Frank v. Clark et al

Filing 9

MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by Ronald Frank (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 12/13/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD FRANK,
Petitioner
vs.
MICHAEL CLARK, et al.,
Respondents

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CIVIL NO. 1:16-CV-02136

(Judge Rambo)

MEMORANDUM
On October 24, 2016, Petitioner, Ronald Frank,
an inmate at the State Correctional Institution at
Albion, Albion, Pennsylvania, filed a pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1.)

Frank paid the $5.00 filing fee.

The

petition will now be given preliminary consideration
pursuant to Rule 4 of the Rules Governing § 2254 Cases,
28 U.S.C. foll. § 2254.1 For the reasons set forth below
Frank’s petition will be dismissed as untimely filed.

Rule 4 states in pertinent part that “[t]he clerk
must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must
promptly examine it. If it plainly appears from the
petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the
judge must dismiss the petition . . . .”
1.

Factual Background
In the petition Frank alleges that he was
sentenced on August 3, 2010,

by the Court of Common

Pleas of Cumberland County, Pennsylvania, for
involuntary deviate sexual intercourse, statutory sexual
assault, indecent assault, corruption of minors,
unlawful contact with minors, and patronizing
prostitutes, and received an aggregate sentence of
imprisonment of 15 to 30 years. (Doc. 1, at 1.) Frank
states that he filed a direct appeal to the Pennsylvania
Superior Court and that his judgment of conviction and
sentence was affirmed by that court on March 25, 2011.
(Id. at 2.) Frank had 30 days from the Superior Court’s
order affirming the judgment of conviction and sentence
to file a petition for allowance of appeal with the
Pennsylvania Supreme Court. Pa.R.A.P., Rule 1113.

Frank

did not file a petition for allowance of appeal with the
Supreme Court and the time for doing so expired on
Monday, April 25, 2011. (Id.)

A review of the docket of

the Court of Common Pleas of Cumberland County and the
Pennsylvania Superior Court utilizing Pennsylvania’s

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Unified Judicial System Web Portal confirms Frank’s
procedural history.2

Thereafter, Frank on April 17,

2014, filed in the Cumberland County Court of Common
Pleas a petition under Pennsylvania’s Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541, et seq.

(“PCRA”).

Frank’s present habeas petition raises issues that were
available at the time Frank was sentence in 2010 or when
his direct appeal was decided on March 25, 2011, by the
Superior Court of Pennsylvania.
Discussion
There is a one-year statute of limitations for
filing a

§ 2254 petition for writ of habeas corpus.

See 28 U.S.C. § 2244(d)(1).

For our purposes, that

period starts to run from the date the conviction
becomes final, defined in section 2244(d)(1)(A) as “the
date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review.”

However, 28 U.S.C. §

2244(d)(2) also provides that “[t]he time during which a

Commonwealth of Pennsylvania v. Ronald Frank, CP-21CR-0002091-2009; Commonwealth of Pennsylvania v. Ronald
Frank, 1446 MDA 2010.
2.

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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[.]”

We will first address the

question of when Wright’s conviction became final for
purposes of the commencement of the 1-year statute of
limitations and then address whether there is any other
time excluded under §2244(d)(2).
As stated above, Frank was sentence on August 3,
2010.

Frank did take a direct appeal which was decided

on March 25, 2011, and the time for seeking further
review expired on April 25, 2011.

The period of time

which elapsed from the deadline of April 25, 2011, for
Frank to seek direct review in the Supreme Court until
Frank filed his PCRA petition on April 17, 2014, is well
in excess of 1 year.

That time is

1-year statute of limitations.

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counted towards the

Consequently, Frank’s

present habeas petition filed on October 24, 2016, is
untimely filed.
An appropriate order will be entered.

s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: December 13, 2016

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