RECOMMENDED DECISION ON PETITION FOR WRIT OF HABEAS CORPUS
Kevin J. Knight, confined to the Maine State Prison in Thomaston, Maine, seeks to challenge a forty-five year sentence imposed upon him in the Maine Superior Court in March 1992 following his conviction for murder. Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition") (Docket No. 1). The State objects inter alia on the ground that the petitioner's motion is untimely. State's Response to Petition ("Response") (Docket No. 5) at 3-5. I agree and accordingly recommend that the petition be denied.
On March 27, 1992 the petitioner was sentenced to serve forty-five years in prison following his conviction on a charge of murder. Petition at 1. The petitioner appealed, and the Law Court on April 27, 1993 affirmed his judgment of conviction. State v. Knight, 623 A.2d 1292 (Me. 1993). On April 4, 1996 the petitioner filed a petition in the Maine Superior Court for post-conviction review. See Docket, Petition for Post Conviction Review, Knight v. State, Criminal No. 96-81 (Me. Super. Ct.) ("Docket"), filed with Response, at . The petition was denied by order dated July 27, 1998. Order on Petitions for Post- Conviction Review, Knight v. State, Criminal Nos. 96-80 & 96-81 (Me. Super. Ct. July 27, 1998) ("Order"), filed with Response. The petitioner did not appeal. Docket at ; Petition at 4.
In 1996 Congress, through the vehicle of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposed for the first time a limitations period on the filing of habeas petitions as well as on motions filed pursuant to 28 U.S.C. § 2255. See Rogers v. United States, 180 F.3d 349, 353 & n.8, 355 (1st Cir. 1999). AEDPA requires the filing of habeas petitions within one year of the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1).
"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)(2).
The State concedes that inasmuch as the petitioner's conviction became final prior to the enactment of AEDPA on April 24, 1996, he was entitled to a one-year grace period from that date within which to file a habeas petition. Response at 5; see also Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999); Rogers, 180 F.3d at 355 (grace period ended on April 24, 1997). The State further acknowledges that the grace period was tolled during the pendency of the petitioner's post-conviction review proceedings. Response at 5; see also 28 U.S.C. § 2244(d)(2); Gaskins, 183 F.3d at 9. These proceedings, in the State's view, no longer were pending as of July 27, 1998 - the date the Superior Court denied the petition, an action from which the petitioner took no appeal. Response at 5. Thus, according to the State, the petitioner had until July 27, 1999 within which to file a habeas petition. Id. The Petition was filed on September 2, 1999. Petition at 1. 1
The petitioner (who filed no reply brief) neither recognizes nor offers any excuse for his limitations-period problem. Nor does it appear, from the face of his Petition, that his filing was delayed by the imposition of any impediment by the State, the discovery of new evidence or the recent recognition by the Supreme Court of any right relevant to his case. See generally Petition. Indeed, all grounds raised in the instant Petition were aired on direct appeal and/or in the state post-conviction review proceeding. Compare Petition with Order at -; Knight, 623 A.2d at 1293-94. The Petition accordingly was untimely filed and must, on that ground, be denied.
For the foregoing reasons, I recommend that the petitioner's habeas corpus petition be DENIED.
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days after being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.
Dated this 22nd day of November, 1999.
1. The State does not address the question whether, in calculating the period during which a post-conviction review is pending, one should include the time during which an appeal could have been filed. First Circuit dicta imply that this is not the case, e.g., that a post-conviction review proceeding no longer is pending as of the date of adverse decision if no appeal is taken therefrom. See Gaskins, 183 F.3d at 10 n.2 (noting existence of open question whether limitations period tolled between rendering of post-conviction-review decision and filing of appeal). Adding the appeals period would not in any event help the petitioner, inasmuch as it would extend his deadline by approximately twenty calendar days. See Me. R. Crim. P. 45(a) (describing manner of computing time), 76(c) (setting forth appeals period following entry of judgment on post-conviction review petition).