowance of appeal to the

Supreme Court of Pennsylvania. On May 21, 2002, Urrutia filed a pro se petition

for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.

C.S.A. §§ 9541, et seq. On September 24, 2002, the PCRA court granted

appointed counsel leave to withdraw and issued Urrutia notice of the court’s

intention to dismiss the petition without a hearing. On October 25, 2002, having

received no response from Urrutia to the notice of intent to dismiss, the PCRA

court dismissed the petition. Urrutia did not appeal the denial of post-conviction

relief.

On December 4, 2003, Urrutia filed his first petition under 28 U.S.C. § 2254

before this court docketed at No. 4:03-CV-2192. On April 23, 2004, we granted

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Urrutia’s request to withdraw his petition because he wished to exhaust his state

remedies. At that time we noted that the statute of limitations still applied and

would be calculated pursuant to 28 U.S.C. § 2244(d).

On May 27, 2005, Urrutia filed a second PCRA petition in the Dauphin

County Court of Common Pleas. On July 12, 2004, the PCRA court dismissed the

second PCRA petition as untimely. On April 5, 2005, the Superior Court affirmed

the dismissal of the second PCRA petition as untimely.

On July 18, 2005, the instant petition for writ of habeas corpus was filed. 

This petition is untimely. Urrutia’s judgment and sentence became final on January

27, 2002, or 30 days after the Superior Court affirmed the judgment of sentence on

direct appeal. Under 28 U.S.C. § 2244(d)(2), the statute of limitations was tolled

for 187 days while Urrutia’s first PCRA petition was pending from May 21, 2002

to November 24, 2002, the final date Urrutia could have appealed the adverse

PCRA ruling.

Urrutia’s petition was filed well after the one-year statute of limitations set

forth in 28 U.S.C. § 2244(d). One hundred and fourteen (114) days of Urrutia’s

365-day statute of limitations ran before he filed his first PCRA petition. The

statute of limitations next ran from November 24, 2002 until August 2, 2003, a

period of two hundred and fifty one (251) days. On August 2, 2003, Urrutia’s one

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year statute of limitations for filing a habeas petition under section 2254 expired

pursuant to 28 U.S.C. § 2244(d).

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Urrutia’s petition for a writ of habeas corpus under 28 U.S.C. § 2254

is dismissed as time barred by the statute of limitations provided by 28

U.S.C. § 2244(d).

2. The clerk is directed to close the case file.

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

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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