RICHARD P. CONABOY, District Judge.
Here we consider Magistrate Judge Karoline Mehalchick's Report and Recommendation concerning the 28 U.S.C. § 2254 habeas corpus petition (Doc. 1) filed by Petitioner on July 16, 2013, together with a supporting memorandum of law (Doc. 3). (Doc. 15.) Magistrate Judge Mehalchick recommends dismissing the petition with prejudice on the basis that it is not timely filed. (Doc. 15 at 6.) Petitioner's objections to the Report and Recommendation were docketed on December 13, 2013. (Doc. 17.) Because the petition has not been served, the matter is now ripe for disposition.
When a petitioner files objections to a magistrate judge's report, the reviewing court conducts a de novo review of those portions of the report to which objection is made. 28 U.S.C. § 636(b)(1). To warrant de novo review, the objections must be both timely and specific. Goney v. Clark , 749 F.2d 5, 6-7 (3d Cir. 1984). The court may accept, reject or modify, in whole or in part, the findings made by the magistrate judge. 28 U.S.C. § 636(b)(1). Uncontested portions of the report are reviewed for clear error. Cruz v. Chater , 990 F.Supp. 375, 376-77 (M.D. Pa. 1998).
For the reasons discussed below, we concur with the Magistrate Judge that this habeas action is properly dismissed. However, we do so on other grounds.
Petitioner was arrested and incarcerated in Lackawanna County, Pennsylvania, on August 13, 1993, on charges of Indecent Deviate Sexual Intercourse, case number 35-CR-1301-1993. (Doc. 1 at 1; Doc. 3 at 1.) At the time of his arrest on these charges, Petitioner was out on bail on two prior charges: two counts of Corruption of Minors, case number CP-730-1992; and one count of Possession of a Controlled Substance, case number CP-813-1993. (Doc. 3 at 2.)
On August 24, 1993, Petitioner pled guilty to the Corruption of Minors and Possession of a Controlled Substance consolidated charges (case numbers CP-730-1992 and CP-813-1993). (Doc. 3 at 3.) He received a one to two year sentence that expired on August 24, 1995. ( Id. )
On March 10, 1995, Petitioner was sentenced on two counts of Indecent Deviate Sexual Intercourse (case number 35-CR-1301-1993). (Doc. 3 at 2.) He was sentenced to ten to twenty years. ( Id. ) The Pennsylvania Department of Corrections' ("DOC") sentencing order states that the sentence commences on, March 10, 1995 (the date of sentencing), and expires on March 10, 2015. (Doc. 3 at 3, 9.)
Petitioner filed this action on July 13, 2013, asserting that the DOC incorrectly calculated his sentence: the sentence should have commenced on August 13, 1993 (the date he was arrested on the Indecent Deviate Sexual Intercourse charges), and should expire on August 13, 2013. (Doc. 3 at 2, 3.) As grounds for relief, Petitioner first identifies a Fourteenth Amendment due process right based on the refusal of the Lackawanna County Court of Common Pleas and Pennsylvania Department of Corrections to follow the law that was in effect at the time of his sentencing, March 10, 1995. (Doc. 1 at 5; Doc. 3 at 4.) Petitioner next claims a Fourteenth Amendment due process violation based on the Lackawanna County Court of Common Pleas and Pennsylvania Department of Corrections refusal to award him credit for time served from August 13, 1993, to the time of sentencing on the Indecent Deviate Sexual Intercourse charges on March 10, 1995. (Doc. 1 at 6; Doc. 3 at 6.) Petitioner adds that the DOC's removal of "time served (credit) for the time served on Case No. 35-R-1301-1993 has the effect of increasing [his] sentence which was done without notice and a hearing in violation of due process." (Doc. 3 at 6.)
Petitioner indicates that he filed a Petition for Time Credit in the Court of Common Pleas of Lackawanna County in which he asserted that he was entitled to credit for time served and recalculation of his maximum release date. (Doc. 1 at 3.) He states the Petition for Time Credit was wrongly treated as a PCRA petition. ( Id. ) He provides neither a filing date nor state court decision date.
Petitioner also states that in 2013 he filed a Petition for Review in the Commonwealth Court of Pennsylvania raising the same grounds as raised in the Court of Common Pleas. (Doc. 1 at 3.) The Petition for Review was denied. (Doc. 1 at 4.)
Magistrate Judge Mehalchick did not reach the merits of Petitioner's claims but found that his action is barred by the one-year statute of limitations applicable to a 28 U.S.C. § 2254 action as set out in 28 U.S.C. § 2244(d). (Doc. 15 at 2.) After determining that Petitioner had until April 24, 1997, to timely file a habeas petition absent any applicable tolling period, Magistrate Judge Mehalchick found that neither statutory nor equitable tolling render the action timely filed. (Doc. 15 at 4-6.)
Petitioner objects to the Report and Recommendation both generally and specifically. (Doc. 17.) He specifically objects to the Magistrate Judge's conclusion that statutory tolling does not apply. (Doc. 17 at 3.) Petitioner also objects to the Magistrate Judge's conclusion ...