The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Magistrate Judge Blewitt's Report and Recommendation (Doc. 8) and Petitioner Gregory Stephen's Objections to the Magistrate Judge's Report and Recommendation. (Doc. 11.) The Magistrate Judge has recommended that the Court consolidate the Petitioner's two identical petitions for writ of habeas corpus, civil numbers 07-0412 and 07-0706, and that case number 07-0706 be closed. Magistrate Judge Blewitt also recommended that the consolidated Petition for Writ of Habeas Corpus be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1(A). Finally, Magistrate Judge Blewitt has recommended that Petitioner's Motion for Appointment of Counsel filed in Case No. 07-706 be dismissed as moot. For the reasons set forth below, the Court not adopt the Magistrate Judge's Report and Recommendation at this time, but allow Petitioner to submit his mental health history to the Magistrate Judge for review to determine if Petitioner's habeas corpus claim is timely.
In its September 12, 1989 Memorandum affirming the Dauphin County Court of Common Plea's (CCP) Order denying Petitioner's PCHA Petition, the Pennsylvania Superior Court appropriately presented the facts as follows:
On Monday, March 21, 1983, at approximately 8:19 p.m., unformed police officers of the Harrisburg Police Department responded to 1322 Susquehanna Street, Harrisburg, Dauphin County, Pennsylvania. Upon their arrival, the police observed the body of a white male lying face down on the living room floor. The individual was nude, but covered with a gray quilt.
The victim was lying on top of a purple bedspread with two pillows on each side of his head. A large pool of blood had formed under the victim's face. Blue jeans, a shirt, and underclothing were found folded on a nearby sofa. Alsofound in the living room was an open jar of Vaseline, a pack of Marlboro cigarettes, a kerosene heater, several beer cans, and a flesh colored dildo. The telephone had also been disconnected.
The police learned that certain items of personal property of the victim were missing. These items had been in the house the last time the victim had been seen alive. There were no apparent signs of a struggle.
The victim was killed with the use of a blunt object. Six wounds to the victim's head caused severe lacerations, and the wound that was the cause of death separated the upper and lower portions of the left ear, and was continuos with a fracture at the base of the skull. Expert testimony established that the victim was lying face down on the floor, at the time the fatal blow was struck.
Through investigation, police discovered that a black male known as "[M]idnight" had been the last person to be in the company of the victim. [Appellant is known as "Midnight".] On March 22, 1983, at approximately 3:00 p.m., Appellant was brought to police headquarters for questioning. He was advised of his constitutional rights and subsequently signed a written waiver. Appellant first told the police that he had been at the victim's house on March 20, 1983, but when he left everything was "OK". However, Appellant later confessed to removing the victim's personal property and killing him.
Appellant had initially met the victim two weeks prior to the homicide. Appellant did not have any money and was without a job when he had first come into contact with the victim. He engaged the victim with the purpose of obtaining money and agreed to engage in a homosexual encounter to that end.
On the night of the killing, Appellant had gone to the victim's house. At the time of this second encounter, Appellant was again without any money...Appellant told police that he wanted to get some clothes in order to impress his girlfriend in Baltimore. Although the police recovered the victim's personal property, Appellant sold the items and used the money from the sales to purchase clothing. Finally, Appellant admitted removing the victim's wallet, but denied going through it. Subsequently, appellant was charged with murder.
Following a trial by jury, appellant was found guilty of second degree murder. Post-trial motions were filed and denied, and appellant was sentenced to life imprisonment. On direct appeal, judgment of sentence was affirmed by this Court, and our Supreme Court denied appellant's petition for allowance of appeal. On March 15, 1988, appellant filed a pro se PCHA petition. On July 27, 1988, new counsel filed a supplemental PCHA petition which was denied by the trial court without [a] hearing. (Doc. 7 Ex. 2 at 2, 3.)
Petitioner filed a collateral appeal, which was denied by the CCP on October 31, 1988. On September 21, 1989, the Pennsylvania Superior Court affirmed the CCP's denial of Petitioner's PCHA conviction. (Doc. 7 Ex. 2.) A Petition for Allowance of Appeal regarding the denial of his PCHA Petition filed with the Pennsylvania Supreme Court was denied on May 8, 1990. (Doc. 1 at 7.) For over fourteen years, Petitioner filed no more appeals regarding his second degree murder conviction and life sentence. On September 16, 2004, Petitioner filed a second collateral appeal by way of a PCRA Petition with the CCP. (Doc. 7 Ex. 4.) On October 3, 2004 the CCP appointed counsel with respect to the PCRA Petition, and his counsel subsequently filed a no merit letter with the court. (Doc. 1 at 7.)
On March 25, 2005 the Commonwealth responded to Petitioner's PCRA Petition and argued Petitioner was ineligible for relief because his Petition was untimely. (Doc. 7 Ex. 5.) Petitioner appealed this judgment and on October 6, 2005, the Pennsylvania Superior Court affirmed the dismissal of his PCRA Petition by the CCP. (Doc 1 at 7.) On May 1, 2006, the Pennsylvania Supreme Court denied a Petition for Allowance of Appeal. (Doc. 1 at 8.) Petitioner filed the instant federal habeas petition ...