The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge
SUPPLEMENTAL REPORT AND RECOMMENDATION
On September 9, 2003, petitioner filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. This court filed a
Report and Recommendation in the above matter on March 22, 2004,
recommending that the petition be denied and dismissed. On April
6, 2004, the district court approved and adopted said Report and
Recommendation. Petitioner's Motion to Alter or Amend Judgment
was received on April 26, 2004, and was subsequently granted by
the Honorable J. Curtis Joyner. In light of petitioner's motion,
Judge Joyner remanded the matter to this court for further
review. For the reasons which follow, it is recommended that the
Petition for Writ of Habeas Corpus be denied and dismissed.
On December 13, 1994, following a jury trial presided over by
the Honorable John J. Poserina, Jr. of the Philadelphia County
Court of Common Pleas, petitioner was convicted of two counts of
aggravated assault and one count each of possession of an
instrument of crime, recklessly endangering another person, and
criminal conspiracy. The jury failed to reach a verdict with
respect to the charge of murder. After being sentenced to ten to
twenty years imprisonment for the above convictions, petitioner was retried on
the murder charge before Judge Poserina. On July 21, 1995, the
jury found petitioner guilty of first degree murder.
Specifically, petitioner was found guilty of the drive-by killing
of Gerald Smith. Three days later, on July 24, 1995, petitioner
was sentenced to life imprisonment.
Petitioner appealed to the Pennsylvania Superior Court, which
affirmed his sentence on February 6, 1997. Commonwealth v.
Richardson, 694 A.2d 1121 (Pa. Super. 1998). The Pennsylvania
Supreme Court subsequently denied allocatur on August 8, 1997.
Commonwealth v. Richardson, 549 Pa. 699, 700 A.2d 440 (1997).
On January 11, 2000, petitioner filed a state court collateral
petition under the Post Conviction Relief Act (PCRA). This
petition was dismissed by the Court of Common Pleas on January
12, 2001,*fn1 and petitioner did not appeal.
On September 4, 2001, petitioner filed a second PCRA petition.
The petition was dismissed as untimely on March 1, 2002, and
petitioner did not appeal.
On May 14, 2003, petitioner filed a third PCRA petition. As a
result of its untimeliness, it was dismissed on January 6, 2004,
and petitioner did not appeal.
Petitioner filed his Petition for Writ of Habeas Corpus on
September 9, 2003, alleging that his conviction was in violation
of the Double Jeopardy Clause of the United States Constitution.
Respondent retorted that petitioner's Petition for Writ of Habeas
Corpus was timebarred, and thus petitioner was not entitled to
habeas review or relief.*fn2 This court issued a Report and Recommendation on March 22,
2004, finding the Petition for Writ of Habeas Corpus untimely.
Petitioner filed objections, and on April 6, 2004, the Honorable
J. Curtis Joyner approved the Report and Recommendation.
On April 26, 2004, petitioner filed a Motion to Alter or Amend
Judgment, alleging the following:
(1) In adopting the Report and Recommendation, the
district court failed to consider that petitioner was
not in custody of his life sentence until July 11,
(2) The district court erred in failing to consider
petitioner's double jeopardy claim; and
(3) Petitioner is entitled to file an amended
petition offering evidence that he was not in custody
of his life sentence until July 11, 2002.
Petitioner's motion was granted by Judge Joyner on April 29,
2004, and the matter was remanded to this court for further
review and preparation of an Amended Report and Recommendation.
As petitioner has not filed an amended petition, the claims
before this court are those alleged in the Motion to Alter or
Amend Judgment. Respondents have reviewed these claims, and argue
that petitioner has failed to present sufficient evidence of
equitable tolling to overcome the time bar. In the alternative,
respondents allege that petitioner's double jeopardy claim is
procedurally defaulted and without merit.
Notwithstanding petitioner's allegations of substantive grounds
for relief, one procedural obstacle precludes federal review of
his claims timeliness. Under the Antiterrorism and Effective
Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996: A 1-year limitation period 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.*fn3
28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal
conviction ended prior to the statute's effective date, then
under Third Circuit precedent, a prisoner has a one-year grace
period subsequent to the ...