The opinion of the court was delivered by: Judge McClure
On July 9, 2010, Fernando Maisonet, an inmate currently incarcerated at the State Correctional Institution at Dallas ("SCI-Dallas"), an institution located in the Middle District of Pennsylvania, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. (Rec. Doc. No. 1). Respondents are Warden Jerome Walsh, the Attorney General for the Commonwealth of Pennsylvania, and the Dauphin County District Attorney's Office. Id. Maisonet's petition arises out of his plea, entered into on January 13, 1995, in which Maisonet pled guilty to charges of murder, robbery, and conspiracy. Id. at 4. On this guilty plea, Maisonet received a life sentence. Id.
In his petition, Maisonet claims that his Sixth Amendment right to the effective assistance of counsel and his Fourteenth Amendment right to due process of law were violated at the time he entered into his guilty plea. Id. at 8. The instant case initially was referred to United States Magistrate Judge Martin C. Carlson.*fn1
In his report and recommendation, Magistrate Judge Carlson referenced the procedural history of the state prosecution in this case:
The story of Fernando Maisonet's crime begins on October 25, 1993, with the filing of a criminal complaint against Maisonet in the Court of Common Pleas of Dauphin County. (Doc. 10-2, Ex. B.) Following pretrial proceedings, on January 13, 1995, on the eve of trial, Maisonet pleaded guilty to murder, robbery and conspiracy charges (Doc. 1, ¶¶ 2-5.) Maisonet was sentenced to life imprisonment on this guilty plea. (Id.)
Maisonet did not pursue a timely direct appeal of this conviction and sentence in 1995. Instead, it appears that sometime in 2001, six years after his conviction, Maisonet sought to have his appellate rights reinstated nunc pro tunc. (Doc. 10-2, Ex. A and B.) This request was granted by the Pennsylvania courts. (Id.) With his appellate rights reinstated, Maisonet belatedly pursued a direct appeal of the guilty plea conviction and sentence, which concluded on December 2, 2003, when the Superior Court affirmed his conviction and sentence. (Doc. 10-2, Ex A.)
Maisonet then took no further action in this case for more than four years, until March 2008, when he filed a belated PCRA petition with the Court of Common Pleas. (Id., Ex. A.) Before the state courts Maisonet attempted to justify this four-and-one-half year delay by blaming the failure to timely litigate this matter on his former counsel, an attorney who had died in August, 2005. (Id., Ex. A.) Rejecting this argument, the state trial court denied this petition as time-barred under the state statute of limitations for such petitions. Maisonet then appealed this ruling to the Pennsylvania Superior Court, which entered an opinion and order affirming the denial of this PCRA petition on statute of limitations grounds on December 24, 2009. (Id., Ex. A.)
In affirming the dismissal of Maisonet's belated PCRA petition, the Superior Court considered, and rejected, Maisonet's assertion that the four year delay in litigating this matter should be excused due to the August 2005 death of his PCRA counsel. (Id.) Noting that Maisonet had an obligation to exercise due diligence in asserting his rights, the Superior Court held that Maisonet's failure to inquire into th[e] status of his case for more than three years did not demonstrate the type of due diligence necessary to excuse a tardy post-conviction petition. (Id.) Maisonet appealed this decision to the Pennsylvania Supreme Court, which denied his petition for allowance of appeal on June 8, 2010. (Id., Ex B, p. 10.) Maisonet then filed this federal habeas petition on July 9, 2010. (Doc. 1.) (Rec. Doc. No. 16 at 2-4).
B. The Instant § 2254 Action
On August 17, 2010, Magistrate Judge Carlson issued a nineteen (19) page report and recommendation in which he recommended that the petition be denied as time-barred and that a certificate of ...