The opinion of the court was delivered by: (mannion, M.J.)
REPORT AND RECOMMENDATION*fn1
On April 28, 2008, the petitioner, through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254, in which he challenged his conviction and sentence imposed in the Court of Common Pleas of York County. (Doc. No. 1). The filing fee having been paid, on June 6, 2008, the petition was given preliminary consideration pursuant to Rule 4 of the Rules Governing Section 2254 Cases, 28 U.S.C.foll. §2254, and it was recommended that the matter be dismissed as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Doc. No. 2). The petitioner, thereafter, filed objections on June 23, 2008. (Doc. No. 3). The district judge did not adopt the recommended disposition and remanded the matter for ". . . resolution of the equitable tolling issue expressed in the Petitioner's objections." (Doc. No. 4).
Upon remand, counsel for the parties were ordered to brief the equitable tolling issue. (Doc. No. 6). On August 20, 2009, counsel for the respondent submitted his brief, (Doc. No. 7), and on September 25, 2009, counsel for the petitioner submitted his reply brief. (Doc No. 10). The matter is now ripe for decision.
By way of relevant background, on or about January 18, 2002, the petitioner was arrested and charged with possession of marijuana. According to the October 24, 2006, decision of the Superior Court of Pennsylvania:
"...York County Police Officers Paul DeHart and M. Muldrow were patrolling in an unmarked vehicle when they observed two men sitting in a green 1993 Volvo sedan handling what they observed to be a clear plastic baggie containing a grassy substance. Believing that the bag contained marijuana, the police officers conducted a vehicle stop. The vehicle was occupied by Bright and his passenger, Rodney Balls. As Bright and Balls exited the vehicle, the officers could smell fresh marijuana coming from the vehicle. A subsequent patdown of the two men uncovered a large plastic bulge on Bright's left hip, which was later revealed to contain 418 grams of marijuana. (Doc. 1, Ex. 4).
Petitioner, through counsel, filed a motion to suppress evidence and received a suppression hearing which was held before the Common Pleas Judge on October 15, 2002. Following the hearing, petitioner's motion to suppress was denied. Id. He was found guilty after a trial by jury and sentenced to a mandatory two to four years of incarceration. The petitioner filed a direct appeal to the Pennsylvania Superior Court, which affirmed the sentence by order dated July 8, 2004*fn2 . (Doc. No. 1, Ex. 1).
On or about July 7, 2005, the petitioner filed a post-conviction petition with the Court of Common Pleas of York County. A hearing was scheduled on the petition, after which an order was entered on September 26, 2005, granting the petition and setting bail at $250,000. (Doc. No. 1, Ex. 2). On the following day, however, the court vacated it's prior order and denied the petitioner's post-conviction petition finding that the issue raised in the petition had previously been litigated and decided adversely to the petitioner. The court directed, however, that the petitioner should be released from the York County Prison. (Doc. No. 1, Ex. 3). The petitioner filed an appeal to the Superior Court, which affirmed the lower court's decision by order dated October 24, 2006.*fn3 (Doc. No. 1, Ex. 4). A petition for allowance of appeal to the Pennsylvania Supreme Court was denied by order dated April 17, 2007. (Doc. No. 1, Ex. 5).
On April 28, 2008, the instant action was filed in which it is argued that the trial court erred as a matter of law and/or abused its discretion in sentencing the petitioner to a term of two to four years for a simple possession of marijuana charge because it: (1) ". . . erred in denying Defendant's PCRA Petition, without ever addressing the issues presented in Defendant's petition, after granting the petition and ordering a new trial, arresting the Defendant and setting new bail of $250,000 for the defendant;" (2) "...erred in denying Defendant's Motion to Suppress evidence;" (3) erred because ". . . Defendant's prior counsels were ineffective in various stages of the case;" and, (4) "ineffective . . . in violation of the Sixth Amendment . . ." (Doc. No. 1).
As noted earlier, the petitioner's habeas petition is governed by the AEDPA. Pursuant to the AEDPA, a habeas petition must be filed in a timely manner. The provision of the AEDPA relevant to the instant matter provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...