The opinion of the court was delivered by: Juan R. Sanchez, J.
Petitioner Randy Carl Hinkley has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. United States Magistrate Judge Linda K. Caracappa has issued a Report and Recommendation (R&R) recommending the petition be dismissed because the claims raised therein are procedurally defaulted. Upon consideration of the R&R and Hinkley's objections thereto, and for the reasons set forth below, this Court agrees Hinkley's habeas petition should be dismissed. FACTS*fn1
In his habeas petition, Hinkley seeks relief from three related state court sentences imposed by different judges in the Lehigh County Court of Common Pleas in Case Nos. 2967/1990, 1689/1992, and 1209/2004. The background to Hinkley's claims is as follows:
On April 29,1992, Hinkley pleaded guilty to misdemeanor charges of criminal mischief and defiant trespass in Case No. 2967/1990 and was sentenced to a one-year term of probation. Later the same year, Hinkley was arrested on new charges in Lehigh County. While the Lehigh County charges were pending, Hinkley pleaded guilty to a felony burglary charge in Case No. 1228/1992 in Northampton County and was sentenced to a term of imprisonment of 23 months to five years.
Hinkley was thereafter returned to Lehigh County, where on January 13, 1993, he pleaded guilty to recklessly endangering another person and simple assault in Case No. 1689/1992 and was sentenced to a term of imprisonment of time served (approximately seven months) to two years less one day, to run concurrently with the sentence imposed in Case No. 2967/1990.*fn2 The following day, Hinkley's probation was revoked in Case No. 2967/1990, and he was sentenced to a new 23-month term of probation. On January 15, 1993, Hinkley was granted immediate parole in Case No. 1689/1992 and was apparently released, notwithstanding his outstanding incarceration sentence in the Northampton County case.
The status of Hinkley's criminal cases during the decade following his January 1993 release is not entirely clear from the record. Petitions for probation and/or parole violations appear to have been filed in Case Nos. 2967/1990 and 1689/1992 in August 1993, but Hinkley was not taken into custody until April 1995, at which time he was released on bail. A bench warrant was issued on May 10, 1995. Hinkley was again taken into custody on June 6, 1995, but was released the following day. Although a new bench warrant was issued, Hinkley remained at large, his whereabouts unknown, until he was again apprehended eight years later in October 2003. On November 18, 2003, Hinkley's probation was again revoked in Case No. 2967/1990, and he was again sentenced to a new 23-month term of probation. On December 1, 2003, Hinkley's parole was revoked in Case No. 1689/1992, and he was sentenced to serve the balance of his original sentence in that case (approximately 17 months) and granted immediate work release.
In February 2004, Hinkley left work release and was thereafter charged with escape in Case No. 1209/2004. While the escape charge was pending, Hinkley was returned to the Lehigh County Prison where he continued to serve the balance of his sentence in Case No. 1689/1992 until that sentence expired on May 18, 2005. On January 24, 2005, Hinkley pleaded guilty to the escape charge in Case No. 1209/2004, and on March 4, 2005, he was sentenced to two and a half to six years of imprisonment, to run consecutively to all other sentences. On May 3, 2005, Hinkley's probation was again revoked in Case No. 2967/1990, and he was sentenced to one to two years of imprisonment, to run consecutively to the sentence imposed in Case No. 1209/2004, with credit for all time spent in custody as a result of the criminal charges for which sentence was being imposed. On May 6, 2005, the Northampton County Court of Common Pleas issued an order stating that Hinkley's sentence in Case No. 1228/1992 was terminated. The reasons for the order are not clear from the record.
Following imposition of sentence in each of the three Lehigh County cases, Hinkley filed numerous appeals, PCRA petitions, and other requests for relief, all of which were unsuccessful. In February 2011, he filed the instant habeas petition. Hinkley appears to allege his confinement from 2003 forward on probation and parole violations in Case Nos. 2967/1990 and 1689/1992, and on the escape charge in Case No. 1209/2004, violates his substantive and procedural due process rights. Hinkley contends because of his previously-imposed incarceration sentence in Northampton County Case No. 1228/1992, Lehigh County had no authority to release him on parole in January 1993. Hinkley further argues because his January 1993 release was void, his sentences in Case Nos. 2967/1990 and 1689/1992 continued to run while he was erroneously at liberty, with the result that those sentences expired in June 1994, making his later violation sentences in those cases, as well as his escape conviction in Case No. 1209/2004, unlawful. Hinkley also argues he is entitled to time credit toward his one-to-two-year probation revocation sentence in Case No. 2967/1990 for time spent serving his parole revocation sentence in Case No. 1689/1992 from November 18, 2003, to May 18, 2005, when his sentence on Case No. 1689/1992 expired. Finally, Hinkley appears to bring an ineffective assistance of counsel claim based on the alleged "complicity" of all counsel in the alleged violations of his due process rights.
Respondents argue Hinkley's habeas petition should be denied because it is untimely, the claims raised therein are procedurally defaulted, and his claim he is entitled to time credit toward his sentence in Case No. 2967/1990 for the period from November 18, 2003, to May 18, 2005, fails on the merits. Although the Magistrate Judge found it unnecessary to address Respondents' statute of limitations argument, this Court agrees Hinkley's habeas petition is time-barred insofar as it challenges the judgment in Case Nos. 2967/1990 and 1689/1992.
A federal habeas petition by a prisoner in state custody is subject to a one-year statute of limitations, which runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," unless an alternative start date applies. 28 U.S.C. § 2244(d)(1)(A).*fn3 This one-year limitations period is subject to statutory and equitable tolling. The limitations period is statutorily tolled during "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The limitations period may also be equitably tolled if the petitioner shows "'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Because Hinkley's habeas petition challenges the judgment in three different criminal cases, the statute of limitations must be assessed separately with respect to each case. See Retic v. United States, 321 F. App'x 865, 865-66 (11th Cir. 2009) (affirming district court's determination that two state judgments challenged in a single habeas application each had their own separate statute of limitations); Williams v. Smith, No. 11-578, 2012 WL 3985609, at *2-4 (E.D. Va. Sept. 11, 2012) (analyzing statute of limitations separately as to claims challenging petitioner's original conviction and claims challenging revocation proceedings); Supples v. Kerestes, No. 08-1275, 2010 WL 324431, at *7-9 (W.D. Pa. Jan. 21, 2010) (analyzing statute of limitations separately as to each underlying criminal conviction in habeas case raising time credit issues).
With respect to Case No. 2967/1990, Hinkley appealed his May 3, 2005, probation revocation sentence to the Superior Court, which denied the appeal on May 16, 2007. Hinkley did not seek further review in the Pennsylvania Supreme Court; therefore, his sentence in Case No. 2967/1990 became final when the time to seek such review expired on June 15, 2007. See Pa. R. App. P. 1113(a) (providing a petition for allowance of appeal from a final order of the Superior Court shall be filed within 30 days after entry of the order); Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (holding a conviction does not become final for purposes of § 2244(d)(1)(A) "until the 'availability of direct appeal to the state courts' and to [the United States Supreme Court] has been exhausted" (citations omitted)).
Hinkley filed a PCRA petition 103 days later, on September 26, 2007, with 262 days remaining in the federal limitations period. The petition was denied on November 20, 2007. Hinkley did not appeal but filed a pro se state habeas petition in the Court of Common Pleas on November 25, 2007, which was denied on December 6, 2007. Thus, assuming Hinkley is entitled to statutory tolling during the pendency of these petitions,*fn4 the federal limitations period would have begun to run again when the time to appeal the denial of Hinkley's state habeas petition expired on January 5, 2008. See Pa. R. App. P. 903(a) (stating general rule that notice of appeal shall be filed within 30 days after entry of the order from which the appeal is taken); Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000) (holding an application for post-conviction relief remains pending during "the time during which an appeal could be filed even if the appeal is not eventually filed"). The federal limitations period would have continued to run for at least an additional 117 days until May 1, 2008, when Hinkley filed a further PCRA petition with 145 days remaining in the federal limitations period. The court denied Hinkley's May 2008 PCRA petition on June 19, 2008. Hinkley again did not appeal but filed a motion for relief regarding PCRA denials on July 1, 2008, which was denied on August 14, 2008. Assuming Hinkley is entitled to statutory tolling during the pendency of his May 2008 PCRA petition and motion for relief, the federal limitations period would have begun to run again when the time to appeal the denial of Hinkley's motion for relief expired on September 13, 2008.
The docket in Case No. 2967/1990 does not reflect any further filings by Hinkley between September 13, 2008, and March 7, 2009; therefore, the federal limitations period would have continued to run during this 175-day period, expiring in February 2009. Hinkley continued to seek relief in state court after February 2009, filing a mandamus petition on March 7, 2009, a motion to invoke the state's inherent authority on April 25, 2009, and two state habeas petitions on June 3, 2009, and July 19, 2009, all of which were denied. Hinkley also filed a mandamus action in the Commonwealth Court on March 17, 2010, and additional requests for relief in the Court of ...