The opinion of the court was delivered by: Yohn, J.
Petitioner Andre K. Green, a prisoner at State Correctional Institution, Greene County, in Waynesburg, Pennsylvania, has filed a second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons that follow, I will deny Green's petition.
I. FACTUAL AND PROCEDURAL HISTORY*fn2
Green was convicted on October 17, 1996, of second-degree murder and attempted robbery following a jury trial in the Court of Common Pleas for Northampton County, Pennsylvania. He was sentenced to a mandatory term of life imprisonment. Following his conviction, Green appealed to the Superior Court of Pennsylvania, which affirmed his judgment of sentence on October 14, 1997. Commonwealth v. Green, 704 A.2d 1117 (Pa. Super. Ct. 1997). Green then filed a petition for allowance of appeal with the Supreme Court of Pennsylvania, which was denied on March 12, 1998. Commonwealth v. Green, 712 A.2d 285 (Pa. 1998).
On February 26, 1999, Green filed a pro se petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541--9546. After appointing counsel for Green and conducting a PCRA hearing on December 23, 1999,*fn3 the PCRA court denied relief in an opinion and order dated December 30, 1999, but permitted Green to file an amended petition raising three new claims. Commonwealth v. Green, No. 445-1996 (Pa. Ct. C.P. Northampton County Dec. 30, 1999) ("Green I") (attached as Ex. A to Pet'r's Mem. of Law in Supp. of 2d Am. Pet. for Writ of Habeas Corpus ("Pet'r's Mem.")). The PCRA court held another hearing on May 24, 2001, to address the new claims and, on June 29, 2001, denied the amended PCRA petition. Commonwealth v. Green, No. 445-1996 (Pa. Ct. C.P. Northampton County June 29, 2001). Green filed a timely appeal as to both sets of claims in the Pennsylvania Superior Court, and that court affirmed the PCRA court's denial of relief on March 25, 2002. Commonwealth v. Green, No. 2112 EDA 2001 (Pa. Sup. Ct. Mar. 25, 2002) ("Green II") (attached as Ex. B. to Pet'r's Mem.). A petition for allowance of appeal in the Supreme Court of Pennsylvania was denied on August 14, 2002. Commonwealth v. Green, No. 313 MAL 2002 (Pa. Aug. 14, 2002).
Green filed his federal pro se habeas corpus petition on January 29, 2003, beyond the statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1). He asserted seven grounds for relief, two relating to his right to a fair trial, four relating to his right to effective assistance of counsel, and one relating to his right to file a habeas corpus petition without governmental obstruction. For the seventh and final ground, he alleged that prison staff had prevented him from filing a timely petition by confiscating his legal papers and failing to return them to him for a period of several months.
On April 6, 2003, Green supplemented his petition to include an additional ground for relief relating to his right to a fair trial. Respondents argued that the entire petition should be dismissed as time barred.
On September 2, 2003, the magistrate judge issued a report and recommendation concluding that equitable tolling did not apply and that Green's claim was therefore time barred under AEDPA. Green timely filed objections to the report and recommendation, arguing that the magistrate judge underestimated his diligence in trying to retrieve his legal papers and that he should be granted equitable tolling for the period during which his papers were in the custody of prison staff. In their answer to Green's objections, respondents asserted that they had been unable, through reasonable investigation, to uncover information sufficient to establish the truth of Green's factual claims concerning his diligence in attempting to recover his legal papers.
I appointed Green's current counsel and held an evidentiary hearing on June 25, 2004. Thereafter, in a November 8, 2004, memorandum and order, I ruled that equitable tolling applied and that the claims in Green's original petition were therefore timely. I also ruled that the April 6, 2003, amendment was time barred unless it related back to the original petition and remanded the case to the magistrate judge to resolve Green's claims on the merits. Green v. Stickman, No. 03-674, 2004 U.S. Dist. LEXIS 22624 (E.D. Pa. Nov. 8, 2004).
On November 22, 2005, before the magistrate judge had addressed the merits of Green's claims,*fn4 Green filed a motion to amend his habeas petition and hold the habeas proceedings in abeyance pending the exhaustion of his state remedies. He argued that while researching a supplemental memorandum of law, he discovered the existence of a new claim, namely, that his due-process and fair-trial rights were violated by the trial judge's failure to recuse himself.
On February 24, 2006, the magistrate judge issued a report and recommendation, recommending that Green's motion be granted and that the case be held in abeyance pending state-court exhaustion of his claim. Respondents did not file any objections to the magistrate's report and recommendation, and I granted Green's motion in a memorandum and order dated July 26, 2006. Green v. Folino, No. 03-674, 2006 U.S. Dist. LEXIS 51103 (E.D. Pa. July 26, 2006).
On April 28, 2006, the PCRA court dismissed Green's new claim for relief (Green had filed a PCRA petition in the Court of Common Pleas on January 10, 2006) without permitting discovery or holding an evidentiary hearing. Green filed a timely appeal in the Pennsylvania Superior Court, and that court affirmed the PCRA court's denial of relief on January 23, 2007.
Having exhausted his state-court remedies, Green once again pursued federal habeas relief in this court. After completing discovery with respect to the new claim for relief, however, Green's counsel "concluded that no further relief can be granted by this Court" and, on October 15, 2007, moved to file a second amended petition striking that claim. (Pet'r's Mot. to Amend Habeas Pet. ¶ 9.) I granted the motion on October 16, 2007.
Green filed this second amended petition for habeas relief on October 17, 2007, asserting three claims, each of which has been adjudicated on the merits by the Pennsylvania state courts:
(1) he was denied a fair trial and due process of law because the prosecution failed to disclose the existence and terms of a cooperation deal it allegedly made with an eyewitness to secure her testimony; (2) trial counsel was ineffective for failing to object to the trial court's instruction that the jury could treat rebuttal testimony as to two witnesses' prior inconsistent statements as substantive evidence; and (3) trial counsel was ineffective for failing to request that the trial court instruct the jury that a particular witness's testimony must be received with caution, as required under Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). Respondent submitted a reply to Green's petition on December 5, 2007, and briefing was completed in January 2008.
After the parties had completed a substantial amount of discovery on a consent basis, on February 11, 2009, I issued a stipulated scheduling and discovery order granting Green leave to serve deposition subpoenas, as needed, on witnesses identified by Green's and respondent's counsel and mandating that the authorized depositions be completed within ninety days. I issued orders on May 11, 2009, August 10, 2009, and November 12, 2009, extending, by agreement of counsel, the time to complete the depositions. On February 18, 2010, I granted Green leave to take the deposition of John M. Morganelli, the Northampton County district attorney, who was involved in the investigation and prosecution of Green's case and who is serving as respondent's counsel in this matter.
I heard oral argument on August 17, 2010, and denied Green's first claim on the basis of the findings and conclusions set forth on the record following argument on that claim. Accordingly, here I address only ...