The opinion of the court was delivered by: Carol Sandra Moore Wells United States Magistrate Judge
Presently before this court is a pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. Ira A. Johnson ("Petitioner") initially sought habeas relief based on two claims of ineffective assistance of counsel, the trial court's failure to inform him of his right to testify, and insufficiency of the evidence. The Honorable Paul S. Diamond referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is ordered that this case continue to be stayed until the state court rules upon Petitioner's third petition for collateral relief.
On July 28, 2008,*fn1 Petitioner filed his federal habeas petition alleging that: (1) trial counsel was ineffective for interfering with Petitioner's right to testify; (2) trial counsel was ineffective for failing to investigate Petitioner's alibi; (3) the trial court violated due process by failing to inform Petitioner of his right to testify; and (4) there was insufficient evidence to sustain his murder and robbery convictions. Petition ("Pet.") at 9-10. Petitioner's second Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46, petition was still pending in the state court when the instant habeas action commenced. The second PCRA petition sought to exhaust state court remedies with respect to Petitioner's second habeas claim. See Order of October 23, 2008 at 1 (Document No. 6). On February 16, 2010, the Pennsylvania Superior Court affirmed the PCRA court's conclusion that the second PCRA petition was untimely. Commonwealth v. Johnson, No. 729 EDA 2009, slip op. at 7 (Pa. Super. Ct. Feb. 16, 2010) ("2010 Super. Ct. Op."). On November 1, 2010, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal ("allocatur"). Commonwealth v. Johnson, No. CP-51-CR-0410491-2000 Docket at 19 (Phila. Co.) ("Trial Ct. Docket").
On November 15, 2010, Petitioner filed yet a third PCRA petition. Trial Ct. Docket at 20. That petition is still pending. Id. On October 20, 2010, Petitioner had requested that determination of his federal habeas petition be stayed pending state court review of his third PCRA petition that is based upon a new after-discovered evidence claim. Pet'r Protective Petition for an Extended Order of Stay/Abeyance ("Second Prot. Pet.") at 1-5. The Commonwealth opposes Petitioner's request. Response to Protective Petition for Extended Order to Stay and Abey Proceedings ("Sec. Stay Resp.") at 1-4. Judge Diamond subsequently ordered the parties to brief three questions: (1) when, under 28 U.S.C. § 2244(d), did the limitations period for filing the habeas petition expire; (2) is Petitioner's new after-discovered claim timely, if untimely, does it relate back to Petitioner's timely filed habeas petition; and (3) are there grounds for equitable tolling of the habeas limitations period with respect to the new claim? See Order of December 13, 2010 (Document No.14). Both parties have has addressed these questions, so the court is poised to decide how to proceed.
A. The Habeas Period of Limitations
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), enacted on April 24, 1996, imposes a one year period of limitations for habeas corpus petitions. The time period begins to run from the latest of the following:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D). The Third Circuit has held that the starting date for the habeas period of limitations must be determined for each cognizable claim contained in the petition. See Fiedler v. Varner, 379 F.3d 113, 117-18 (3d Cir. 2004).
On July 1, 2001, Petitioner was convicted of first degree murder and related offenses. Commonwealth v. Johnson, No. 939 EDA 2006, slip op. at 1 (Pa. Super. Ct. Mar. 12, 2007) ("2007 Super. Ct. Op."). On direct appeal, the Pennsylvania Superior Court affirmed his sentence in 2003. Id. at 4. The Pennsylvania Supreme Court denied allocatur on March 2, 2004. Id. Petitioner did not seek certiorari in the United States Supreme Court; the time to do so expired on June 1, 2004. See Sup. Ct. R. 13(1).
Pursuant to § 2244(d)(1)(A), Petitioner's conviction became final on
June 1, 2004. See Jones v. Morton, 187 F.3d 333, 337 n.1 (3d Cir. 1999). Petitioner does not
assert that an alternative starting date applies, see Pet'r
Supplemental Memoranda ("Pet'r Supp. Mem.") at 1-3, hence, that is the
date the court will use initially. The habeas period of limitations
ran until June 17, 2004 when Petitioner, by timely filing his first
PCRA petition,*fn2 tolled his AEDPA year, see 28
U.S.C. § 2244(d)(2), until the Pennsylvania Supreme Court denied
allocatur on August 15, 2007. See Lawrence v. Florida, 547 U.S. 327,
332 (2007). The habeas period of limitations commenced running again
on that day and expired 349 days later on July 29, 2008.*fn3
Since the habeas ...