The opinion of the court was delivered by: Paul S. Diamond, J.
Petitioner Anibal Roman objects to the Magistrate's recommendation that I dismiss his habeas corpus petition and deny his application for a stay and abeyance. I will overrule Petitioner's objections and adopt the Magistrate's Report and Recommendation.
In October 2002, Petitioner was convicted following a bench trial in Pennsylvania state court of first degree murder, violating the Uniform Firearms Act, and possessing an instrument of crime. The trial evidence showed that Petitioner shot and killed his ex-girlfriend's boyfriend in January 2001. Included in the Commonwealth's evidence was Petitioner's confession, a sweatshirt found at the crime scene which was stained with Petitioner's blood, and SEPTA transpass data indicating that Petitioner had traveled from a subway station near the crime scene thirteen minutes after the shooting. Petitioner was sentenced to life imprisonment. See Commonwealth v. Roman, No. 0105-0354 (Ct. Com. Pl. Jan. 28, 2003).
Petitioner timely appealed his judgment of sentence to the Pennsylvania Superior Court, which affirmed. Commonwealth v. Roman, 839 A.2d 1161 (Pa. Super. Ct. 2003) (table). The Pennsylvania Supreme Court denied allocatur. Commonwealth v. Roman, 853 A.2d 361 (Pa. 2004) (table). Petitioner timely filed a petition under Pennsylvania's Post Conviction Relief Act, which the PCRA court dismissed. The Superior Court affirmed on June 25, 2007, and the Pennsylvania Supreme Court again denied allocatur. Commonwealth v. Roman, 931 A.2d 52 (Pa. Super. Ct. 2007) (table); Commonwealth v. Roman, 944 A.2d 757 (Pa. 2008) (table).
On February 14, 2008, Petitioner filed the instant pro se petition for habeas relief. 28 U.S.C. § 2254; Doc. No. 1. Petitioner also filed an application for stay and abeyance, asking this Court to stay the habeas proceeding until Petitioner exhausts certain claims in state court. (Doc. No. 8.) On April 9, 2008, I referred the case to a Magistrate Judge for a Report and Recommendation. (Doc. No. 4.) The Magistrate recommended that I deny Petitioner's application for a stay and dismiss the § 2254 petition. (Doc. No. 21.) On November 17, 2008, Petitioner filed pro se objections to the Report, and the Commonwealth responded on November 24, 2008. (Doc. Nos. 22, 24.)
The extent of my review of the Magistrate's Report is committed to my discretion. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). I may "accept, reject or modify, in whole or in part, the [M]agistrate's findings or recommendations." Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa. 2001). I must review de novo, however, those portions of the Report to which specific objection is made. 28 U.S.C. § 636(b)(1)(C); see generally Goney v. Clark, 749 F.2d at 6-7.
Petitioner raises five claims: (1) the trial court erred in denying Petitioner's motion to suppress his confession; (2) the prosecutor committed misconduct by using allegedly perjured testimony; (3) Petitioner is entitled to a new trial because one of the witnesses, Petitioner's ex-girlfriend, recanted aspects of her testimony; (4) the prosecutor committed a Brady violation by allegedly withholding a crime scene video; and (5) the evidence presented at trial was insufficient to support the verdict. (Doc. Nos. 1, 9.) In his application for a stay, Petitioner also claimed that counsel was ineffective for failing to call a medical witness. (Doc. No. 8 at 1.)
A. Application for Stay and Abeyance
Generally, a federal habeas petitioner must present his claims to the state court before a federal court will review them. 28 U.S.C. § 2254(b)(1); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). Petitioner asks for a stay of his § 2254 petition because it includes three unexhausted claims. Petitioner thus seeks an opportunity to exhaust these claims before I decide his § 2254 petition.
The Magistrate concluded that if Petitioner filed an additional PCRA petition in Pennsylvania state court, it would be untimely. I agree. A PCRA petition must be filed within one year of a final judgment. 42 Pa. Cons. Stat. Ann. § 9545(b)(1). Petitioner's judgment of sentence became final on September 15, 2004, over four years ago. See 42 Pa. Cons. Stat. Ann. § 9545(b)(3). Although there are narrow exceptions to the one year limitation, any new claim must be brought within sixty days of the date the claim could have first been brought. 42 Pa. Cons. Stat. Ann. § 9545(b)(2); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000) ("[W]hen a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner's PCRA claims.").
Petitioner has offered no reason why he could not have brought these unexhausted claims in a timely fashion. There is no indication that Petitioner has filed a second PCRA petition. In these circumstances, I agree that a stay of the federal habeas proceedings is not appropriate. See Rhines v. Weber, 544 U.S. 269, 277 (2005) ("[S]tay and abeyance should be available only in limited circumstances."). Accordingly, I will adopt the Magistrate's recommendation that I ...