The opinion of the court was delivered by: Mary A. McLAUGHLIN, J.
AND NOW, this 23rd day of September, 2010, upon careful and independent consideration of the Petition for Writ of Habeas Corpus (Docket No. 1), and the respondents' response thereto (Docket No. 13), and after review of the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa (Docket No. 16) and the petitioner's Objections thereto (Docket No. 19), IT IS HEREBY ORDERED that:
1. The petitioner's Objections are OVERRULED.
2. The Report and Recommendation is APPROVED and ADOPTED, except as discussed below.
3. The Petition for Writ of Habeas Corpus is DENIED and DISMISSED as time-barred and procedurally defaulted.
4. There is no basis for the issuance of a certificate of appealability.
The report and recommendation ("report") concludes that the petitioner's claims must be dismissed because they are time-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). The report concludes that the petitioner had until April 23, 1997, to file a habeas petition, which was one year after his conviction became final.*fn1 Because the petitioner filed his habeas petition on November 25, 2009, it is untimely. Further, the report concludes that none of the alternate starting dates set forth in § 2244 apply, nor are the claims subject to equitable tolling. Therefore, the report recommends dismissal. Although the Court agrees with the report's conclusion, it does not agree with all of its reasoning.
The Court agrees that two of the three claims set forth in the petition are time-barred.*fn2 In view of the amendments to § 2244 in 1996, the petitioner had until April 23, 1997, to file his habeas petition, but did not do so. Burns, 134 F.3d at 111. Moreover, the Court agrees that none of the alternate starting dates set forth in § 2244 are applicable. The petitioner has not alleged any impediment to filing a habeas petition by April 23, 1997, nor do any of his claims involve rights newly recognized by the United States Supreme Court. See § 2244(d)(1). Further, the petitioner pursued his claims in multiple post-conviction proceedings in the 1980s, in which he alleged the same facts underlying his current due process and equal protection claims. See Respondent's Ex. D (Pet'r's PCHA Appellate Br. at 1-3). Therefore, the petitioner was aware of the factual predicate underlying his claims well before the limitations period expired. See § 2244(d)(1)(D).
The Court also agrees that the petitioner's two time-barred claims are not subject to equitable tolling. Equitable tolling is appropriate in three circumstances: (1) if the defendant actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). The petitioner has not argued that any of these circumstances prevented him from filing his habeas petition by April 23, 1997. Instead, the petitioner's argument for equitable tolling relates to his DNA testing claim, which the Court addresses separately below.
The Court disagrees with the report's finding that the petitioner's DNA testing claim is time-barred. Section 2244(d)(1)(D) provides an alternate limitations period, which begins to run on:
[T]he 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). A factual predicate sufficient to trigger § 2244(d)(1)(D) consists of the "vital facts" underlying a petitioner's claims. McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir. 2007). Vital facts are distinguishable from evidence that merely supports a claim; vital facts change the character of a claim or provide new grounds for a habeas petition. See id. at 215-16. A petitioner must exercise due diligence in discovering the vital facts that trigger § 2244(d)(1)(D). Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004). Due diligence requires reasonable diligence under the circumstances, not the maximum feasible diligence. Id.
The Court concludes that the destruction of the petitioner's DNA evidence was a factual predicate sufficient to trigger the alternate limitations period under § 2244(d)(1)(D). As the petitioner argues, he only discovered that the DNA evidence was destroyed after an evidentiary hearing pursuant to his motion for DNA testing. See Objections to the Report and Recommendation of Magistrate Judge Linda K. Caracappa at 12. This vital fact formed the basis for the petitioner's habeas claim. Further, the petitioner filed his motion for DNA testing in 2003, less than one year after Pennsylvania passed a statute expressly permitting DNA testing.*fn3 Therefore, the Court finds that the petitioner was reasonably diligent in pursuing his DNA claim. The petitioner brought his habeas petition 336 days after final review of his DNA motion, and therefore the claim is timely.
However, the Court finds that the DNA testing claim must be dismissed as it is procedurally defaulted. Before filing a habeas petition, a petitioner must exhaust his state remedies, which involves "fairly presenting" his claims to the state courts to alert them to the federal nature of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim for relief "must include reference to a specific federal constitutional guarantee, as well as ...