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July 22, 2004.


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


Presently before the Court is the Petition for Writ of Habeas Corpus, (Doc. No. 1), the Report and Recommendation filed by Magistrate Judge Peter B. Scuderi, (Doc. No. 10), and the Objection to the Magistrate Report and Recommendation, (Doc. No. 11). For the reasons that follow, we will approve and adopt the Report and Recommendation, and dismiss the Petition.


  On September 11, 1970, following a trial in the Court of Common Pleas of Philadelphia County, Judge John J. McDevitt, sentenced Petitioner to a term of life imprisonment for firstdegree murder and a concurrent term of ten to twenty years for aggravated robbery. Petitioner's conviction was affirmed by the Pennsylvania Supreme Court on May 5, 1973. Commonwealth v. Smith, 304 A.2d 456 (Pa. 1973). Petitioner's Writ of Certiorari to the United States Supreme Court was denied. Smith v. Pennsylvania, 414 U.S. 1076 (1973).

  On September 4, 1997, Petitioner filed his first pro se petition for collateral relief in the state courts. See Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. On March 11, 1998, Judge John J. Poserina, Jr., of the Court of Common Pleas of Philadelphia County, dismissed Smith's PCRA petition as untimely.*fn1 On appeal, the Pennsylvania Superior Court remanded the matter for appointment of counsel and to allow Petitioner to file an amended PCRA petition. Commonwealth v. Smith, 747 A.2d 420 ( Pa. Super. 1999) (table). On February 2, 2000, Gary S. Server was appointed to represent Petitioner. (Doc. No. 7 Ex. C.) On May 5, 2000, Server filed a letter certifying that he had reviewed Petitioner's case and concluded that Petitioner was time-barred from filing a PCRA petition. See Commonwealth v. Finley, 550 A.2d 213, 215 (Pa. Super. 1988) (holding that "Once counsel for the petitioner determines that the issues raised under the [PCRA] are `meritless,' and the [PCRA] court concurs, counsel will be permitted to withdraw. . . ."). On September 5, 2000, the PCRA court permitted counsel to withdraw and dismissed the PCRA petition. On July 16, 2001, the Superior Court affirmed the dismissal of the PCRA petition. On December 28, 2001, Petitioner's request for allowance of appeal to the Supreme Court was denied. Commonwealth v. Smith, 792 A.2d 1253 (Pa. 2001).

  On January 30, 2002, Petitioner filed the instant pro se Petition for Writ of Habeas Corpus. We referred the Petition to Magistrate Judge Peter B. Scuderi. On July 26, 2002, Judge Scuderi recommended that the Petition be denied as time-barred. Petitioner subsequently filed his "Objection to Magistrate Report and Recommendation" (Doc. No. 11).


  Magistrate Judge Scuderi recommended that we dismiss the Petition as time-barred by the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA imposes a one-year limitation period for filing petitions for writs of habeas corpus. 28 U.S.C. § 2244(d)(1). Specifically, § 2244(d)(1) states as follows:
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 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.
  On direct appeal, Petitioner's Writ of Certiorari to the United States Supreme Court was denied on December 3, 1973. Thus, Petitioner's conviction became final before April 24, 1996, the effective date of AEDPA. The Court of Appeals for the Third Circuit has held that a federal habeas petition is not barred by AEDPA if the petition was filed within one year of the effective date of the AEDPA. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). As a result, Petitioner had until April 23, 1997, to timely file a federal habeas petition. See id.

  Petitioner submitted this Habeas Corpus Petition on January 30, 2002, over four years after the AEDPA statute of limitations had run. Section 2244(d)(2) provides that "[t]he 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." However, because Petitioner's PCRA petition was not filed until September 4, 1997, after the federal statute of limitations had run, even if this PCRA petition was considered to be "properly filed" it would not toll the statute of limitations. Petitioner does not assert that some state action has caused an impediment to filing his Petition, that his Petition involves a right which has been newly recognized by the Supreme Court, or that new facts have come to light which could not have been previously discovered, 28 U.S.C. § 2244(d)(1)(B)-(D). Therefore, Petitioner is barred from presenting his claims unless the statute of limitations is subject to equitable tolling.

  The Magistrate Judge reviewed the ways in which the AEDPA limitations period can be "equitably tolled" in order to determine if the Petition was timely. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Petitioner did not present any extraordinary circumstance that prevented him from asserting his claims. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). Accordingly, the Magistrate Judge recommended that we dismiss the Petition as untimely.


  We review de novo those portions of the Report and Recommendation to which Petitioner objects. 28 U.S.C. § 636(b)(1). Petitioner does not object to the conclusion in the Report and Recommendation that his claims are time-barred, rather he uses this filing to reargue the merits of the Petition, and argue that to deny him relief based on "procedural default or waiver" would "damage the integrity, reputation, and the fairness of the judicial process. . . ." (Doc. No. 11 at 1.) Concurrently, Petitioner argues that it is inappropriate for the Court to raise the issue of procedural default where "it is evident that a miscarriage of justice has occurred." (Id. at 2.)

  Judge Scuderi's conclusion that the Petition is time-barred is correct. Petitioner had until April 23, 1997, to file a Petition of Habeas Corpus. As the Petition was not filed until January 30, 2002, we cannot consider the merit of Petitioner's claims. Judge Scuderi accurately stated the standard for equitable tolling to apply. We reiterate that equitable tolling "may be appropriate if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." Morton, 195 F.3d at 159. In lieu of presenting evidence that supports the conclusion that one of these situations exist, Plaintiff argues that perceived shortcomings at his trial constituted a denial of ...

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