The opinion of the court was delivered by: Pollak, J.
Percy St. George, a Pennsylvania prisoner, petitions for a writ of habeas corpus. United States Magistrate Judge Faith M. Angell has recommended that the petition be dismissed without an evidentiary hearing and that no certificate of appealability ("COA") be issued. See Report and Recommendation of Magistrate Judge Faith M. Angell (Doc. No. 72, filed Oct. 10, 2008). Petitioner Percy St. George has filed four separate documents objecting to Magistrate Judge Angell's report and recommendation ("R&R"). See Doc. Nos. 74-77.
For the reasons that follow, I do not adopt the R&R. I do, however, concur in the major pronouncements in the R&R. Specifically, I agree with Judge Angell's twin determinations that (1) St. George's habeas petition was timely filed (although, as explained in footnote 6 infra, I arrive at this conclusion via a different path), and (2) petitioner "has failed to state a claim which would entitle him to federal habeas corpus relief." See R&R at 11. However I am not persuaded that, on the present elaborate and ill-defined record, the prudent course is to dismiss the petition. I conclude that it may be that there lurks in this record a cognizable claim -- but one which a pro se petitioner has not been able adequately to bring into focus -- of ineffective assistance of counsel: namely, that trial counsel was unconstitutionally ineffective in not filing a direct appeal within thirty (30) days of the imposition of petitioner's sentence. Therefore I will direct the Clerk to arrange for the appointment of an attorney to represent the petitioner and to file, as soon as possible, an amended habeas petition on petitioner's behalf. The case is to be remanded to Judge Angell for consideration of the forthcoming amended petition.
I. FACTUAL AND PROCEDURAL HISTORY
Following a jury trial at the Philadelphia Criminal Justice Center ("CJC") in October, 1997, petitioner was convicted of kidnaping and other crimes. He was sentenced, on December 3, 1997, to a 15-30 year term of incarceration, which he is currently serving. Petitioner's counsel at trial and sentencing, Robert Dixon, failed to file a notice of appeal or any other post-verdict motions on petitioner's behalf. According to petitioner, he requested that Dixon file an appeal.*fn1
Petitioner filed a pro se notice of appeal on February 25, 1998. Because his pro se notice of appeal was filed later than thirty days after his sentence was entered, petitioner's notice of appeal was untimely. See Pa. R. App. Proc. 903(a).
Petitioner's pro se notice of appeal was returned to him. The returned notice of appeal was unfiled and had a notation stating that the appeal was premature. The docket number on the returned notice of appeal had been crossed out and replaced with the docket number of an unrelated case, still pending trial, in which petitioner was also a defendant. Ironically, it seems that the Clerk of Courts for the Court of Common Pleas, to whom petitioner properly mailed his notice of appeal, had erroneously concluded that petitioner's tardy notice of appeal was premature because the Clerk believed, incorrectly, that petitioner's notice of appeal had been filed in petitioner's other case.
According to petitioner, he then corresponded frequently with the Clerk's office about his appeal.*fn2 Petitioner claims that, during the course of this lengthy correspondence, he was never told that his appeal had been filed late. In his objections to the R&R, petitioner has produced some of this correspondence, including, inter alia, 1) a letter petitioner received from the Clerk of Quarter Sessions's Prison Liaison Unit on March 11, 1998, informing petitioner that his correspondence had been forwarded to the Appeals Unit; 2) a letter that petitioner sent to the Prison Liaison Unit on January 13, 1999, stating that he had heard nothing since his case had been referred to the Appeals Unit, and inquiring as to its progress; and 3) a letter petitioner received from the Criminal Appeal / Post Trial Unit on June 30, 1999, incorrectly informing petitioner that an appeal had already been filed on his behalf by James Divergilis, and urging petitioner to contact Divergilis.*fn3
On June 24, 1999, petitioner filed an application for leave to file an appeal nunc pro tunc. After the court failed to act on that application, St. George filed a petition for a writ of mandamus with the Pennsylvania Superior Court. The Superior Court denied this petition on February 29, 2000.
Then, on April 3, 2000, petitioner filed his initial petition for a writ of habeas corpus with this court. On August 15, 2002, this court approved an R&R from Magistrate Judge Charles B. Smith which recommend that St. George be granted leave to amend his petition to address the merits of his claim that his trial counsel had been ineffective for failing to file an appeal. On September 13, 2002, petitioner filed an amended petition. This amended petition, however, failed to properly allege ineffective assistance of counsel ("IAC") by trial counsel; instead, it alleged IAC by trial counsel in an entirely different case, one in which petitioner's counsel did in fact file a notice of appeal.
In the meantime, the respondents forwarded petitioner's June 24, 1999 motion for leave to appeal nunc pro tunc to the Commonwealth's PCRA unit, where it was treated as a motion for post-trial relief. Petitioner was appointed PCRA counsel, and that counsel filed an amended PCRA application on behalf of petitioner. On December 30, 2002, having learned that petitioner's case would be heard by the state PCRA unit, I placed petitioner's habeas case in suspense but kept the case on my docket in case "Mr. St. George [did] not obtain his desired outcome at the state level and wish[ed] to again seek relief here." See Doc. No. 44.
Petitioner's amended PCRA petition sought reinstatement of his original appellate rights, which the PCRA court granted on April 29, 2004. On April 11, 2006, however, the Superior Court overturned the PCRA court's decision on the grounds that petitioner's PCRA petition had been untimely filed. On October 23, 2006, petitioner moved this court to reopen his case. I granted that request on September 21, 2007, and referred the case to Judge Angell.
A. Equitable Tolling of the Statute of ...