Lacava v. KylerLacava v. Kyler
Michael LaCava appeals from an order of the District
I. FACTS AND PROCEDURAL HISTORY
LaCava was found guilty by a jury in the Philadelphia County Court of Common Pleas of first degree murder, aggravated assault, simple assault, possession of an instrument of crime, and criminal conspiracy. The jury set the penalty at death. On direct appeal, the Pennsylvania Supreme Court affirmed LaCava’s convictions, but vacated the death sentence and remanded the matter for a new sentencing hearing. Commonwealth v. LaCava, 666 A.2d 221 (Pa. 1995). LaCava was subsequently sentenced to life imprisonment on March 22, 1996, a sentence he did not appeal.
In January 1997 LaCava filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act (“PCRA”),
On December 12, 2001, LaCava filed a pro se petition for habeas corpus, presenting four claims that appellate counsel rendered ineffective assistance. As the merits of those claims are not at issue here, we will not set forth the specifics. The Commonwealth answered by asserting that LaCava’s habeas petition was time-barred and must be dismissed. The Magistrate Judge to whom LaCava’s petition was referred issued a Report recommending that his habeas petition be denied as untimely under
The Magistrate Judge concluded that LaCava’s conviction became final on April 21, 1996, at the expiration of his time for seeking review with the Pennsylvania Supreme Court. See
Section 2244(d)(2) provides, however, that: “[t]he 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. . . .”
There ensued a series of filings in which LaCava asserted that the untimely filing could not be attributed to him because notice of the order denying his petition for allowance of appeal
On consideration of these papers, the Magistrate Judge issued an order permitting LaCava thirty days to file a traverse. LaCava did so, essentially reasserting the arguments he set forth in his previous filings. He again claimed an entitlement to equitable tolling due to the “extraordinary circumstance” of having received delayed notice of the state court’s disposition of his petition for allowance of appeal. LaCava asserted that his allegation of delayed notice – and thus the reason for his untimely filing – was supported by the exhibits he attached to
In an order entered on January 10, 2003, the District Court, after noting that it had independently considered LaCava’s petition for writ of habeas corpus, the Magistrate Judge’s Report and Recommendation, and LaCava’s traverse, approved and adopted the Report and Recommendation, denied LaCava’s habeas petition, and declined to issue him a certificate of appealability. LaCava timely appealed. We appointed
The District Court had jurisdiction pursuant to
II. DISCUSSION
This Court has held that AEDPA’s statute of limitations is subject to equitable tolling. Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616, 617 (3d Cir. 1998). We have cautioned, however, that courts should be sparing in their use of this doctrine, Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999), applying equitable tolling “only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice.” United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (quotation marks and citation omitted). Equitable tolling is appropriate when “the principles of equity would make the rigid application of a limitation period unfair,” Miller, 145 F.3d at 618 (quotation marks and alterations
LaCava contends that he is entitled to have this matter remanded to the District Court for an evidentiary hearing on the equitable tolling issue because he did not receive notice of the Pennsylvania Supreme Court’s denial of his petition for permission to appeal within the limitations period and because he exercised reasonable diligence in filing his habeas petition once he finally received such notice.
A. Extraordinary Circumstances
LaCava argues that his failure to receive notice of the Pennsylvania Supreme Court’s denial of his petition for permission to appeal constitutes extraordinary circumstances which would warrant equitable tolling. We disagree.
We note that LaCava was represented by counsel during his state collateral proceedings, including the filing of his petition for allowance of appeal. Accordingly, LaCava was not entitled to personal notice of the Pennsylvania Supreme Court’s order. See
We also find LaCava’s reliance on Valverde v. Stinson, 224 F.3d 129 (2d Cir. 2000) misplaced. The petitioner in Valverde alleged that a corrections officer intentionally confiscated his pro se habeas petition and related legal papers shortly before the filing deadline, and that the officer’s seizure “proximately caused” his failure to file the petition on time. The Second Circuit held that, as a matter of law, this type of intentional confiscation was an “extraordinary circumstance.” Id. at 133. Accordingly, it remanded the matter to the District Court for further “factual development” on the issue of whether this circumstance prevented the petitioner from filing his petition in a timely manner. While a possibility may exist that an evidentiary hearing would uncover some wrongdoing on the part of correction officers in delivering notice of the state court’s order to LaCava, there is no allegation by LaCava that he was prevented by prison staff from making an earlier inquiry of
B. Due Diligence
Even assuming arguendo that we agreed with LaCava’s contention that the delayed notice he experienced constitutes extraordinary circumstances, we nonetheless conclude that LaCava did not exercise the requisite due diligence by allowing more than twenty-one months to lapse from the filing of his petition for allowance of appeal until he inquired with the Pennsylvania Supreme Court’s Prothonotary’s Office as to its status. We thus find no reason to remand this matter for an evidentiary hearing. See, e.g., Robinson v. Johnson, 313 F.3d at 143 (hearing on availability of equitable tolling not warranted where petitioner failed to show that he exercised reasonable diligence in attempting to file a timely petition).
It is a well-established principle that, in order for appellant to claim an entitlement to equitable tolling, he must show that he “exercised reasonable diligence in . . . bringing [the] claims.” Miller, 145 F.3d at 618-619 (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997); see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). This obligation does not pertain solely to the filing of the federal habeas petition, rather it is an obligation that exists during the period appellant is exhausting state court remedies as well. See, e.g., Jones v. Morton, 195 F.3d at 160
Moreover, while due diligence “does not require ‘the maximum feasible diligence,’ . . . it does require reasonable diligence in the circumstances.” Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004). LaCava knew that he had just over three months remaining on the one-year limitations period to file a timely federal habeas petition. To be certain, we are not attributing fault because LaCava waited nine months to file his PCRA petition. See, e.g., Valverde, supra, 224 F.3d at 136 (habeas petitioner “is not ineligible for equitable tolling simply because he waited until late in the limitations period to file his habeas petition”). However, we believe that this is a factor to be taken into consideration when determining whether it was reasonable for him to wait twenty-one months before making an inquiry to the state court or to counsel, and we conclude that it was not.
The period at issue in the instant case is a far cry from the other cases relied on by LaCava. In Phillips v. Donnelly, 216 F.3d 508 (5th Cir. 2000), petitioner asserted that he did not receive the notice of denial of review for nearly four months, at which time he unsuccessfully sought leave to file an out-of-time
We likewise find the Eleventh Circuit’s decision in Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002), distinguishable. In Knight, the clerk of the state supreme court inadvertently mailed notice of the disposition of Knight’s pro se application for discretionary review to the wrong person. Knight was finally notified of the court’s disposition of his application sixteen months later after he made inquiry with the clerk. Equitable tolling of the limitations period was found to be warranted given the fact that Knight was a pro se prisoner who failed to receive timely notice due to an inadvertent error on the part of the clerk, and who, because of the clerk’s assurance of personal notification, understandably did not make an earlier inquiry. The facts here are very different. Of further importance to the court was the fact that Knight, on his own initiative and even despite the prior assurance of personal notification, contacted the clerk after a year had passed and no
Finally, as we recently made clear in Schlueter v. Varner, supra, 384 F.3d 69, 74 (3d Cir. 2004), a habeas petitioner is not excused from exercising due diligence merely because he has representation during various stages of, or even throughout, his state and federal proceedings. Schlueter argued for the application of equitable tolling principles on the basis of what he characterized as attorney malfeasance. Despite the fact that counsel had informed Schlueter that he anticipated filing a PCRA petition by year’s end, no such petition had been filed by the expiration of the filing deadline the following January. We nonetheless concluded that equitable tolling was not warranted because Schlueter did not attempt to ascertain from his attorney,
We add that we think LaCava’s concern, expressed during oral argument, that construing the due diligence standard to require a litigant to make an occasional status inquiry would result in state courts being inundated with unnecessary mail is an unwarranted one. There is no reason such letters could not alternatively be addressed to counsel when a litigant is proceeding with representation.
C. The District Court’s Failure to Comment
We do not believe, as the Tenth Circuit Court of Appeals apparently did in Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001), that we are unable to engage in a meaningful review of LaCava’s equitable tolling argument simply because the District Court rejected the arguments contained in his objections and traverse without comment. The District Court represented that it had considered LaCava’s petition, the Magistrate Judge’s Report and Recommendation, and the traverse, which reasserted the arguments contained in LaCava’s objections. While it is certainly preferable that the District Court discuss the analysis it employed in considering the factors relevant to its consideration of whether equitable tolling is appropriate, the lack of such a written opinion does not mandate that we vacate the District Court’s order of dismissal and remand this matter for an evidentiary hearing. Even if we were to conclude that LaCava was prevented by “extraordinary circumstances” from receiving timely notice of the state court’s
III. CONCLUSION
While we certainly avoid drawing bright lines when it comes to equitable tolling, we hold that the twenty-one months of inactivity involved here crosses the line of what constitutes due diligence for purposes of employing that principle to save an otherwise untimely filing. We thus conclude that LaCava “has not alleged facts sufficient to show that ‘sound legal principles as well as the interests of justice’ demand pursuit of the ‘sparing’ doctrine of equitable tolling.” See Robinson, 313 F.3d at 143 (quoting Jones, 195 F.3d at 159). The order of the District Court dismissing LaCava’s habeas petition as time-barred will be affirmed.
Notes
Section 2244(d)(1) provides as follows:
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.