United States District Court, E.D. Pennsylvania
STEWART DALZELL, District Judge.
AND NOW, this 11th day of June, 2014, upon consideration of petitioner's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry # 7), our February 19, 2014 Order referring this matter to the Honorable Jacob P. Hart for a report and recommendation (docket entry # 8) pursuant to Local Rule 72.1 and 28 U.S.C. §636(b)(1)(B), respondents' response (docket entry # 15), Judge Hart's May 5, 2014 report and recommendation ("R&R") (docket entry # 16) to which petitioner filed objections on May 27, 2014 (docket entry # 20), and the Court finding that:
(a) On November 22, 1994, after a jury trial in the Court of Common Pleas of Philadelphia County, petitioner Nelson was convicted of one count each of kidnapping, theft by distortion, and possessing instruments of a crime, R&R at 1;
(b) On May 5, 1995, he was sentenced to eleven and a half years to thirty-seven years' imprisonment, id.;
(c) Nelson filed a direct appeal with the Pennsylvania Superior Court, contending that the trial court erred in admonishing a late-arriving juror on the third day of deliberations and then charging the jury with instructions for deadlocked juries, id.;
(d) The Superior Court affirmed the trial court on September 12, 1996, deeming the issue waived because trial counsel did not object to the charge at the time, and Nelson did not seek review in the Pennsylvania Supreme Court, id. at 1-2;
(e) Thirteen years later, on September 17, 2009, Nelson filed what he terms a petition for writ of habeas corpus, but not on the approved form, so we directed him to re-file using the proper form, id. at 2;
(f) Nearly four years after that, on July 26, 2013 Nelson petitioned to reopen his federal case and eventually filed his petition on November 18, 2013, id.;
(g) In his petition, Nelson made four claims, contending that: (1) the trial court had erred in making its comments to the late-arriving juror before the assembled jurors, and then informing the juror after the verdict was reached that he would not pursue contempt of court charges against the juror, in what the petitioner suggests was a quid pro quo for the guilty verdict; (2) his Due Process rights were violated because he was convicted of conspiracy although no co-conspirators were identified; (3) his appeals counsel persistently withheld his records, such that Nelson was not aware of the outcome of his direct appeal or whether counsel had sought higher review; and (4) he was entitled to equitable tolling of the one-year statute of limitations imposed by 28 U.S.C. § 2244(d) because of his counsel's failure to provide him with that information, id. at 2-3;
(h) Judge Hart concluded in his report and recommendation that Nelson's petition was untimely by at least thirteen years and that he was not entitled to equitable tolling because there was no evidence of record to support his contention that his timely filing had been prevented by counsel's dual failure to notify him of the outcome of his direct appeal and provide needed documents, id, at 3-4;
(i) Nelson contests these conclusions, stating he was not provided an opportunity to reply to respondents' submission and that he was not given enough time to show the efforts he made to contact his former counsel, Pet. Obj. at 1-2 (docket entry # 20);
(j) Nelson also contends that on at least four occasions he showed his need to obtain records that remained in his former counsel's possession, id. at 2;
(k) He further maintains that Judge Hart did not take into account the "breakdown" which is "within the record related to both this court and that of the [Pennsylvania Department of Corrections], " id.;
(l) Nelson avers that we should take testimony or seek affidavits from witnesses concerning his efforts to secure the necessary information from his former attorney because he "reasonably believes that he has provided a sufficient enough ...