The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J.
Before the court is a pro se motion to continue the stay of a petition for writ of habeas corpus filed by Kirk Lucas ("Petitioner"), (Doc. Nos. 12, 13), the response of the respondent thereto, (Doc. No. 16), and Petitioner's "Correction or Modification of the Record" (hereinafter "Correction") (Doc. No. 17). Petitioner is currently incarcerated at the Coal Township State Correctional Institution in Coal Township, Pennsylvania. For the reasons that follow, the motion to continue the stay will be denied.
FACTS AND PROCEDURAL HISTORY:*fn1 On September 23, 2002, Petitioner entered a plea of guilty to the charges of aggravated assault and conspiracy to commit aggravated assault. Petitioner was sentenced to ten (10) to twenty (20) years of imprisonment for aggravated assault and five (5) to twenty (20) years of imprisonment for conspiracy to commit aggravated assault, to be served consecutively.
On direct appeal, the Pennsylvania Superior Court affirmed the judgment of sentence on December 23, 2003. Commonwealth v. Lucas, 844 A.2d 1283 (Pa. Super. 2003) (table). The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on June 25, 2004. Commonwealth v. Lucas, 852 A.2d 312 (Pa. 2004) (table).
On January 12, 2005, Petitioner filed a pro se petition under Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9451, et seq., alleging ineffective assistance of counsel for failing to object to incorrect information contained in the pre-sentencing report and the court's subsequent use of the incorrect information in determining his sentence. See Pet'r Mem. of Law in Support of Writ of Habeas Corpus, at 1-2. On April 13, 2005, a hearing was held on Petitioner's PCRA petition and the PCRA court subsequently ordered that Petitioner be resentenced. On May 5, 2005, Petitioner was resentenced to the same prison term, and the restitution that Petitioner was ordered to pay was increased from $33,000.00 to $106,000.00. Post-sentence motions were not filed.
The Pennsylvania Superior Court affirmed the judgment of sentence on September 12, 2006. Commonwealth v. Lucas, 911 A.2d 182 (Pa. Super. 2006) (table). The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on January 3, 2007. Commonwealth v. Lucas, 916 A.2d 632 (Pa. 2007) (table).
On June 15, 2007, Petitioner filed a pro se state habeas corpus petition asserting, in part, that defense counsel was ineffective for failing to file a post-sentence motion regarding Petitioner's May 25, 2005, sentencing.*fn2
While his state appeal was pending, Petitioner filed the instant petition for a federal writ of habeas corpus on August 20, 2007, claiming:
1. the sentencing court improperly deviated from the Pennsylvania State Sentencing Guidelines;
2. the sentencing court denied his Fourth Amendment right to due process when it enhanced his sentence upon resentencing;
3. the sentencing court denied his Fourth Amendment right to due process by not lowering his sentence upon resentencing; and
4. the sentencing court denied his Fourth Amendment right to due process when it failed to order a new presentence report before his resentencing hearing.
On September 3, 2007, Petitioner also filed a "Petition For Abeyance/Stay of Habeas Corpus Pending Determination of State Habeas Corpus Proceedings" in order to "protect his [un]exhausted meritorious federal claims so that an equitable tolling problem would not occur at the exhausting of state proceedings." See Pet'r Petition for Abeyance/Stay, at 1. Respondents did not object to Petitioner's motion to stay. (Doc. No. 5). On January 28, 2008, the Honorable Berle M. Schiller, District Court Judge for the Eastern District of Pennsylvania, approved the Report and Recommendation of the Honorable Peter B. Scuderi, United States Magistrate Judge for the Eastern District of Pennsylvania, recommending that the petition be stayed. (Doc. Nos. 7, 9).
Meanwhile, in state court, appointed counsel filed an amended petition for collateral relief on October 19, 2007, and an evidentiary hearing was held on November 14, 2007. On June 6, 2008, the PCRA court found that Petitioner's attorney for resentencing had been ineffective for failing to properly preserve Petitioner's objections to his resentencing. Petitioner was given 10 days to file a post-sentence motion to object to the resentencing. On June 9, 2008, ...