The opinion of the court was delivered by: Anita B. Brody, J.
Michael Stokes ("Stokes") petitions the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2003). Once again, the court is presented with a case in which a derelict attorney has compromised a client's ability to seek habeas corpus review by a federal court. As a result of the Third Circuit's recent holding in Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003), and the most reasonable interpretation of the Pennsylvania Supreme Court's February 15, 2000 order in Commonwealth v. Stokes, No. 150 E.D. Misc. Dkt. 1999, I will deny Stokes' federal habeas petition as untimely.
I. Facts and Procedural History
On March 16, 1993, a jury found Stokes guilty of first degree murder, retaliation against a witness, possession of an instrument of crime, and criminal conspiracy. At the conclusion of the penalty hearing held on March 16, 1993, Stokes was sentenced to life imprisonment. The judgment of sentence was affirmed on May 30, 1995 and, on December 18, 1995, the Pennsylvania Supreme Court declined discretionary review. Commonwealth v. Stokes, 664 A.2d 1060 (Pa. Super. Ct. 1995); Commonwealth v. Stokes, 668 A.2d (Pa. 1995). Petitioner Stokes' conviction became final ninety (90) days later, on March 17, 1996, when the time allowed for filing a petition for a writ of certiorari to the United States Supreme Court expired. S. Ct. R. 13(1).
Following the conclusion of the direct review process, on September 6, 1996, Stokes filed a timely pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). 42 Cons. Stat. Ann. § 9541 et seq. After filing his initial PCRA petition pro se, Stokes was appointed PCRA counsel, Mr. Yung Lee, who filed an amended PCRA petition.*fn1 Stokes' amended PCRA petition was denied on the merits on March 25, 1998. A timely appeal was taken to the Superior Court, which affirmed the lower court on August 6, 1999. At this point, Stokes had thirty (30) days to file a petition for allowance of appeal with the Pennsylvania Supreme Court. This appeal period expired on September 5, 1999.
This is the point at which Stokes' story follows the path of too many habeas petitioners let down by inadequate attorneys. During the thirty (30) day period in which Stokes could have filed a petition for allowance of appeal with the Pennsylvania Supreme Court, Stokes sent his appointed attorney two letters dated August 18, 1999 and August 29, 1999, asking Attorney Lee to file an appeal with the Pennsylvania Supreme Court. Stokes' request was unambiguous. In pertinent part, the August 29, 1999 letter read:
I am writing this letter for assurance just in case you didn't receive my August 18 letter . . . I'm writing this letter because I never got a response from you; nor have you been returning any of my fathers [sic] phone calls. What the August 18th letter consisted of was I asked you to please file an allocatur to the Supreme Court in [sic] my behalf . . . I also asked if you can tell me how long do [sic] I have in order to file a Federal Habeas Corpus?
Despite receiving this explicit request from his client,*fn2 Attorney Lee not only failed to file an appeal but also waited to notify Stokes of this fact until sending a letter dated September 16, 1999 - 10 days after the statute of limitations for filing an appeal had expired. At this point, Stokes had the option of filing a federal habeas petition despite having now failed to exhaust his state remedies, or attempting to correct the failure of his appointed attorney to file a timely appeal. On September 30, 1999, two weeks after receiving the September 16, 1999 letter from Attorney Lee, Stokes filed a pro se "Petition for Permission to Petition for Allowance of Appeal (Nunc Pro Tunc)," to the Pennsylvania Supreme Court. On February 15, 2000, the Supreme Court of Pennsylvania denied Stokes' petition by issuing the following order:
AND NOW, this 15th day of February, 2000, the Petition for Permission to Petition for Allowance of Appeal (Nunc Pro Tunc) is denied.
Stokes filed the instant habeas petition on September 1, 2000, 199 days after the Supreme Court of Pennsylvania denied his "Petition for Permission to Petition for Allowance of Appeal (Nunc Pro Tunc)." According to the Commonwealth, Stokes' federal habeas petition was time-barred because his time to file a habeas petition ran out on April 22, 2000, 230 days after September 5, 1999, the date on which Stokes' time limit for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired. Alternatively, if Stokes were entitled to statutory tolling during the time in which his pro se nunc pro tunc petition was pending before the Pennsylvania Supreme Court, his federal habeas petition, filed on September 1, 2000, would be timely.
I initially referred the case to Magistrate Peter B. Scuderi for a Report and Recommendation. On May 30, 2001, Magistrate Scuderi filed a Report and Recommendation recommending that the matter be dismissed as time-barred. By Order dated July 9, 2002, I remanded the matter back to Magistrate Scuderi for a Supplemental Report and Recommendation addressing the merits of Stokes' petition.*fn3 I also allowed the parties to file additional responsive briefs. On April 17, 2003, Magistrate Scuderi filed a Supplemental Report and Recommendation again recommending that the petition be dismissed as time-barred.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year statute of limitations on applications for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1) (2003). Under 28 U.S.C. § 2244(d)(1), the statute of limitations begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In this case, Stokes' conviction became final prior to the enactment of AEDPA. Because AEDPA became effective on April 24, 1996, and "we have implied from the statute a one-year grace period for those petitioners whose convictions became final before the effective date of AEDPA," the statute of limitations for Stokes' habeas petition did not begin to run until April 24, 1996. Nara v. Frank, 264 F.3d 310, 315 (3d Cir. 2001). As of April 24, 1996, therefore, Stokes had one year to file a federal habeas corpus petition, subject to any applicable tolling provisions.
The statute of limitations for federal habeas corpus petitions is subject to two tolling exceptions: (1) statutory tolling during the time a "properly filed" application for state post-conviction review is pending in state court; and (2) equitable tolling, which is a judicially ...