IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD J. NICHOLAS, :

:

Petitioner : CIVIL ACTION NO. 4:CV-05-1771

:

v. : (Judge Jones)

:

COMMONWEALTH :

OF PENNSYLVANIA, et al., :

:

Respondents :

MEMORANDUM AND ORDER

July 5, 2006

Petitioner, Edward J. Nicholas (“Petitioner” or “Nicholas”), filed the instant

Petition for Writ of Habeas Corpus (“the Petition”) pursuant to 28 U.S.C. § 2254. He

attacks a conviction imposed by the Court of Common Pleas for Dauphin County,

Pennsylvania. (Rec. Doc. 1). For the reasons that follow, the Petition will be

dismissed as untimely. 

Background

The following background has been extracted from the opinion of the Superior

Court of Pennsylvania, addressing Petitioner’s direct appeal. 

On August 17, 1997, the victim was at his brother’s residence on

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Second Street in Harrisburg. At about 3:00 a.m., the two left the

apartment and started walking to the Town News, a convenience

store located on Second Street, in order to purchase cigarettes and

soda. While they were walking down the street, the victim

observed an acquaintance named Melvin across the street. At that

point, the victim crossed the street in order to speak with Melvin.

While they were talking the victim’s brother waited on the other

side of the street. Shortly thereafter, Darian Dudick (Dudick),

Appellant’s co-defendant, came round the corner and started

talking with the victim’s brother. 

Upon ending his conversation with Melvin, the victim crossed the

street and rejoined his brother who was still talking with Dudick.

A moment later, Appellant was seen across the street talking with

Melvin. At some point, Appellant approached the victim and asked

if he could speak with him down an alley off Second Street. The

victim then followed Appellant into the alley. Once they were both

about five feet down the alley, Appellant allegedly asked the

victim if he wanted to buy some drugs, to which the victim

responded that he did not. The victim then began walking out of

the alley when he was grabbed from behind, choked, and thrown

into a wall. The victim was then dragged back down the alley

where he alleges that he was punched about eight or nine times. 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. 

According to the criminal complaint, Appellant had demanded

money from the victim and, when the latter refused, Appellant

struck him in the face several times. While Appellant and the

victim were in the alley, Dudick prevented the victim’s brother

from rendering assistance to his sibling. As a result of this

incident, both Appellant and Dudick were charged with criminal

conspiracy, robbery, and aggravated assault. At a joint trial, the

victim testified that he could not remember anything during the

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attack. Upon cross-examination, the victim testified that he didn’t

see who hit him nor could he recall whether there was any one else

in the alley other than himself. The victim’s brother testified that

Appellant grabbed the victim as the victim began to leave the

alley. Finally, the victim’s brother testified that at some point

Dudick went back into the alley during the assault. 

Dudick testified on his own behalf. He stated that he was standing

right next to the alley and saw Appellant grab the victim from

behind, throw him into a wall, and drag him down the alley.

Dudick further testified, however, that at no time did he see

Appellant punch the victim. Appellant also testified on his own

behalf. Although he admitted punching the victim, he testified that

he only did so on two occasions. In addition, Appellant asserted

that the victim’s injuries were caused by a violent seizure, rather

than by the blows he delivered to the victim. 

Rec. Doc. 30, Ex. B, Opinion of the Superior Court of Pennsylvania dated September

23, 1999. 

On May 15, 1998, following a jury trial, Nicholas was found guilty of

aggravated assault and acquitted of the charges of robbery and criminal conspiracy,

while Dudick was acquitted of all the charges. Id. On July 10, 1998, Nicholas was

sentenced to a term of imprisonment of 61⁄2 to 20 years. Id. Nicholas thereafter filed

timely motions to modify sentence and in arrest of judgment which were denied by the

trial court on November 9, 1998. (Rec. Doc. 30, Ex. C, Opinion of Dauphin County

Court of Common Pleas dated April 9, 2001). 

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On November 17, 1998 Nicholas filed a direct appeal to the Pennsylvania

Superior Court, in which he raised the sole issue that trial counsel was ineffective for

failing to request a corrupt and polluted source instruction with regard to Dudick's

testimony. Id. On September 23, 1999, the Superior Court issued a Memorandum

Opinion affirming Petitioner's conviction. Id. Nicholas did not file a petition for

allowance of appeal to the Supreme Court of Pennsylvania. 

On June 29, 2000, Nicholas filed a petition under Pennsylvania’s Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq. (“PCRA”). (Rec. Doc. 30, Ex.

C). Nicholas raised the following grounds for relief: 

a. A violation of the constitution of Pennsylvania or laws of this

Commonwealth or the constitution of the United States which, in

the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or

innocence could have taken place; 

b. Ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of

guilt or innocence could have taken place; 

c. The improper obstruction by Commonwealth officials of the

[defendant's] right of appeal where a meritorious appealable

issue existed and was properly preserved in the trial court;

d. A violation of the provisions of the constitution, law or

treaties of the United States which would require the

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granting of federal habeas corpus relief to a state prisoner;

e. The unavailability at the time of trial of exculpatory

evidence that has subsequently become available and that

would have affected the outcome of the trial if it had been

introduced. 

f. The imposition of a sentence greater than the lawful

maximum. 

Rec. Doc. 30, Ex. C. On April 9, 2001, the PCRA Court denied Nicholas relief. Id.

Nicholas did not appeal the denial of his PCRA petition to the Pennsylvania Superior

Court. 

On August 31, 2005, Nicholas filed the instant Petition in which he raises

various challenges to his conviction and sentence. (Rec. Doc. 1). 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), the Court issued formal notice to Nicholas that he could either

have the Petition ruled on as filed, that is, as a § 2254 petition for writ of habeas

corpus and heard as such, but lose his ability to file a second or successive petition,

absent certification by the court of appeal, or withdraw his Petition and file one allinclusive § 2254 petition within the one-year statutory period prescribed by the

Antiterrorism Effective Death Penalty Act (“AEDPA”). (Rec. Doc. 24). Petitioner

failed to return the notice of election form. Thus, a Show Cause Order was issued on

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February 1, 2006. (Rec. Doc. 25). By Order dated February 17, 2006, the District

Attorney of Dauphin County was permitted to file a partial answer to the habeas

petition, solely addressing the implications of the applicable statute of limitations.

(Rec. Doc. 28). On February 21, 2006, Respondent filed a partial answer to the

Petition, arguing that it is time-barred. (Rec. Doc. 30). 

Discussion

A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. § 2254

must adhere to a statute of limitations that 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. . .

(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.

28 U.S.C. § 2244(d)(1)-(2)(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 direct review processes

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are 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); Fields v. Johnson,

159 F.3d 914, 916 (5th Cir. 1998)(per curiam); Hoggro v. Boone, 150 F.3d 1223, 1226

(10th Cir. 1998). It is not the conclusion of state post-conviction collateral review

processes that starts the running of the limitations period. See Bunnell v. Yukins, No.

00-CV-73313, 2001 WL 278259, *2 (E.D. Mich. Feb 14, 2001)(“Contrary to

Petitioner's assertion, the limitations period did not begin to run anew after the

completion of his post-conviction proceedings.”).

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

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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). “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. 

Nicholas' judgment of sentence was affirmed on September 23, 1999, and

because he did not file a petition for review in the Pennsylvania Supreme Court, the

judgment became final at the expiration of the thirty-day period to file the petition for

review. See Pa.R.App.P. 1113(a). Thus, his judgment of sentence was final on

October 23, 1999. Thus, the clock for filing a § 2254 petition began on October 23,

1999, and he had until October 23, 2000, to file a timely habeas corpus petition.

Burns, 134 F.3d at 111. Pursuant to 28 U.S.C. § 2244(d)(2), when Nicholas filed his

PCRA petition on June 29, 2000, the AEDPA’s filing period was statutorily tolled

with approximately three (3) months and twenty-three (23) days of the one (1) year

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filing period remaining. See Harris, 209 F.3d at 328. Nicholas' PCRA petition was

denied on April 9, 2001. Because Nicholas did not file an appeal from the denial of

his PCRA petition, the statutory period began to run again at the expiration of the

thirty-day time period Nicholas had to file an appeal to the Pennsylvania Superior

Court. Thus, the statutory period started to run again on May 9, 2001. Consequently,

Petitioner was required to file his habeas corpus petition approximately, on or before

September 1, 2001. The instant petition was not filed until August 31, 2005, almost

four years after the limitations period expired. Thus, the Petition for habeas corpus

relief under § 2254 appears to be barred by the statute of limitations.

However, 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 there exists an equitable basis for tolling the limitations period. Merritt v.

Blaine, 326 F.3d 157, 161 (3d Cir. 2003). In Merritt, the Court of Appeals set forth

two general requirements for equitable tolling: “(1) that the petitioner has in some

extraordinary way been prevented from asserting his or her rights; and (2) that the

petitioner has shown that he or she exercised reasonable diligence in investigating and

bringing the claim.” Id. (internal citations and quotations omitted). In his Petition,

Nicholas attempts to argue that he discovered that the verdict at the trial was actually

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that he was not guilty of Aggravated Assault and has therefore been improperly

imprisoned. (Rec. Doc. 1, at 7). However, as is readily apparent from the trial

transcript and subsequent proceedings, Nicholas was in fact found guilty of

Aggravated Assault and not guilty of the charges of robbery and criminal conspiracy.

In any event, Nicholas fails to demonstrate why, since the imposition of his sentence

in July, 1998, he was not aware of what the verdict was, and was not able to pursue

this claim until the filing of the instant Petition in August 2005. The record

demonstrates that Nicholas was present in the courtroom when the verdict was

announced and the verdict is matter of public record. Thus, the Court finds that there

is absolutely no evidence to account for Petitioner’s delay in filing the instant Petition

for Writ of Habeas Corpus, and that equitable tolling is inapplicable in this matter.

The Petition will be dismissed. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. The Petition for Writ of Habeas Corpus (doc. 1) is

DENIED.

2. The Clerk of Court is directed to CLOSE this case. 

3. All motions filed by Nicholas subsequent to the filing of the

initial Petition are DISMISSED as moot. 

4. There is no basis for the issuance of a Certificate of

Appealability. See 28 U.S.C. § 2253(c). 

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S/ John E. Jones III

John E. Jones III

United States District Judge

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