J. WILLIAM DITTER, JR., J.
Presently before this court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Harvey Weaver and the response thereto. Weaver, who is currently incarcerated in the Somerset State Correctional Institution in Somerset, Pennsylvania, challenges his incarceration for involuntary deviate sexual intercourse. For the reasons that follow, the petition will be denied.
FACTS AND PROCEDURAL HISTORY:
The evidence presented at trial proved that Weaver and codefendant, Eric Alston, both drug traffickers, lured two teenaged girls to Philadelphia from Washington, D.C., then beat and sexually assaulted them for several hours inside an apartment in Southwest Philadelphia. After a jury trial before the Honorable Stanley L. Kubacki, Court of Common Pleas of Philadelphia County, Weaver was convicted of involuntary deviate sexual intercourse, possessing a controlled substance with intent to deliver, and criminal conspiracy. On October 4, 1988, Judge Kubacki sentenced Weaver to an aggregate term of 14 to 29 years of imprisonment. Weaver filed a direct appeal. On December 1, 1989, the Pennsylvania Superior Court remanded Weaver’s case for an evidentiary hearing on one claim pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and denied the remainder of his claims. The Pennsylvania Supreme Court denied allocatur on the rejected claims on January 22, 1991.
On June 26, 1991, following an evidentiary hearing, the trial court denied the Batson claim. The Superior Court affirmed on August 18, 1992. Commonwealth v. Weaver, 617 A.2d 394 (Pa. Super. 1992). The Pennsylvania Supreme Court denied allocatur on March 31, 1993. Commonwealth v. Weaver, 626 A.2d 1157 (Pa. 1993) (table).
Weaver then filed two petitions under the Pennsylvania Post-Conviction Hearing Act (“PCHA”), the predecessor of the current Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. 9541 et.seq. on December 14, 1993 and May 19, 1994. The PCHA court erroneously dismissed both of Weaver’s petitions as unripe, pending resolution of his direct appeal. Weaver did not appeal the dismissal of either petition.
On January 10, 1997, Weaver filed his first petition for writ of habeas corpus, raising five claims, including his Batson claim. On July 30, 1997, United States Magistrate Judge Thomas J. Reuter issued a report and recommendation recommending Weaver’s Batson claim be dismissed as meritless and his other claims be dismissed as procedurally defaulted. On August 26, 1997, the Honorable John R. Padova approved and adopted the report and recommendation and denied a certificate of appealability.
On March 4, 1997, while his first habeas petition was pending, Weaver filed his third post-conviction petition. The state court again erroneously dismissed the petition as unripe on May 4, 1997. Weaver did not appeal this decision to the Superior Court. On January 11, 2000, Weaver filed his fourth post-conviction petition. The state court dismissed the petition as untimely on June 14, 2000. Weaver did not appeal this decision to the Superior Court.
On March 9, 2001, Weaver filed his fifth post conviction petition. Counsel was appointed and on June 20, 2002, counsel filed an amended petition asserting that trial counsel was ineffective for failing to obtain and present to the jury the results of the rape kit referenced in the police report. On February 24, 2003, the PCRA court ordered the Commonwealth to investigate whether an analysis of the rape kit existed. On June 27, 2003, the Commonwealth responded that the results of the rape kit showed that swabs taken from the victim, Patricia Mason, tested positive for sperm.
The PCRA court held evidentiary hearings on November 6, 2003, and January 29, 2004. At trial, Weaver testified that he never sexually assaulted Ms. Mason and that they had consensual sex the night before the incident. Ms. Mason testified that she slept in the same bed as Weaver but that they did not engage in intercourse. At the PCRA court hearing, Weaver argued that if the rape kit had been available at trial, he would have been able to impeach the credibility of Ms. Mason based on the results and the outcome of the trial would have been different. On March 22, 2004, the PCRA court ordered a new trial for Weaver on the involuntary deviate sexual intercourse charge.
On March 30, 2004, the Commonwealth filed a petition for reconsideration asserting that the PCRA court had no jurisdiction to consider Weaver’s untimely petition and therefore could not order a new trial. On April 29, 2004, the PCRA court granted the Commonwealth’s petition, rescinded its order for a new trial, and dismissed Weaver’s petition.
Weaver, represented by new counsel, appealed to the Superior Court alleging that PCRA counsel had been ineffective for failing to assert that Weaver had met an exception to the statute of limitations. On July 14, 2006, the Superior Court found that PCRA counsel had been ineffective in this regard and remanded the matter to the PCRA court to address the statutory exceptions to the PCRA’s jurisdictional time bar.
On April 16, 2007, counsel filed an amended PCRA petition, asserting that the Commonwealth violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the results of the rape kit performed on the victim. On November 9, 2007, the PCRA court dismissed Weaver’s petition as untimely. Weaver appealed the PCRA court’s order and on July 29, 2009, the Superior Court affirmed the denial of PCRA relief, ruling that Weaver failed to meet any of the statutory exceptions to the PCRA time bar and finding that the court was therefore without jurisdiction to consider the merits of Weaver’s Brady claim. Weaver did not appeal to the Pennsylvania Supreme Court.
On July 16, 2010, Weaver filed the instant petition. The matter was referred to the Court of Appeals for the Third Circuit for a determination as to whether Weaver would be granted leave to file a second habeas petition. On December 23, 2010, the Court of Appeals granted Weaver leave to proceed on his Brady claim. Respondents have filed an answer asserting that Weaver is not ...