The opinion of the court was delivered by: Hay, Magistrate Judge
On July 18, 2002, a jury convicted Roger Karnes, ("Petitioner") of sexually abusing one female child in the household, who was apparently the daughter of Petitioner's girlfriend. The sentence was imposed on Petitioner in open court on February 24, 2003. More than five years later, Petitioner filed a Section 2254 habeas petition in this court in order to challenge that conviction and sentence. Because the petition is time barred, as Respondents contend, the petition should be dismissed. Alternatively, because Petitioner has procedurally defaulted all of his claims based upon his failure to file a direct appeal to the Superior Court from his conviction and sentence, and upon his failure to file an appeal to the Superior Court from the denial of his first PCRA petition, and based upon the fact that his second PCRA petition was untimely, the current habeas petition should be dismissed.
A. Factual and Procedural History
On July 18, 2002, while represented by the Public Defender's Office, a jury convicted Petitioner of one count of Involuntary Deviate Sexual Intercourse with a person less than 13 years old; one count of Aggravated Indecent Assault, and one count of Corruption of Minors.*fn2
On February 24, 2003, Petitioner appeared in court and the judge imposed the sentence on him. Dkt. [7-4] at 17 n. 2. However, it was not until April 8, 2003 that the actual physical order memorializing the sentence was signed and not until April 9, 2003 that the judgment sentence order was filed on the docket. Id. No appeal was filed from that order.
According to the State Court records, Petitioner executed a pro se PCRA petition on August 25, 2003, and thereafter new counsel in the person of Attorney George Freed was appointed to represent Petitioner in the PCRA proceedings. On October 3, 2003, a counseled amended PCRA petition was filed. On January 8, 2004, a PCRA evidentiary hearing was held. Dkt. [7-3] at 2. On May 21, 2004, the PCRA Trial Court filed its opinion and order denying the petition. No appeal was taken.
Nearly ten months later, on March 18, 2005, Petitioner executed what he styled as a "Motion for Appointment of New Counsel, or to proceed pro se, nunc pro tunc . . ." State Court Record at Dkt. No. 43. In that pro se motion, Petitioner appeared to have alleged that he requested his Public Defender trial court counsel to file an appeal but the Public Defender did not. In that pro se motion, Petitioner also appeared to have alleged that Petitioner requested his PCRA counsel to file an appeal but that PCRA counsel did not. At some point after the March 18, 2005 filing of the pro se motion for appointment of counsel, etc., new counsel in the person of Attorney Acker was appointed to represent Petitioner to prosecute the motion. As a consequence of an agreement between Petitioner and the District Attorney, with the concurrence of the trial court, Petitioner was permitted to file a post-sentence motion nunc pro tunc, challenging his judgment of sentence. Dkt. [7-3] at 2. Hence, on January, 18, 2006, Petitioner filed a post-sentence motion, raising six issues. The trial Court denied the post sentence motion on May 18, 2006. Dkt. [7-2] at 30 to 42. Petitioner, through counsel Acker, then filed a timely appeal to the Superior Court.
On appeal, the Superior Court treated the pro se "Motion for Appointment of New Counsel, or to proceed pro se, nunc pro tunc . . ." which Petitioner had filed in the trial court on March 18, 2005, as a second PCRA petition, given that Petitioner had already filed a first PCRA motion that was un-appealed, and given that, according to the Superior Court, there is no post conviction free-standing motion for nunc pro tunc relief known to Pennsylvania State law other than a PCRA petition seeking such relief. The Superior Court then held that the pro se motion, treated as a second PCRA petition, was untimely filed and hence, the Superior Court quashed the appeal as untimely filed. The Superior Court treated the appeal as being an appeal, not from the trial court's disposition of Petitioner's nunc pro tunc post sentence motions but, rather, as an untimely appeal from the judgment of sentence that had been imposed in 2003. The reasoning apparently being that because the pro se motion, if properly treated by the PCRA trial court as a second PCRA petition which was untimely filed, would have divested the PCRA trial court of jurisdiction over the petition (the PCRA time limits are jurisdictional under Pennsylvania law) and so the PCRA trial court could not have reinstated Petitioner's post sentence motion rights nunc pro tunc. Without such reinstatement of any rights nunc pro tunc, any appeal from the judgment of sentence, would be untimely filed and hence quashed. The Superior Court filed its opinion on May 25, 2007.
Petitioner through counsel filed a timely Petition for Allowance of Appeal ("PAA") in the Pennsylvania State Supreme Court, which was denied on November 27, 2007.
Petitioner did not execute his current Section 2254 habeas petition until April 4, 2008. Dkt. . Petitioner also filed a brief in support of his habeas petition. Dkt. . The Respondents filed their answer, Dkt. , and a brief in support, Dkt. . In their response and brief, the Respondents raise, inter alia, the statute of limitations and procedural default as defenses.
B. Applicable Legal Standards
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) (AEDPA), which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254, was effective April 24, 1996. Because petitioner's habeas petition was filed in the year 2008, AEDPA is applicable to this case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000) ("Since Werts filed his habeas petition on March 18, 1997, after the effective date of the AEDPA, we ...