The opinion of the court was delivered by: Juan R. Sánchez, J.
Petitioner Calvin Johnson, currently serving a life sentence for murder at State Correctional Institution Huntingdon, Pennsylvania, raises two objections to Magistrate Judge M. Faith Angell's Report and Recommendation that Johnson's habeas corpus petition be denied as untimely under 28 U.S.C. § 2244(d). After a careful and independent review pursuant to 28 U.S.C. § 636, we find neither of the issues presents a ground for relief; therefore, we overrule Johnson's objections and approve and adopt Magistrate Judge M. Faith Angell's Report and Recommendation.
A jury convicted Johnson of first degree murder on September 10, 1985 in the shooting death of Gerald Goode in the Bartram Gardens Village projects of Philadelphia on September 23, 1984. Johnson was sentenced to life in prison and a consecutive two and one-half to five year sentences for possessing an instrument of crime.
The Superior Court denied Johnson's timely direct appeal. The Supreme Court of Pennsylvania denied allocatur December 14, 1987. Johnson filed a petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541, on July 18, 1995, which the PCRA court denied on December 18, 1996.*fn1
Johnson filed a pro se appeal, which the Superior Court denied on the merits on May 29, 1998. The Pennsylvania Supreme Court denied allocatur on January 15, 1999. In December 1999, Johnson filed his second pro se PCRA petition, which, after amendment with the assistance of counsel, the PCRA court dismissed on timeliness grounds without a hearing. The Superior Court rejected Johnson's claim that the government's withholding of Brady v. Maryland*fn2 material amounted to "governmental interference," triggering an exception to the PCRA timely filing requirement. The Superior Court held "the Brady claim fails . . . as it is wholly speculative." Memorandum opinion, 2402 EDA 2001, December 19, 2002, p. 6. The Pennsylvania Supreme Court denied allocatur on July 15, 2003.
Johnson filed the present petition for writ of habeas corpus on August 21, 2003. Johnson also filed motions seeking discovery from his two prior PCRA counsel and a motion for an evidentiary hearing. After review of Johnson's and the Commonwealth's arguments, Magistrate Judge M. Faith Angell recommended denial of Johnson's petition for writ of habeas corpus. Johnson objects to the Report and Recommendation, arguing statutory and equitable tolling should apply to make his petition timely.
The Antiterrorism and Effective Death Penalty Act of 1996*fn3 (AEDPA) establishes a one-year statute of limitations for state prisoners seeking federal habeas relief under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1). A petitioner must file a federal habeas petition within one year from the date state conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).*fn4
In construing the AEDPA in Burns v. Morton, the Third Circuit allowed a one-year "grace-period" for petitioners, whose convictions became final prior to the enactment of the AEDPA. 134 F.3d 109, 111 (3d. Cir. 1998). In view of Burns's holding, Johnson's limitations period commenced on April 24, 1996,*fn5 despite the fact his conviction became final years prior.*fn6 As a result, Johnson had until April 23, 1997 to file a timely habeas petition. Because Johnson filed his petition for habeas corpus relief on April 23, 2003, his petition is untimely, unless statutorily or equitably tolled.
The AEDPA's one-year limitations period for filing a federal habeas petition is subject to both statutory and equitable tolling. 28 U.S.C. §2244(d)(enumerating statutory tolling provisions); Merritt v. Blaine, 326 F.3d 157, 161 (3d. Cir. 2003) (holding AEDPA's time limit is subject to the doctrine of equitable tolling, a judicially crafted exception). The AEDPA expressly prescribes statutory tolling of its one-year limitations period for 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." 28 U.S.C. § 2244(d)(2). Section 2244(d)(2) tolled Johnson's limitations period until January 15, 1999, when the Pennsylvania Supreme Court denied allocatur of Johnson's first PCRA application. As a consequence, Johnson had one year from that date to file a timely habeas petition, before the statute of limitations expired on January 15, 2000.
Johnson argues the absence of the alleged criminal history reports should toll the limitations period during his second PCRA application on both statutory and equitable grounds. Johnson argues the Commonwealth failed to turnover to his attorneys, either at trial or during his PCRA applications, the complete police records of two eye-witnesses and the decedent Goode.
Johnson first argues he is entitled to statutory tolling of AEDPA's one year statute because under Brady the Commonwealth's refusal to produce the complete arrest records of two testifying witnesses and the decedent was a state impediment to filing a habeas corpus petition. 28 U.S.C. § 2244(d)(1)(B). Johnson argues the Commonwealth's failure to respond to his Brady claim either during his two PCRA petitions or during this litigation constitutes a state impediment to filing a habeas petition.
The Third Circuit held an untimely PCRA petition does not toll the statute of limitations because an untimely state post-conviction petition is not "properly filed" under Section 2244 (d)(1) for purposes of tolling. Merritt, 326 F.3d at 165-66 (citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)). The United States Supreme Court held "an application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (meeting requirements concerning the form of the document, applicable time limits upon its delivery, the court and office in which it must be lodged, and payment of a filing fee). The Third Circuit ...