Opinion
Civil Action 19-459 Re ECF 3
10-27-2022
RICKIE ROBE RICHBURG, Petitioner, v. SUPERINTENDENT MARK GARMAN and STEPHEN A. ZAPPALA, JR., District Attorney for Allegheny County, Respondents.
Hon. William S. Stickman, United States District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody” (the “Petition”), ECF No. 3, be denied. It is further recommended that a certificate of appealability be denied.
II. REPORT
Rickie Robe Richburg (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Rockview (“SCI-Rockview”) in Bellefonte, Pennsylvania. In the Petition, he seeks federal habeas relief from his 2010 convictions in the Court of Common Pleas of Allegheny County, Pennsylvania, at Case Nos. CP-02-CR-12136-2009, 12137-2009, 12138-2009, and 12139-2009. Id. at 1.
A. Relevant Procedural History.
On April 19, 2012, Petitioner pleaded guilty to the following charges in the above cases:
Respondents did not submit a transcript of Petitioner's oral guilty plea colloquy. In their Answer, they claim that it never was transcribed because Petitioner never challenged his guilty pleas. ECF No. 11 at 5. Respondents' counsel stated that he “ordered the production of the plea transcript and will forward a copy to this Court when it is received” Id. As of the date of this writing, no transcript has been filed on the docket, nor have Respondents submitted a hard copy thereof. With respect to Petitioner's guilty pleas, this Court is in receipt only of Petitioner's completed written “Guilty Plea Explanation of Defendant's Rights” questionnaire, dated April 19, 2010, which was included with the physical copy of the underlying state court records that were submitted by Respondents.
• four counts of rape, in violation of 18 Pa. C.S.A. § 3121(a)(1);
• four counts of involuntary deviate sexual intercourse, in violation of 18 Pa. C.S.A. §§ 3123(a)(1) and (a)(3);
• three counts of robbery, in violation of 18 Pa. C.S.A. §§ 3701(A)(1)(i) and (iii);
• three counts of recklessly endangering another person, in violation of 18 Pa. C.S.A. § 2705;
• three counts of sexual assault, in violation of 18 Pa. C.S.A. § 3124.1;
• three counts of terroristic threats, in violation of 18 Pa. C.S.A. § 2706(a)(1);
• two counts of unlawful restraint, in violation of 18 Pa. C.S.A. § 2902(a)(1);
• two counts of aggravated indecent assault, in violation of 18 Pa. C.S.A. §§ 3125(a)(1) and (a)(5);
• two counts of indecent assault, in violation of 18 Pa. C.S.A. § 3126(a)(1);
• one count of kidnapping, in violation of 18 Pa. C.S.A. § 2901(a)(1); and
• one count of stalking, in violation of 18 Pa. C.SA. § 2709.1(a)(1).
ECF Nos. 11-1 at 3-4; 11-2 at 3-4; 11-3 at 4-5; and 11-4 at 3-4.
On June 30, 2010, Petitioner was sentenced to an aggregate term of confinement of 20 to 40 years, followed by 10 years of probation. Petitioner was given credit for 355 days served. ECF Nos. 11-9 - 11-12. Respondents concede that, in light of the Supreme Court's decision in Alleyne v. United States, 570 U.S. 99, 103 (2013), the trial court imposed mandatory minimum sentences that Petitioner would not face if he were sentenced today. ECF No. 11 at 11-12.
Petitioner did not file post-trial motions or a direct appeal of his conviction and sentence. As a result, they became final on July 30,2010 - 30 days after sentence was imposed. Pa. R.A.P. 903(c)(3).
Petitioner filed a Post Conviction Relief Act Petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §9541, et seq., on April 3,2016? ECF No. 11-13 at 10. Counsel was appointed, who subsequently filed a no-merit letter and sought leave to withdraw June 16,2016. ECF No. 11-14 at 1 and 5. On June 6, 2016, the PCRA trial court issued an order indicating its intent to grant counsel's motion to withdraw, and to dismiss the PCRA petition. ECF No. 11-15 at 1. The PCRA trial court followed through and dismissed the PCRA petition, June 29, 2016. ECF No. 11-16 at 1 and 9. There is no indication whether the PCRA Trial Court granted counsel leave to withdraw.
Petitioner filed a pro se response to the no-merit letter, which was dated June 24, but received by the PCRA trial court on June 30, 2016. ECF No. 11-17 at 1 and 9. There is no indication that the PCRA trial court addressed Petitioner's objections.
Because Pennsylvania applies the so-called “prisoner mailbox rule” to pro se PCRA petitions, see, e.g., Com, v. Little, 716 A.2d 1287, 1288-89 (Pa. Super. Ct. 1998), the effective date of filing appears to be April 3, 2016 - the date on which the certificate of service states that that petition was mailed. ECF No. 11-13 at 10.
Petitioner's notice of appeal to the Pennsylvania Superior Court was filed on July 26,2016. ECF No. 11-18 at 2. This was followed by a pro se brief, in which he raised three grounds for relief. ECF No. 11-20 at 2. The Superior Court denied reliefon October 27,2017. ECF No. 11-22 at 1.
Petitioner submitted a Petition for Allowance of Appeal to the Pennsylvania Supreme Court on November 27, 2017. ECF No. 11-23 at 1. The Supreme Court denied allocator on May 8, 2018. ECF 11-26 at 1.
Pursuant to the prisoner mailbox rule, the instant federal habeas Petition is deemed filed on April 12, 2019. ECF No. 3 at 15. See Bums v. Morton, 134 F.3d 109,113 (3d Cir. 1998) (“we hold that a pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court.”). Petitioner raises the following grounds for federal habeas relief.
Ground 1: Pennsylvania courts erred in misapprehending the retrospective application in Commonwealth v Hopkins when it's paradigm Alleyne v . United States created a substantive rule which requires retroactive effect.
Ground 2: Pennsylvania erred in not correcting Mr. Richburg's patently unconstitutional / illegal sentence which it has the ability to correct through the Court's inherent power.
Ground 3: Pennsylvania courts violated Mr. Richburg's due process rights by denying his PCRA petition without a hearing when it was filed within sixty (60) days of the Hopkins decision.
ECF No 3 at 5, 7, and 8.
Respondents answered the Petition on June 5,2019. ECF No. 11. Petitioner did not submit a traverse pursuant to LCvR 2254.E.2. The Petition is ripe for consideration.
B. The AEDPA Statute of Limitations.
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed within the applicable statute of limitations. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the “AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, which generally established a strict one-year statute of limitations for the filing habeas petitions pursuant to Section 2254. The applicable portion of the statute is as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction 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.28 U.S.C. § 2244(d).
The United States Court of Appeals for the Third Circuit has held that the statute of limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004), cert, denied sub nom. Fielder v, Lavan, 543 U.S. 1067 (2005). Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger” date for the individual claims raised in the petition. Typically, this is the date on which the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under Section 2244(d)(1)(A). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to Section 2244(d)(2). Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F.Supp.2d 242, 263 (W.D. Pa. 2011), affd, 694 F.3d 308 (3d Cir. 2012) (citing Nara v. Frank, No 99-5, 2004 WL 825858, at *3 (W.D. Pa., Mar. 10, 2004)).
1. The Petition is untimely.
In their Answer, Respondents failed to address - or even consider - whether any of Petitioner's claims might have different trigger dates under Section 2244. Instead, it appears that Respondents made a default presumption that all of Petitioner's claims arose together. See ECF No. 11 at 6. A careful review of the Petition reveals that this is not the case.
Both Grounds One and Two attack Petitioner's sentence - either through the retroactive application of Alleyne, or the state court's inherent power. ECF No. 3 at 5 and 7. But Alleyne has not been held to apply retroactively to cases on collateral review. See United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014) (“[T]he Supreme Court has not chosen to apply Alleyne's new rule retroactively to cases on collateral review”); United States v. Winkleman, 746 F.3d 134, 136 (3d Cir. 2014) (“Alleyne cannot be applied retroactively to cases on collateral review.”). Further, neither Ground One nor Ground Two otherwise satisfies Section 2244(d)(1)(B)-(D). Accordingly, Grounds One and Two trigger under Section 2244(d)(1)(A) - the date on which Petitioner's conviction became final. As stated above, that date is July 30, 2010.
Additionally, no properly-filed PCRA petition was pending during the period of time between Petitioner's conviction becoming final and the filing of the instant federal habeas petition.
The Pennsylvania Post Conviction Relief Act provides, in pertinent part:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within one year of the date the claim could have been presented.42 Pa. C.S.A. § 9545(b)(1)-(2). The Pennsylvania courts adamantly have held that the above timing provisions are jurisdictional in nature, and must be construed strictly. See, e.g., Com, v. Abu-Jamal 941 A.2d 1263, 1267-68 (Pa. 2008) (citing cases). As such, a PCRA trial court is barred even from considering a petition that is not filed within one year of the date that the conviction it is attacking became final (in Petitioner's case, one year from July 30, 2010), unless that petition falls into one of the three exceptions enumerated in the statute AND was filed within one year of the date that the claim first could have been presented. Id. at 1267-68. See also Com, v. Fears,, 250 A.3d 1180, 1189 (Pa. 2021), reconsideration denied (July 8, 2021)
Here, the Pennsylvania Superior Court found that Petitioner's PCRA petition was filed more than one year after his conviction became final under the PCRA statute. ECF No. 11 -22 at 5. The Superior Court further recognized that Alleyne was not retroactive, and held that Petitioner had not demonstrated that his PCRA petition fell into one of the above exceptions. IcL at 5-6. Accordingly, the Superior Court affirmed the dismissal of the PCRA petition for lack of jurisdiction. Id. at 6-7.
State court petitions for collateral review do not toll the AEDPA's one-year statute of limitations if they contain defects that implicate that petition's “‘condition [s] to filing,' which go to the application for post-conviction review[.]” Satterfield v. Johnson, 434 F,3d 185,191 (3dCir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 10 (2000)). Failure to satisfy such conditions “prevents a petition from being ‘properly filed,' which in turn prevents application of AEDPA's tolling provision.” Satterfield, 434 F.3d at 191. “Untimely filing, absence of jurisdiction, failure to pay fees, and failure to obtain a requisite certificate of appealability are all examples of flaws going to the application for relief itself.” Id. (citing Pace v. DiGugliehno, 544 U.S. 408, 414-15 (2005)). These requirements prevent tolling because they “‘go to the very initiation of a petition and a court's ability to consider that petition....'” Satterfield, 434 F.3d at 192 (quoting Pace, 544 U.S. at 417).
Applying this standard to Petitioner's PCRA petition, it is clear that the state courts lacked jurisdiction to address that petition on its merits. As such, Petitioner's PCRA petition was not “properly filed” under the meaning of section 2244(d)(2), and the AEDPA's statute of limitations was not tolled during its pendency.
In total, the AEDPA's statute of limitations clock ran uninterrupted on Grounds One and Two from July 30, 2010 to April 12, 2019 - the date on which the Petition is deemed filed. This is a total of 3178 days. This is greater than one year. Instead, in order for these claims to have been timely, the Petition would have to have been filed by July 30,2011. It was not. Accordingly, Grounds One and Two are untimely based on the one-year period of limitation set forth in Section 2244(d)(1).
Unlike Grounds One and Two, Petitioner's Ground Three arises from alleged errors in Petitioner's PCRA proceedings - specifically, the PCRA Trial Court refusal to hold a hearing. ECF No. 3 at 8; ECF No. 11-15 at 1; ECF No. 11-16 at 1. The trigger date for Ground Three is June 29, 2016, - the date on which the PCRA Trial Court denied the PCRA petition without a hearing. ECF No. 11-16 at 1. Because there was no properly-filed PCRA proceeding pending at the time, the AEDPA's limitations clock was not stopped during the appeal to the Superior Court. Thus, the clock on Ground Three ran from June 29, 2016 to April 12, 2019 - a total of 1017 days. This also is greater than one year. Instead, in order for these claims to have been timely, the Petition would have to have been filed by June 29, 2017. It was not. Accordingly, Ground Three also is untimely based on the one-year period of limitation set forth in Section 2244(d)(1).
2. Petitioner has not demonstrated entitlement to equitable tolling.
In Holland v. Florida, 560 U.S. 631 (2010), the United States Supreme Court affirmed the availability of equitable tolling of the AEDPA's one year statute of limitations under appropriate circumstances. In its opinion, the Supreme Court first underscored that the one-year statute of limitations in the AEDPA was not jurisdictional, and “does not set forth ‘an inflexible rule requiring dismissal whenever' its ‘clock has run.'” Id. at 645 (quoting Day v. McDonough, 547 U.S. 198, 208 (2006)). Given that habeas corpus is, at its heart, an equitable form of relief, and with no well-defined congressional intent to the contrary, the Supreme Court concluded that it is proper, under the principles of equity, to toll the statutory one year period for filing a petition under Section 2254 in certain cases. Holland, 560 U.S. at 646-47.
In order for a delay in filing a habeas petition to qualify for equitable tolling, a petitioner must show ‘“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” IcL at 649 (quoting Pace, 544 U.S. at 418). “Mere excusable neglect is not sufficient.” Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 619 (3d Cir. 1998). Additionally, “[i]n non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the extraordinary circumstances required for equitable tolling.” Fahy v. Hom, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).
While Holland did not involve an appeal from a decision of a court within the Third Circuit, it did affirm the practice of courts within this circuit of granting equitable tolling in cases where the above-mentioned conditions have been met. See, e.g., LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005). Importantly, the United States Court of Appeals for the Third Circuit has emphasized that “[e]quitable tolling is appropriate when ‘the principles of equity would make the rigid application of a limitation period unfair/.]'” Id. at 275 (quoting Miller, 145 F.3d at 618). Additionally, it should be applied only where it is “demanded by sound legal principles as well as the interests of justice.” Id. (internal quotes and citations omitted).
Applying this standard to the present case, it is apparent that there is nothing in the record that would support the equitable tolling of the AEDPA's statute of limitations in this case. Accordingly, Grounds One, Two, and Three of the Petition are untimely. Therefore, Petitioner's claims should be denied.
Even if this Court were to equitably toll Petitioner's claims until the date on which the Supreme Court's decision in Alleyne was issued - June 17, 2013 - that would subtract 1053 days from the 3178 days that Grounds One and Two were pending, and would not affect the pendency of Ground Three. Petitioner's claims would still be untimely.
C. Petitioner is not Entitled to Relief on the Merits.
Although the Court finds that all of Petitioner's grounds for relief are time-barred, for the sake of completeness, the merits of his claims are addressed herein. This Court need not engage in an analysis of whether Petitioner has exhausted his claims in order to deny them on the merits. See 28 U.S.C. § 2254(b)(2).
Federal courts are permitted to grant habeas relief from the judgment of a state court only when a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Where the state court has reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, the AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state court's disposition of that issue. See 28 U.S.C. § 2254(d) and (e).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court expounded upon the standard found in 28 U.S.C. § 2254(d). The Supreme Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: 1) where the state court decision was “contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States” or 2) where that state court decision “involved an unreasonable application of[] clearly established Federal law as determined by the Supreme Court of the United States.” Id. at 404-05 (emphasis deleted). A state court decision can be contrary to clearly established federal law in one of two ways. First, the state courts could apply a wrong rule of law that is different from the rule of law required by the United States Supreme Court. Second, the state courts can apply the correct rule of law but reach an outcome that is different from a case decided by the United States Supreme Court where the facts are indistinguishable between the state court case and the United States Supreme Court case. Lambert v, Blackwell, 387 F.3d 210, 234 (3d Cir. 2004) (quoting Williams, 529 U.S. at 405-06).
In addition, the United States Court of Appeals for the Third Circuit has explained that “Circuit precedent cannot create or refine clearly established Supreme Court law, and lower federal courts ‘may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.'” Dennis v. Sec., Pa. Dep't of Cons., 834 F.3d 263, 368 (3d Cir. 2016) (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam')'). As the United States Supreme Court has further explained: “[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572 U.S. 415,428 (2014).
The AEDPA also permits federal habeas relief where the state court's adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Specific factual determinations by the state court are that are subsidiary to the ultimate decision to grant post conviction relief are subject to the presumption of correctness, and must be overcome by Petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Lambert, 387 F.3d at 235236. The Third Circuit has declined to adopt a “rigid approach to habeas review of state factfinding.” Id. at 236 n.19. If a state trial court and appellate court make conflicting factual findings, the habeas court must defer to the findings of the higher court - regardless of the propriety of those findings under state law - unless they are rebutted by clear and convincing evidence. See Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir. 2006).
Finally, it is a habeas petitioner's burden to show that the state court's decision was contrary to or an unreasonable application of United States Supreme Court precedent and/or an unreasonable determination of the facts. Ross v. Atty. Gen, of State of Pennsylvania, No. 07-97, 2008 WL 203361, at *5 (W.D. Pa. Jan. 23, 2008).
1. Ground One is meritless.
At Ground One, Petitioner asserts that:
Pennsylvania courts erred in misapprehending the retrospective application in Commonwealth v Hopkins when it's paradigm Alleyne v . United States created a substantive rule which requires retroactive effect.
ECF No. 3 at 5.
In Alleyne, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that any fact that increases the mandatory minimum sentence for a crime qualifies as an ‘element' that must be submitted to the jury. 570 U.S. at 103. As stated above, Respondents concede that if Petitioner were to be sentenced today, Alleyne would prohibit the mandatory minimum sentences as they were imposed on Petitioner in 2010. ECF No. 11 at 12.
But Alleyne was decided well after Petitioner's conviction became final in 2010. Additionally, as the Pennsylvania Superior Court recognized when it affirmed the dismissal of the PCRA petition, Alleyne never has been held by the Supreme Court to apply retroactively to convictions on collateral review. ECF No. 11-22 at 5-6. See also Reyes, 755 F.3d at 212 (“[T]he Supreme Court has not chosen to apply Alleyne's new rule retroactively to cases on collateral review”); Winkleman, 746 F.3d at 136 /“Alleyne cannot be applied retroactively to cases on collateral review.”)
Petitioner has not met his burden to show that the Superior Court's decision was contrary to, or an unreasonable application of U.S. Supreme Court precedent. Petitioner also has not demonstrated an unreasonable determination of the facts of his case. As such, federal habeas relief based on Ground One should be denied.
2. Grounds Two and Three are not cognizable.
At Ground Two, Petitioner asserts that:
Pennsylvania erred in not correcting Mr. Richburg's patently unconstitutional I illegal sentence which it has the ability to correct through the Court's inherent power.
ECF No. 3 at 7. At Ground Three, he states that:
Pennsylvania courts violated Mr. Richburg's due process rights by denying his PCRA petition without a hearing when it was filed within sixty (60) days of the Hopkins decision.Id. at 8. Both of these Grounds assert errors of state law.
To the extent that Petitioner attempts to assert a constitutional violation at Ground Two, the “patently unconstitutional I illegal sentence” would be due to the Supreme Court s decision in Alleyne, and thus fails for the same reason as Ground One.
But this Court's ability to grant habeas relief is limited to violations of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Claims of error by the PCRA Trial Court or PCRA Superior Court - such as failing to exercise the state court's inherent powers, or failing to hold a hearing on his PCRA petition - simply are not cognizable in a federal habeas action. See, e.g., Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“The federal courts are authorized to provide collateral relief where a petitioner is in state custody or under a federal sentence imposed in violation of the Constitution or the laws or treaties of the United States. 28 U.S.C. §§ 2254, 2255. Thus, the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation.”) See also Lambert, 387 F.3d at 247 (“habeas proceedings are not the appropriate forum for Lambert to pursue claims of error at the PCRA proceeding.”)
Accordingly, habeas relief based on Grounds Two and Three should be denied.
D. Certificate of Appealability
Finally, a certificate of appealability should be denied because jurists of reason would not find it debatable whether Petitioner's Grounds One, Two, and Three were barred by the AEDPA's one-year statute of limitations, or that they were meritless. See, e.g., Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Petition, ECF No. 3, be denied. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187,193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.