UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY GONZALEZ, :

:

Petitioner :

:

v. : CIVIL NO. 4: CV-04-1752

:

FRANK GILLIS, : (Judge McClure)

:

Respondent :

MEMORANDUM AND ORDER

November 9 , 2005

Background

Anthony Gonzalez (“Petitioner”), an inmate presently confined at the State

Correctional Institution, Coal Township, Pennsylvania (“SCI-Coal Twp.”),

initiated this pro se petition for writ of habeas corpus. Named as Respondent is

SCI-Coal Twp. Superintendent Frank Gillis. The York County, Pennsylvania

District Attorney’s office has filed an answer to the petition. 

Gonzalez was convicted of second degree murder, unlawful restraint,

aggravated assault, criminal conspiracy, and two (2) counts of robbery following a

jury trial in the York County Court of Common Pleas. On May 1, 1995, he was

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sentenced to a term of life imprisonment plus 7 to 14 years. Following a direct

appeal to the Pennsylvania Superior Court, his conviction was affirmed on May

10, 1996. See Record document no. 15, Exhibit C. The Pennsylvania Supreme

Court denied his request for allowance of appeal on January 7, 1997. See

Commonwealth v. Gonzalez, 687 A.2d 376 (Pa. 1997)(Table).

On December 29, 1997, the Petitioner initiated an action pursuant to

Pennsylvania’s Post Conviction Relief Act (“PCRA”). His petition was denied by

the trial court on July 21, 1998. The record indicates Petitioner attempted to file a

pro se appeal. However, the notice of appeal was apparently forwarded by the

York County Clerk of Court to Petitioner’s PCRA counsel. Thereafter, a series of

confusing events transpired which included the trial court’s revocation of the

appointments of both Petitioner’s original and substitute PCRA counsel. 

According to the record, the end result was that a timely PCRA appeal was not

filed.

A submission made by the Petitioner on March 18, 2002 was deemed a

second PCRA petition by the trial court. Gonzalez’s filing requested reinstatement

of his appellate rights with respect to his initial PCRA action. Gonzalez’s second

PCRA petition was dismissed as being untimely filed by both the trial court and

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the Superior Court. See Record document no. 15, Exhibit J. On July 27, 2004,

the Pennsylvania Supreme Court denied Petitioner’s request for allowance of

appeal. See Commonwealth v. Gonzalez, 858 A.2d 108 (Pa. 2004)(Table).

Gonzalez filed his present § 2254 petition on August 10, 2004. Petitioner

claims that he is entitled to federal habeas corpus relief on the grounds that: (1) his

conviction was the result of actions taken by an unconstitutionally selected and

impaneled jury; (2) he received ineffective assistance from his trial and PCRA

counsel; and (3) the imposition of a mandatory life sentence for felony murder

violated both his due process and equal protection rights. The Respondent argues

that Gonzalez’s petition is barred by the applicable statute of limitations.

Discussion

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)

amended the federal habeas statute by imposing a statute of limitations on

prisoners requesting habeas corpus relief pursuant to 28 U.S.C. § 2254. 

Specifically, 28 U.S.C. § 2244(d)(1)-(2) provides, in relevant part, as follows:

(d)(1) A one-year period of limitations 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 for seeking such review . .

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.

(d)(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.

(emphasis added); see generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir.

1999). Thus, under the plain terms of § 2244(d)(1)(A), the period of time for filing

a habeas corpus petition begins to run when the direct appeal is concluded. See

Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)(“[T]he AEDPA provides

that upon conclusion of direct review of a judgment of conviction, the one year

period within which to file a federal habeas corpus petition commences, but the

running of the period is suspended for the period when state post-conviction

proceedings are pending in any state court.”)(emphasis in original). 

However, a one year grace period existed for applicants whose convictions

became final before the April 23, 1996 effective date of the AEDPA. See Burns v.

Morton, 134 F.3d 109, 111 (3d Cir. 1998). Gonzalez was convicted and

sentenced in 1995. However, the Pennsylvania Supreme Court did not deny his

request for allowance of appeal on January 7, 1997, after the AEDPA’s effective

date. According to the Respondent, Gonzalez was required to seek federal

habeas corpus relief on or before April 7, 1998 (one year from the expiration of

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“the time period within which to file for writ of certiorari with the United States

Supreme Court expired”). Record document no. 14, ¶ 6. 

Respondent’s computation properly considers the period during which

Gonzalez could seek review from the United States Supreme Court. See Kapral

v. United States, 166 F.3d 565, 570 (3d Cir. 1999). Accordingly, this Court

agrees that Petitioner’s conviction became final when the time period for seeking

certiorari expired. Accordingly, Gonzalez had until April 7, 1998 in which to

timely seek federal habeas corpus relief. 

As indicated above, § 2244(d)(2) operates to exclude only the time within

which a “properly filed application” for post conviction relief is pending in state

court. Thus, when a petition or appeal has concluded and is no longer pending,

the one (1) year statute of limitations starts to run and the time is counted. A

“properly filed application” for post conviction relief under § 2244(d)(2) is one

submitted according to the state’s procedural requirements, such as rules

governing time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 

1998). The Third Circuit Court of Appeals has defined “pending” as the time

during which a petitioner may seek discretionary state court review, whether or not

such review is sought. Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000). 

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“Pending,” however, does not include the period during which a state prisoner

may file a petition for writ of certiorari in the United States Supreme Court from

the denial of his state post-conviction petition. Stokes v. District Attorney of the

County of Philadelphia, No. 99-1493, 2001 WL 387516, at *2 (3d Cir., April 17,

2001). Likewise, the statute of limitations is not tolled under § 2244(d)(2) for the

time during which a habeas petition is pending in federal court. Jones, 195 F.3d at

158.

 In Nara v. Frank, 264 F.3d 310, 316 (3d Cir. 2001) the Third Circuit

recognized that a motion to withdraw a guilty plea nunc pro tunc “was a ‘properly

filed application for state post-conviction or other collateral review’ within the

meaning of § 2244(d)(2).” However, a subsequent ruling by the Third Circuit held

that an untimely PCRA petition was not a properly filed action for purposes of the

AEDPA and therefore did not toll the statute of limitation for the filing of a federal

habeas petition. Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003).

In Schleueter v. Varner, 2004 WL 2035180 (3d Cir. Sept. 14, 2004), the

Third Circuit established that a state court ruling dismissing a PCRA petition as

untimely was controlling for purposes of a determination under Merritt. The Court

of Appeals added that tolling was not permissible “merely because petitioner

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1 Equitable tolling may be appropriate “if (1) the defendant has actively misled

the plaintiff, (2) if the plaintiff has ‘in some extraordinary way’ been prevented from

asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the

wrong forum.” Jones, 195 F.3d at 159. 

2 This position is also supported by the unambiguous statutory language of 28

U.S.C. § 2254(i) which precludes habeas relief for ineffective or incompetence of

collateral counsel. 

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unsuccessfully has sought the right to appeal nunc pro tunc years after his

unexercised right to file a timely direct appeal has expired.” Id. at p. 6. 

Furthermore, the AEDPA’s “one-year filing requirement is a statute of

limitations, not a jurisdictional rule, and thus a habeas petition should not be

dismissed as untimely filed if the petitioner can establish an equitable basis for

tolling the limitations period.” Jones, 195 F.3d at 159, citing Miller v. New Jersey

State Department of Corrections, 145 F.3d 616 (3d Cir. 1998). The Jones court

held that “extraordinary” and “rare” circumstances are required for the granting of

equitable tolling.1 “In non-capital cases, attorney error, miscalculation, inadequate

research, or other mistakes have not been found to rise to the ‘extraordinary’

circumstances for equitable tolling.” Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.

2001).2

The one year period began to run when Petitioner’s conviction became final

on April 7, 1997. The limitation period was statutorily tolled beginning on

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3 With respect to the doctrine of equitable tolling, it is noted that there is no

evidence that the Commonwealth actively misled the Petitioner. A review of the record

also establishes that this is not a situation involving recently discovered claims. On the

contrary, the record indicates Petitioner has been aware of the substance of his present

claims since he initiated his first PCRA action in 1997. 

8

December 29, 1997 when Gonzalez filed his initial PCRA action. As noted earlier,

after the trial court’s denial of the initial PCRA petition a confusing chain of events

ensued. Based on the ensuing period of confusion, it is apparent to this Court that

Petitioner is entitled to either statutory or equitable tolling from the December 29,

1997 filing of his initial PCRA action to January 2, 2002, when the trial court again

denied collateral relief to Gonzalez.3 

On March 18, 2002, the Petitioner made a filing with the trial court which

was construed as a second PCRA action. Both the trial court and the Superior

Court dismissed the matter as being an untimely second PCRA petition.

Thereafter, the Pennsylvania Supreme Court denied Gonzalez’s petition for

allowance of appeal.

Under the standards announced in Merritt and Schleueter, the Petitioner is

not entitled to statutory tolling for the period of time in which his second untimely

PCRA action was pending before the Pennsylvania state courts, specifically from

March 18, 2002 to July 27, 2004.

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4. To the extent that Gonzalez believes that there are circumstances existing that

would warrant tolling of the limitations period, or that he can allege facts showing that

his present habeas corpus petition was timely filed, he may seek reconsideration of this

decision. Any motion for reconsideration must be filed within ten (10) days of this

decision.

9

With respect to the issue of equitable tolling for the same March 18, 2002-

July 27, 2004 period, the Petitioner has not demonstrated the extraordinary and rare

circumstances required for the equitable tolling exception under Jones. In Johnson

v. Hendricks, 314 F. 3d 159 (3d Cir. 2002), the Third Circuit held that attorney

error was not a sufficient basis for equitable tolling. Likewise, it has been

established that the principles of equitable tolling do not extend to claims of

excusable neglect. Irwin, Dept. Of Veterans’ Affairs, 498 U.S. 89, 96 (1990). 

While this Court is sympathetic to the plight of pro se litigants, under the

standards set forth in Miller and Jones, the present petition simply does not allege

the type of extraordinary circumstances which would warrant equitable tolling for

the March 18, 2002 to July 27, 2004 period during which Petitioner’s untimely

second PCRA action was pending.4 Since Gonzalez’s present § 2254 action was

not filed until August 10, 2004, it was well beyond the one year limitations period

established by § 2244. Thus, Petitioner’s request for federal habeas corpus relief

will be dismissed pursuant to § 2244(d)(1)(A). Consequently,

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IT HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus is dismissed as untimely

pursuant to 28 U.S.C. § 2244(d)(1)(A).

2. The Clerk of Court is directed to close the case.

3. Based on the Court’s conclusion herein, 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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