The opinion of the court was delivered by: (judge Caputo)
(MAGISTRATE JUDGE BLEWITT)
Presently before the Court is the Report and Recommendation of Magistrate Judge Thomas M. Blewitt, recommending that Petitioner Gregory K. Gillette's Habeas Petition be dismissed without prejudice to re-file after exhausting all state court remedies with respect to his claims. Although Gillette has not fully exhausted his state court remedies, a stay and abeyance on his Habeas Petition may be warranted if his Petition is deemed to be timely filed. Therefore, the Court will reject the Report and Recommendation insofar as it recommends dismissing Gillette's Petition and will remand the matter to Magistrate Judge Blewitt for further proceedings.
Petitioner Gregory K. Gillette has filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 challenging his 2006 Lebanon County Court of Common Pleas convictions. (Pet., Doc. 1.) Currently, Gillette is an inmate at the State Correctional Institution at Cresson, Pennsylvania. Petitioner has paid the filing fee in this matter. Named as respondents are the Warden at SCI Cresson, Kenneth R. Cameron, and the Attorney General for the Commonwealth of Pennsylvania.
On August 9, 2006, Gillette was found guilty of robbery, theft, simple assault, and conspiracy by the Lebanon County Court of Common Pleas. See Commonwealth v. Gillette, CP--38--CR--0000187--2006 (Lebanon Ct. Com. Pl .) (docket sheet).*fn1 On October 11, 2006, Gillette was sentenced to 24 to 60 years imprisonment. (Id.) Gillette filed a direct appeal to the Superior Court of Pennsylvania, which affirmed his conviction on January 12, 2009. See Commonwealth v. Gillette, No 161 MDA 2008 (Pa.Super.) (docket sheet). Gillette sought no further review by a higher state court.
On January 11, 2010, Gillette filed a Post Conviction Relief Act ("PCRA") Petition with the Lebanon County Court of Common Pleas. 42 Pa.C.S. §§ 9541--9546. This petition was denied on December 20, 2010. See Commonwealth v. Gillette, CP--38--CR--0000187--2006 (Lebanon Ct. Com. Pl .) (docket sheet). Gillette filed an appeal with the Superior Court of Pennsylvania, which affirmed the denial of his Petition on August 15, 2011. See Commonwealth v. Gillette, 32 A.3d 834 (Table, No. 87 MDA 2011). Gillette then filed a Petition for Allowance of Appeal before the Supreme Court of Pennsylvania, which remains pending today. See Commonwealth v. Gillette, 634 MAL 2011 (Pa.) (docket sheet).
The subject of the instant matter, Gillette's Section 2254 Habeas Petition, was filed on October 5, 2011. It alleges: (1) that trial and appellate counsel were ineffective in failing to call alibi witnesses; (2) that the prosecution knowingly presented false and misleading testimony; (3) that trial and appellate counsel were ineffective in preventing the Commonwealth's improper reference to evidence not of record; and (4) that his sentence is in violation of the double jeopardy clause. Although Gillette's PCRA action is currently pending before the Pennsylvania Supreme Court, Gillette noted in his Section 2254 Petition that he was "filing this protective Habeas Corpus because he has only one day to toll the statute of limitations." (Pet. at ¶ 18, Doc. 1.) Magistrate Judge Blewitt reviewed the Habeas Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.*fn2 He determined that Gillette's claims were not exhausted in the state courts, and that, due to tolling during the pendency of the state court actions, Gillette had one month remaining in which to file a renewed Section 2254 petition. (Report and Recommendation at 3, 7-8, Doc. 5.) Gillette objects that such exhaustion is required, stating that he is "only required to afford state courts a fair opportunity to pass judgment on his allegations of constitutional violations." (Objection at ¶ 15, Doc. 6.) He also argues that Magistrate Judge Blewitt should have elected to hold his Petition in "stay and abeyance." (Id. at ¶ 17.)
I. Legal Standard for Reviewing a Report and Recommendation
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). As such, the Court reviews the portions of the Report and Recommendation to which the Petitioner objects de novo. The remainder of the Report and Recommendation is reviewed for clear error.
A. Requirements of Exhaustion
Gillette first argues that the exhaustion requirements for his Section 2254 Motion have been met as he is "only required to afford state courts a fair opportunity to pass judgment on his allegations of constitutional violations." (Objection at ¶ 15, Doc. 6.) Section 2254 requires that "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). However, pursuant to Pennsylvania Supreme Court Order 218,*fn3 petitions for allowance of appeal to the Pennsylvania Supreme Court are not necessary for exhaustion as they are deemed "'unavailable' for purposes of exhausting state court remedies under § 2254(c)." Boyd v. Waymart, 579 F.3d 330, 368 (3d Cir. 2009) (quoting Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir.2004)). Yet, although a petitioner is not required to seek appeal in the Pennsylvania Supreme Court, once they do, "the exhaustion requirement applies." Steckley v. Cameron, Civ. No. 1:11-CV-1417, 2011 WL 5239211 at *2 (M.D. Pa. Nov. 01, 2011); Soto v. Wynder, Civ. Act. No. 07-4720, 2008 WL 249816 at *1-2 (E.D. Pa. Jan. 29, 2008) (adopting a report and recommendation dismissing the petitioner's Section 2254 ...