Douglas v. Horn, 359 F.3d 257

Case Information

District Judge GREENBERG, Circuit Judge.

This matter comes on before this Submitted under Third Circuit court on appeal from an order of the LAR 34.1(a) January 12, 2004 district court dated April 12, 2002, and

entered on April 15, 2002, denying the BEFORE: BARRY, SMITH, and petition of Robert Douglas (“Douglas”)

GREENBERG, Circuit Judges for habeas corpus relief under 28 U.S.C. § 2254 on the ground that it was

(Filed: February 9, 2004) untimely under 28 U.S.C. § 2244(d)(1).

The district court had jurisdiction pursuant to 28 U.S.C. § 2254 and we Matthew Lawry have jurisdiction pursuant to 28 U.S.C. James J. McHugh, Jr. §§ 1291 and 2253(c)(1)(A). Our review of the order denying the habeas petition filed a “no merit” letter with the court as time-barred is plenary. See Johnson v. which thereafter dismissed Douglas’s Hendricks, 314 F.3d 159, 161 (3d Cir. petition. Douglas again appealed to the 2002). For the reasons stated herein, we Superior Court, but that court affirmed will affirm the district court’s order. the dismissal on July 15, 1999, partially

on the merits and partially for procedural reasons. ^[2]

I. BACKGROUND Thereafter, Douglas attempted to submit a motion for reconsideration to On April 2, 1982, a jury in the the Superior Court, but the court’s Court of Common Pleas of Philadelphia prothonotary returned the motion to him, County, Pennsylvania, found Douglas originally for procedural reasons and guilty of conspiracy, aggravated assault, then, when Douglas resubmitted it, robbery, and possession of an instrument because it was untimely. When the of crime. On July 10, 1984, the trial prothonotary returned it the second time, court sentenced him to a total period of he informed Douglas in his letter that if incarceration of 20 to 40 years. Douglas Douglas planned to appeal to the appealed, but the Pennsylvania Superior Pennsylvania Supreme Court, his petition Court affirmed on December 13, 1985. for allowance of appeal was required to Douglas did not file a timely petition for be postmarked by August 16, 1999. allocatur with the Pennsylvania Supreme Douglas, however, did not meet that Court but did file a request for deadline but instead, on September 10, permission to appeal nunc pro tunc 1999, submitted a petition for allowance which that court denied on October 5, of appeal nunc pro tunc to prison 1987. Thus, the proceedings on his officials at his place of confinement for direct appeal were concluded at that mailing to the Pennsylvania Supreme time. Court. The officials apparently did mail

the petition as he requested and it was On December 16, 1996, Douglas filed on September 14, 1999. But on filed a pro se petition for post conviction January 28, 2000, the Supreme Court relief under the Post Conviction Relief denied his request. On February 4, 2000, Act (“PCRA”), 42 Pa. Cons. Stat. Ann. Douglas moved for reconsideration of §§ 9541 et seq. (West 1998 & West the denial, but on June 12, 2000, the Supp. 2003), in the common pleas court.

Douglas’s appointed counsel, however, We note that the Superior Court indicated in its opinion that the jury The appellees do not contend that this found Douglas guilty on March 29, 1982, petition was not filed properly under 28 though he indicates that the correct date U.S.C. § 2244(d)(2). was April 2, 1982.

court denied this motion. As of that date, almost timely as the court counted 374 then, his state post conviction relief untolled days after the effective date of proceedings were exhausted. the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”) before Douglas On September 29, 2000, filed his federal habeas petition on Douglas filed a petition for a writ of September 29, 2000. As will be seen habeas corpus pursuant to 28 U.S.C. § below, if Douglas had filed his habeas 2254 in the district court. The court corpus petition within one year of the referred the petition to a magistrate judge effective date of that statute (excluding who, on September 28, 2001, tolled periods), it would have been recommended that the court deny it as timely. On the other hand, inasmuch as untimely. On April 12, 2002, the district the magistrate judge did not recommend court adopted the magistrate judge’s tolling during the period in which recommendation and denied Douglas’s Douglas’s petition for allowance of petition as time-barred. appeal nunc pro tunc and the motion for

reconsideration of the order denying the The district court and the petition were pending, she calculated that magistrate judge made significantly Douglas’s federal petition was almost different calculations with respect to the nine months late.

timeliness of the petition, though their

conclusion that it was untimely was the Douglas then appealed and we same. The difference was that the treated his notice of appeal as a request district court, but not the magistrate for a certificate of appealability under 28 judge, assumed that the time for filing U.S.C. § 2253(c)(1). On February 25, the petition had been tolled during the 2003, we issued a certificate of period in which Douglas’s petition for appealability on the following question: allowance of appeal nunc pro tunc and subsequent motion for reconsideration Whether the District were pending in the post conviction Court erred by relief proceedings in the Pennsylvania dismissing Appellant’s Supreme Court. Nevertheless, the petition for a writ of district court would not toll the period habeas corpus as time- between January 28, 2000, when the barred by the one-year Supreme Court denied Douglas’s petition period of limitation for allowance of appeal nunc pro tunc, prescribed in 28 U.S.C. and February 4, 2000, when he moved § 2244(d)(1) without for reconsideration of the denial. statutorily tolling the

period of time from Under the district court’s September 10, 1999 calculations, Douglas’s petition was (the date Appellant’s

petition for allowance the period of September 10, 1999, of appeal nunc pro tunc through June 12, 2000, in our certificate was filed with the of appealability, in fact, as we have Pennsylvania Supreme explained, the district court did toll the Court) through June 12, running of the statute of limitations 2000 (the date the during that period except for the time Pennsylvania Supreme between when the Supreme Court denied Court denied Douglas’s petition for allowance of an Appellant’s motion for appeal nunc pro tunc and when he filed reconsideration). his motion for reconsideration of that denial. In view of our granting the A. 35. Notwithstanding the reference to certificate of appealability, the appeal has Douglas moved in this court for an gone forward. See 28 U.S.C. § 2253(c)(1)(A). order expanding the scope of the

certificate of appealability but on July 21,

2003, we denied his motion.

Nevertheless, in our order we invited

supplemental briefing based on these mailbox rule. See Brown v. observations: Shannon, 322 F.3d 768, 771 n.3 (3d Cir. 2003) (citing In conducting its statutory Commonwealth v. Jones, tolling analysis, the District 700 A.2d 423, 426 (Pa. Court ultimately concluded 1997)). Additionally, the that 374 days lapsed before District Court declined to Appellant filed his federal statutorily toll the six-day habeas petition. We are period between January 28, persuaded that jurists of 2000, and February 4, 2000. reason would debate the See Nara v. Frank, 264 F.3d c o r r e c t n e s s o f t h i s 310, 319 (3d Cir. 2001). conclusion for the following

two reasons. First, the Supp. A. 1-2. Of course, in view of our District Court found that result there could not be any tolling 236 days lapsed before during the six-day period as that period Appellant filed his petition was nothing more than a gap in the nunc for postconviction relief pro tunc proceedings which themselves filed on Monday, December did not trigger a tolling period. As we 16, 1996, without extending explain below, we have no need to Appellant the benefit of consider the mailbox rule question. See P e n n s y l v a n i a ’ s p r i s o n infra n.6.

II. DISCUSSION tolling of the one-year clock. ^[5] The AEDPA established a one- The one-year period is, however, year limitation period for the filing of not an absolute limit. For example, 28 petitions of habeas corpus by state U.S.C. § 2244(d)(2) (“section prisoners which has been codified at 28 2244(d)(2)”), which is involved here, U.S.C. § 2244(d)(1) (“section provides for “statutory tolling” in the 2244(d)(1)”). Douglas’s conviction following circumstance: became “final” before the AEDPA came

into effect on April 24, 1996, and thus The time during which his one-year period for filing a habeas a properly filed petition began running on that date. See application for State Burns v. Morton, 134 F.3d 109, 111 (3d post-conviction or other Cir. 1998) (establishing a one-year collateral review with “grace period” for petitioners whose respect to the pertinent convictions became “final” before the judgment or claim is AEDPA became effective). pending shall not be Accordingly, his petition would have counted toward any been due by April 23, 1997, absent any period of limitation

under this subsection. Section 2244(d)(1) provides in relevant part: by a person in custody for a writ of habeas corpus shall apply to an application A 1-year period of limitation pursuant to the judgment of proceedings before the Pennsylvania the entire pendency of his nunc pro tunc Supreme Court including the period the was entitled to statutory tolling during district court excluded from tolling after In this appeal, Douglas contends that he the Supreme Court denied his petition petition in his post conviction relief a State court. The limitation

and until he sought reconsideration from We therefore conclude that Douglas’s that court and the period during which habeas filing on September 29, 2000, his motion for reconsideration was was more than nine months late. pending.

We reject Douglas’s contention We calculate Douglas’s one- that the clock should be tolled during the year “grace period” as follows. The following time-frames: (1) from the period ran without interruption from filing of his nunc pro tunc petition in the April 24, 1996, the effective date of the post conviction relief proceedings before AEDPA, to December 16, 1996, when the Pennsylvania Supreme Court through Douglas filed his PCRA petition. Thus, the denial of that petition; (2) from the without taking a potential four-day filing of his motion to reconsider the tolling under Pennsylvania’s prisoner denial of his nunc pro tunc petition mailbox rule into account, 236 days had through the denial of the motion to run on his clock. His PCRA petition reconsider; and (3) during the time gap statutorily tolled the limitations period between the denial of his nunc pro tunc until August 16, 1999, the last date by petition and the filing of his motion to which he timely could have appealed the reconsider the denial of his nunc pro tunc denial of his PCRA petition to the petition. ^[7]

Pennsylvania Supreme Court. See

Swartz v. Meyers, 204 F.3d 417, 424 (3d We decline to toll any of these Cir. 2000). The clock then ran from time frames because we hold that August 16, 1999, to December 23, 1999, thereby exhausting the 129 days remaining on his 365-day grace period. Douglas also argues for equitable tolling from August 16, 1999 (the last date upon which he timely could have Douglas argues that although his appealed the denial of his PCRA petition PCRA petition was filed on December to the Pennsylvania Supreme Court) until 16, 1999, according to the mailbox rule it the date of filing of his nunc pro tunc should be deemed to have been filed on petition. His position is meritless December 12, 1996, the day he gave it to because he has made no showing of an prison authorities for filing. Appellees “extraordinary” circumstance that would contend that the mailbox rule had not allow such tolling. See Miller v. New been established under Pennsylvania law Jersey State Dept. of Corr., 145 F.3d 616, at the time that Douglas submitted his 618 (3d Cir. 1998) (equitable basis for PCRA application. We decline to tolling may be shown “when the address this issue because under our petitioner has in some extraordinary way conclusions, Douglas’s petition is . . . been prevented from asserting his or untimely regardless of whether he is her rights”) (citation and internal credited with these four days. quotation marks omitted).

Douglas’s nunc pro tunc petition was not Id. at 775 n.5 (citations omitted). ^[8] “properly filed” under the AEDPA. In Likewise, in Swartz v. Meyers, 204 F.3d determining whether a petition is at 424 n.6, we noted that we “agree that “properly filed,” a federal court “must the time during which Swartz’s nunc pro look to state law governing when a tunc request for allowance of appeal was petition for collateral relief is properly pending does not toll the statute of filed.” Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001). We recognized in Brown v. Shannon, 322 F.3d 768 (3d Cir. 2003), limitation.” Consistently with these views, we hold herein that Douglas’s nunc pro tunc petition was not properly that a notice of appeal nunc pro tunc is filed, and thus did not toll the clock. By filed improperly as a matter of state law, extension, neither Douglas’s motion to noting as follows: reconsider the denial of that petition, nor

the time between the two filings, Pennsylvania law thus constituted grounds for statutory tolling. did not (and does not)

recognize extra-PCRA We thus reject the district petitions like Brown’s court’s determination in Chhoeum v. notice of appeal nunc Shannon, 219 F. Supp. 2d 649, 652 (E.D. pro tunc. Because such Pa. 2002), that the petitioner’s petitions are improperly application in that case for allowance of filed as a matter of state appeal nunc pro tunc tolled the statute of law, it seems doubtful that they may be

deemed ‘properly filed’ within the meaning of § In Brown v. Shannon, we indicated that we were not “address[ing]” certain of the petitioner’s contentions but rather 2244(d)(2) . . . . merely making “several observations” Permitting petitions not regarding them because even if we recognized under state accepted his arguments his petition law and improperly would have been untimely. 322 F.3d at filed as a matter of state 774-75. law to toll the limitation

period would not seem to promote exhaustion in the manner contemplated by the AEDPA. We recognize that in Swartz our comments with respect to the statute of limitations not being tolled during the time that a nunc pro tunc request for allowance of appeal was pending were

not necessary to our result inasmuch as the petitioner’s petition for habeas corpus was timely without regard for that period. See Swartz, 204 F.3d at 424-25. limitations until that request had been that Nara be applied so broadly that by denied. We note that Nara v. Frank, 264 filing a nunc pro tunc petition for leave F.3d 310, 316 (3d Cir. 2001), in which to appeal a petitioner could obtain further we held that a state-court motion to tolling after the time for even withdraw a guilty plea nunc pro tunc was discretionary review of a judgment has “properly filed,” and on which the expired. See Kapral v. United States, district court relied in Chhoeum, is 166 F.3d 565, 577 (3d Cir. 1999). distinguishable because Nara involved a nunc pro tunc petition that was filed at Accordingly, we conclude that what reasonably may have been Douglas’s one-year grace period should considered the suggestion of the Superior not be tolled during the pendency of his Court and because that motion was nunc pro tunc petition from September denied for substantive reasons, rather 10, 1999, when he submitted it to the than a failure to follow the state’s filing prison officials, through June 12, 2000, rules. ^[10] See Merritt v. Blaine, 326 F.3d when the Pennsylvania Supreme Court 157, 165-66 & n.6 (3d Cir. 2003) (noting denied his motion for reconsideration of same and holding that because its denial of his petition for allowance of petitioner’s second PCRA petition was his appeal nunc pro tunc. Consequently, untimely under state law, it was not his petition for habeas corpus was “properly filed” for purposes of the untimely and the district court properly AEDPA). We certainly did not intend denied it.

Notes

[5] In Burns v. Morton, we indicated that period shall run from the latest of -- a petition filed “on or before April 23, (A) the date on which the 1997, may not be dismissed for failure to judgment became final by comply with § 2244(d)(1)’s time limit.” the conclusion of direct 134 F.3d at 111. Arguably we should review or the expiration of have used April 24, 1997, rather than the time for seeking such April 23, 1997, as the cut-off date. See review. Fed. R. Civ. P. 6(d). In these proceedings, however, the one-day discrepancy is not germane.

[10] In Chhoeum the district court cited Swartz but did not mention it for the III. CONCLUSION point in our quotation of that case above. For the foregoing reasons, we

[11] We reject Douglas’s claim that his will affirm the order of the district court nunc pro tunc petition should be dated April 12, 2002, and entered April considered properly filed under 15, 2002. Commonwealth v. Hernandez, 817 A.2d 479 (Pa. 2003), which held that a nunc pro tunc petition should not have been dismissed as improper when it was filed direct appeal . . . .” Id. at 570. In our prior to the Pennsylvania Supreme view, Hernandez does not help Douglas Court’s decision in Commonwealth v. here because he filed his nunc pro tunc Lantzy, 736 A.2d 564 (Pa. 1999). Lantzy petition approximately two months after held that “the PCRA provides the the Supreme Court decided Lantzy. By exclusive remedy for post-conviction that time, the window that Hernandez claims seeking restoration of appellate retroactively opened for a pre-Lantzy rights due to counsel’s failure to perfect a nunc pro tunc appeal had been closed.

Case Details

Case Name: Douglas v. Horn

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 9, 2004

Citations: 359 F.3d 257; 2004 WL 231207; 02-2339

Docket Number: 02-2339

Court Abbreviation: 3d Cir.