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February 11, 2004.

KEN KYLER, ET AL, Respondents

The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge


Presently before the Court is the Petition for the Writ of Habeas Corpus (Docket No. 1), filed on behalf of Mustafa Thomas ("Petitioner"), the Report and Recommendation filed by Magistrate Judge Charles B. Smith, and Petitioner's Objections To Magistrates Report and Recommendation. For the reasons that follow, the Petition for Writ of Habeas Corpus will be dismissed.

I. Background

  On December 19, 1994, Petitioner was convicted of second-degree murder. He appealed and on December 31, 1997, the Superior Court of Pennsylvania affirmed the conviction. Petitioner did not file a petition for allocatur with the Pennsylvania Supreme Court. On January 30, 1998, the one-year statute of limitations for filing a petition for writ of habeas corpus began to run.

  At some point before October 14, 1998, Petitioner prepared a pro se petition under the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541, et. seq. On October 14, 1998, this petition was "filed" in the state court. Petitioner was appointed counsel who then filed an Page 2 amended PCRA petition on June 30, 1999. On October 21, 1999, the trial court dismissed the PCRA petition without a hearing. Petitioner appealed the trial court's decision and on September 11, 2000, the Superior Court affirmed the denial of the PCRA petition. A petition for allocatur was denied by the Pennsylvania Supreme Court on February 1, 2001.

  Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court on June 1, 2001. We issued a "Mason/Miller"*fn1 notice and order, permitting Petitioner to withdraw his petition and re-file a new, inclusive habeas petition. Petitioner withdrew his petition and on October 1, 2001, a new Petition was filed by counsel. This Petition was then referred to Magistrate Judge Charles B. Smith who prepared and filed a Report and Recommendation. Judge Smith concluded that the Petition was time-barred and did not address the merits. For reasons different than those offered by Judge Smith we agree that the petition was time-barred.

  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a person convicted in state court has one-year to file a petition for a writ of habeas corpus from, "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (1996). The AEDPA also provides that "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).

  On January 30, 1998, Petitioner's conviction became final. At that point, the one year Page 3 limitation period began to run. Petitioner's pro se PCRA petition was received and marked as filed in the state court on October 14, 1998. At that point 257 of the 365 days permitted for the filing of a habeas petition had expired. When the PCRA appeal was denied by the Pennsylvania Supreme Court on February 1, 2001, there were only 108 days remaining. Thus Petitioner had until May 20, 2001 to file the instant Petition.

  Petitioner argues that the PCRA petition was not really filed on October 14, 1998, when it was received by the court, but rather should be deemed as filed when it was delivered by Petitioner to prison officials sometime in the middle of September of 1998. (Consolidated Reply to Respondents' Resp. ¶ 2.) If Petitioner is correct, he had until mid-June, 2001, to file this habeas petition and it would therefore be timely. The basis for Petitioner's argument is the pro se prisoner mailbox rule. This common law rule, adopted by the Pennsylvania Supreme Court in Smith v. Pa. Bd. of Prob. and Parole, 683 A.2d 278 (1996), recognizes that legal submissions filed by pro se parties are "filed" when they are given to prison officials. The Supreme Court of the United States has also recognized the need for such a rule. Houston v. Lack, 487 U.S. 266, 270-71 (1988): see also Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998).*fn2 Judge Smith recognized the applicability of the mailbox rule but found that it did not apply in this case. In reaching this conclusion Judge Smith pointed to documents that Petitioner had submitted to the Page 4 state court in which he represented that the PCRA Petition was filed on October 14, 1998. He also pointed to the opinion of the Superior Court in which that court indicated that the PCRA petition had been filed on October 14, 1998. (Am. Pet. Under PCRA at 2); See also Commonwealth v. Thomas, 766 A.2d 893 (Pa. Super. 2000) (table). Judge Smith found that "[b]ased on these representations, the Pennsylvania state courts made the factual determination that Petitioner filed his PCRA petition on October 14, 1998."

  Pursuant to the AEDPA, 28 U.S.C. § 2254(e)(1), federal courts reviewing habeas petitions are to presume that state court factual determinations are correct unless there is a clear and convincing showing by petitioner to the contrary. After finding that the that the state courts had made a factual determination that the PCRA petition was filed on October 14, 1998, Judge Smith concluded that Petitioner "has not satisfied his burden of proving by `clear and convincing evidence' that the Pennsylvania state courts were wrong." (Report and Recommendation at 9.) Consequently, Judge Smith found that since the habeas petition was filed after May 20, 2001, it was time-barred.

  Petitioner objects to these findings. While Petitioner concedes that § 2254 requires federal courts reviewing state decisions to defer to the findings of fact of the state court, Petitioner argues that "[n]o state court was ever faced with the issue when petitioner filed his PCRA petition, as that issue was never in play in the state courts." (Pet'r's Objections to Magistrate's Report and Recommendation at unnumbered 2.) Petitioner argues that since there is no state court ruling on the filing date, this court must resolve the issue. We review those portions of the Report and Recommendation to which objections have been made de novo. FED. R. CIV. P. 72(b) and 28 U.S.C. § 636(b). Page 5

 II. Discussion

  1. Deference to State Court Finding of Facts

  We disagree with Judge Smith's application of 28 U.S.C. § 2254(e)(1). Judge Smith considered the date of the filing of the PCRA petition to be a factual issue decided by the state court because the Superior Court opinion dated September 11, 2000, stated that "[o]n October 14, 1998, Appellant filed a PCRA petition and counsel was appointed." Commonwealth v. Thomas, 766 A.2d 893 (Pa. Super. 2000) (table). As we view the matter, rather than a factual determination, this language was simply a recitation of the procedural background. As petitioner points out, the "actual" date of the filing of the PCRA petition was never a disputed issue in the state courts. Under the circumstances it seems clear that the Superior Court simply took the procedural filing date from the lower court's docket. The Report and Recommendation notes that Petitioner never objected to this inaccuracy. No doubt Petitioner would have been better served if this issue had been brought to the attention of the state ...

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