Petitioner Frederick Burton ("Burton"), a prisoner serving a life sentence at the State Correctional Institution in Somerset, Pennsylvania, filed a counseled petition for a writ of habeas corpus pursuant to 22 U.S.C. § 2254. United States Magistrate Judge Elizabeth T. Hey filed a Report and Recommendation ("R&R") finding his petition untimely. Burton filed objections.
Following a hearing held on December 15, 2011, this court granted Burton leave to amend his habeas corpus petition to include additional evidence. The court also remanded Burton's petition to Judge Hey for a supplemental R&R. Judge Hey determined that the new evidence had no bearing on her conclusion that Burton's petition is untimely. Burton filed objections. For the reasons set forth below, the court will adopt Judge Hey's R&R and supplemental R&R, overrule Burton's objections and dismiss his petition as untimely.
A. Factual and Procedural History
In 1972, after a jury trial before the Honorable Peter F. Hagan, Burton was convicted for first degree murder, assault with intent to murder and conspiracy. N.T., 12/7/72, at 550-51. The charges arose from the murder of Francis Von Colln and the assault on James Harrington, both Fairmount Park Police members. The following facts were developed at trial:
On August 29, 1970, at or about 8:30 p.m., Officers Harrington and Kenner of the Fairmount Park Police in Philadelphia were turning into the Cobbs Creek Guardhouse of the 93rd Police District when they saw an unidentified Negro man gesturing at them to stop. The man then fired into the face of Officer Harrington, seriously injuring his lower jaw. . . . Officer Kenner was soon joined by two additional police officers and they called for additional support. Officer McConomy, who occupied a guardhouse at the 96th District Station, received the call for assistance and radioed Officer Von Colln at the Cobbs Creek Guardhouse to find out what the trouble was. Von Colln replied, "I am not sure." Just then a second call came over the radio and Officer McConomy told Von Colln he had a second assistance call. To this Von Colln replied, "Oh yeah?" Officer McConomy then heard several shots through the receiver and asked Von Colln what was happening, but he received no reply. Officer Von Colln died of gunshot wounds.
At the scene of the shooting of Officer Harrington, police arrested Hugh Sinclair Williams, who, just before the arrest, dropped a bag containing a .32 revolver, fifteen cartridges, and a fragmentation grenade. . . .
On the basis of information apparently given to them by Marie Williams, wife of Hugh Sinclair Williams, police concluded that the crime was the work of a gang known as "The Revolutionaries," which included her husband . . . and appellant Frederick Burton. [Burton] was arrested, and after a warrant was obtained, a search of his home disclosed a number of spent cartridges, a 9-millimeter shell, a fragmentation grenade similar to those found at the murder scene and a 24 by 20 drawing of a police sergeant on his knees with a black militant holding a gun to his head, with the caption, "This Now." . .
To prove that [Burton] was a member of the "corrupt confederation" responsible for the killing of Officer Von Colln, the Commonwealth presented the testimony of Marie Williams . . . . [At trial,] Mrs. Williams testified that her husband, [Burton], [and others] had met in her home about once a week during the four months prior to the shooting of Officer Von Colln. At these meetings, the group, including [Burton], discussed how they, in the words of Mrs. Williams, would "eliminate the 'pigs'" in order to get police pressure off the blacks. She further testified that about a week before the murder of Officer Von Colln, the group, including [Burton], discussed their plans to blow up a police station . . . .
Commonwealth v. Burton, 330 A.2d 833, 834-36 (Pa. 1975). Burton was sentenced to life imprisonment for the murder conviction. N.T., 12/12/73, at 6-8. The Pennsylvania Supreme Court affirmed the conviction and sentence on direct appeal. Burton, 330 A.2d 833.
On September 30, 1981, Burton filed a counseled petition pursuant to the Pennsylvania Post-Conviction Hearing Act ("PCHA"), the precursor to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. The court denied his petition. Commonwealth v. Burton, No. 1004 (Phila. C.C.P. Jan. 9, 1984). The Pennsylvania Superior Court affirmed the denial of Burton's petition, Commonwealth v. Burton, No. 584 Phila. 1984 (Pa. Super. Apr. 26, 1985), and the Pennsylvania Supreme Court denied allowance of appeal, Commonwealth v. Burton, 895 E.D. Allocatur Dkt. 1985 (Pa. Mar. 7, 1986).
In 1987, Burton filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania. The petition was transferred to the Honorable Louis Bechtle in this District. Burton argued his trial counsel was ineffective for failing to:
1) seek suppression of certain evidence; 2) object to testimony of the decedent's widow; and
3) object to prejudicial remarks in the prosecutor's closing statement. The court denied Burton's petition on the merits. Burton v. Petsock, No. 88-102 (E.D. Pa. Nov. 4, 1988).
Burton filed a PCRA petition on November 14, 1991. The court dismissed the petition because the claims had been litigated or waived. Commonwealth v. Burton, No. 1004 (Phila.
C.C.P. Dec. 5, 1991). Burton filed a second habeas petition in 1999. Judge Bechtle dismissed it as successive. Burton v. Frank, No. 99-333 (E.D. Pa. Mar. 5, 1999).
On September 21, 2004, Burton filed a pro se PCRA petition arguing he was denied access to the documents from Marie Williams's immunity hearing. Burton's counsel filed an amended petition challenging the prosecutor's use of peremptory challenges in jury selection and the Commonwealth's failure to disclose evidence undermining Ms. Williams's trial testimony and two statements she gave to police shortly after the shootings implicating her husband and the other defendants. This evidence included:
1) Ms. Williams's first statement to police on August 30, 1970, not mentioning Burton;
2) a letter Ms. Williams wrote to the District Attorney's office one month before her immunity hearing that stated police forced her to make untrue statements implicating her husband and the other defendants and denied that her husband and the others were involved in the crimes;
3) the transcript from Ms. Williams's immunity hearing, when her counsel questioned the police detective about the coercive nature of Ms. ...