United States District Court, E.D. Pennsylvania
KENDALL C. RICHARDSON, Petitioner,
SUPERINTENDENT KEVIN KAUFFMAN; THE DISTRICT ATTORNEY OF THE COUNTY OF LEHIGH; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
and Recommendation, ECF No. 24 - Adopted in Part and Not
Adopted in Part, Remanded
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
Kendall Richardson filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his conviction
in the Court of Common Pleas of Lehigh County of first degree
murder, attempted homicide, robbery, and recklessly
endangering another person, and his sentence to a term of
life imprisonment. Chief Magistrate Judge Linda K. Caracappa
issued a Report and Recommendation (“R&R”)
recommending that the habeas corpus petition be dismissed as
untimely, to which Richardson filed objections. After de novo
review, this Court finds that there is insufficient evidence
in the record to determine when the proceedings for
Richardson's first petition under Pennsylvania's
Post-Conviction Collateral Relief Act, 42 Pa. C.S.
§§ 9541-9551, (“PCRA”) were complete,
and remands the matter to the Magistrate Judge for further
factual development and, if necessary, review of the merits
of the habeas claims.
Magistrate Judge thoroughly discussed the procedural history
of this case in the R&R and it will not be repeated
herein. See R&R 1-4, ECF No. 24. See
also ECF Nos. 11, 16, and 19. This Court repeats only
the most relevant dates to the timeliness calculation and
those dates Richardson contests in his
sentence became final on January 16, 2012, at which time the
one-year period of limitations for him to file a federal
habeas petition began to run. See 28 U.S.C. §
2244(d)(1). This period stopped running sixty-five (65) days
later on March 22, 2012,  when Richardson filed a timely PCRA
petition. See 28 U.S.C. § 2244(d)(2)
(“The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this
subsection.”). Relief was denied by the PCRA court and,
following appeal and recreation of the record, the
Pennsylvania Superior Court issued an opinion on September
26, 2014,  affirming the PCRA court's decision.
See Commonwealth v. Richardson, 2204 EDA 2012 (Pa.
Super. Sept. 26, 2014).
October 6, 2014, Richardson filed an Application for
Reconsideration/Reargument in the Pennsylvania Superior
Court, which was denied on November 26, 2014. By that date,
the Superior Court had also denied his Application for
Remand, which he had filed on November 5, 2014. The Superior
Court remitted the record to the Court of Common Pleas of
Lehigh County on January 15, 2015, and the Pennsylvania
Superior Court's Order dated September 26, 2014, was
docketed in the PCRA court on January 23, 2015.
instant petition for writ of habeas corpus was filed on
November 23, 2015.
R&R, the Magistrate Judge determined that because
Richardson failed to file a petition for allowance of appeal
with the Pennsylvania Supreme Court, the Superior Court's
decision became final thirty days after the court denied
Richardson's Application for Reconsideration/Reargument.
R&R 6. The Magistrate Judge found that the one-year
period of limitations for Richardson to seek federal habeas
relief began running again at this time. Id.
Considering the time that had expired before the PCRA
petition was filed, the Magistrate Judge concluded that a
timely federal habeas corpus petition would have to be filed
by October 23, 2015. Id. Richardson's petition,
however, was not filed until thirty-one days after this
STANDARD OF REVIEW
objections to a report and recommendation have been filed
under 28 U.S.C. § 636(b)(1)(C), the district court must
make a de novo review of those portions of the report to
which specific objections are made. 28 U.S.C. §
636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099, 1106
n.3 (3d Cir. 1989). “District Courts, however, are not
required to make any separate findings or conclusions when
reviewing a Magistrate Judge's recommendation de novo
under 28 U.S.C. § 636(b).” Hill v.
Barnacle, 655 F. App'x. 142, 147 (3d Cir. 2016). The
“court may accept, reject, or modify, in whole or in
part, the findings and recommendations” contained in
the report. 28 U.S.C. § 636(b)(1)(C).
objects to the Magistrate Judge's use of September 26,
2014, as the date that the Pennsylvania Superior Court
affirmed the PCRA court's denial of relief. Richardson
argues that because this opinion was not docketed in the
Court of Common Pleas of Lehigh County until January 23,
2015, that the January date, as opposed to the September
date, should be used in determining when his period of
statutory tolling ended. See Objs. 8-15. Richardson
cites for support Pennsylvania case law providing that the
time for filing an appeal does not begin to run until the
docket shows that the order has been entered and served on
the party. Id. (citing Yeaple v. Yeaple,
402 A.2d 1022 (Pa. 1979); Jara v. Rexworks Inc., 718
A.2d 788 (Pa. Super. Ct. 1998)). He also relies upon
Pennsylvania Rule of Criminal Procedure 114, which states
that the clerk of courts shall “promptly” make
docket entries containing the date of receipt of the order in
the clerk's office, the date appearing on the order, and
the date of service. See Pa. R. Crim. P. 114.
Richardson asserts that Pennsylvania Rule of Appellate
Procedure 108 provides that the date of entry of an order is
the day the clerk mails or delivers copies of the order to
the parties, and that he never received the Superior
Court's orders. Objs. 15. He further contends that
because Rule 301(a)(1) of the Pennsylvania Rules of Appellate
Procedure states that the time for filing an appeal does not
begin to run until the ...