The opinion of the court was delivered by: Paul S. Diamond, J.
Petitioner Dante Peace objects to the Magistrate Judge's recommendation that I dismiss his habeas corpus petition. 28 U.S.C. § 2254. I will overrule Petitioner's objections and adopt the Magistrate's Report and Recommendation.
On April 14, 2005, a Pennsylvania state court jury convicted Petitioner of possessing an instrument of crime, carrying a firearm without a license, altering or obliterating a firearm's marks of identification, and making terroristic threats. On June 20, 2005, the court sentenced Petitioner to 93-264 months imprisonment, consisting of consecutive sentences of 21-60 months for possessing an instrument of crime, 25-60 months for carrying a firearm without a license, 35-120 months for altering or obliterating a firearm's marks of identification, and 12-24 months for making terroristic threats. (Tr. June 20, 2005 at 11-12.) On July 18, 2006, the Superior Court affirmed Petitioner's conviction and sentence. Commonwealth v. Peace, No. 2008 EDA 2005 (Pa. Super. July 18, 2006). The Pennsylvania Supreme Court denied allocatur on December 6, 2006. Commonwealth v. Peace, 634 MAL 2006 (Pa. Dec. 6, 2006). While his direct appeal was pending, Petitioner filed a petition under Pennsylvania's Post Conviction Relief Act, which the trial court dismissed because of Petitioner's pending appeal. On January 21, 2007, Peace filed another PCRA petition, in which he complained that "all [his] time is running consecutive." Commonwealth v. Peace, No. 4717-2004, PCRA Petition (Jan. 21, 2007). On April 17, 2007, the PCRA court permitted Petitioner's appointed counsel to withdraw after counsel filed a "no merit" letter. Id., Order Granting Counsel's Application to Withdraw and Notice of Intent to Dismiss (Apr. 17, 2007). On May 22, 2007, the PCRA court dismissed the petition, finding that the sentence did not "exceed the lawful maximum." Id., Order Dismissing Petition (May 22, 2007). Petitioner did not appeal this decision.
On August 14, 2008, Peace filed the instant pro se petition. (Doc. No. 1.) On December 23, 2008, the Magistrate Judge recommended that I deny the petition because it was not timely filed and Petitioner was not entitled to equitable tolling. (Doc. No. 10.) Petitioner filed pro se objections to the Report, to which the Commonwealth responded, and Petitioner filed a reply. (Doc. Nos. 11, 13, 14.)
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, 749 F.2d at 6-7.
Construing Petititoner's objections liberally, he appears to argue:
(1) the Magistrate Judge misstated his claim on direct appeal to the Pennsylvania Superior Court; (2) the Magistrate Judge misstated the basis for his claim of innocence; (3) his actual innocence is a reason to excuse his untimely petition; and (4) his conviction is a miscarriage of justice because there is no evidence that he obliterated the serial number on the gun at issue.
A. Petitioner's Claim on Appeal to the Pennsylvania Superior Court
Petitioner objects that the Magistrate Judge misstated his argument on appeal to the Pennsylvania Superior Court. In the Report and Recommendation, the Magistrate Judge characterized Peace's claim on appeal as a violation of the discovery rules: that the Commonwealth failed to disclose to Petitioner before trial that a witness would testify that the gun at issue was registered to Petitioner's girlfriend. Petitioner states that he argued instead that there was no record evidence to support this testimony. Respondents agree with Petitioner's characterization of his appeal. Accordingly, I will not adopt this statement in the Report and Recommendation. This does not, however, affect the merits of Petitioner's habeas claims.
B. Timeliness and Equitable Tolling
The Magistrate Judge determined that the habeas petition was not timely filed, and Petitioner does not dispute this conclusion. Because the time for appealing the dismissal of Petitioner's PCRA petition in the Pennsylvania Superior Court expired on June 21, 2007, Petitioner had until June 21, 2008 -- one year later -- to file his § 2254 petition. See 28 U.S.C. ...