The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
This pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254 was initiated in the United States District Court for the Western District of Pennsylvania by David Smith, an inmate presently confined at the State Correctional Institution, Mercer, Pennsylvania (SCI-Mercer).*fn1
The matter was subsequently transferred to this Court.
On April 30, 1996, Petitioner was charged with thirty (30) counts of involuntary deviate sexual intercourse; ten (10) counts of sexual assault; four (4) counts of indecent assault, and one (1) count of corruption of minors. The victim of those alleged offenses was Petitioner's thirteen (13) year old stepdaughter. Smith, proceeding pro se, entered a guilty plea on November 27, 1996, to two (2) counts of involuntary deviate sexual intercourse. See Commonwealth v. Smith, 717 A.2d 1032, 1033 (Pa. Super. 1998). Petitioner was sentenced on December 23, 1996 to an aggregate ten (10) to forty (40) year term of imprisonment. A more detailed recitation of Petitioner's state court criminal proceedings is set forth in a Memorandum issued by this Court on July 17, 2009. (Dkt. Entry # 17.)
Following sentencing, Smith filed post-sentence motions, which were dismissed as untimely. He did not appeal the dismissal of his post-sentence motions. Rather, Smith initiated an action pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C. S. A. § 9541, et seq. on February 12, 2007. An Amended PCRA Petition prepared with the assistance of court-appointed counsel was denied by the Court of Common Pleas on the basis that Petitioner had waived his right to seek relief by failing to file a timely post-sentence motion or direct appeal.
The Pennsylvania Superior Court remanded Smith's PCRA action on July 31, 1998 with instructions that the Court of Common Pleas conduct an evidentiary hearing to determine whether his post-sentence motions should have been regarded as timely by application of the "prisoner mailbox rule" so as to preclude a determination that Petitioner had waived the right to seek PCRA relief. (Dkt. Entry # 13-9.) On July 9, 1999, Pennsylvania's Supreme Court denied a request for allowance of appeal. See Commonwealth v. Smith, 740 A.2d 232 (Pa. 1999)(Table).
Following a hearing, the PCRA court, on December 23, 1999, again concluded that Petitioner's post-sentence motions were untimely and that he had not filed a timely direct appeal, and denied the PCRA petition. (Dkt. Entry # 13-14.) In a June 7, 2001 unpublished decision, the Superior Court concluded that Smith's post-sentence motions were timely by virtue of application of the "prisoner mailbox rule." (Dkt. Entry # 13-17, at 11.) Consequently, Petitioner had not waived the right to seek relief under the PCRA. The case was remanded with instructions that the PCRA court conduct an evidentiary hearing as to his argument that he was denied his right to counsel. (Id.)
The Court of Common Pleas issued an Order on April 17, 2002 which found that Petitioner was not denied his right to counsel. (Dkt. Entry # 13-19.) By decision dated May 14, 2003, the Superior Court affirmed the determination of the Court of Common Pleas. (Dkt. Entry # 13-22.) Smith's petition for allowance of appeal was denied by the Pennsylvania Supreme Court on February 18, 2004. See Commonwealth v. Smith, 847 A. 2d 1284 (Pa. 2004)(Table). A request for reconsideration filed by Petitioner was denied by the Supreme Court on March 24, 2004. (Dkt. Entry # 13-23.)
On April 21, 2005, more than one (1) year after the conclusion of his PCRA proceedings, Smith initiated this habeas corpus action in the United States District Court for the Western District of Pennsylvania.*fn2 His pending pro se petition initially claims entitlement to federal habeas corpus relief on the basis that he was provided with ineffective assistance of counsel by the Bradford County Public Defender's office. The gist of Smith's petition is that the trial court did not assure a knowing and voluntary waiver of counsel before allowing Smith to represent himself in the state court prosecution.
By Memorandum and Order dated July 17, 2009, this Court, exercising the discretion afforded under Day v. McDonough, 547 U.S. 198, 209-11 (2006), and United States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc), directed Petitioner to show cause why his habeas corpus petition should not be dismissed as untimely pursuant to the provisions of Section 2244(d) of Title 28 of the United States Code.*fn3 (Dkt. Entry # 17 at 11.) After being afforded an enlargement of time, Petitioner filed a response on August 27, 2009. (Dkt. Entry # 23.)
Petitioner claims entitlement to equitable tolling on the ground that he "was not given notice of Penna. Supreme Court's decision." (Dkt. Entry # 23 at 1.)Specifically, Smith states that one month after the Supreme Court denied relief he received a letter from his court appointed PCRA counsel advising him of the adverse decision. According to Smith, a copy of the decision was not enclosed. Thereafter, Petitioner indicates that he unsuccessfully attempted to obtain a copy of that decision from both his attorney and the Pennsylvania Supreme Court. Due to his inability to obtain a copy of the decision, Smith indicates that he computed the one ...