The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
Petitioner Melvin White ("White") is a state prisoner currently
incarcerated at the State Correctional Institution in Huntington,
Pennsylvania. White, filing a pro se petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254, claimed he was
actually innocent of the charges for which he was convicted. The
Commonwealth, responding to the petition, asserted that White's
claims were procedurally defaulted and untimely. The court
referred White's petition to Magistrate Judge Linda Caracappa
(Judge Caracappa) for a Report and Recommendation (R & R), and
Judge Caracappa recommended the petition be denied.*fn1
Presently before the court are the petitioner's Objections to the
R & R. II. FACTUAL AND PROCEDURAL HISTORY
On September 26, 2000, White entered a negotiated plea
agreement to charges of rape and endangering the welfare of a
child*fn2 with a sentence of five to ten years'
imprisonment. The written plea colloquy informed White that he
had a right to a trial and by accepting the plea he was waiving
his pre-trial rights and right to a trial by a judge or jury. The
written plea colloquy also informed him of his right to appeal
and that he could have faced twenty-seven years in jail if he
were found guilty at trial.
In addition to the written plea colloquy, White acknowledged
that his plea was voluntary and knowing. White admitted orally to
the facts presented by the Commonwealth supporting the underlying
charges. The judge advised White that he had ten days to ask the
judge to reconsider acceptance of the negotiated sentence and
thirty days to appeal to the Superior Court. White did not file a
state court appeal or petition under the Post Conviction Relief
Act ("PCRA") 42 Pa.C.S.A. § 9541, et seq.
In his habeas petition, filed August 5, 2002, White claimed
he was actually innocent of the rape charge because the factual basis of his conviction could support only the charge of
"attempted rape." He also asserted his constitutional rights were
violated when he pleaded guilty, his lawyer was ineffective
because she did not seek any post-conviction relief, and the
trial court failed to inform him of the maximum sentence.
Judge Caracappa concluded that White's claims had not been
exhausted because they were not raised in state court and the
claims had been procedurally defaulted because review by any
state court was foreclosed. Judge Caracappa also concluded that
White's habeas petition was untimely.
In his Objections, White argues his lawyer "deceived him into
believing that a direct appeal was pending," and he is actually
innocent of the rape charge.*fn3 A. Timeliness of the Habeas Petition
White's petition is governed by the federal habeas statute,
28 U.S.C. § 2241, et seq., amended by the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), effective April 24, 1996.
Section 2244(d) of the statute creates a one-year time limitation
(1) A 1-year period of limitation 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 of
the time for seeking such review;
(B) the date on which the impediment to filing an
application created by the 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).
White was sentenced on September 26, 2000; his direct appeal
time expired on October 26, 2000. See, Pa. R.A.P. 903(a)
(requiring notice of appeal to be filed "within thirty days of the entry of the order from which the appeal is taken.").
Because no appeal to the Superior or Supreme Court was filed,
White had until October 25, 2001, to file a timely federal
habeas petition, absent statutory or equitable tolling. White
filed his petition on August 5, 2002, more than nine months after
the statutory deadline.
There are statutory exceptions to the one year time limitation.
See 28 U.S.C. § 2244(d)(1)(B)-(D). However, White fails to
satisfy any of these. He does not allege that any state action
prevented him from filing his petition or that any claim ...