UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RONALD W. WILLIAMS, :

:

Petitioner : No. 4:CV-06-0111

:

vs. : (Complaint Filed 1/17/06) 

:

GERALD ROZUM, : (Judge Muir)

:

Respondent :

ORDER

June 30, 2006

Petitioner, Ronald W. Williams, filed the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. He attacks a conviction imposed by the Court of Common

Pleas for Dauphin County, Pennsylvania. (Doc. No. 1). For the

reasons that follow, the petition will be dismissed as

untimely. 

Background

On January 10, 2001, Williams was found guilty of Murder

of the First Degree. (Doc. No. 9, Ex. A). Williams

thereafter filed a direct appeal to the Pennsylvania Superior

Court, in which he raised the sole issue that the evidence was

insufficient to support the verdict against him. (Doc. No. 9,

Ex. B). On December 13, 2001, the Superior Court issued a

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Memorandum Opinion affirming Petitioner's conviction and

sentence. (Doc. No. 9, Ex. B); see Commonwealth vs. Williams,

No. 319 MDA 2001, J.A37045/01(Pa. Super. December 13, 2001).

Williams did not file a petition for allowance of appeal to

the Supreme Court of Pennsylvania. 

On January 9, 2003, Williams filed a petition under

Pennsylvania’s Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541, et seq. (“PCRA”). (Doc. No. 9, Ex. C). The petition

was denied and Williams filed an appeal to the Pennsylvania

Superior Court. On June 23, 2004, the Superior Court affirmed

the denial of PCRA relief. Commonwealth vs. Williams, No. 903

MDA 2003, J-S02029-04 (Pa. Super. June 23, 2004)(unpublished

memorandum opinion). Williams' petition for allowance of

appeal to the Supreme Court of Pennsylvania was denied on

March 14, 2005. (Doc. No. 9, Ex. D); see Commonwealth vs.

Williams, No. 676 MAL 2004 (Pa. March 14, 2005)(per curiam).

On January 17, 2006, Williams filed the instant petition

for writ of habeas corpus in which he raises various

challenges to his conviction and sentence. (Doc. No. 1,

petition). In accordance with United States v. Miller, 197

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

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Cir. 2000), the Court issued formal notice to Williams 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 all-inclusive § 2254 petition within the

one-year statutory period prescribed by the Antiterrorism

Effective Death Penalty Act (“AEDPA”). (Doc. No. 3). On

February 1, 2006, Williams returned the notice of election

form, indicating that he wished to proceed with his petition

for writ of habeas corpus as filed. (Doc. No. 4). Thus, a

Show Cause Order was issued on February 23, 2006. (Doc. No.

5). By Order dated March 14, 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. (Doc. Nos. 9, 10). On

March 23, 2006, Williams filed a traverse. (Doc. No. 11).

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:

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(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 vs. 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 are concluded. See Harris vs. 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 vs. Johnson, 159 F.3d 914, 916 (5th Cir.

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1998)(per curiam); Hoggro vs. 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 vs. 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, section 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 vs. 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. 

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Swartz vs. 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 postconviction petition. Stokes vs. 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. 

Williams' judgement of sentence was affirmed on December

13, 2001, and because he did not file a petition for review in

the Pennsylvania Supreme Court, the judgement became final at

the expiration of the thirty-day period to file the petition

for review. See Pa.R.App.P. 1113(a). His judgment of

sentence was final on January 12, 2002. Thus, the clock for

filing a § 2254 petition began on January 12, 2002, and he had

until January 12, 2003, to file a timely habeas corpus

petition. Burns, 134 F.3d at 111. Pursuant to 28 U.S.C. §

2244(d)(2), when Williams filed his PCRA petition on January

9, 2003, the AEDPA’s filing period was statutorily tolled with

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approximately three (3) days of the one (1) year filing period

remaining. See Harris, 209 F.3d at 328. The limitation

period then commenced when Williams' petition for allowance of

appeal to the Pennsylvania Supreme Court was denied on March

14, 2005. At that point, Williams had approximately three

days to file his federal petition. The instant petition was

not filed until January 17, 2006, some ten months after the

limitations period expired. 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

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omitted). In his petition, Williams claims that trial counsel

was ineffective for failing to present a duress defense

(including requesting a proper jury instruction on duress) and

for failing to seek suppression of a statement that Williams

made to police, and that the evidence was insufficient to

support the jury's verdict. (Doc. No. 1). The factual basis

for all of these claims would have been available to Williams

as of the time of trial, and at the time he filed his first

PCRA petition, and there is no reason that Williams could not

have presented these claims in a timely fashion. The Court

finds that there is absolutely no evidence to account for the

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 is

DISMISSED.

2. The Clerk of Court is directed to CLOSE

this case. 

3. There is no basis for the issuance of a

Certificate of Appealability. See 28

U.S.C. § 2253(c). 

s/Malcolm Muir 

MUIR

United States District Judge

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