The opinion of the court was delivered by: Edwin M. Kosik United States District Judge
Before the court are the petitioner's objections, filed July 17, 2006, (Doc. 57) to the Report and Recommendation (Doc. 52) of Magistrate Judge J. Andrew Smyser. Also before the court is the petitioner's "Motion To Disclose All Physical, Material, Favorable and Exculpatory Evidence," (Doc. 58) filed on July 20, 2006. For the reasons that follow, we will overrule the petitioner's objections, adopt the Report and Recommendation of the Magistrate Judge, dismiss the petition for writ of habeas corpus, deny the petitioner's "Motion To Disclose" as moot, and close this case.
Petitioner, Randy Bazemore (hereinafter "Petitioner") was convicted of murder in the second degree and robbery on February 10, 1993, in the Court of Common Pleas for Dauphin County. See Criminal Docket, Doc. 47, Exhibit "A". A jury convicted Petitioner in relation to the death of Samuel Davis, a taxi driver who perished when his vehicle struck a bridge abutment in the City of Harrisburg after a physical struggle with a passenger in the cab. Petitioner and Gary Noon were in the back seat of the taxi at the time of the crash. See 3/20/96 Opinion at p. 2, Doc. 47, Exhibit "D". The men agreed that Petitioner sat on the passenger side of the rear seat and that Noon sat on the driver side of the rear seat prior to the attack. Id. Both men were arrested in connection with Mr. Davis' death. In statements to the police, Petitioner and Noon blamed each other for strangling Mr. Davis in an attempt to rob the driver, thereby causing the fatal crash. Id. at 1. An autopsy revealed evidence consistent with Davis having been strangled. Id.
Prior to trial, the Commonwealth collected hairs from Petitioner's head to compare with hair found on the windshield of the taxi cab. Petitioner claims that neither the human hair evidence, nor the results of any forensic tests on the collected hair, were provided to him or produced at his trial.Petitioner claims that the sole evidence presented against him at trial was the testimony of Noon, a man that Petitioner contends was "clearly a polluted source and also mentally retarded." See Petitioner's 1/20/06 Brief at p. 11, Doc. 47. The Commonwealth made a deal with Noon in exchange for his testimony against Petitioner. See 3/20/96 Opinion at p. 2, Doc. 47, Exhibit "D". Noon testified that Petitioner "jumped over the front seat" and "grabbed [Davis] by his neck . . .." Id. at 8.
A jury convicted Petitioner of murder in the second degree on or about February 10, 1993. Petitioner failed to take a timely direct appeal from his conviction. See Petitioner's 1/20/06 Brief at p. 2, Doc. 47, Exhibit "D". He subsequently filed a petition pursuant to the Post Conviction Relief Act ("PCRA"), alleging solely that trial counsel was ineffective for failing to file a timely appeal of the conviction. Id. On September 20, 1995, the Court of Common Pleas found trial counsel ineffective, and directed Petitioner to file an appeal within thirty (30) days. See 9/20/95 Order, Doc. 47, Exhibit "C".
Petitioner filed a notice of appeal nunc pro tunc on September 28, 1995. See Criminal Docket, Doc. 47, Exhibit "A". The Superior Court determined that Petitioner had waived the various ineffective assistance claims contained in the appeal as he had neither presented them in his PCRA petition, nor raised the claims in a supplementary PCRA petition filed on July 10, 1995. See 3/20/96 Opinion at 5, Doc. 47, Exhibit "D". The Superior Court nonetheless analyzed Petitioner's claims, found no ineffective assistance on the part of trial counsel, and held that there was clearly sufficient evidence to support the verdict. Id. at 4, 6-7. The Superior Court affirmed Petitioner's conviction. Id. at 7. It does not appear as though Petitioner's 1995 appeal to the Superior Court asserted the claim that the prosecution withheld exculpatory evidence or that trial counsel rendered ineffective assistance for failing to procure the results of forensic tests on Petitioner's hair samples. The Pennsylvania Supreme Court denied a subsequent petition for allowance of appeal on April 21, 1997. See Criminal Docket, Doc. 47, Exhibit "A".
Petitioner filed a Notice of Appeal to the Superior Court on May 21, 2003. See Criminal Docket, Doc. 47, Exhibit "A". The Commonwealth filed a motion to quash the appeal as untimely. The Superior Court granted the Commonwealth's motion and quashed Petitioner's appeal by an order of November 13, 2003. See 11/13/03 Order, Doc. 47, Exhibit "K".
Petitioner filed a second PCRA petition on June 12, 2003. See Doc. 47, Exhibit "F". For the first time, Petitioner asserted that the Commonwealth failed to turn over the results of the forensic test performed on Petitioner's hair samples. Id. at p. 3. Petitioner raised the allegation as the basis for a claim of ineffective assistance of counsel. In the second PCRA petition, he argued that, "this information was available to both trial and appellate counsel if but for [sic] their gross dereliction of duty it would have been introduced at the time of petitioner's trial." Id. at p. 2.
The court appointed counsel to represent Petitioner in his PCRA on November 21, 2003. See Criminal Docket, Doc. 47, Exhibit "A." Counsel subsequently moved to withdrawal on December 15, 2003, claiming Petitioner's challenge was without merit. Id. The Court of Common Pleas for Dauphin County granted counsel's petition to withdrawal on December 17, 2003. See 12/17/03, Order, Doc. 47, Exhibit "G." The court additionally notified Petitioner that having found no genuine issues concerning any material fact that Petitioner was entitled to post-conviction relief, it intended to dismiss the PCRA petition. Id. The court provided Petitioner with twenty (20) days to respond to the proposed dismissal. Id. Having received no response, the court dismissed Petitioner's June 12, 2003, PCRA petition on January 13, 2004. See 1/13/04 Order, Doc. 47, Exhibit "H." Petitioner subsequently challenged the dismissal in a "Motion for Reinstatement" filed in the Dauphin County Court of Common Pleas on February 18, 2004. See Motion for Reinstatement, Doc. 47, Exhibit "I." On July 20, 2004, the Dauphin County Court of Common Pleas dismissed the filing, holding that the motion was an improperly filed notice of appeal that should have been filed with the Superior Court. See 7/20/04 Order, Doc. 47, Exhibit "K."
On May 31, 2005, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition asserted: 1) denial of effective assistance of trial counsel when the latter elicited damaging testimony from a defense witness; 2) denial of a fair trial; 3) insufficient evidence; 4) newly discovered exculpatory evidence; and, 5) prosecutorial misconduct. See Brief In Support of Petition, Doc. 3. Many of Petitioner's claims concerned the prosecution's failure to share the results of forensic tests performed on Petitioner's hair and evidence found within the taxi cab. Id.
On May 15, 2006, Magistrate Judge Smyser filed a Report and Recommendation (Doc. 52) suggesting that we dismiss the petition as barred by the statute of limitations.
Magistrate Judge Smyser determined that Petitioner, exercising due diligence, could have discovered the results of the forensic tests prior to trial or before filing his first PCRA petition in 1995. The Magistrate Judge reasoned that the one year statute of limitations for habeas claims based upon new evidence would have expired in 1996. Magistrate Judge Smyser determined that any statute of limitations based upon the discovery of new evidence would have run prior to the filing of the present habeas ...