IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. NICHOLAS, :

 :

Petitioner, : CIVIL NO. 4:06-CV-1265 

 :

v. : (Judge Caputo)

 :

MARILYN BROOKS, et al., : 

 :

Respondents. :

 M E M O R A N D U M

I. Introduction

Petitioner, Edward J. Nicholas, an inmate at the State Correctional Institution in

Albion, Pennsylvania, commenced this action Iin the United States District Court for the

Western District of Pennsylvania (“Western District”) by filing a pro se petition for writ of

habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. Thereafter, the Western

District transferred the case to this Court. In accordance with United States v. Miller, 197

F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), this Court

issued an Order (Doc. 5) advising Petitioner that: (1) he could have the document ruled on

as filed, or (2) withdraw his petition and file one, all-inclusive § 2254 petition. Petitioner

responded by submitting a Notice of Election (Doc. 8) in which he opted to have his petition

considered as filed. On July 24, 2006, the Court issued a Show Cause Order (Doc. 13),

directing Respondents to answer the petition within twenty (20) days. Respondents filed a

motion to file a partial answer to the petition, alleging that the petition is time-barred. The

Court granted the motion, Respondents filed a partial answer raising the limitations issue,

and Petitioner did not file a traverse within the time allowed by the Show Cause Order. The

petition is presently ripe for disposition, and for the reasons that follow, the petition will be

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1No traverse has been filed by Petitioner. Under 28 U.S.C. § 2248, “[t]he allegations

of . . . an answer to an order to show cause in a habeas corpus proceeding, if not

traversed, shall be accepted as true except to the extent that the judge finds from the

evidence that they are not true.” 28 U.S.C. § 2248.

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dismissed as untimely.

II. Background

Unless otherwise noted, the following facts are extracted from Respondents’ Brief in

Opposition to Petition For Writ of Habeas Corpus1 (Doc. 23 at 5-10.) On May 15, 1998,

following a jury trial, Petitioner was found guilty of aggravated assault and acquitted of the

charges of robbery and criminal conspiracy. (Doc. 6 at 3.) The charges arose from an

incident which occurred in the early morning hours of August 17, 1997. Trial testimony

from Petitioner’s co-defendant established that while Petitioner was standing in an alley

with his victim, he grabbed the victim from behind as the victim attempted to leave the alley,

threw the victim into a wall, and dragged the victim down the alley. (Doc. 23 Ex. 1 at 3.) 

The victim alleges that he was punched eight or nine times during the assault. (Id. at 2.) 

“As a result of these blows, the victim, who suffers from a mild form of cerebral palsy and

has a history of seizures, suffered a broken jaw and the loss of four teeth.” (Id.) 

On July 10, 1998, Petitioner was sentenced to a term of imprisonment of six and a

half to twenty years. (Id. at 3; Doc. 6 at 3.) Petitioner filed timely motions to modify

sentence and in arrest of judgment, and these motions were denied by the trial court on

November 9, 1998. (Doc. 23 Ex. 1 at 3.) On November 17, 1998, Petitioner filed a direct

appeal to the Pennsylvania Superior Court, raising an ineffective assistance of counsel

claim. The Pennsylvania Superior Court affirmed Petitioner’s conviction on September 23,

1999. Nicholas did not file a petition for allowance of appeal to the Pennsylvania Supreme

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Court. 

On June 29, 2000, Petitioner filed a petition for relief under Pennsylvania’s Post

Conviction Relief Act (“PCRA”), 42 Pa. C. S. § 9541 et seq. The PCRA court denied relief

on April 9, 2001, and Petitioner did not appeal the denial of his PCRA petition to the

Pennsylvania Superior Court. 

Thereafter, Petitioner commenced the instant habeas action, challenging the

propriety of his conviction and sentence. Specifically, Petitioner alleges that he is being

held unlawfully, and that he was found not guilty of the aggravated assault charge for which

he is being held. (See Doc. 1, Part 2 at 1.) Apparently in support, Petitioner submitted a

copy of the verdict sheet (Doc. 6 at 3), indicating a not guilty verdict at the bottom of the

page. However, the not guilty verdict is designated to apply only to counts 1 and 3 of the

three counts against Petitioner, and the sheet is quite clear at the top that Petitioner was

found guilty of count 2, the aggravated assault charge. 

In their partial answer to the petition, Respondents claim that the petition should be

dismissed as untimely. The Court agrees.

III. Discussion.

Under the provisions of 28 U.S.C. § 2244(d)(1), a one-year statute of limitations is

imposed on all habeas applications by persons “. . . in custody pursuant to the judgment of

a State court . . .”, which runs from “. . . the latest of -- (A) the date on which the judgment

became final . . . (B) the date on which the impediment to filing . . . is removed . . . (C) the

date on which the constitutional right asserted was initially recognized . . . 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.” Under the provisions of §2244(d)(2), “[t]he time

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2Although the case was not filed in this Court until June 26, 2006, the case was

initiated in the United States District Court for the Western District of Pennsylvania on May

18, 2006, and it was subsequently transferred to this Court.

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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). 

Petitioner’s challenged sentence, imposed on July 10, 1998, became final after the

expiration of the thirty-day appeal period from the Superior Court’s denial of Petitioner’s

direct appeal on September 23, 1999. See Pa. R. App. P. 113(a). Therefore, the one-year

statute of limitations began to run on October 23, 1999. Although the one-year statute of

limitations was tolled while Petitioner’s PCRA petition was pending, the PCRA was merely

pending from June 29, 2000 to April 9, 2001. Thus, the limitations period began to run

again on May 9, 2001, and the one-year limitations period set forth in 28 U.S.C. §

2244(d)(1)(A) had long since expired when the instant petition was filed on May 18, 2006.2

While the AEDPA’s limitations period is subject to equitable tolling in certain limited

situations, Miller v. New Jersey State Dep’t. of Corrections, 145 F.3d 616, 618 (3d Cir.

1998), Petitioner has failed to submit any evidence or facts that warrant extending the

deadline for him to file in this Court. Thus, the petition will be dismissed as untimely

pursuant to 28 U.S.C. § 2244(d)(1)(A). An appropriate order follows.

Dated: November 1, 2006. /s/ A. Richard Caputo 

 A. RICHARD CAPUTO

United States District Judge

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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. NICHOLAS, :

 :

Petitioner, : CIVIL NO. 4:06-CV-1265 

 :

v. : (Judge Caputo)

 :

MARILYN BROOKS, et al., : 

 :

Respondents. :

 O R D E R

AND NOW, THIS 1st DAY OF NOVEMBER, 2006, in accordance with the foregoing

memorandum, IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus (Doc. 1) is DISMISSED as untimely,

pursuant to the provisions of 28 U.S.C. § 2244(d)(1).

2. Petitioner’s Motion for Leave of Emergency Intervention (Doc. 39),

Petitioner’s Motion to Set Aside his Judgment of Sentence (Doc. 42),

Petitioner’s Motion For Certificate of Appealability (Doc. 43), and Petitioner’s

Motion for Change of Venue (Doc. 44) are DENIED as moot.

3. The Clerk of Courts is directed to mark this case CLOSED.

4. Based upon the foregoing, there is no basis for issuance of a certificate of

appealability.

 /s/ A. Richard Caputo 

 A. RICHARD CAPUTO

United States District Judge

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