The opinion of the court was delivered by: DuBOIS, J.
This case arises out of petitioner Saleem Butler's May 17, 2004, conviction in the Court of Common Pleas of Delaware County for conspiracy to commit murder. Petitioner was sentenced on September 14, 2004, to 220 months' to 480 months' imprisonment.
Petitioner filed a pro se Petition for Writ of Habeas Corpus
("Petition") under 28 U.S.C. § 2254 on April 4, 2011.*fn1
On October 24, 2011, United States Magistrate Judge Lynne A.
Sitarski submitted a Report and Recommendation ("R & R") to the Court,
recommending that the Court dismiss the Petition as untimely.
Petitioner filed Objections to the R & R on November 28, 2011. For the reasons that follow, the Court sustains the Objections to the R & R and remands the Petition to Magistrate Judge Sitarski for an amended report and recommendation in accordance with this Memorandum.
Petitioner was convicted on May 17, 2004, of conspiracy to commit murder in the Court of Common Pleas of Delaware County. (Pet. 1.) The Pennsylvania Superior Court denied petitioner's appeal on April 6, 2006. (Id. at 2.) The Pennsylvania Supreme Court denied allocatur on September 29, 2006, and denied reconsideration of the denial of allocatur on November 21, 2006. (Id. at 3.)
Petitioner filed a pro se petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Const. Stat. § 9541 et seq, on September 25, 2007.*fn3 The PCRA court denied petitioner's PCRA petition by Order of December 18, 2008, and Memorandum of August 5, 2009. (R & R 6.) Petitioner appealed that decision to the Superior Court of Pennsylvania, which denied relief on May 13, 2010. (Id.) The Supreme Court of Pennsylvania denied allocatur in petitioner's PCRA action on October 20, 2010. (Id. at 6--7.)
Petitioner alleges that on April 2, 2010, he was transferred from the State Correctional Institution in Dallas, Pennsylvania-at which he had been housed since April 15, 2009-to the Lackawanna County Prison in Scranton, Pennsylvania. (Pet'r's First Traverse Rebuttal Resp.'s Answer Habeas Corpus Action ("First Traverse") 2.) Because the Supreme Court of Pennsylvania was not aware of this transfer, it allegedly sent notice of its October 20, 2010, denial of allocatur to the Dallas facility, thus delaying petitioner's receipt of the denial "until on or about November 6, or 7, 2010." (Id. at 3.)
Petitioner further alleges that upon receiving the denial of allocatur, he "began to diligently research [the] option of filing a [h]abeas [c]orpus [p]etition." (Id.) Petitioner alleges that the Lackawanna County Prison lacked the requisite habeas corpus or in forma pauperis forms. (Id.) As a result, petitioner asked his father to send him the habeas corpus forms. That was done, but Lackawanna County Prison Officials rejected the forms as "station[e]ry material." (Id.) Petitioner's father then allegedly gave the forms to petitioner's former attorney, who successfully forwarded them to petitioner. (Id.) Although petitioner does not specify when he received the forms from his former attorney, the letter of transmittal is dated December 1, 2010, meaning that petitioner must have received them some time thereafter. (Id.)
Upon receiving the forms, petitioner alleges that he filled them out and attempted to mail them to this Court. (Id.) The package containing the Petition was allegedly rejected for improper postage and returned to petitioner. (Id.) Petitioner claims that he then obtained money for postage from his family and mailed the Petition to this Court. (Id.) The Petition is dated March 21, 2011, and was filed in the office of the Clerk of the Court on April 4, 2011. (Pet. 18.) The petition mentions equitable tolling in passing, but does not offer any argument as to why it applies. (Id. at 16.)
Respondents filed their Response to Petition for Writ of Habeas Corpus ("Response") on June 9, 2011. In it, respondents argue that the Petition was untimely, (Resp. 8--10), that certain claims in the Petition were procedurally defaulted, (id. at 10--14), and that petitioner's remaining claims fail on the merits, (id. at 17--26). Judge Sitarski issued her R & R on October 24, 2011. The R & R does not discuss procedural default or the merits of petitioner's claim. Judge Sitarski recommended that the Court deny the Petition as untimely because the Petition was four days late, (R & R 8--11), and equitable tolling did not apply, (id. at 11--15).
On October 26, 2011, two days after Judge Sitarski issued her R & R, petitioner filed his First Traverse in Rebuttal to Respondent's [sic] Answer in Habeas Corpus Action ("First Traverse"). Although the First Traverse is not dated, petitioner produced a "cash slip" from the prison showing that he purchased postage for the First Traverse as early as August 31, 2011. (Objections to Magistrate's Report and Recommendation-Nunc Pro Tunc ("Objections"), Ex. B.) Petitioner makes his first full argument for equitable tolling in the First Traverse, based on: (1) the delay in his receiving notice of the Pennsylvania Supreme Court's denial of allocatur in his PCRA action; (2) his lack of access to the habeas forms; and (3) the rejection of his Petition for lack of postage. (First Traverse 2--4.)
Because the First Traverse did not reach the office of the Clerk of the Court until after Judge Sitarski had issued her R & R, the R & R does not discuss petitioner's three equitable tolling arguments. Instead, the R &R's discussion of equitable tolling is limited to petitioner's attorney's failure to file a petition for writ of ...