OPINION OF THE COURT
Jоseph George Nara appeals the District Court’s dismissal of his Petition for Writ of Habeas Corpus as untimely. Nara argues that the one-year statute of limitations un *312 der 28 U.S.C. § 2244(d)(1) should have been tolled under 28 U.S.C. § 2244(d)(2), because his motion to withdraw his guilty plea nunc pro tunc was a properly filed application for state post-conviction or other collateral review that was pending. Alternatively, Nara argues that this court should apply equitable tolling principles because of extraordinary circumstances in his case.
I.
FACTS AND PROCEDURAL HISTORY
The parties do not dispute the facts of this case. On January 28, 1984, Nara shot and killed his wife and mother-in-law. After Nara was arrested, he underwent a psychiatric evaluation during which he described himself as being severely depressed after his wife left him in December 1988. The Commonwealth of Pennsylvania charged Nara with two counts of criminal homicide. On June 20, 1984, Nara pled guilty in the Pennsylvania Court of Common Pleas to two counts of first degree murder and later was sentenced to concurrent terms of life imprisonment. He did not appeal his sentence.
The record shows that Nara’s mental condition deteriorated while he was in prison. Shortly after he arrived at the State Correctional Institution at Pittsburgh, he was placed in the institution’s hospital for “psychiatric reasons.” App. at 316. Nara was transferred to Farview State Hospital after being diagnosed as having “suicidal ideation of severe proportions.” App. at 319. Although he was returned to prison, he was hospitalized again after attempting to commit suicide in February 1985 by overdosing on drugs. A psychiatrist diagnosed Nara as “severely mentally disabled” and “a clear and present danger to himself.” Supp.App. at 67. After another lengthy hospital stay for apprоximately 16 months, he was transferred to the State Correctional Institution at Huntingdon, Pennsylvania in 1986, where he is incarcerated to this day. There is nothing in the record of Nara’s mental condition after 1986.
On April 21, 1988, Nara filed his first petition for relief under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann. §§ 9541 et seq. In the accompanying pro se brief, Nara stated, inter alia, that he was not mentally competent when he pled guilty and that his trial counsel was ineffective for failing to assess his mental competence at the time of the crimes and when he pled guilty. After a hearing at which Nara was represented by court-appointed counsel, the trial сourt denied the petition. The trial court’s opinion and order, however, addressed only the ineffective assistance of counsel claim. The Superior Court of Pennsylvania affirmed, and the Pennsylvania Supreme Court denied review in 1989.
On May 15, 1990, Nara filed a second PCRA petition. He argued that his plea should be withdrawn because he was mentally incompetent when he entered it. The trial court appointed new counsel and held a hearing on November 19,1990 at which a forensic psychiatrist testified that Nara was psychotic and depressed at the time of his guilty pleа and therefore was “not mentally capable” of entering a plea. App. at 474. Based on this testimony, the trial court found that Nara’s guilty plea was not valid and granted Nara’s petition. The Commonwealth appealed. The Superior Court reversed and reinstated the plea, ruling that the issue of Nara’s competence had been waived because Nara had failed to raise it in his first post-conviction hear *313 ing. 1 The Superior Court stated in a footnote that Nara waived his right to request withdrawal of his guilty plea by failing to file a post-sentence motion tо withdraw the plea pursuant to Pa. R.Crim. P. 821. That rule provided, in part: “(a) A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.” 2 In 1992, the Pennsylvania Supreme Court denied Nara’s petition for allowance to appeal. The United States Supreme Court denied Nara’s petition for certiorari.
On December 19, 1995, Nara filed a third PCRA petition, alleging, inter alia, that he was incompetent to enter the guilty plea. The trial court appointed attorney Phyllis Jin to reрresent Nara, and held a hearing on April 30, 1996. At this hearing, Nara agreed that he had previously litigated the issues in his PCRA petition. Nara therefore asked to withdraw his PCRA petition in favor of filing a motion to withdraw his guilty plea nunc pro tunc pursuant to Rule 321. The court allowed Nara to withdraw thé petition and issued a briefing schedule for the motion to withdraw his guilty plea.
After the submission of briefs, the trial court issued an opinion and order on September 30, 1996 denying the motion. The court found that Nara had been advised at his sentencing in 1984 of his right to move to withdraw the plea within 10 days and noted that Nara did not give a compelling rеason why he waited 12 years to ask to withdraw his guilty plea. The Superior Court affirmed on July 9, 1997 and the Pennsylvania Supreme Court denied Nara’s petition for allowance to appeal on December 8, 1997. Nara did not file a motion for reconsideration to the Pennsylvania Supreme Court nor did he file a petition for certiorari to the United States Supreme Court.
Nara then filed the present Petition for Writ of Habeas Corpus. The certificate of mailing indicates that the prison mailed the petition on December 15, 1998. However, his habeas petition is signed and dated December 12, 1998, and his cover letter to the petition is dated December 12, 1998.
The District Court referred the matter to a ^Magistrate Judge, who recommended that Nara’s petition be dismissed as untimely and that a certificate of appealability be denied. In analyzing the applicability of the one-year statute of limitations under § 2244(d)(1) and the tolling provision under § 2244(d)(2), the Magistrate Judge determined that the latest date on which Nara’s application for state post-conviction or other collateral review was pending was December 8, 1997, when the Pennsylvania Suprеme Court denied his petition for allowance of appeal with respect to his nunc pro tunc motion. Thus, according to the Magistrate Judge, the statute of limitations would have begun on that date and would have run .until December 7, 1998. Therefore, even with the benefit of the mailbox rule which would recognize filing of Nara’s habeas petition on December 12, 1998, his petition was *314 untimely. The District Court adopted the Magistrate Judge’s recommendations, dismissed Nara’s habeas petition as untimely, and denied the certifícate of appealability.
Nara filed a timely appeal to this court.
II.
DISCUSSION
A. Jurisdiction and Standard of Review
On February 15, 2000, a motions panel of this court issued а certificate of appeala-bility under 28 U.S.C. § 2253(c)(1) on the following:
the issues of whether the District Court correctly concluded that Nara’s habeas petition was untimely filed under the statute of limitations, 28 U.S.C. § 2244(d)(1), see Burns v. Morton,134 F.3d 109 (3d Cir.1998), and whether Nara was entitled to any tolling of the limitations period pursuant to either 28 U.S.C. § 2244(d)(2), see Lovasz v. Vaughn,134 F.3d 146 (3d Cir.1998), or the principles of equitable tolling, see Jones v. Morton,195 F.3d 153 (3d Cir.1999); Miller v. New Jersey State Dep’t of Corrections,145 F.3d 616 (3d Cir.1998). In particular, the parties should address whether Nara’s motion to withdraw his guilty plea nunc pro tunc was a ‘properly filed application for State post-conviction or other collateral review’ within the meaning of § 2244(d)(2). If that motion tolled the limitations period, the parties, should address whether Nara is also entitled to tolling for the 90-day period following entry of Pennsylvania Supreme Court’s order on December 8, 1997, when Nara could have petitioned for certiorari review in the United States Supreme Court.
Nara v. Frank, No. 99-3364, Order Granting Certificate of Appealability (Feb. 15, 2000).
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We have plenary review over statute of limitations issues.
See Swartz v. Meyers,
B. The Requirements of 28 U.S.C. § 2244(d)
A state prisoner must file his or her habeas corpus petition within one year after the completion of the state court proceedings. 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act оf 1996 (“AEDPA”), 110 Stat. 1214, 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 nоt be counted toward any period of limitation under this subsection.
The inquiry under § 2244(d) encompasses both when the judgment of the state court became “final” and when the “properly filed application for State post-conviction or other collateral review” was “pending.” Nara must satisfy the provisions of § 2244(d) because he is in custody pursuant to the judgments of Pennsylvania’s courts. Nara pled guilty on June 20, 1984 and was sentenced on July 13, 1984. Nara did not file a direct appeal, so his conviction and sentence were “final” on August 13, 1984, when the time during which he could have appeаled (30 days) lapsed. Be
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cause we have implied from the statute a one-year grace period for those petitioners whose convictions became final before the effective date of AEDPA, and AEDPA was effective April 24, 1996, Nara had up until, and including, April 23, 1997 to file a timely petition under § 2244(d)(1).
See Burns v. Morton,
The principal issue on appeal is whether the one-year statute of limitations under ' § 2244(d)(1) should be tolled for any reason. Nara argues that his motion to withdraw his guilty plea nunc pro tunc tolled the statute of limitations as provided by § 2244(d)(2), making his habeas petition - timely. The Commonwealth disputes whether Nara’s nunc pro tunc motion can be considered a “properly filed application for State post-conviction or other collateral review” within the meaning of § 2244(d)(2). The Magistrate Judge determined, and the District Court agreed, that it was not necessary to resolve this issue because even if the motion was construed as such, Nara’s habeas petition was still untimely.
It is the Commonwealth’s position that a
nunc pro tunc
motion can never be a “properly filed application for State post-conviction or other collateral review” because the
nunc tunc pro
characterization is a concession that the movant failed to request relief in a timely manner. The Commonwealth urges us to hold that a
nunc pro tunc
motion in state court does not trigger the tolling provision in order to prevent state prisoners from using such motions in an attempt to preserve their right to file federal habeas petitions and thereby abuse the writ. The Commonwealth cites to a footnote in our decision in
Sivartz. See
Our opinions suggest a much more flexible approach. In
Jones v. Morton,
Indeed, a recent Supreme Court decision supports this flexible approach. In
Artuz v. Bennett,
Other courts of appeals have held similarly.
See, e.g., Dictado v. Ducharme,
We find these cases to be informative for the case at hand. Nara’s motion to withdraw a guilty plea
nunc pro tunc
is certainly akin to an application for state post-conviction or other collateral review. The PCRA trial court accepted the motion, аllowed the parties to brief the motion, and made a full consideration of the record before denying it. Indeed, Nara notes that his motion merely followed what the Superior Court suggested when that court disposed of Nara’s second PCRA petition.
See
Br. of Appellant at 23-24. Lastly, Nara contends that it is not uncommon for Pennsylvania courts to accept motions to withdraw guilty pleas
nunc pro tunc. See, e.g., Commonwealth v. Clark,
We turn next to dеtermine how long Nara’s motion was “pending” under § 2244(d)(2). The District Court agreed with the Magistrate Judge that the latest date it was “pending” was December 8, 1997, the date on which the Pennsylvania Supreme Court denied Nara’s petition for allowance of appeal. It followed that the last date on which Nara could have timely filed his habeas petition was December 7, 1998, making his actual filing on December 12,1998 untimely.
On appeal, Nara argues that his motion was “pending” at least until expiration of the time, to seek reconsideration by the Pennsylvania Supreme Court (14 days), if not until expirаtion of the time for petitioning the United States Supreme Court for certiorari (90 days). In support of this contention, Nara cites our decision in
Kapral v. United States,
The issue in
Kapral
was different than the one before us now. In
Kapral,
we considered when a judgment is “final” under § 2244(d)(1), not how long a state application for collateral review is “pending” for the purposes of § 2244(d)(2). In our subsequent opinion in
Swartz,
we turned to the definition of “pending.”
See
We granted Swartz a certificate of ap-pealability and held that the petition was timely. We noted that “pending” is defined as:
[bjegun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Awaiting an occurrence or conclusion of action, period of continuance or indeter-minancy. Thus, an action or suit is “pending” from its inception until the rendition of final judgment. An action is “pending” after it is commenced by еither filing a complaint with the court or by the service of a summons.
Id. at 421 (quoting Black’s Law Dictionary, 6th ed. p. 1134 (1990)) (emphases omitted).
We determined in Swartz that “pending” under § 2244(d)(2) should be defined to dovetail with our holding in Kapral as to when a judgment becomes “final” under § 2244(d)(1)(A). Thus, we held that “pending” for the purposes of § 2244(d)(2) (when an application for state post-conviction or collateral review is “pending”) “includes the time for seeking discretionary review, whether or not discretionary review is sought.” Id. We so concluded because “[i]f Swartz had attempted to seek federal habeas corpus relief while there was still time to seek allowance of appeal, the petition would automatically be dismissed for failure to exhaust state remedies.” Id. at 422. Accordingly, we ruled that Swartz’s habeas petition was timely because it was filed within one year of the expiration of time to seek review in the Pennsylvania Supreme Court. See id. at 424-25.
Nara argues that
Sivartz
supports an interpretation of “pending” to include the 14 days during which a prisoner could have filed a motion for reconsideration to the
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Pennsylvania Supreme Court under Pa. R.App. P. 1123(b), as well as the 90 days allowed to petition for certiorari review tо the United States Supreme Court pursuant to U.S. Sup.Ct. Rule 13. However, in
Swartz,
we specifically noted that “[w]e need not delve into the issue whether ‘pending’ includes the time to file a petition for a writ of certiorari in the United States Supreme Court because that question is not presented by this appeal.”
The issue has since been presented in
Stokes v. District Attorney of the County of Philadelphia,
Additionally, we noted that the terms “properly filed application” and “pending” in § 2244(d)(2) presuppose that the petitioner actually filed a petition for certiorari review as to which a decision had not yet been rendered by the Supreme Court.
See id.
at 543 (citing
Gutierrez v. Schomig,
All the courts of appeals to have considered this issue have held that the 90-day period during which a state prisoner may file a petition for a writ of certiorari to the Supreme Court from the denial of his post-conviction appeal does not extend the time in which a state collateral attack is pending for purposes of the tolling period under § 2244(d).
See, e.g., Isham v. Randle,
Stokes forecloses Nara’s argument that the 90 days during which he could have filed a petition for a writ of certiorari should be counted for purposes of tolling of the one-year statute of limitations. Nara, like Stokes, did not file a petition for certiorari to the United States Supreme Court. Therefore, there was no “properly filed application” that was “pending” within the meaning of § 2244(d)(2). 4
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We turn now to whether the 14 days allowed under Pa. R.App. P. 1123(b) to seek reconsideration by the Pennsylvania Supreme Court should be counted in the tolling analysis. Our decision in
Lovasz,
It is true that some language in our subsequent decision in
Swartz
seems to suggest a different result. There, we stated that “ ‘pending’ includes the time for seeking discretionary review, whether or not discretionary review is sought.”
Swartz,
As we noted in
Stokes,
§ 2244(d)(2) uses the terms “properly filed” and “pending.”
See
C. Equitable Tolling
Nara also argues that we shоuld apply principles of equitable tolling to render Nara’s petition for habeas corpus timely. In
Miller v. New Jersey State Dep’t of Corrections,
Nara contends that there are extraordinary circumstances to justify equitable tolling in his case. First, hе argues that his mental health problems are extraordinary circumstances, and cites to the Ninth Circuit’s decision in
Calderon v. U.S. Dist. Court for Cent. Dist. of Cal.,
However, we have recognized that mental incоmpetence is not a
per se
reason to toll a statute of limitations.
See Lake v. Arnold,
Also troubling is Nara’s contention that his attorney in the third PCRA proceeding (in which the PCRA petition was withdrawn in favor of the motion to withdraw Nara’s guilty plea) effectively abandoned him and prevented him from filing the habeas petition on time. In Nara’s application for a certificate of appealability, he listed multiple ways in which he was allegedly prejudiced by his attorney’s failures. He claims that his attorney failed to inform him when the Pennsylvania Supremе Court denied review of his motion to withdraw his guilty plea; that his attorney refused to remove herself as appointed counsel after the Pennsylvania Supreme Court decision, thus preventing him from “moving his case forward,” App. at 179; that his attorney led him to believe that she was going to file the federal habeas petition on his behalf; and that his attorney told him that there were no time constraints for filing a petition. These are serious allegations, if true.
These allegations may constitute extraordinary circumstances to justify equitable tolling. As we held in Miller and other cases, courts hаve discretion to apply principles of equity when the petitioner has been unfairly prevented from asserting his rights in a timely fashion. We believe that an evidentiary hearing on these allegations is warranted.
III.
CONCLUSION
We reject Nara’s contention that his petition was timely under the language of § 2244(d). However, we will vacate the denial of the habeas petition as untimely and remand to the District Court with the direction to hold an evidentiary hearing on whether the circumstances warrant equita *321 ble tolling. We suggest no opinion on the outcome.
Notes
. We note that Nara’s pro se brief in support of his first PCRA petition asserted that he “was not mentally capable of waiving his constitutional rights, and pleading guilty, ... Guilty plea [sic] is not valid unless it is voluntary in the constitutional sense.” App. at 288. Because the question identified in the certificate of appealability granted by this court was whether the one-year statute of limitations in § 2244(d)(1) should be tolled for any reason, we will limit our review to that issue and will not comment on the Pennsylvania court's waiver ruling.
. The Rule has since been revised arid renumbered Pa. R.Crim. P. 720.
. Nara has contended that he placed his ha-beas petition in the prison’s mailbox on December 12, 1998. The Commonwealth appears to concede that the prisoner mailbox rule applies. Under Fed. R.App. P. 4(c), if an inmate is confined in an institution, his notice of appeal (or federal habeas petition) will be timely if it is deposited in the institution's internal mail system on or before the last day for filing. However, the inmate is required to make a declaration that sets forth the date of deposit and that first-class postage has been prepaid. It appears from Nara’s habeas petition that he has fulfilled these requirements.
. For this reason,
Morris v. Horn,