A. RICHARD CAPUTO, District Judge.
Presently before the Court is Magistrate Judge Susan E. Schwab's Report and Recommendation (Doc. 15) to Colton Barrett's Petition for Writ of Habeas Corpus (the "Petition"). (Doc. 1.) Because the Petition was not timely filed and is not subject to equitable tolling, the Report and Recommendation will be adopted and the Petition will be dismissed.
As set forth in greater detail in Magistrate Judge Schwab's Report and Recommendation, Petitioner pled guilty in the Court of Common Pleas of Columbia County, Pennsylvania on December 18, 2009 to two counts of aggravated assault, five counts of arson endangering persons, and one count of arson endangering property. Petitioner was sentenced on February 11, 2010 to a period of incarceration of not less than 20.5 years and not more than 42 years.
Petitioner filed a timely motion for reconsideration of sentence, but his request was dismissed on July 7, 2010. The trial court's ruling was docketed on July 14, 2010. Petitioner did not file a direct appeal.
Next, on February 11, 2011, Petitioner filed a timely petition under Pennsylvania's Post Conviction Relief Act ("PCRA"). The PCRA court entered an order dismissing the PCRA petition on September 12, 2011. The Pennsylvania Superior Court denied Petitioner's appeal on June 22, 2012. Petitioner did not seek further review in the Pennsylvania Supreme Court. Rather, Petitioner commenced the instant habeas corpus proceeding on March 13, 2013.
After a preliminary review of the Petition, Magistrate Judge Schwab ordered Respondent to file an answer and a memorandum of law responding to the Petition. Respondent timely complied and asserted that the Petition was barred by the applicable one-year statute of limitations period.
On June 21, 2013, Magistrate Judge Schwab issued the Report and Recommendation recommending that the Petition be dismissed as untimely. According to Magistrate Judge Schwab, a total of 415 days of untolled time elapsed before Petitioner filed his federal habeas Petition. Magistrate Judge Schwab thus concludes that the Petition was filed approximately fifty (50) days beyond the applicable limitations period and that equitable tolling of the statute of limitations was not warranted.
Petitioner, through his counsel, filed timely objections to the Report and Recommendation. Petitioner does not contest the Magistrate Judge's conclusion that the Petition was untimely filed by fifty (50) days. However, Petitioner argues that the Petition is subject to equitable tolling. This case presents extraordinary circumstances to warrant equitable tolling because:
undersigned counsel advised Petitioner that he would have one year from the date upon which the Superior Court's decision was rendered within which to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. Unfortunately, petitioner's counsel overlooked the fact that since the post-conviction petition was not filed until 162 days after the sentence became final, that this amount of time would be subtracted from the one year statute of limitations.
(Doc. 16, 2.) "As a result of counsel's misadvice, the petition was untimely, " and "undersigned counsel dropped the ball and was responsible for the late filing of the Petition for Writ of Habeas Corpus." ( Id. at 2-3.)
II. Legal Standard
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)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (emphasis added). In conducting a 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 law 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, 100 S.Ct. 2406, 65 L.Ed.2d 424 (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 ...