Pinckney v. Clark et al

Filing 4

MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 4/3/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DE’CARLO E. PINCKNEY,

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Petitioner
vs.
MICHAEL R. CLARK
ET AL.,
Respondents

CIVIL NO. 1:17-CV-00484

(Judge Rambo)

MEMORANDUM
On March 20, 2017, Petitioner, De’Carlo E.
Pinckney, 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 and a memorandum in support of that
petition. (Docs. 1, 2.)
fee.

Pinckney paid the $5.00 filing

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

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.

set forth below Pinckney’s petition will be dismissed as
untimely filed.
Factual Background
In the petition Pinckney alleges that he was
sentenced on March 11, 2010,

by the Court of Common

Pleas of York County, Pennsylvania, for firearms and
drug offenses and received an aggregate sentence of
imprisonment of 5 to 16 years. (Doc. 1, at 1.) The
memorandum accompanying the petition reveals that the
sentence was imposed pursuant to a guilty plea. (Doc. 2,
at 4.)

Pinckney did not take a direct appeal and his

conviction became final on Monday, April 11, 2010.
A review of the docket of the Court of Common Pleas of
York County utilizing Pennsylvania’s Unified Judicial
System Web Portal confirms Pinckney’s procedural
history.2
After Pinckney’s conviction became final, the
docket of the Court of Common Pleas of York County
reveals that he did not file any proceedings in that
court until October 27, 2014, when he filed a petition
Commonwealth of Pennsylvania v. Descarlo Euguene
Pinckney, CP-67-CR-0007073-2009.
2.

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for post conviction collateral relief.

Pinckney’s

present habeas petition raises issues that were
available at the time Pinckney was sentence in 2010.
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
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 Pinckney’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).

3

As stated above, Pinckney was sentence on March
11, 2010, he did not take a direct appeal, and his
conviction became final on April 11, 2010.

The period

of time which elapsed from April 11, 2010, to October
27, 2014 (over 4 years and 6 months), far exceeds the 1year period in which he was required to file a petition
for writ of habeas corpus in this court.

Furthermore,

with respect to the post conviction proceedings filed in
state court by Pinckney in October, 2014, those
proceedings were concluded when the Pennsylvania Supreme
Court denied his petition for allowance of appeal on
August 30, 2016. Therefore, an additional 6 months and
20 days elapsed before Pinckney filed a habeas petition
with this court on March 20, 2017.

Consequently,

Pinckney’s present habeas petition is untimely filed.
An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: April 3, 2017

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