MEMORANDUM

DAVID R. STRAWBRIDGE, Magistrate Judge.

Before the Court for Report and Recommendation is the pro se1 petition of Lydell Swinson, a/k/a Lindell Swinson ("Swinson" or "Petitioner") for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Swinson is currently incarcerated at SCI — Mahanoy, where he is serving two life sentences. By his petition, Swinson challenges the conviction obtained against him in 2006 in the Philadelphia Court of Common Pleas in Case Number CP-51-CR-0502871-2005 following a guilty plea to charges of first-degree murder in the shooting death of Maninovsky Lubin. He seeks habeas relief on the grounds that he was "deprived mental health records and complete trial files" and received ineffective assistance from counsel, both of which appear to relate to the possibility of mental health defenses to his crimes. As we set out below, we believe that Swinson's petition is not timely and that he cannot make out a basis for equitable tolling of the limitations period as to render his petition timely. We are filing this Memorandum in support of our order to Petitioner to show cause why this matter should not be dismissed as untimely.

I. FACTUAL AND PROCEDURAL BACKGROUND

Swinson was involved in the fatal shooting of cab driver Maninovsky Lubin over a fare dispute on May 10, 2004 in Philadelphia. He then fatally shot his girlfriend, Laquita Robinson, on August 13, 2004. Upon his arrest on August 22, 2004, he was prosecuted in the Philadelphia Court of Common Pleas for both the murder of Mr. Lubin, at Case Number CP-51-CR-0502871-2005, and the killing of Ms. Robinson, at Number CP-51-CR-0502901-2005. The Commonwealth sought a death sentence for the killing of Ms. Robinson.2 He was appointed the same counsel for both cases, and both were assigned to the Honorable M. Teresa Sarmina. See generally Commonwealth v. Swinson, No. 859 EDA 2013, slip opin. at 1-2 (Pa. Super. Ct. Mar. 19, 2014), appended to Civ. A. No. 14-5859, Doc. 1 at ECF pp. 18-19.

The trial on the Lubin murder, in which Petitioner had a co-defendant, proceeded first. The jury returned a verdict of guilt on February 27, 2006 on charges of first-degree murder, robbery, conspiracy, and PIC. That murder conviction, as well as other potential aggravating factors, put Petitioner at risk of a death sentence if he were convicted of first-degree murder in the Robinson death. Upon the jury's verdict, but before the court proceeded to sentencing, Swinson agreed to enter guilty pleas to both murders and give up his appeal rights in exchange for two consecutive life sentences that would spare him from a possible death sentence. The court accepted both guilty pleas and convicted him of the two murders and related offenses on February 27, 2006. Once the victims' families could be present, sentencing proceedings were held on March 1, 2006 and the negotiated sentences formally imposed. Petitioner did not file any direct appeal of either judgment of conviction. See id.

Swinson then sought relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541, et seq. ("PCRA"). His petition dated June 16, 2006 sought to have his appellate rights reinstated as to the conviction on the murder of Ms. Robinson, CP-51-CR-0502901-2005, on the grounds that his guilty plea was unlawfully induced and that he received ineffective assistance of counsel. See Civ. A. No. 07-3934, Doc. 26 at 18 & Ex. C (PCRA petition). While the PCRA Court appointed counsel, his attorney found no merit in any claims available to Petitioner and filed a letter seeking to withdraw pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988). The PCRA Court agreed and dismissed the petition on July 27, 2007. Swinson did not file an appeal from that dismissal. See Common Pleas Docket, Commonwealth v. Swinson, CP-51-CR-0502901-2005, available through https://ujsportal.pacourts.us.

On or about August 16, 2006, while the first petition was still pending, Swinson filed another PCRA petition, challenging the convictions of murder, robbery, and conspiracy in the Lubin case.3 See Civ. A. No. 07-3934, Doc. 26 at Ex. F. New counsel was appointed who also filed a Finley letter. The PCRA Court dismissed the petition. Swinson appealed this dismissal to the Superior Court, but the court dismissed the appeal on October 30, 2007 when he failed to comply with certain filing requirements. See Civ. A. No. 07-3934, Doc. 26 at Exs. G-K; Appellate Dkt. Sheet, Pa. Super. Ct. No. 2227 EDA 2007 (noting dismissal pursuant to Pa. R.A.P. 3517, which requires an appellant to complete and return a docketing statement form or face dismissal of the appeal).

While that appeal of the dismissal of his second PCRA petition was still pending in the Superior Court, Swinson filed a pro se habeas petition on September 20, 2007 in this Court, using the name Lindell Swinson. The case was docketed as Civil Action No. 07-2934 and assigned to the Honorable John R. Padova. The Court required Stinson to re-submit his petition on the Court's standard form, and when he did so he clarified that his petition related to CP-51-CR-0502901-2005, the murder of Ms. Robinson,4 and identified his claims as ineffective assistance of counsel and due process, asserting that his plea was unlawful because he was allegedly not given a hearing regarding competency and the judge was biased. See Civ. A. No. 07-3934, Doc. 3, Pet. at 4. The Philadelphia District Attorney's Office filed a response to the petition, arguing that his claims were procedurally defaulted because they were never properly presented and litigated in the Pennsylvania Superior Court, id. at 4, and that Swinson could not obtain habeas relief because he waived any right to collateral review as part of his plea agreements in the two cases, id. at 10.5 The Honorable L. Felipe Restrepo, then U.S. Magistrate Judge, prepared a Report and Recommendation that the petition be denied and dismissed. See Civ. A. No. 07-3934, Doc. 30. Judge Padova approved and adopted Judge Restrepo's Report and Recommendation and denied the petition on October 31, 2008. See Civ. A. No. 07-3934, Doc. 32. Petitioner filed a motion for relief pursuant to Fed. R. Civ. Proc. 60 on or about January 8, 2009, see Civ. A. No. 07-3934, Doc. 34, which the court denied on March 12, 2009, see Civ. A. No. 07-3934, Doc. 41.

The state court dockets reflect that Swinson made additional filings in the Common Pleas Court relating to this case in 2010 and 2011. See St. Ct. Dkt., CP-51-CR-0502871-2005, at p. 20 ("motion for order mandating clerk of courts to furnish records," "pro se motion/request for notes of testimony," and "motion for discovery"). On February 8, 2012, a new PCRA petition was docketed. Judge Sarmina issued a Rule 907 notice on November 26, 2012 and entered her order on February 25, 2013, stating that the petition was "dismissed as untimely." Id. at p. 21. Swinson appealed to the Superior Court, but that court affirmed the dismissal of the PCRA petition on March 19, 2014. See Commonwealth v. Swinson, Pa. Super. Ct. Dkt., No. 859 EDA 2013. While Swinson does not appear to have sought allocator in the Supreme Court as to this ruling, he unsuccessfully sought a writ of mandamus in the state high court in October 2012, which was denied on December 14, 2012. See Commonwealth v. Swinson, Pa. S. Ct. Dkt., No. 181 EM 2012.

The genesis of the present litigation before this Court is a § 2254 form petition Swinson filed dated October 7, 2014, which identified the convictions he sought to challenge as both the Lubin and Robinson murders. See Civil A. No. 14-5889, Doc. 1, Pet. at 4, 19. The petition was docketed as Civil Action Number 14-5859 and assigned to the Honorable Timothy J. Savage, who directed Petitioner to file two separate petitions for his challenge to the two distinct criminal cases. See Civ. A. No. 14-5859, Doc. 2. Swinson did so on December 4, 2014. His petition regarding Case No. CP-51-CR-0502871-2005, the murder of Mr. Lubin, was given docket number 14-7028. His petition regarding Case No. CP-51-CR-0502901-2005, the murder of Ms. Robinson, was given docket number 14-7027. The prior action, No. 14-5859, was dismissed.

In light of Petitioner's request for the appointment of counsel in No. 14-5859, on December 16, 2014, the Court appointed the Office of the Federal Defender to represent Swinson in both 14-7028 and 14-7027. Counsel entered her appearance in both matters on December 19, 2014. On January 23, 2015, the Court referred both matters to the undersigned for preparation of a Report and Recommendation.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), legislation that pre-dates Petitioner's convictions, imposed a one-year period of limitations for the filing of an application for a writ of habeas corpus. The statute provides:

28 U.S.C. § 2244(d).

With regard to subsection (1)(A), and based upon the information provided in his petition (and as confirmed by online review of the publicly-available state court appellate docket sheets), Swinson's judgment as to the conviction in the Lubin murder became final on March 31, 2006, upon the expiration of the 30-day period to appeal in the Pennsylvania Superior Court the judgment of sentence imposed in the Court of Common Pleas on March 1, 2006. Swinson's petition, which concerns the issues of ineffective assistance and an alleged deprivation of mental health and trial records, does not suggest the applicability of subsections (B), (C), or (D) of § 2244(d)(1). Therefore, it appears that the federal limitations period began to run on March 31, 2006 when his conviction and judgment of sentence became final.

By the time Petitioner filed his PCRA petition as to the Lubin case on or about August 16, 2006, 138 days of the one-year (365-day) federal limitations period pursuant to AEDPA had already elapsed, and only 227 days remained. The federal limitations period continued to be tolled during the pendency of Petitioner's properly filed state PCRA petition. The period of time in which that state petition was pending concluded on November 29, 2007, upon the expiration of the 30-day period in which to seek review of the dismissal of the appeal by the Pennsylvania Superior Court of October 30, 2007. Therefore, the federal limitations period resumed on November 30, 2007. As there were only 227 days left to run, the limitations period expired on July 14, 2008.6 Although Petitioner's federal habeas petition would have to have been filed by that date in order to satisfy 28 U.S.C. § 2254(d), it was not filed until October 7, 2014 — some six years later. See Civ. A. No. 14-5859 (the predecessor to this action).

Under these circumstances, Swinson's petition would be deemed untimely and subject to dismissal absent a valid claim that concerns of equity require that the limitations period be tolled. The United States Supreme Court recognizes that the AEDPA statute of limitations is subject to equitable tolling but that such tolling is appropriate only where extraordinary circumstances prevented the petitioner from filing on time and where the petitioner pursued his rights diligently. Holland v. Florida, 560 U.S. 631, 645-49 (2010). Swinson's filing does not purport to address the question of equitable tolling.7 Therefore, in order to ensure that this issue is developed and that Petitioner has an opportunity to be heard through counsel on the timeliness of his petition before we file our Report and Recommendation, we will give Swinson an opportunity to show cause why his petition should not be dismissed as time-barred.

A separate order follows.