The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation ("R & R") of August 13, 2009 (Doc. 12) and Petitioner's Objections to the Magistrate Judge's R & R (Doc. 17). Magistrate Judge Blewitt recommended that Petitioner's petition for a writ of habeas corpus be dismissed because it was not timely filed and that Petitioner's motion to stay be denied as moot. (Doc. 12.) This Court will adopt Judge Blewitt's R & R for the reasons discussed more fully below.
On February 11, 1998, Petitioner David Elton Mandeville was convicted of first degree murder, robbery, burglary, theft by unlawful taking or disposition, and criminal conspiracy in the Wayne County Court of Common Pleas; Mandeville was sentenced to life imprisonment on March 19, 1998. (Doc. 12.) Petitioner filed a post-sentence motion, which the trial court denied on April 2, 1998. (Doc. 6, ¶ 1.) On May 1, 1998, Petitioner appealed his conviction to the Pennsylvania Superior Court; this appeal was denied on August 3, 1999. (Doc 6, ¶¶ 1-2). Petitioner filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on September 2, 1999 (Docs. 12, 17), which was denied on February 4, 2000. (Doc. 6, ¶ 3.)
On January 19, 2001, Mandeville filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA") in the Wayne County Court of Common Pleas. (Doc. 6, ¶ 5). The Court of Common Pleas vacated the sentence imposed for theft by unlawful taking or disposition, but denied the remainder of the PCRA petition. (Doc. 6, Attach. 5.) Petitioner appealed this denial to the Pennsylvania Superior Court on January 2, 2007. (Doc. 6, ¶ 6). On October 18, 2007, the Superior Court affirmed the order of the Court of Common Pleas. (Doc. 6, Attach. 6.) In its opinion, the Superior Court raised the issue of the timeliness Petitioner's PCRA petition sua sponte and held the PCRA petition was "patently untimely." The Superior Court's analysis of the timing stated:
Mandeville's judgment of sentence became final once this Court affirmed the judgment of sentence on August 3, 1999, and the period for filing a direct appeal to the Supreme Court of Pennsylvania expired on September 2, 1999. Therefore, in order to comply with the filing requirements of the PCRA, Mandeville's petition had to be filed by September 4, 2000. As the petition was not filed until January 19, 2001 and Mandeville failed to plead any exception to the time bar pursuant to 42 PA. CONST. STAT. ANN. § 9545(b)(i)-(iii), it is patently untimely. (Doc. 6, Attach. 6 (footnotes omitted)).
On March 2, 2009, the Pennsylvania Supreme Court denied Petitioner's Petition for Allowance of Appeal of the Superior Court's order regarding the PCRA petition. (Doc. 6, Attach. 8). Petitioner filed an amended PCRA petition on May 1, 2009. (Doc. 17, App. A.)
On June 12, 2009, Petitioner filed the instant Petition for Writ of Habeas Corpus in the United States District Court for the Middle District of Pennsylvania. (Doc. 1.) In Ground One, Petitioner states that he was questioned by police and denied counsel, despite his request; this issue was raised by Petitioner on direct appeal, but not in his PCRA proceedings. (Doc. 1.) Ground Two is for the trial court's refusal to excuse a juror who knew the victim's brother and son in Petitoner's trial; this issue was raised by Petitioner on direct appeal, but not his PCRA proceedings. (Doc. 1.) Ground Three alleges that the trial court gave an improper jury instruction regarding the definition of reasonable doubt; Petitioner did not raise this issue on direct appeal, but did raise it in his PRCA proceedings. (Doc. 1.) Ground Four relates to trial counsel's failure to object to a jury instruction regarding the burden of proving the specific intent to kill; Petitioner did not raise this issue on direct appeal, but did raise it in his PRCA proceedings. (Doc. 1.) Grounds Five, Six and Seven raise the issue of ineffective assistance of counsel for trial counsel's failure to object to improper remarks made by the prosecutor, and failure to elicit favorable testimony from two witnesses; Petitioner did not raise these issues on direct appeal, but did raise them in his PRCA proceedings. (Doc. 1.) Ground Eight claims ineffective assistance on the part of appellate counsel; Petitioner did not raise this issue on direct appeal, but did raise it in his PRCA proceedings. (Doc. 1.) Finally, Ground Nine argues that "counsel was ineffective for the cumulative effect of all or any of the previously raised ground for ineffective assistance of counsel." (Doc. 1.)
Petitioner also filed a motion to stay on July 10, 2009. (Doc. 9.) On August 13, 2009, Magistrate Judge Blewitt issued a R & R recommending that the habeas petition be dismissed as untimely and that the motion to stay be dismissed as moot. (Doc. 12.) Petitioner then filed his bbjections to the R & R on August 27, 2009. (Doc. 17.)
Petitioner's objections to the R & R are as follows: 1) the Magistrate Judge erred in concluding that Petitioner did not have a properly filed post conviction motion under the PCRA, 2) the Magistrate Judge erred in concluding that Petitioner's time to file a federal habeas petition had run because his petition was subject to statutory tolling, and therefore, was timely, 3) the Magistrate Judge erred in concluding that the habeas petition was filed after statute of limitations set out in The Federal Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 4) the Magistrate Judge erred in concluding that Petitioner asserted that his Amended PCRA petition tolled the statute of limitations for purposes of his federal habeas petition, 5) the Magistrate Judge erred in concluding that Petitioner's instant habeas petition is untimely, 6) the Magistrate Judge erred in concluding that Petitioner incorrectly tolled his AEDPA statute of limitations for ninety (90) days following the Pennsylvania Supreme Court's denial of his Petition for Allowance of Appeal, 7) the Magistrate Judge erred in considering equitable tolling, 8) the Magistrate Judge erred in concluding that Petitioner's motion to stay was moot because he erroneously found that the habeas petition is untimely, and 9) the Magistrate Judge erred in concluding that the motion to stay should be denied because of the "meritless" claim of ineffective assistance of PCRA counsel. No response to these objections was filed.
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
I. Timely Filing Under the AEDPA
The Federal Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets a one year statute of limitations for filing a petition for habeas corpus pursuant to a state court judgment. 28 U.S.C. 2244(d)(1). The limitation period runs from the latest of one of several triggering events, but for the purposes of this case, the only relevant subsection states that the statute of limitations runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D).
However, there is a statutory tolling mechanism in the AEDPA that tolls the statute of limitations for the time during which a "properly filed application for State post-conviction review " is pending. 28 U.S.C. § 2244(d)(2). The Supreme Court has held that a PCRA petition that is rejected as untimely is not "properly filed" for purposes of the AEDPA, and, ...