Brown v. ShannonBrown v. Shannon
BECKER, Chief Judge.
Charles Brown appeals from the order of the District Court dismissing his petition for a writ of habeas corpus as time-barred under the applicable one-year statute of limitation. The appeal requires us to consider under what circumstances an attorney‘s withdrawal of representation after failing to file a federal habeas petition warrants equitable tolling of the statutory limitation period. At issue is whether Brown is entitled to statutory or equitable tolling of the limitation period for the following three time periods: (1) April 26, 1997, to July 29, 1997; (2) August 15, 1997, to May 6, 1998; and (3) May 7, 1998, to January 11, 2000. His petition would be timely, only if the limitation period were tolled for all three periods. We conclude that Brown is not entitled to equitable tolling for the period from April 26, 1997, to July 29, 1997, the period of his attorney‘s putative
I.
A jury in the Court of Common Pleas of Philadelphia County, Pennsylvania, convicted Brown of second-degree murder, robbery, criminal conspiracy, and possession of an instrument of crime. The trial court sentenced him to a term of life imprisonment without the possibility of parole and concurrent lesser terms of imprisonment. The Pennsylvania Superior Court affirmed. See Commonwealth v. Brown, 480 A.2d 1171 (Pa. Super. Ct. 1984). In January 1985, the Pennsylvania Supreme Court denied Brown‘s petition for allowance of appeal. See Commonwealth v. Brown, No. 546 E.D. Alloc. Dkt. (Pa. 1984). He did not petition the United States Supreme Court for a writ of certiorari. He subsequently filed a pro se petition for post-conviction relief under the Post Conviction Hearing Act,
On December 24, 1996, Brown filed a second pro se petition for state post conviction relief, this one under the newly enacted Post Conviction Relief Act (“PCRA“),
On July 29, 1997, Silverman informed Brown that he was withdrawing his representation. On August 15, 1997, Brown submitted to the trial court a pro se “Notice of Appeal Nunc Pro Tunc,” asserting that Silverman had failed to timely inform him that he (Silverman) would not file an appeal from the denial of the second PCRA petition. The trial court received the notice of appeal nunc pro tunc but mishandled and apparently lost it; at all events the notice was never docketed or filed.2 On May 6, 1998, after a number of inquiries from Brown, the trial court‘s “PCRA Unit” issued a memorandum informing Brown that it had no record of his notice of appeal nunc pro tunc and advising him that, if he wished to continue with his request for permission to appeal nunc pro tunc, he should file a pro se PCRA petition.
On May 15, 1998, Brown filed a pro se PCRA petition (his third) requesting permission to file an appeal nunc pro tunc from the denial of the second PCRA petition.3 The PCRA court dismissed the petition as untimely filed. The Pennsylvania Superior Court affirmed. See Commonwealth v. Brown, 747 A.2d 409 (Pa. Super. Ct. 1999) (table). On January 11, 2000, the Pennsylvania Supreme Court denied Brown‘s petition for allowance of appeal. See Commonwealth v. Brown, 749 A.2d 465 (Pa. 2000) (table). He did not petition the United States Supreme Court for a writ of certiorari.
On March 19, 2000, Brown filed a petition for a writ of habeas corpus pursuant to
(1) Whether Brown‘s notice of appeal nunc pro tunc, submitted but never ruled on because it was lost as a result of mishandling by the trial court, may be considered “properly filed” for purposes of
28 U.S.C. § 2244(d)(2) , see Swartz v. Meyers, 204 F.3d 417, 421 n.3 (3d Cir. 2000), and, if the notice may be considered “properly filed,” when it ceased to be “pending“; and(2) Whether appellant is entitled to equitable tolling of the statute of limitation for the period from May 7, 1998, through January 11, 2000, and the period from April 26, 1997, through July 29, 1997. See Miller v. New Jersey Dep‘t of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 241 (3d Cir. 1999).
The District Court had jurisdiction pursuant to
II.
Section 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) provides, in relevant part:
(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;
. . .
(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.
Brown‘s conviction became “final” before the AEDPA came into effect on April 24, 1996. His one-year period for filing a habeas petition thus began running on that date. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). It is not disputed that the limitation period ran without interruption from April 24, 1996, to, but not including, December 24, 1996 (when the second PCRA petition was filed), a period of eight months. It is also not disputed that the second PCRA petition was “pending” and tolled the limitation period pursuant to
Brown makes several contentions for statutory tolling (pursuant to
After the second PCRA petition was denied, Brown asked Silverman to file an appeal. Silverman responded by letter dated April 16, 1997. He wrote:
It is my strong recommendation that you not pursue an appeal before the Pennsylvania Superior Court. I believe that paying me money to pursue that appeal would be a [sic] inefficient use of your resources. With the record before it as it now stands, the Superior Court would almost certainly affirm Judge Sabo‘s decision. It is my recommendation that you pursue your remedies in federal district court via a writ for petition of habeas corpus [sic]. . . . Consequently, I will not file a Notice of Appeal to the Superior Court, although you are certainly permitted to do so.
Supp. App. at 5 (emphases removed). According to Brown, he received this letter on April 21, 1997. It appears that he then agreed to have Silverman file a federal habeas petition on his behalf and to forgo an appeal in state court. App. 123-24 (“Petitioner . . . alternatively advised counsel to file a habeas corpus petition if counsel knew legal means to do so despite the exhaustion requirement“).
About a month later, in a letter dated May 20, 1997, Silverman informed Brown that he had yet to read the trial transcripts and draft a habeas petition and that he had been unable, despite his diligent efforts, to obtain the trial transcripts.4 Subsequently, in a letter dated July 29, 1997,
“[E]quitable tolling is proper only when the ‘principles of equity would make [the] rigid application [of a limitation period] unfair.’ ” See Miller v. New Jersey State Dep‘t of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (citation omitted). “Generally, this will occur when the petitioner has ‘in some extraordinary way . . . been prevented from asserting his or her rights.’ ” Id. (citation omitted). Moreover, to be entitled to equitable tolling, “[t]he petitioner must show that he or she ‘exercised reasonable diligence in investigating and bringing [the] claims.’ Mere excusable neglect is not sufficient.” Id. at 618-19 (citations, including internal citation, omitted); see Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (“The word ‘prevent’ requires the petitioner to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances. If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.“) (internal citations and internal footnote omitted).
We disagree with Brown insofar as he contends that he is entitled to equitable tolling because Silverman ineffectively failed to file an appeal from the denial of the second PCRA petition. From the outset, Silverman was forthright about not filing an appeal. In fact, the record reflects that Brown agreed to pursue federal habeas relief instead of an appeal in state court. Significantly, he could have timely filed a pro se notice of appeal in state court after receiving Silverman‘s letter on April 21, 1997. He had five days in which to do so. He was aware of the filing deadline (the PCRA court had informed him of the 30-day appeal period). Given his history of pro se filings, there is
We also disagree with Brown insofar as he contends that he is entitled to equitable tolling because Silverman “abandoned” him by withdrawing representation without filing a federal habeas petition. Silverman informed Brown that he was withdrawing because he was unable to obtain a complete set of the trial transcripts and felt that he could no longer properly represent Brown. Prior to withdrawing, he had made diligent efforts to obtain the trial transcripts and had been forthright with Brown regarding his lack of success in obtaining them. He had also been forthright with Brown regarding his lack of progress in drafting a habeas petition. The record simply does not reflect that Silverman misbehaved or acted so irresponsibly that his withdrawal can be said to be an “extraordinary” circumstance warranting equitable tolling.
Neither does the case law support Brown‘s position. See Fahy, 240 F.3d at 244 (mere mistake or negligence on the part of an attorney generally does not “rise to the ‘extraordinary’ circumstances required for equitable tolling“); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 241 (3d Cir. 1999) (in the context of a Title VII claim, “garden variety” attorney misbehavior does not warrant equitable tolling); cf. United States v. Wynn, 292 F.3d 226, 230-31 (5th Cir. 2002) (equitable tolling may be warranted where petitioner alleged he “was deceived by his attorney into believing that a timely
In sum, we conclude that Brown is not entitled to equitable tolling for the period from April 26, 1997, to July 29, 1997. The limitation period thus ran during that period. On July 29, 1997, Brown had a little less than one month in which to file a habeas petition, and the limitation period continued running.
III.
Brown‘s other contentions concern the period from August 15, 1997, to January 11, 2000. Essentially, he contends that: (1) the notice of appeal nunc pro tunc was “properly filed” and tolled the limitation period pursuant to
IV.
To summarize, Brown‘s habeas petition was filed beyond the AEDPA‘s one-year statute of limitation. He failed to show that he is entitled to statutory or equitable tolling of the limitation period as would render his petition timely. Accordingly, we will affirm the District Court‘s order dismissing his petition as time-barred.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit
Notes
App. 16.Prior to the dismissal of the [second PCRA] petition, attempts were made by Mr. Silverman to obtain notes of testimony[.] Mr. Silverman contacted the Court of Common Pleas—Clerk of Courts, Court of Common Pleas—PCRA Unit, Trial Counsel, Appellate Counsel, and he wrote several letters to Judge Sabo, stating his desire to obtain the notes of testimony. All of the attempts to obtain the transcripts were unsuccessful.
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.