The opinion of the court was delivered by: Baylson, J.
MEMORANDUM ON PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Ray A. Vanatta filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, raising two grounds for relief. (Doc. No. 1.) This Court referred the matter to Chief Magistrate Judge Thomas J. Rueter for a Report & Recommendation ("R & R") on the merits (Doc. No. 5), and the Commonwealth responded to Vanatta's Petition (Doc. No. 10).
On September 29, 2010, Chief Judge Rueter filed his R & R, which recommended that the petition be dismissed as time-barred. (Doc. No. 11.) On December 1, 2010, Vanatta, after having been granted an extension of time, timely filed objections to the R & R. (Doc. No. 14.) Vanatta also filed a Petition for Appointment of Counsel. (Doc. No. 15.) Upon independent and thorough review, and for the reasons stated below, the Court will adopt the R & R, dismiss the Petition for Writ of Habeas Corpus, and deny Vanatta's Petition for Appointment of Counsel.
II. Factual and Procedural Background
On March 8, 2007, Vanatta entered a counseled Alford*fn1
plea to aggravated indecent assault and corruption of a minor
in the Court of Common Pleas of Lancaster County, Pennsylvania. (Doc.
10, Ex. A.) On June 13, 2007, the court sentenced Vanatta to
two-and-one-half to five years imprisonment followed by five years'
probation. (Doc. No. 10, Ex. B.) Vanatta's sentence includes special
probation and parole conditions for sexual offenders. (Doc. No 10, Ex.B.)
Vanatta did not file a direct appeal of his sentence. On June 17, 2008, Vanatta filed a timely pro se petition under Pennsylvania's Post-Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541, et seq. ("PCRA"). (Doc. No. 10, Ex. C.) He sought post-conviction relief based on ineffective assistance of counsel, an unlawfully induced guilty plea, and previously unavailable exculpatory evidence. (Doc. No. 10, Ex. C.) Vanatta's appointed counsel filed a no-merit letter and requested to be excused from the case, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) (en banc). See Commonwealth v. Vanatta, No. 1975-2006, slip op. at 2 (Lancaster Ct. Com. Pl. Jan. 22, 2009).
Following a credibility hearing, the Lancaster Court of Common Pleas denied Vanatta's petition and granted his appointed counsel's motion to withdraw. Id. at 6. Vanatta then filed a timely pro se appeal to the Superior Court of Pennsylvania, and filed an appellate brief and a rebuttal brief in support. (Doc. No. 10, Exs. G, H.) On January 25, 2010, the Superior Court affirmed the denial of Vanatta's PCRA petition. See Commonwealth v. Vanatta, No. 363 MDA 2009, slip op. at 1 (Pa. Super. Ct. Jan. 25, 2010). Vanatta's petition for allowance of appeal to the Pennsylvania Supreme Court was returned as untimely. (Doc. No. 10, Ex. K.)
Vanatta filed the instant Petition for Writ of Habeas Corpus on April 27, 2010. (Doc. No. 1.) He asserts two claims for relief: governmental interference and previously unavailable exculpatory evidence. (Doc. No. 1.) Chief Judge Rueter filed his R & R on September 29, 2010, recommending the Petition be dismissed as time-barred. (Doc. No. 11.) After an extension of time, Vanatta filed timely objections to the R & R, which challenge Chief Judge Rueter's conclusion that he is not entitled to equitable tolling of the limitations period. (Doc. No. 14.)
III. Parties' Contentions
In the R & R, Chief Judge Rueter recommended dismissal of Vanatta's Petition for Writ of Habeas Corpus as time-barred by the one-year statute of limitation of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Chief Judge Rueter concluded that 340 days of Vanatta's one-year period elapsed before he filed his PCRA petition. Section 2244(d)(2) tolled the statute of limitations, while his petition was pending, until his right to seek Pennsylvania Supreme Court review expired on February 24, 2010. At that time, Vanatta had twenty-five days, or until March 21, 2010, to file for federal habeas corpus relief.
Because Vanatta did not file until April 22, 2010 at the earliest,*fn2 his petition is barred unless he is entitled to equitable tolling. But Chief Judge Rueter determined that Vanatta presented no evidence of reasonable diligence or extraordinary circumstances to warrant equitable tolling. Chief Judge Rueter considered Vanatta's claim regarding exculpatory evidence as possibly raising "actual innocence" for equitable tolling, but concluded that Vanatta had not pursued the claim with reasonable diligence. Regardless, the purported exculpatory evidence is not new, but was disclosed to Vanatta's counsel in June 2006, well before Vanatta's March ...