The opinion of the court was delivered by: Yohn, J.
Paul Rosado, Jr., a prisoner at the Forest State Correctional Institute in Marienville, Pennsylvania, filed a pro se writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Elizabeth T. Hey provided me with a Report and Recommendation ("R&R") that proposed that the petition be dismissed as untimely. Rosado then filed objections to the R&R. For the following reasons, Rosado's objections are overruled and the R&R is approved and adopted.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 28, 2006, a jury from the Court of Common Pleas of Berks County returned unanimous verdicts convicting Rosado of first-degree murder, third-degree murder, two counts of aggravated assault, and possession of an instrument of a crime. See Commonwealth v. Rosado, No. CP-06-CR-0001048-2005, Recordation of Jury Verdicts, at 2 (Berks Cnty. Ct. Com. Pl. Apr. 28, 2006). On June 7, 2006, the Honorable Thomas G. Parisi sentenced Rosado to life imprisonment for first-degree murder, and a consecutive term of imprisonment of three to twenty-four months for possession of an instrument of a crime. See id., Life Sentence Order (Berks Cnty. Ct. Com. Pl. June 7, 2006). Rosado appealed his conviction to the Superior Court of Pennsylvania on June 13, 2006. See id., Notice of Appeal (Berks Cnty. Ct. Com. Pl. June 13, 2006). In his appeal, Rosado claimed that the trial court erred in denying a motion to suppress statements made by Rosado to law enforcement officers, necessitating a new trial. Brief of Appellant at 5, Commonwealth v. Rosado, No. 1008 MDA 2006 (Pa. Super. Ct. Nov. 3, 2006). On May 16, 2007, the Superior Court of Pennsylvania determined that there was no possible prejudice to Rosado from the admission of the statements made to law enforcement officers and, therefore, affirmed the judgment of sentence. See Commonwealth v. Rosado, No. 1008 MDA 2006, at 7 (Pa. Super. Ct. May 16, 2007). Rosado did not petition for the allowance of an appeal to the Pennsylvania Supreme Court; hence, his conviction became final on June 15, 2007, when the time for discretionary review by the Pennsylvania Supreme Court expired. See 28 U.S.C. § 2244(d)(1)(A); Pa. R. App. P. 903(a); see also Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. Ct. 2000) ("[A] judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review.").
On October 6, 2011, Rosado filed a pro se petition in the Berks County
Court of Common Pleas to collaterally attack his conviction pursuant
to Pennsylvania's Post Conviction
Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-9551.*fn2
Rosado then filed a request to withdraw his petition for
post-conviction relief, claiming the court lacked jurisdiction. (Pet.
for Writ of Habeas Corpus under 28 U.S.C. § 2254, at 7.) Judge Parisi
granted Rosado's request on December 7, 2011, and gave him thirty days
in which to file an amended petition. See Commonwealth v. Rosado,
CP-06-CR-1048/2005, Order of Court (Berks Cnty. Ct. Com. Pl. Dec. 7,
2011). Rosado never filed an amended petition.
After withdrawing his petition from the Court of Common Pleas, Rosado filed a petition for writ of habeas corpus with the Supreme Court of Pennsylvania on December 11, 2011, pursuant to 42 Pa. Const. Stat. Ann. § 721(1). The Pennsylvania Supreme Court forwarded the petition to attorney Nicholas C. Stroumbakis, Rosado's trial counsel, pursuant to Pennsylvania Rule of Appellate Procedure 3304. See Commonwealth v. Rosado, No. 652 MT 2011, Notice Re: Pa RAP 3304 (Pa. Dec. 16, 2011). The Supreme Court stated that any further correspondence needed to be made through Stroumbakis, as Rosado was still on record as being represented by counsel. See id. Rosado did not file any subsequent petitions in Pennsylvania state court.
On February 4, 2012, Rosado filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania under 28 U.S.C. § 2254.*fn3 In his petition, Rosado states five claims: (1) his simultaneous convictions for first- and third-degree murder violated the Double Jeopardy Clause; (2) his due process rights were violated by the jury returning inconsistent verdicts of first- and third-degree murder; (3) his due process rights were violated when the trial court gave erroneous and confusing jury instructions; (4) he received ineffective assistance of counsel because his attorney failed to challenge the Commonwealth's in-court identification of Rosado; and (5) he was denied access to the court system when the Pennsylvania Supreme Court did not process his petition for writ of habeas corpus, but instead forwarded the petition to Rosado's attorney of record. (Pet. For Writ of Habeas Corpus under 28 U.S.C. § 2254, at 2-4.) On March 5, 2012, I referred this case to the Honorable Elizabeth T. Hey, United States Magistrate Judge, for an R&R. On August 30, 2012, Judge Hey provided an R&R that recommended Rosado's petition be dismissed as untimely. Because Rosado filed objections to the R&R, I now review the magistrate judge's findings and recommendations de novo. See 28 U.S.C. § 636(b)(1).
Under 28 U.S.C. § 2244(d), a habeas petition must be filed within one year of the date on which the judgment of the state court became final "by the conclusion of direct review or the expiration of the time for seeking such review," barring some limited exceptions. 28 U.S.C. § 2244(d)(1)(A). One such exception exists where the one-year period is statutorily tolled during the pendency of a "properly filed application for State post-conviction" review. § 2244(d)(2). A second exception, known as equitable tolling, exists where a petitioner "shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented untimely filing." Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (internal quotation marks omitted). Finally, some circuits have recognized an "actual innocence" exception to the statute of limitations, where the merits of a petitioner's case are heard despite an untimely filing because the petitioner makes a compelling showing that he is actually innocent of the crime of conviction. See, e.g., Rivas v. Fisher, 687 F.3d 514 (2d Cir. 2012); Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc); San Martin v. McNeil, 633 F.3d 1257 (11th Cir. 2011). The Third Circuit has not expressly adopted an "actual innocence" exception, see Horning v. Lavan, 197 F. App'x 90, 93 (3d Cir. 2006), but has stated that if it did, such an exception would require that the petitioner "show that he is, in fact, innocent." Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012). The Third Circuit has stated that such a showing would require "the petitioner to demonstrate (1) new evidence (2) that is reliable and (3) so probative of innocence that no reasonable juror would have convicted the petitioner." Id. (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)).
As previously mentioned, Rosado's conviction became final on June 15, 2007, when the time for discretionary review by the Pennsylvania Supreme Court expired. Accordingly, Rosado had until June 15, 2008, to file a federal habeas petition unless he met one of the tolling exceptions. Rosado filed his federal habeas petition on February 4, 2012, and as the magistrate judge correctly explained in the R&R, none of the tolling exceptions apply to Rosado's petition. Therefore, Rosado's federal habeas petition is time-barred, and the merits of the petition need not be addressed.
In response to the magistrate's report, however, Rosado makes a series of objections. First, he claims that his petition is not untimely because he sought review by the Pennsylvania Supreme Court under 42 Pa. Cons. Stat. Ann § 721(1), which is not subject to a time limit. (Pet'r's Objections 5-6.) Second, Rosado states that the limitation period for his petition should be subject to a new start date under § 2244(d)(1)(B). In support of this contention, he argues that the Pennsylvania Supreme Court's forwarding of his petition to his prior counsel of record resulted in a state-created impediment to his filing of a timely application. (Id. at 7.) Third, Rosado argues that because no state court ruled that his habeas petitions were untimely, a federal court is precluded from making such a finding. (Id. at 8.) Fourth, Rosado argues that the magistrate judge was incorrect in her recommendation that he did not qualify for equitable tolling under an "actual innocence" exception. (Id. at 9-14.) Fifth, Rosado claims that a certificate of appealability should issue because reasonable jurists could debate whether the magistrate judge's recommendation that the petition be dismissed as untimely was correct. (Id. at 14-16.)
Rosado's objections illustrate that he has a fundamental misunderstanding of the statutory exceptions. With respect to Rosado's statutory tolling arguments, in order for tolling under § 2244(d)(2) to apply, Rosado's PCRA petition would have had to have been filed with a Pennsylvania court by June 15, 2008. It was not. In fact, Rosado waited over three years from the finalization of his conviction before filing his first PCRA petition, which subsequently he withdrew. Rosado's right to file a PCRA petition expired on June 15, 2008. Likewise, absent some reason for tolling of the federal statute, his right to file a § 2254 petition expired on the same date.*fn4
Rosado relies heavily on the fact that he filed a petition for discretionary review with the Pennsylvania Supreme Court under 42 Pa. Cons. Stat. Ann. § 721(1) on December 11, 2011, arguing that the statute provides an additional avenue for collateral review of his petition. Furthermore, he claims that because that statute is without a time-limitation period, his petition cannot be deemed untimely. In support of this argument, Rosado points to the Supreme Court's decision in Wall v. Kholi, 131 S. Ct. 1278 (2011), which he ...