Glushko v. Pennsylvania Board of Probation and Parole et al

Filing 16

MEMO & ORDER: 1. Petitioner is granted twenty (20) days from the date ofthis order to show cause why his petition should not bedismissed as barred by the statute of limitations.2. Respondent is granted fifteen (15) days from the dateof Glushkos response to file a reply. Signed by Honorable William J. Nealon on 2/7/17. (ep)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW P. GLUSHKO,

:
:
Petitioner
:
:
v.
:
:
PA BD. OF PROBATION AND PAROLE,
:
:
et al.,
:
Respondents
:

CIVIL ACTION NO. 3:CV-14-2469
(Judge Nealon)

MEMORANDUM
Petitioner, Andrew P. Glushko, 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 Monroe County, Pennsylvania. (Doc. 1). Although the
respondent filed a response to the petition, this Court finds that the statute of
limitations bars consideration of the petition. Because the district court raises, sua
sponte, the statute of limitations bar, Petitioner will be granted an opportunity to
argue in favor of the timeliness of his petition.
I.

Background
The following background has been extracted from the Pennsylvania

Superior Court’s April 28, 2014 Opinion, affirming the dismissal of Petitioner’s

first Post Conviction Relief Act (“PCRA”) petition. (Doc. 7-9, Opinion dated April
28, 2014).
On July 15, 2009, a jury found appellant guilty of multiple counts
of unlawful contact with a minor, criminal attempt and criminal
solicitation counts related to various sexual offenses, corruption of
minors, and criminal use of a communication facility.
On March 19, 2012, appellant filed the instant PCRA petition pro
se. Following a Grazier hearing,1 on May 24, 2012, the PCRA
court entered an order permitting appellant to represent himself. On
August 3, 2012, an evidentiary hearing was held during which
testimony was taken from appellant’s trial and direct appeal
attorneys. on March 1, 2013, the PCRA court denied the PCRA
petition. This timely appeal followed.
Appellant raises the following issues on appeal:
I.

Was the lower court’s ruling free from legal error and
supported by the record when it denied Glushko’s post
conviction claim that his appellate counsel was
ineffective for failing to raise a claim against the denial
of his pre-trial motion for suppression of evidence
based on an unlawful vehicle stop?

II.

Was the lower court’s ruling free form legal error and
supported by the record when it denied Glushko’s post
conviction claim that his appellate counsel was
ineffective for failing to preserve an insufficient
evidence claim against all charges?

Id. By Memorandum Opinion dated April 28, 2014, the Superior Court affirmed
1

Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
2

the PCRA court’s dismissal of Glushko’s petition. Id. No further appeal or
collateral challenges to his conviction or sentence were filed.
On December 29, 2014, Petitioner filed the instant petition for writ of
habeas corpus in which he raises various challenges to his conviction and sentence.
(Doc. 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 Cir. 2000), the Court issued
formal notice to Glushko 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. 4).
On March 6, 2015, upon consideration of Petitioner’s failure to return this
Court’s Notice of Election, this Court issued an Order to show cause, directing a
response be filed to the petition. (Doc. 5). On April 2, 2015, Respondents filed a
response, arguing that the petition should be dismissed. (Doc. 7).

Discussion
3

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 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
4

original); Fields v. Johnson, 159 F.3d 914, 916 (5ht 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.”)
(emphasis added).
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 v. 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. 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
5

certiorari in the United States Supreme Court from the denial of his state postconviction 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.
Glushko’s judgement of sentence was affirmed on March 14, 2011, 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). Thus, his judgment of sentence was final on
April 13, 2011. Thus, the clock for filing a § 2254 petition began on April 13, 2011
and he had until April 13, 2012, to file a timely habeas corpus petition. Burns v.
Morton, 134 F.3d 109, 111 (3d Cir. 1998).
Pursuant to 28 U.S.C. § 2244(d)(2), when Glushko filed his PCRA petition
on March 19, 2012, the AEDPA’s filing period was statutorily tolled with
approximately twenty-five (25) days of the one (1) year filing period remaining.
See Harris, 209 F.3d at 328. Glushko’s PCRA petition was pending until April 28,
2014, when the Superior Court affirmed the dismissal of that petition. Because
Glushko did not seek relief from the Pennsylvania Supreme Court, his judgment of
6

sentence became final on May 28, 2014, thirty days after the Pennsylvania Superior
Court affirmed the judgment of sentence, and the time for filing a petition for
allowance of appeal with the Pennsylvania Supreme Court expired. See 28 U.S.C.
§ 2244(d)(1)(A); Pa. R. App. P. 1113; 42 Pa.C.S.A. § 9545(b)(3). Accordingly, the
remaining twenty-five (25) days of the one-year limit for Petitioner to timely file a
federal petition for writ of habeas corpus began on May 28, 2014 and expired on
June 23, 2014. The instant petition was not filed until December 29, 2014, seven
months after the limitations period expired. Thus, the petition for habeas corpus
relief appears to be barred by the statute of limitations.
The United State Court of Appeals for the Third Circuit has held that a
district court has the authority in 2254 proceedings to raise the statute of limitations
sua sponte after a respondent has filed an answer as long as the petitioner is given
notice of the court’s intent to deny the petition on limitations grounds and an
opportunity to respond to the court’s analysis. See United States v. Bendolph, 409
F.3d 155, 2005 WL 1134860, at *9-10 (3d Cir. 2005)(en banc). It is also relevant if
the petitioner has suffered any prejudice from the court’s raising of the issue. Id.
Thus, the Petitioner will be given an opportunity to show why his petition should
not be dismissed as untimely. An appropriate order is attached.
7

Dated: February 7, 2017

/s/ William J. Nealon
United States District Judge

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW P. GLUSHKO,

:
:
Petitioner
:
:
v.
:
:
PA BD. OF PROBATION AND PAROLE,
:
:
et al.,
:
Respondents
:

CIVIL ACTION NO. 3:CV-14-2469
(Judge Nealon)

ORDER
AND NOW, THIS 7th DAY OF FEBRUARY, 2017, for the reasons set
forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1.

Petitioner is granted twenty (20) days from the date of
this order to show cause why his petition should not be
dismissed as barred by the statute of limitations.

2.

Respondent is granted fifteen (15) days from the date
of Glushko’s response to file a reply.

/s/ William J. Nealon
United States District Judge