IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT ALBORRAN, JR., :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-15-877

:

TREVOR WINGARD, : (Judge Brann)

:

Respondent :

MEMORANDUM

January 21, 2016

Background

Robert Alborran, Jr., an inmate presently confined at the State Correctional

Institution, Somerset, Pennsylvania, (SCI-Somerset), filed this pro se habeas

corpus petition pursuant to 28 U.S.C. § 2254.1

 Service of the Petition was

previously ordered.

Petitioner was convicted on March 18, 2011 of burglary, criminal trespass,

theft by unlawful taking, criminal conspiracy to commit robbery and terroristic

threats following a jury trial in the Court of Common Pleas of York County,

1 Alborran previously filed a § 2254 action with this court which he voluntarily

withdrew without prejudice.

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Pennsylvania. On August 24, 2011, Alborran was sentenced to serve an

aggregate eleven (11) to twenty-two (22) year term of imprisonment. See Doc. 1,

¶ 2.

The Petitioner filed a pro se direct appeal to the Superior Court of

Pennsylvania which was denied on May 16, 2012. See id., ¶ 9. According to

Alborran, a further appeal to the Pennsylvania Supreme Court was not pursued. 

On June 17, 2013, Alborran filed a pro se petition pursuant to

Pennsylvania’s Post Conviction Relief Act (PCRA).2

 Following appointment of

counsel, the filing of an amended petition, and an evidentiary hearing, the trial 

court issued an Order denying relief on October 22, 2013. See id. at ¶ 11.

Following that decision, Petitioner filed an appeal on June 22, 2009. The Superior

Court affirmed the denial of PCRA relief on December 22, 2014. A further appeal

was not taken.

Petitioner’s pending action seeks relief on the grounds that: 1) he received

ineffective assistance of trial counsel; 2) a delay in sentencing violated his due

2

 See 42 Pa. Cons. Stat. Ann. § 9541 et seq. The PCRA “permits motions for

post-conviction collateral relief for allegations of error, including ineffective

assistance of counsel, unlawfully induced guilty pleas, improper obstruction of rights

to appeal by Commonwealth officials, and violation of constitutional provisions." 

Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).

2

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process rights; and 3) the trial court erred by denying Petitioner the opportunity to

speak at his sentencing. The Petition acknowledges that some of the pending

arguments for relief were not fully exhausted in state court. See id. at ¶ 13. 

Respondent has filed an initial response seeking to dismiss Petitioner’s action as

being untimely filed.3

 See Doc. 13. 

Discussion

In his Petition, Alborran states that “I do not believe that I have passed the

one year statute of limitations.” Doc. 1, ¶ 18. Respondent’s initial argument

contends that Alborran has not filed a timely habeas corpus action. See Doc. 13. 

The Petitioner has not filed a reply to the request for dismissal. Alborran’s

pending § 2254 petition is dated May 2, 2015,4

 and will be deemed filed as of that

date. See Houston v. Lack, 487 U.S. 266 (1988)(a prisoner’s action is deemed

filed at the time it is given to prison officials for mailing to the Court. 

Section 2244(d) of Title 28 of the United States Code provides, in relevant

part, as follows:

3

 The Respondent was previously granted leave to file a supplemental response

addressing the merits of the Petition within twenty-one (21) following disposition of

their request to dismiss, if necessary. 

4 See Doc. 1, p. 15.

3

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(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 for seeking such review . . .

 (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.

 See generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999). 

Under the plain terms of § 2244(d)(1)(A), the period of time for filing a

habeas corpus petition begins to run when the period for direct review expired. 

See Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000)(“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). 

The running of limitations period is suspended for the period when

properly-filed state post-conviction proceedings are pending in any state court. 

See Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001)(an untimely PCRA petition

does not toll the statute of limitations for a federal habeas corpus petition); Merritt

4

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v. Blaine, 326 F.3d 157, 165-66 & n. 6 (3d Cir. 2003)(federal courts are bound by

state court’s determination that PCRA petition was untimely and thus not

“properly filed”). However, the period during which a Section 2254 applicant

could have filed a petition for writ of certiorari with the United States Supreme

Court from denial of an application for state post conviction or other collateral

relief does not defer the commencement of the limitations period. See Lawrence

v. Florida, 549 U.S. 327, 333-36 (2007). 

It is additionally noted that the “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).

“[A] litigant seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his claims diligently; and (2) that some

extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005). A habeas petitioner may establish grounds for equitable tolling

by showing that (a) the government has actively misled the petitioner; (b) the

rights in question were timely asserted, but in the wrong forum; or (c) the

petitioner has in some extraordinary way been prevented from asserting his

5

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rights.” Jones, 195 F.3d at 159. “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). Nor does equitable tolling extend to claims of excusable

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

Respondent’s pending untimeliness argument contends that Petitioner’s

state sentence became final on June 16, 2012 (thirty days after the Superior

Court’s May 16, 2012 denial of his direct appeal. See Doc. 13, ¶ 17. Since

Petitioner acknowledges that he did not seek review from the Pennsylvania

Supreme Court, this Court agrees that the § 2244 limitations period began to run

as of June 17, 2012.

Petitioner filed a PCRA action on June 17, 2013, just prior to the expiration

of the § 2244 limitations period. The PCRA filing suspended the running of the

remainder (one day) of the § 2244 period. The running of the limitations period

was thereafter tolled during the period when Petitioner’s subsequent PCRA action

was pending before the Pennsylvania state courts, from June 17, 2013 to

December 23, 2014.

Based upon those determinations, the one year limitations period ran from

June 17, 2012 until June 16, 2013 (all but a single day) and from December 24,

6

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2014 until the filing of this action on May 2, 2015 (approximately 4 months) . 

Since Alborran’s pending federal petition was clearly not initiated within the

§ 2244(d) one year limitations period, the request for dismissal on the basis of

untimeliness will be granted.

An appropriate Order will be entered.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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