The opinion of the court was delivered by: Judge Caputo
Presently before the Court are Magistrate Judge Blewitt's Report and Recommendation of February 27, 2008 (Doc. 26) and Petitioner Gregory Stephen's Objections to the Magistrate Judge's Report and Recommendation. (Doc. 27.) Magistrate Judge Blewitt recommended that Petitioner's Petition for Writ of Habeas Corpus be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1(A). Magistrate Judge Blewitt has also recommended that Petitioner's Motion for Appointment of Counsel filed be dismissed as moot. (Doc. 13.) For the reasons set forth below, the Court will adopt the Magistrate Judge's Report and Recommendation, and dismiss the Petition for a Writ of Habeas Corpus (Doc. 1) as untimely, and dismiss the Petitioner's motion for appointment of counsel as moot. (Doc. 13.) The Court will also dismiss Petitioner's motion for mental health records as moot, as the Court has received Petitioner's mental health records from Deputy Attorney General Patrick S. Cawley for in camera review. (Doc. 14.)
Following a jury trial, Petitioner Stephens was found guilty of second-degree murder and sentenced to life imprisonment. Petitioner filed a collateral appeal, which was denied by the Court of Common Pleas on October 31, 1988. On direct appeal 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 (14) 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 Court of Common Pleas 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 Court of Common Pleas. (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 with the Eastern District of Pennsylvania on January 23, 2007, and with the Middle District of Pennsylvania on March 5, 2007. These actions were consolidated by the Court's Order on November 21, 2007. (Doc. 12.)
On April 11, 2007, Petitioner filed a motion to appoint counsel. (Doc. 13.) On May 1, 2007, Magistrate Judge Blewitt filed a Report and Recommendation (Doc. 8) recommending that the Petition be dismissed as untimely. On November 21, 2007, the Court recommitted the case to Magistrate Judge Blewitt to consider Petitioner's mental health records to determine whether Petitioner's Petition was subject to equitable tolling. (Doc. 12.)On December 5, 2007, Petitioner submitted a motion for mental health records. (Doc. 14.) The present Report and Recommendation was entered by Magistrate Judge Blewitt on February 27, 2008. (Doc. 26.) Petitioner Gregory Stephens timely filed Objections to the Magistrate Judge's Report and Recommendation on March 6, 2008. (Doc. 27.) No response to these Objections has been filed.
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
I. The Petition for Writ of Habeas Corpus*fn1
Petitioner challenges his 1983 second-degree murder conviction in the Dauphin County Court of Common Pleas ("CCP") on the following grounds: (1) insufficient evidence to prove guilt beyond a reasonable doubt; and (2) ineffective assistance of counsel in that counsel failed to raise a claim of constitutional violations of a right to a fair and impartial jury. Petitioner contends that the Commonwealth used improper jury practices by discriminating against African-American jurors in its exercise of peremptory jury challenges during voir dire. As to the first count, Petitioner states that as he was only charged with murder generally, and not charged with any felony, therefore, the jury could not have returned a verdict of second-degree murder, i.e., felony murder. Therefore, Petitioner claims he is actually innocent of second-degree murder. As to the second count, Petitioner claims that he was denied his Sixth Amendment right to a fair and impartial jury when the Commonwealth used its peremptory challenges to strike six (6) of only seven (7) potential African-American jurors on his jury panel solely based on their race, thus leaving only one African-American juror, including alternates. Because his trial and appellate counsel failed to object at trial, and failed to raise this claim on appeal, Petitioner asserts the he had ineffective assistance of counsel.
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") which modified the procedures for habeas corpus proceedings in federal court. AEDPA, Pub. L. No. 104-132, 110 Stat. 1214. The habeas corpus amendments impose one-year statute of limitations for Section 2254 habeas petitions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations begins to run according to one of the four potential starting points. The relevant starting point in this case, 28 U.S.C. § 2244(d) provides in part: "(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."28 U.S.C. §2244(d)(1)(A); see also Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003). Review of the habeas petition reveals that on July 19, 1985, the Pennsylvania Superior Court affirmed the Petitioner's conviction. (Doc. 1 at 5, 6.) A Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied on May 20, 1986. (Id.) Petitioner did not file a Petition for Writ of Certiorari with the United States Supreme Court. (Id. at 6.) Petitioner filed a collateral appeal with the Dauphin County Court of Common Pleas ("CCP") through a Post Conviction Hearing Act ("PCHA") Petition, which was denied on October 31, 1988. (Doc. 1 at 7.) The Pennsylvania Supreme Court affirmed the CCP's denial of Petitioner's PCHA Petition. (Doc. 1 at 7.) The record reveals that for over fourteen (14) years Petitioner filed no more appeals regarding the second-degree murder conviction and life sentence until September 16, 2004.
Accordingly, Petitioner's judgment of conviction became final ninety (90) days after the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal with respect to this direct appeal of his conviction, on or about August 20, 1986. As this final conviction date was prior to the enactment of the AEDPA, the applicable starting date for the statute of limitations is the date that the AEDPA became effective, on April 23, 2006. Petitioner was required to file his federal habeas petition within the one year grace period beginning on that date; therefore, his petition must have been filed on or beforeApril 23, 1997. See 28 U.S.C. § 2244(d)(1).Petitioner had no properly filed state court appeals, direct or collateral, pending at any time between April 23, 1996 and April 23, 1997. ...