The opinion of the court was delivered by: Judge Caputo
(MAGISTRATE JUDGE CARLSON)
Before the Court is Magistrate Judge Carlson's report and recommendation ("R&R") (Doc. 17) on petitioner Oritz's writ of habeas corpus petition along with Oritz's objections (Doc. 20) and Superintendent Sauers' response (Doc. 21). Magistrate Judge Carlson recommends the petition be dismissed as untimely. Oritz, however, argues that the one-year statute of limitations was tolled. The Court disagrees with Oritz and will adopt the R&R and dismiss the petition.
On August 17, 2006, following a trial, a jury in the Court of Common Pleas, York, Pennsylvania, convicted Ortiz of Criminal Attempt to Commit Homicide, Aggravated Assault (Serious Bodily Injury) and Aggravated Assault (Bodily Injury by Deadly Weapon). On September 25, 2006, the Court imposed a sentence of 18-36 years on Ortiz on the charge of Criminal Attempt Homicide. (Id.) Ortiz then separately proceeded to a stipulated bench trial on October 11, 2006 on the state Firearms Possession charge. He was also found guilty of that offense, and was sentenced to 5-10 years incarceration, concurrent with the attempted murder conviction.
Following these convictions, on October 12, 2006, Ortiz filed a notice of appeal to the Pennsylvania Superior Court from the two convictions and sentences. On September 6, 2007, the Pennsylvania Superior Court affirmed Ortiz's convictions and sentences. On October 5, 2007, Ortiz filed a timely petition for allocatur with the Pennsylvania Supreme Court, which was denied on April 15, 2008. With the denial of this petition by the Pennsylvania Supreme Court, Ortiz's conviction and sentence became final on July 14, 2008, when the time for timely seeking United States Supreme Court review lapsed without any action of Ortiz's part.
One-hundred and ninety (190) days then elapsed from July 14, 2008 until Ortiz filed a petition for post-conviction collateral relief in state court on January 20, 2009. A hearing was conducted in the Court of Common Pleas of York County on this post-conviction relief petition on March 23, 2009. On May 5, 2009, the Common Pleas court entered an order denying Ortiz post-conviction relief.
Ortiz, in turn, appealed this decision on his post-conviction relief act petition to the Pennsylvania Superior Court on June 3, 2009. On March 3, 2010, the Superior Court issued an opinion and order affirming the denial of post-conviction relief to Ortiz, who filed a petition for allocatur with the Pennsylvania Supreme Court on April 5, 2010. On September 9, 2010, the Pennsylvania Supreme Court denied this petition for allocatur, and Ortiz's state appeals of this post-conviction petition drew to a close.
Another year then passed before Ortiz filed the instant federal habeas corpus petition on September 6, 2011. (Doc. 1.) During this year-long hiatus the only action which Ortiz took to further litigate this case involved a sporadic effort that occurred on July 19, 2011, when Ortiz filed an untimely motion to reconsider the denial of allocatur. The prothonotary of the Pennsylvania Supreme Court rejected this motion as an untimely filing on July 25, 2011. Ortiz then allowed six weeks to elapse before filing this federal habeas corpus petition.
It is against this procedural background that Ortiz filed his federal habeas corpus petition. A copy of this petition was served upon the respondents, who filed an initial response to the petition which raises the bar of the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), 28 U.S.C. § 2244, one-year statute of limitations as a defense in this case. (Doc. 10.) After the R&R was entered, Oritz filed his objections and the defendants filed their response. Oritz main objection is that the Magistrate Judge was wrong in not calculating the statute of limitations period beginning in July 2011 when he filed his second allocatur petition. This matter is now ripe for resolution.
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 district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).
The Court will adopt the Magistrate Judge's R&R because Oritz's ...