The opinion of the court was delivered by: Judge Caputo
(MAGISTRATE JUDGE SMYSER)
Before the Court is Magistrate Judge Smyser's report and recommendation ("R&R") (Doc. 22) on petitioner Drawbaugh's petition for writ of habeas corpus under 28 U.S.C. § 2254. While it is undisputed that the petition is untimely, Mr. Drawbaugh claims that the one-year statute of limitations period should be tolled because he did not have access to the § 2254 form once he was transferred from Pennsylvania to Muskegon Correctional Facility in Michigan. Following a hearing, Magistrate Judge Smyser found that the prison library did have the form and recommended the petition be dismissed. The Court agrees.
Mr. Drawbaugh was convicted by a jury in the York County Court of Common Pleas of aggravated assault, attempted rape and involuntary deviate sexual intercourse. He was sentenced on February 26, 2007 to a term of imprisonment of 141/2 to 29 years.
After his conviction, Mr. Drawbaugh appealed to the Superior Court. The Superior Court affirmed his conviction on February 14, 2008. He took no further appeal. His sentence was final on March 15, 2008. On July 31, 2008, he filed a Post Conviction Relief Act ("PCRA") petition, which was denied. The Superior Court affirmed the denial of the PCRA petition. Mr. Drawbaugh filed a petition for allocatur to the Pennsylvania Supreme Court, but he withdrew that petition on September 16, 2009. The Section 2254 petition clock therefore ran from March 15, 2008 to July 31, 2008 (138 days) and again for the 227 days from September 16, 2009 to the expiration of the one year period on May 1, 2010. But Mr. Drawbaugh did not file his petition for writ of habeas corpus until September 15, 2010. The parties do not dispute the foregoing dates.
On February 17, 2010, Mr. Drawbaugh was transferred from Pennsylvania SCI Albion to Muskegon Correctional Facility ("MCF") in Michigan. That transfer was made by Pennsylvania to alleviate Pennsylvania prison overcrowding. When the transfer was made, Mr. Drawbaugh's remaining time in which to file a 2254 petition stood at 73 days.
There is no evidence that Mr. Drawbaugh had undertaken to begin to prepare a Section 2254 habeas corpus petition prior to his transfer by taking steps such as, for example, obtaining and examining a 28 U.S.C. § 2254 form petition. Mr. Drawbaugh related at the hearing that his principal difficulty in preparing a petition was that he did not have the standard form for a 2254 petition.
The form designed for prisoners to use to file a 2254 petition provides a prisoner with a framework to organize, structure and present claims that his custody is in violation of his federally protected rights and to do so in a way that facilitates the court's consideration of the material issues. Mr. Drawbaugh's main contention is that, while in Muskegon, he did not have access to the 2254 form. Once he did get the form, he completed it and filed this petition.
Mr. Drawbaugh's first witness, James Lloyd, testified that the prison library in Michigan had the West Federal Civil Judicial Procedure and Rules publication. (Tr. 19-20). That was confirmed by the MCF assistant librarian, Barbara Ann Setlak. (Tr. 62). That publication contains the form petition. Using the form in the book, rather than a printed-out form, would require the prisoner to type or neatly write, at least in part, the form's contents as well as the particular detailed information called for by the form.
Following Mr. Drawbaugh's filing of his petition on September 15, 2010, respondents filed a motion (Doc. 37) to dismiss the amended petition as untimely and a related motion (Doc. 38) asking for leave of court to defer responding to the merits of Mr. Drawbaugh's claims until the issue of timeliness is resolved. A hearing was scheduled to address the issue of timeliness, and the respondents were granted leave to defer a response to the petition's merits.
After the hearing, the Magistrate Judge concluded that the contention of Mr. Drawbaugh that his petition was not untimely because of equitable tolling did not have merit and should be dismissed. Mr. Drawbaugh then filed his objections and the respondents filed a brief in response. In his objections, Mr. Drawbaugh reiterates that he was diligent in filing his position but was prevented from doing so by the lack of the 2254 form in the prison library.
Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the ...