The opinion of the court was delivered by: Yohn, J.
Petitioner James H. Green has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Green is currently serving a sentence of 27 to 54 years following his convictions for third-degree murder, possession of an instrument of crime, carrying a firearm without a license, and recklessly endangering another person. Green asserts that his conviction resulted from various violations of his Sixth Amendment right to counsel and that he was deprived of his right to a direct appeal. After conducting a de novo review of the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa, and upon careful consideration of Green's objections thereto and the parties' submissions, I will approve and adopt the relevant conclusions of the magistrate judge and dismiss Green's habeas petition as untimely.
I. Facts and Procedural History*fn1
Because this decision centers around whether Green's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), it is necessary to review this case's intricate procedural history.
Green's convictions arose out of the events of December 13, 2002. On that day, Green's cousin, Josh Kocher, became involved in an argument at a party with the victim, Robert Williams Graig. Josh Kocher then left the party and returned with Green and another cousin, Shaun Kocher. Shaun Kocher brought with him a pistol, which was nonfunctional. At the party, Josh Kocher again began to argue with Graig. Graig appeared to reach for something in his pocket, and Shaun drew his nonfunctioning weapon. Green then drew his own firearm and fired one shot, killing Graig.
Green was tried before a jury in the Court of Common Pleas of Berks County before the Honorable Linda K. M. Ludgate. (A30.) At trial, the prosecution presented Shaun Kocher and the host of the party as witnesses to Graig's death. (A42-50, A52-69.) Green testified in his own defense, claiming that he had been at the house of his girlfriend, Jaceri Morales, that night. (See A116-18.) Although Green planned to present Morales as an alibi witness, Morales recanted her proposed testimony during a conversation with one of Green's defense attorneys, Michael Hollinger, after trial had begun. (A123-24.) Hollinger and co-counsel, Kevin Beals, promptly informed the trial judge, outside the presence of the prosecuting attorney and jury, that Morales's testimony was likely to contradict Green's and that they would therefore not be presenting her as a witness. (A124.) Beals further remarked to the trial judge that, in light of what he had just learned, he believed that Green had committed perjury and that he felt he had a duty to so inform the court. (A124.) In response, the trial judge told Beals that she "[didn't] know if [Beals had] to divulge [his] attorney/client privilege at this point." (Id.) However, Beals continued to discuss his belief that Green had committed perjury. (Id.)
On March 11, 2004, the jury convicted Green of third-degree murder and various ancillary offenses. On April 1, 2004, pursuant to the jury's verdict, the Court of Common Pleas sentenced Green to an aggregate prison term of 27 to 54 years.*fn2 According to the prosecuting attorney, the applicable guideline ranges were all lower than the sentences that the trial court imposed. (See A187.) At the sentencing hearing, the trial judge confirmed that Green was aware of his post-conviction rights and noted that "Mr. Beals and his office will continue to represent [Green] throughout an appeal from the decision of the jury through the appellate court system." (A193.)
On April 22, 2004, Green attempted to file with the Court of Common Pleas an untimely pro se motion to modify and reduce his sentence pursuant to Pennsylvania Rule of Criminal Procedure 720.*fn3 In this motion, Green argued that his sentence was excessive and that it deviated unreasonably from the applicable guidelines. (A200-02.) The motion also included a paragraph in which Green claimed that his trial counsel was "ineffective throughout all proceeding [sic]" and that the testimony at trial had been insufficient to convict him. (A201-02.) Pursuant to Pennsylvania rules of procedure, the clerk of the court did not enter this motion on the docket but instead forwarded it to Beals, Green's attorney of record, on April 22, 2004. (A206.)
On April 24, 2004, Green sent a letter, apparently to the clerk of the Court of Common Pleas, indicating that he was interested in filing a direct appeal but had not heard from his public defender since April 1, 2004. (A204.) In that letter, Green also asked for information on how to file an appeal and for additional time in which to file it. (Id.) The clerk of the court forwarded this letter to Beals on April 29, 2004. (A203.)
On May 3, 2004, the last day on which an appeal could be filed,*fn4 Beals filed with the Court of Common Pleas a motion for reassignment of counsel, noting that, in his pro se motion to modify sentence, Green had accused Beals of providing ineffective assistance of counsel and that Green should be granted new counsel in order to pursue his ineffective assistance claim via the Post-Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. (A205.) The Court of Common Pleas granted Beals's motion that day and appointed Gail Chiodo to represent Green for the purposes of a PCRA action. (A207.) Green's Motion to Modify and Reduce Sentence was also entered on the docket that day. (A12.) As the Court of Common Pleas later explained, although that motion came after the deadline for post-sentencing motions and was therefore untimely as such, it could be construed as a PCRA petition because it contained claims of ineffective assistance of counsel, which may constitute grounds for relief under the PCRA. Moreover, the PCRA has no form requirement and the time period for filing such a petition had not yet lapsed. (A243 (Notice of Int. to Dismiss, Aug. 22, 2005).)
On July 18, 2004, Green filed with the Court of Common Pleas a motion to withdraw counsel and appoint new counsel. (A208-10.) This motion apparently referred to Beals and argued that Beals was ineffective. (Id.) New counsel had already been appointed on May 3, 2004, and the court denied Green's motion without comment on August 2, 2004. (A213.) The docket also reflects that on July 14 and 21, 2004, Green sent other pro se communications to both the Superior Court and Court of Common Pleas. (A12-13.) The substance of these communications is not in the record before me. On May 10 and June 1, 2005, Green sent another pro se communication to the court regarding the status of his PCRA petition and filed a pro se memorandum of law in support of that petition. (A14-15.)
On July 18, 2005, following various continuances and correspondence with Green, Chiodo submitted to the court a "no-merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). In her letter, Chiodo characterized Green's complaints primarily as claims of ineffective assistance of counsel, both during trial and in failure to file post-sentence motions or a direct appeal. (A220.) Chiodo found no merit in Green's argument that trial counsel should have filed a direct appeal, as "the proper avenue to address ineffectiveness claims, as are all the claims raised herein, is in a post conviction proceeding." (A221.) Chiodo then addressed the ineffectiveness claims Green had wished to raise on appeal and found that these claims also lacked merit. (A222-35.) The Court of Common Pleas granted Chiodo's motion to withdraw on July 19, 2005. (A215.)
On August 10, 2005, Green filed with the Court of Common Pleas a pro se objection to the motion to withdraw, which had already been granted. (A16.) On August 22, 2005, pursuant to Chiodo's "no-merit letter," the Court of Common Pleas issued a Notice of Intent to Dismiss the PCRA petition, analyzing and rejecting Green's claims and granting him twenty days to file objections, otherwise the petition would be dismissed. (A243.) Green did not file an objection to the notice of intent to dismiss; instead, on September 13, 2005, he filed a petition for a writ of mandamus with the Supreme Court of Pennsylvania, which that court denied.*fn5 Commonwealth v. Green, No. 190 MM 2005 (Nov. 20, 20005). On September 19, 2005, the Court of Common Pleas issued an order dismissing Green's PCRA motion as Green had not satisfied his burden of establishing his right to post-conviction relief. (A250.)
On December 19, 2005, three months later, Green filed a pro se "objection" to the dismissal of his PCRA petition, arguing that he was entitled to an evidentiary hearing and appointment of new PCRA counsel. (A251-54.) The Court of Common Pleas dismissed Green's objection on January 1, 2006, and Green filed a timely notice of appeal. (A255, A256.)
On December 7, 2006, the Superior Court affirmed the Court of Common Pleas. (A264-72 (Op. Super. Ct., Dec. 7, 2006 ("2006 Op. Super. Ct.")).) The Superior Court noted that Green's brief on appeal did not include his claim of failure of trial counsel to file a direct appeal or any of the other claims addressed in the original "no-merit" letter and in Green's Pa. R. App. P. 1925(b) statement of facts contested on appeal. (A269-70.) Instead, Green's brief on appeal argued that Chiodo had been ineffective in failing to identify potentially meritorious PCRA claims.*fn6 (A268-69.) The Superior Court rejected these new claims on the merits. (A271-72.)
Green filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which that court denied without comment on May 15, 2007. (A273.)
On June 5, 2007, three years after his original conviction became final, Green filed a second petition for post-conviction relief with the Court of Common Pleas of Berks County. In his second petition, Green claimed that both Beals and Chiodo were ineffective in failing to request that Green's pro se post-trial motion filed on May 5, 2004 be withdrawn so that a direct appeal could be filed. (A277.) Green further alleged that trial counsel was ineffective in failing to raise a "mere presence" defense at trial and that Chiodo was ineffective in failing to raise this omission as a potential ground for post-conviction relief. (Id.) He also reiterated those ineffectiveness claims against Chiodo that he had raised in his brief on appeal of the first PCRA petition. (Id.)
On June 20, 2007, the Court of Common Pleas issued a notice indicating its intent to dismiss the second petition for PCRA relief as untimely.*fn7 (A287-90.) Green filed a timely objection on July 5, 2007. (A291-94.) On July 17, 2007, the Court of Common Pleas dismissed the second PCRA petition. (A295.) Green filed a timely notice of appeal on August 10, 2007. (A296.)
On April 21, 2008, the Superior Court affirmed the dismissal of the second PCRA petition, finding that the petition was untimely on its face and ineligible for any of the exceptions to the PCRA's statute of limitations. Green argued that the ineffectiveness of his trial and PCRA counsel was a "newly discovered fact" exception to the statute of limitations, but the Superior Court found that Green had not made a sufficient showing that he could not have learned of this fact until 60 days before filing his second petition. On October 9, 2008, the Pennsylvania Supreme Court affirmed the decision of the Superior Court. (A318.)
On November 28, 2008, Green filed pro se his federal petition for writ of habeas corpus under 28 U.S.C. § 2254. In this petition, Green claims that he was deprived of effective assistance of counsel when his attorney failed to discuss with him his right to appeal and failed to accommodate his request to file a direct appeal. See Roe v. Flores-Ortega, 528 U.S. 470 (2000). Green also states an independent claim of deprivation of right to appeal.*fn8 (Am. Pet. Habeas Corpus 8, Feb. 9, 2009.) The District Attorney has objected that the petition is untimely. Alternatively, the District Attorney argues that Green has failed to exhaust his Flores-Ortega claim at the state level and that he procedurally defaulted on this claim by failing to present it to the Superior Court on appeal from his first PCRA petition.
I referred this case to Magistrate Judge Linda Caracappa for a Report and Recommendation. Judge Caracappa has recommended that the court dismiss the instant petition as untimely. I agree. Green filed his federal petition for habeas relief well after the statutory deadline for filing such a petition. Although Green is entitled to statutory tolling of the one-year limitations period during the time that his first PCRA petition was pending, this tolling is insufficient to render his petition timely. ...