The opinion of the court was delivered by: Judge Vanaskie
On or about December 31, 2007, Timothy W. Fletcher, an inmate presently confined at the State Correctional Institution, Somerset, Pennsylvania, proceeding pro se, brought this habeas corpus proceeding*fn1 pursuant to 28 U.S.C. § 2254.*fn2 Fletcher challenges the validity of a "no contest" plea to sexual assault which he entered in the Monroe County Court of Common Pleas in 2001.*fn3 Petitioner claims entitlement to federal habeas corpus relief on the grounds that: (1) his plea was unlawfully induced or involuntarily made; (2) his conviction was obtained through use of a coerced confession because he was subjected to several hours of intense questioning; (3) the Commonwealth failed to disclose exculpatory evidence; and (4) he received ineffective legal representation as a result of trial counsel's alleged failure to conduct an adequate investigation.
Petitioner was sentenced on December 10, 2001, to a period of incarceration of not less than five (5) years and no more than ten (10) years. His conviction became final for purposes of the limitations period for seeking habeas corpus relief no later than February 9, 2002, the latest date by which Petitioner could have filed a direct appeal.
Pursuant to 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), this Court, by Order dated October 31, 2008, directed Respondent to address the timeliness of this habeas challenge to the 2001 conviction. (Dkt. Entry # 10.) The Order also afforded Petitioner an opportunity to submit a reply addressing the timeliness issue. Both parties have submitted briefs on the issue.
For the reasons that follow, all claims, other than the Brady claims based upon after-discovered evidence, will be dismissed as untimely. Counsel will be appointed to represent Petitioner, and the parties will be directed to address the timeliness and exhaustion of state court remedies issues as well as the merits of the Brady claim.
Petitioner entered his no contest plea on September 5, 2001. (Dkt. Entry # 1, ¶ 2(a).) He was sentenced on December 10, 2001. His post-sentence reconsideration motion was denied during early January, 2002. Under Pennsylvania state law, Fletcher had thirty (30) days after denial of his post-sentence reconsideration motion within which to file a direct appeal. See Pa. R. Crim. P. 720(A)(3). He did not take a direct appeal. Hence, Petitioner's conviction became final and the habeas limitations period commenced to run under § 2244(d) in February, 2002, after Fletcher failed to initiate a direct appeal.
On September 21, 2005, nearly four years after his conviction became final, Petitioner sought relief pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C. S. A. § 9541, et seq. On February 16, 2006, Fletcher's state court petition was dismissed as untimely. (Dkt. Entry # 1, ¶ 11(a)(6).) On March 7, 2006, a pro se appeal was filed with the Pennsylvania Superior Court. Appellate counsel was appointed for Fletcher on March 14, 2006.
Fletcher states that in April of 2006, while his appeal was still pending, he obtained a copy of a DNA report, which he describes as exculpatory. The DNA report, dated November 7, 2001 (post plea but pre-sentencing), concerned the testing performed on a towel which allegedly had been used to wipe the victim's blood from her body.*fn4 The report, a copy of which has been submitted by Fletcher, appears to conclude that the blood on the towel belonged to Petitioner, not the victim, and that semen on the towel did not belong to Fletcher.
Based upon this evidence, Petitioner brought a second PCRA action which sought relief on the ground that the Commonwealth had failed to disclose favorable evidence as mandated under Brady v. Maryland, 373 U.S. 83 (1963)(hereinafter Brady claim). (Dkt. Entry # 11(b)(3).) The second PCRA petition was dismissed by the Court of Common Pleas on June 6, 2006 for lack of jurisdiction because Fletcher's appeal of the dismissal of his first PCRA action was still pending. (Dkt. Entry # 1,¶ 11(b)(5).
Petitioner's counsel then filed a motion with the Superior Court (with respect to his already pending appeal), requesting a remand to the PCRA court for an evidentiary hearing based upon the after-discovered evidence. By Order dated September 1, 2006, the Superior Court denied the motion for remand, but permitted Petitioner to reiterate his request for remand in his appellate brief.
The Superior Court affirmed the decision of the PCRA court dismissing the first PCRA petition as untimely in an opinion filed on February 8, 2007. See Commonwealth v. Fletcher, 924 A.2d 691 (Pa. Super. 2007)(Table).*fn5 The Superior Court concluded that all issues raised by Petitioner had been waived pursuant to Pa. R. A. P. 1925(b) due to his untimely filing of a Rule 1925(b) statement. (Dkt. Entry # 15 at 4.) It further noted that while Fletcher had been permitted to reiterate in his brief a request for remand to the PCRA court for an evidentiary hearing, that determination did not shield the Brady ...