The opinion of the court was delivered by: Yohn, J.
Petitioner, Samuel D. Harper, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for the first-degree murder of his wife, for which he received a mandatory sentence of life imprisonment. Before the court are petitioner's objections to the magistrate judge's report and recommendation ("R&R"), which recommends that the petition be dismissed as barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). Petitioner's objections that he is entitled to statutory and equitable tolling lack merit. Moreover, even if the court were to exclude those time periods claimed, but for which such tolling is clearly unavailable, the habeas petition would still be untimely. I will therefore overrule petitioner's objections and approve and adopt the R&R.
I. Factual and Procedural History
On February 15, 2005, a Philadelphia jury found petitioner guilty of first-degree murder, carrying a firearm without a license, and possessing an instrument of crime. The Commonwealth offered not to seek the death penalty in exchange for petitioner's waiver of his right to appeal and to seek federal or state post-conviction review. On February 16, 2005, petitioner accepted the Commonwealth's offer and the trial judge sentenced him to life imprisonment.
On February 21, 2005, petitioner sent a letter to the trial judge and District Attorney requesting to rescind his agreement not to seek review. (Pet'r's Objection Ex. A.) From the face of the letter, the list of those who were sent copies, and the return receipts that petitioner has attached to his objections (see id. Ex. B), it is clear that the letter was not sent to the clerk of court as required under the Pennsylvania Rules of Criminal Procedure to be filed and it was not entered on the docket. See Pa. R. Crim. P. 576. The trial judge did not respond to the letter. At the time, petitioner was allegedly under 23-hour prison "lockdown" as a newly convicted prisoner awaiting processing. Petitioner states that he remained under lockdown until late March and was transferred twice during that time.
On April 3, 2005, petitioner sent a notice of appeal to the clerk of court.*fn1 According to petitioner, the appeal was dismissed as untimely on April 11, 2005. (Id. at 3.)
On June 27, 2005, and September 8, 2005, after petitioner's notice of appeal had already been dismissed, petitioner sent two letters to the trial judge asking for a response to his February 21, 2005, letter. The trial judge did not respond.
On December 8, 2005, petitioner attempted to file a petition for mandamus in the Supreme Court of Pennsylvania, seeking to compel the trial court to respond to his February 21, 2005, letter. The docket of the Supreme Court of Pennsylvania does not reflect that it was ever filed. A copy of the mandamus petition sent to the clerk of the trial court was returned as untimely on January 6, 2006.
On June 1, 2006, petitioner filed for state post-conviction relief under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541-9546. The Philadelphia Court of Common Pleas dismissed the PCRA petition as untimely and the Superior Court affirmed on March 27, 2009. Petitioner did not seek review in the Supreme Court of Pennsylvania.
Petitioner filed this application for a writ of habeas corpus on January 15, 2010, over nine months after the Superior Court dismissed his PCRA petition. I referred the matter to Magistrate Judge Thomas J. Rueter for a report and recommendation. Magistrate Judge Rueter recommended that the habeas petition be dismissed as untimely. Petitioner has filed a timely objection to the R&R. I review the magistrate judge's findings and recommendations to which objections were filed de novo. See 28 U.S.C. § 636(b)(1).
Generally, a habeas petition must be filed within one year of the date on which the judgment of the state court became final "by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d). The one-year period may be statutorily tolled during the pendency of a "properly filed" application for state post-conviction review. See id. § 2244(d)(2). The period may also be equitably tolled during a period when "'some extraordinary circumstance stood in [the petitioner's] way' and prevented timely filing" despite the petitioner's diligent pursuit of his or her rights. See Holland v. Florida, No. 09-5327, Slip Op. at 16-17 (June 14, 2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 617-18 (3d Cir. 1998).
The magistrate judge correctly and thoroughly analyzed the issues of statutory and equitable tolling and recommended dismissal of the petition as untimely. I approve the report and recommendation. I supplement that report to point out to the petitioner that even giving him credit for all of the tolling for which he incorrectly claims credit, his petition is still untimely.
Petitioner was required to file his notice of appeal of the state court's judgment within thirty days of the imposition of his sentence or within thirty days of the state court's disposition of a timely post-sentence motion. See Pa. R. Crim. P. 720(A). Petitioner's February 21, 2005, letter to the trial judge was not filed with the clerk of court or entered on the court's docket as a motion. The state court determined that the deadline for filing a notice of appeal was therefore March 18, 2005, and the state court judgment became final on that date. Petitioner objects that the state court departed from its usual and customary procedures in failing to construe his February 21, 2005, letter as a timely post-sentence motion and in failing to rule on it. Petitioner argues that had the state construed the February 21, 2005, letter as a post-sentence motion, petitioner's April 3, 2005, notice of appeal would have been timely. Petitioner acknowledges, however, that the state court dismissed his notice of appeal as untimely on April 11, 2005, and that petitioner did not seek review of the dismissal of his notice of appeal within the applicable thirty-day ...