Merritt v. Blaine

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

4-16-2003

Merritt v. Blaine

Precedential or Non-Precedential: Precedential

Docket 01-2455

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PRECEDENTIAL

Filed April 16, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2455

MARVON MERRITT,

a/k/a MERRIT MONROE

v.

CONNER BLAINE; THE DISTRICT ATTORNEY

OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA

Marvon Merritt,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 00-cv-02338)

District Judge: Hon. John P. Fullam

Argued December 20, 2002

Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

(Filed: April 16, 2003)

Jane Elizabeth Lee (Argued)

Portland, Maine 04101

Attorney for Appellant

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Robert M. Falin (Argued)

Assistant District Attorney

Thomas W. Dolgenos

Chief, Federal Litigation

Ronald Eisenberg

Deputy District Attorney

Arnold H. Gordon

First Assistant District Attorney

Lynne Abraham

District Attorney

Philadelphia, PA 19102-1582

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge:

Marvon Merritt appeals from the order of the District

Court dismissing his petition for habeas corpus as time-

barred under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). Merritt v. Blaine, No. 00-2338 (E.D.

Pa. May 29, 2001). Merritt argues that the District Court

erred by not tolling the statute of limitations for his federal

habeas corpus petition during the period of time he was

pursuing post-conviction relief in state court under the

Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat.

Ann. §§ 9541-9546 (1998) (PCRA). This court granted

Merritt’s request for a certificate of appealability with

respect to two issues:

(1) whether the invocation in a state application for

post-conviction relief of a statutory exception to the

state’s timeliness requirement renders the application

“properly filed” within the meaning of 28 U.S.C.

§ 2244(d)(2); and (2) whether appellant has established

“extraordinary circumstances” warranting the equitable

tolling of that limitations period.

Merritt v. Blaine, No. 01-2455 (3d Cir. May 20, 2002). We

hold that an untimely application for state post-conviction

relief by a petitioner, who sought but was denied

application of a statutory exception to the PCRA’s time bar,

3

is not “properly filed” under 28 U.S.C. § 2244(d)(2). We also

agree with the District Court’s rejection of Merritt’s request

for equitable tolling of the statute of limitations. Therefore,

we will affirm.

I.

FACTS AND PROCEDURAL BACKGROUND

Merritt was convicted of murder of the second degree,

robbery, criminal conspiracy and possession of the

instrument of a crime for his participation in the fatal

shooting of George Dunbar in Philadelphia, Pennsylvania.

Dunbar was killed when Merritt and his co-conspirator

Ronald Baxter sought to rob Dunbar at his home. After

Merritt brandished a gun, Dunbar took out a gun and fired

two shots. Dunbar and Merritt struggled, while Baxter and

Robert Wells, who was present, also fought. It was the

Commonwealth’s position that Merritt shot Dunbar after

Dunbar fell to the floor. Baxter was shot in the leg.

At trial, Merritt presented as his defense that the state’s

witness, Wells, shot both Dunbar and Baxter. As stated,

the jury convicted Merritt. The Superior Court of

Pennsylvania affirmed Merritt’s conviction and sentence on

October 9, 1986, Commonwealth v. Merritt, 361 Pa. Super.

636, 517 A.2d 1365 (1986) (table), and the Supreme Court

of Pennsylvania denied Merritt’s petition for allowance of

appeal on July 7, 1987. Commonwealth v. Merritt, 516 Pa.

639, 533 A.2d 711 (1987) (table).

Merritt filed his first post-conviction review petition in

state court on June 21, 1988, pursuant to the PCRA. After

appointing counsel and allowing an amended petition, the

PCRA court denied relief on November 9, 1993. The denial

was affirmed by the Pennsylvania Superior Court on

January 17, 1995, Commonwealth v. Monroe (a name

Merritt also used), 442 Pa. Super. 659, 660 A.2d 123 (1995)

(table), and the Pennsylvania Supreme Court denied

allowance of appeal on November 8, 1995, Commonwealth

v. Monroe, 542 Pa. 663, 668 A.2d 1127 (1995) (table).

On December 20, 1996, Merritt filed a second pro se

4

PCRA petition in state court. Merritt alleged that he had

recently learned of a new technology, the Scanning Electron

Microscope (SEM), that was not available at the time of his

trial. He alleged that SEM could be used to determine if the

bullet that killed Dunbar and the bullet that wounded

Baxter came from the same gun. Merritt argued that

identifying the source of the bullets was essential to his

defense at trial that Wells shot both Dunbar and Baxter,

while the state argued at trial that Dunbar and Baxter were

shot by different persons. Merritt asked the PCRA court to

order a SEM analysis of the bullets.1

The PCRA court appointed counsel for Merritt. Counsel

requested, and the court granted, additional time to file an

amended petition. However, before the amended petition

was filed, the PCRA court denied Merritt’s pro se PCRA

petition without a hearing.2 Commonwealth v. Monroe, Nos.

1736-39 (Phila. Co. Ct. C.P. August 12, 1997) (order

dismissing second PCRA petition); Commonwealth v.

Monroe, Super. Ct. No. 3909 Phila. 1997 (Phila. Co. Ct. C.P.

April 12, 1998) (opinion dismissing second PCRA petition).

The court denied the petition both on the merits and

because it was untimely.

On the merits, the court held that (1) Merritt failed to

establish in sufficient form and substance the facts stated

in support of his grounds for relief; (2) Merritt neither

alleged nor established that SEM results constitute such

scientifically adduced evidence as is qualified as admissible

at trial; (3) the issue of the sufficiency of the evidence to

support Merritt’s convictions had been previously litigated

and “is presently waived”; (4) Merritt failed to present

evidence sufficient to establish a strong prima facie

showing that a miscarriage of justice may have occurred;

and, in addition, Merritt’s ineffective assistance of counsel

claims failed because the SEM analysis would have been

cumulative and therefore did not affect the outcome of the

1. Merritt also alleged ineffective assistance of counsel based on his prior

counsel’s failure to examine or to request an examination of the bullets

with an Electron Microscope.

2. Merritt does not assert as error that the PCRA court failed to wait

until the amended petition was filed.

5

trial and because counsel cannot be held ineffective for

failure to predict future technological changes found to be

acceptable devices to produce reliable ballistics evidence.

Commonwealth v. Monroe, Nos. 1736-39, order at 3-6

(Phila. Co. Ct. C.P. August 12, 1997). The court held

alternatively that the petition was untimely filed under 42

Pa. Cons. Stat. Ann. § 9545(b)(1) because it was not filed

within a year of the date Merritt’s conviction became final

and “none of the exceptions [to the PCRA’s timeliness

requirements] to be found in § 9545(b)(1)(i)(ii)(iii) were

alleged or proven. . . .” Commonwealth v. Monroe, Nos.

1736-39, order at 7 (Phila. Co. Ct. C.P. August 12, 1997).

On October 12, 1999, the Pennsylvania Superior Court

affirmed the dismissal of the petition because it was time-

barred, holding that Merritt failed to allege or prove any of

the applicable exceptions under 42 Pa. Cons. Stat. Ann.

§ 9545(b)(1). Commonwealth v. Monroe, No. 3909 Phila.

1997, slip op. at 4 (Pa. Super. Oct. 12, 1999). The Supreme

Court of Pennsylvania denied allowance of appeal on

February 24, 2000.

On May 5, 2000, Merritt filed this petition for a writ of

habeas corpus in the United States District Court for the

Eastern District of Pennsylvania. He argued that the state

court’s refusal to order the SEM analysis denied his rights

to due process, equal protection and effective assistance of

counsel. The Magistrate Judge recommended denial of

Merritt’s petition as time-barred. The Magistrate Judge

recognized that 28 U.S.C. § 2244(d)(2) tolls AEDPA’s statute

of limitations while any “properly filed” application for state

post-conviction relief is pending, but reasoned that because

the state court had found Merritt’s second PCRA petition to

be untimely, it was “not properly filed and it cannot serve

to statutorily toll the habeas period of limitations.” App. at

9. The Magistrate Judge also found that Merritt was not

eligible for equitable relief from AEDPA’s statute of

limitations because Merritt failed to demonstrate the

“extraordinary circumstances” necessary for equitable

tolling.

The District Court adopted and approved the Magistrate

Judge’s report and recommendation. Merritt v. Blaine, No.

00-2338 (E.D. Pa. May 29, 2001). Merritt filed a Notice of

6

Appeal on June 6, 2001, and we granted the certificate of

appealability. We consider first whether Merritt’s second

PCRA application was “properly filed” under 28 U.S.C.

§ 2244(d)(2) and, if not, whether he is entitled to equitable

tolling of the habeas corpus statute of limitations.

II.

DISCUSSION

A. Jurisdiction and Standard of Review

Merritt filed his petition for habeas corpus under 28

U.S.C. § 2254. The District Court exercised jurisdiction over

the petition under 28 U.S.C. § 2254(a). We have jurisdiction

over the District Court’s final order dismissing the petition

as untimely pursuant to 28 U.S.C. §§ 1291 and 2253. “We

have plenary review over statute of limitations issues.” Nara

v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

B. AEDPA’s Statute of Limitations

AEDPA imposes a one-year statute of limitations on

applications for a writ of habeas corpus. 28 U.S.C.

§ 2244(d)(1). Under 28 U.S.C. § 2244(d)(1)(A), the statute of

limitations begins to run from “the date on which the

judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.” In this

case, Merritt’s conviction became final prior to the

enactment of AEDPA. By its terms, AEDPA became effective

on April 24, 1996. Therefore, the statute of limitations for

Merritt’s habeas petition did not begin to run until April 24,

1996. We “implied from the statute a one-year grace period

for those petitioners whose convictions became final before

the effective date of AEDPA. . . .” Nara, 264 F.3d at 315; see

Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (“we hold

that habeas petitions filed on or before April 23, 1997, may

not be dismissed for failure to comply with § 2244(d)(1)’s

time limit”). However, Merritt did not file his habeas corpus

petition until May 5, 2000, more than three years after the

expiration of the statute of limitations.

The statute of limitations for federal habeas corpus

petitions is subject to two tolling exceptions: (1) statutory

7

tolling during the time a “properly filed” application for

state post-conviction review is pending in state court and

(2) equitable tolling, a judicially crafted exception. Jones v.

Morton, 195 F.3d 153, 158 (3d Cir. 1999).

C. “Properly Filed” Application for State Post-

Conviction Relief

AEDPA expressly provides that its one-year limitation is

tolled for 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.” 28

U.S.C. § 2244(d)(2). Merritt’s second PCRA petition was

pending in state court from December 20, 1996 through

February 24, 2000. Therefore, if Merritt’s second PCRA

petition were “properly filed,” the statute of limitations for

his habeas petition would have been tolled from December

20, 1996, the date his second PCRA petition was filed in

state court, through February 24, 2000, and his habeas

corpus petition, filed on May 5, 2000, would be timely.

However, to fall within the AEDPA tolling provision, the

petition for state post-conviction review must have been

both pending and “properly filed.” Fahy v. Horn, 240 F.3d

239, 243 (3d Cir.), cert. denied, Horn v. Fahy, 534 U.S. 944

(2001). There is no question that Merritt’s second PCRA

petition was pending. The principal issue on this appeal is

whether it was “properly filed.”

The Supreme Court has stated that “an application is

‘properly filed’ when its delivery and acceptance are in

compliance with the applicable laws and rules governing

filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in

original). This compliance requirement includes rules

governing the “form of the document” and “the time limits

upon its delivery.” Id.; see also Fahy, 240 F.3d at 243 (a

“properly filed” application must be “ ‘submitted according

to the state’s procedural requirements, such as the rules

governing the time and place of filing.’ ”) (citation omitted).

Merritt failed to file his second PCRA petition in

accordance with the timeliness requirements of 42 Pa.

Cons. Stat. Ann. § 9545(b)(1). However, the PCRA includes

statutory exceptions to its time bar that apply when:

8

(i) the failure to raise the claim previously was the

result of interference by government officials with the

presentation of the claim in violation of the

Constitution or laws of this Commonwealth or the

Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States

or the Supreme Court of Pennsylvania after the time

period provided in this section and has been held by

that court to apply retroactively.

42 Pa. Cons. Stat. Ann. §§ 9545(b)(1)(i)-(iii).

Merritt does not contend that he falls within

subparagraph (i) or (iii) above. Instead, Merritt alleges that

in the PCRA court he asserted the exception for unknown

facts.3 He contended there, and contends here, that the

newly available SEM technology will allow him to support

his defense by determining the previously unknown fact

whether the bullets shot at Dunbar and Baxter came from

the same gun.

The PCRA court refused to apply the statutory exception

and held Merritt’s PCRA petition untimely. Commonwealth

v. Monroe, Nos. 1736-39 (Phila. Co. Ct. C.P. August 12,

1997); Commonwealth v. Monroe, Super. Ct. No. 3909 Phila.

1997 (Phila. Co. Ct. C.P. April 12, 1998). The Superior

Court of Pennsylvania affirmed, finding that Merritt failed

to allege or prove any of the statutory exceptions to the

PCRA’s time bar. Commonwealth v. Monroe, No. 3909 Phila.

1997 (Pa. Super. Oct. 12, 1999). Merritt does not challenge

the state court’s ruling. Rather, he contends that even if his

PCRA petition was properly dismissed as untimely, it was

still “properly filed” under the requirements of AEDPA.

Although an untimely state petition is generally not

3. Merritt only argued that he required SEM testing to ascertain the fact

whether both the bullet that killed Dunbar and the bullet that wounded

Baxter came from the same gun. The Commonwealth has not argued

before us that Merritt’s argument does not fit within subsection (ii).

9

“properly filed,” Merritt argues that an untimely application

is “properly filed” if the applicant asserted a statutory

exception to the statute of limitations of a state post-

conviction relief statute.

As a preliminary matter, we must consider whether

Merritt’s request that the District Court direct SEM analysis

of the bullet evidence is moot. In response to our raising

the issue, we learned at oral argument that neither Merritt

nor the Commonwealth had attempted to ascertain whether

the bullets at issue were even available for examination. We

directed the Commonwealth to investigate the location and

status of the bullets and report back to us. The

Commonwealth notified this court by letter that the Clerk of

Quarter Sessions possesses one of the bullets in question,

held under property receipt number 616303. Merritt’s

counsel asserted in response that the located bullet was the

one removed from Dunbar. It is unknown whether the

bullet removed from Baxter’s leg still exists, and it has not

been located to date.

Given the uncertain status of the evidence, Merritt’s

invocation of the PCRA’s statutory exception for new

evidence may have been groundless. If the parties can

locate only one of the bullets, a SEM analysis could not

compare the two bullets as Merritt requested.4 It is

important that petitioners and counsel, as well as the

Commonwealth, heed the lesson learned from our

experience in this case and ascertain the existence of any

allegedly new evidence before filing a petition for habeas

corpus on that basis. This will avoid unnecessary and

wasteful expense to the parties and the courts and ensure

that viable relief is available should petitioner prevail.

Despite the above concerns, we will not deem Merritt’s

habeas corpus petition moot because he raised additional,

unrelated claims in his habeas petition. If we were to reach

these other claims, primarily asserting ineffective assistance

of counsel, they are not moot because they do not depend

4. In his response letter, Merritt’s counsel argued that it may be possible,

using the SEM technology, to compare the located bullet with

pentascopic photographs taken of the bullets at trial. This assertion was

given without support and is speculative.

10

on the availability of the bullet evidence or a SEM analysis.

Therefore, we proceed on the assumption that Merritt’s

habeas corpus petition is not moot and consider whether

his second PCRA petition for state post-conviction relief was

“properly filed” under AEDPA.

When determining if a state petition is “properly filed,” we

must focus on the “state law governing when a petition for

collateral relief is properly filed.” Fahy, 240 F.3d at 243. In

Fahy, we held that a PCRA petition that was dismissed by

the state court as time-barred was not “properly filed”

under AEDPA. Id. at 244. Relying on the state court’s

dismissal of the petitioner’s PCRA action as untimely, we

held that we were bound by the Pennsylvania Supreme

Court’s ruling that the “PCRA petition was not properly filed

as a matter of state law.” Id.5

Merritt attempts to distinguish Fahy by arguing that

here, unlike in Fahy, Merritt alleged in his PCRA petition

that it was timely under one of the PCRA’s statutory

exceptions to the statute of limitations. He argues that a

state petition, even if found untimely by a state court, may

nevertheless be “properly filed” under 28 U.S.C. § 2244(d)(2)

if the state statute provides statutory exceptions to the time

limit for filing.

In order to prevail on this argument, Merritt must have

alleged one of the exceptions to the PCRA’s statute of

limitations in the state court. The Pennsylvania statutory

exception on which Merritt seeks to rely is the one for the

situation where “the facts upon which the claim is

predicated were unknown to the petitioner and could not

have been ascertained by the exercise of due diligence.” 42

Pa. Cons. Stat. Ann. § 9545(b)(1)(ii). In its order, the PCRA

court stated that “none of the exceptions to be found in

§ 9545(b)(1)(i)(ii)(iii) were alleged or proven here.”

Commonwealth v. Monroe, Nos. 1736-39, order at 7 (Phila.

Co. Ct. C.P. August 12, 1997) (emphasis added); see also

Commonwealth v. Monroe, No. 3909 Phila. 1997, slip op. at

4 (Pa. Super. Oct. 12, 1999) (“[Merritt] has not alleged that

the petition is based on facts not previously known which

5. Although we held that Fahy was not entitled to statutory tolling, we

granted him equitable tolling, primarily because it was a capital case.

11

could not have been ascertained earlier by exercising due

diligence.”).

Merritt’s second PCRA petition was filed pro se. Under

Pennsylvania law, we must read a pro se PCRA petition

liberally. See Commonwealth v. Murray, 481 Pa. 201, 205,

392 A.2d 317, 319 (1978) (“prison-drawn pro se PCHA

petitions must be read with liberality”) (citing

Commonwealth v. Fox, 448 Pa. 491, 295 A.2d 285 (1972));

Commonwealth v. Garrison, 303 Pa. Super. 555, 557, 450

A.2d 65, 66 (1982) (same). Although Merritt did not

specifically cite the exception in 42 Pa. Cons. Stat. Ann.

§ 9545(b)(1)(ii), he clearly made claims for relief in his

petition based on the newly discovered evidence exception.

For example, Merritt claimed he was eligible for relief

because of “[t]he unavailability at the time of trial of

exculpatory evidence that has subsequently become

available and that would have affected the outcome the trial

if it had been introduced.” App. at 16. He also alleged that,

“[t]he use of an Electron Microscope in Ballistic Science is

advanced technology that was unavailable at the time of the

defendant’s trial.” App. at 20. Despite Merritt’s failure to

directly address the issue of the timeliness of his petition or

invoke the relevant statutory provision, he sought relief

provided by the exception and alleged facts to meet its

requirements. Reading his pro se petition liberally, we

conclude that he alleged a claim for relief based on the

availability of newly discovered evidence.

We proceed therefore to consider whether Merritt’s case

can be distinguished from the Supreme Court’s discussion

in Artuz and our prior holding in Fahy. In Artuz, the

Supreme Court held that “an application is ‘properly filed’

when its delivery and acceptance are in compliance with

the applicable laws and rules governing filings,” including

“the time limits upon its delivery.” Artuz, 531 U.S. at 8.

Although that language appears to be sweeping, Merritt

notes that the Supreme Court expressly stated that it

“express[ed] no view on the question whether the existence

of certain exceptions to a timely filing requirement can

prevent a late application from being considered improperly

filed.” Id. at 8 n.2. The reserved question is, of course, the

issue before us.

12

The Court of Appeals for the Ninth Circuit has held that,

if a state’s rule governing the timely commencement of

state post conviction relief petitions contains

exceptions that require a state court to examine the

merits of a petition before it is dismissed, the petition,

even if untimely, should be regarded as properly filed

[under AEDPA].

Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.

2001)(emphasis added); see also Smith v. Ward, 209 F.3d

383, 385 (5th Cir. 2000) (holding that an untimely petition

for state post-conviction relief was “properly filed” because

the statute’s exceptions to its timeliness requirements

prevented the statute from imposing an “absolute bar to

filing”).

These decisions stem from the Supreme Court’s analysis

in Artuz, where it rejected the State’s argument that the

presence of procedurally barred claims rendered the state

application improperly filed under AEDPA. Instead, the

Artuz Court held that the state application was “properly

filed” because the state provisions barring claims that had

been previously decided or had not been raised on direct

appeal did not “set forth a condition to filing, as opposed to

a condition to obtaining relief.” 531 U.S. at 11. It was this

distinction — between conditions to filing and conditions to

obtaining relief — that was the basis for the Ninth Circuit’s

decision in Dictado. Although Dictado’s petition was

successive, the state statute allowed a state court to

consider a successive petition if it contained claims not

raised in previous petitions or if it showed good cause for

failure to raise the claim before. The court held that the

statute governing successive state petitions is a condition to

obtaining relief, not a condition to filing and under Artuz, a

successive petition is “properly filed” under AEDPA.

Dictado, 244 F.3d at 727. The Dictado court also held that

because the statute of limitations for state post-conviction

relief was not an “absolute bar to filing,” satisfaction of one

of the statutory exceptions to the statute of limitations was

a condition to obtaining relief. Dictado, 244 F.3d at 728. In

essence, the Ninth Circuit reasoned that the state court’s

analysis of whether a petition is timely under one of the

statutory exceptions entailed an analysis of the merits of

13

the petition. It followed that when such an exception is

asserted, an untimely state petition may still be considered

“properly filed” under AEDPA. Id.6

We need not decide whether we would find the Ninth

Circuit’s analysis persuasive because we are bound by our

prior holding in Fahy. We held in Fahy that an untimely

PCRA petition does not toll the statute of limitations for a

federal habeas corpus petition. 240 F.3d at 244. Although

the petitioner in Fahy did not assert any of the PCRA’s

statutory exceptions to its timeliness rule, such as the

newly discovered evidence exception, we do not find that

distinction dispositive. In Fahy, we noted that when

applying AEDPA, “we must look to state law governing

when a petition for collateral relief is properly filed” and

“defer to a state’s highest court when it rules on an issue.”

Id. at 243-44. Consequently, just as in Fahy, we must defer

to the state court’s holding that Merritt’s PCRA petition was

untimely and it follows that it was not “properly filed”

under AEDPA.

Our conclusion finds support in the Supreme Court’s

recent holding in Carey v. Saffold, 536 U.S. 214, 122 S. Ct.

2134 (2002). In Carey, the Court considered whether the

“reasonable” timeliness standard of California’s state post-

conviction relief statute tolled AEDPA’s statute of

limitations. Under California’s unique procedure, a

petitioner who sought to appeal the dismissal of a state

petition must file a second, original petition in a higher

state court within a reasonable period of time. The Supreme

Court stated that AEDPA’s statute of limitations would not

6. Merritt also cites Nara v. Frank, 264 F.3d 310 (3d Cir. 2001), to

support his claim. In Nara, we held that a petitioner’s nunc pro tunc

motion in state court to withdraw his earlier guilty plea was “properly

filed” under AEDPA. Id. at 316. It is significant that in Nara the

petitioner filed his nunc pro tunc motion (motion to withdraw his guilty

plea) at what may reasonably have been considered the suggestion of the

Superior Court. The PCRA court denied Nara’s nunc pro tunc motion for

substantive reasons (i.e., because he gave no compelling reason why he

waited 12 years to ask to withdraw his plea), rather than because of

failure to comply with the state’s filing rules. Therefore, as Merritt

concedes, “Nara did not decide the question presented here. . . .”

Petitioner’s Br. at 34.

14

be tolled while the question of unreasonable delay was

pending before the state court if the petition was ultimately

found untimely. Id. at 2141. The Supreme Court did not

adopt the argument Merritt makes here that a timeliness

analysis involving the merits equates with a “condition to

obtaining relief ” under Artuz. Instead, the Court stated:

If the California Supreme Court had clearly ruled that

[petitioner’s] 4 1/2-month delay was unreasonable,

that would be the end of the matter, regardless of

whether it also addressed the merits of the claim, or

whether its timeliness ruling was entangled with the

merits.

Id.

This language undercuts Merritt’s suggested

interpretation of “properly filed.” The California statute of

limitations for state post-conviction petitions at issue in

Carey was not an absolute bar and required an analysis by

the state court. Nonetheless, the Supreme Court stated that

even when the state court considered the merits of the

underlying state claim as well as its timeliness, if the

petitioner’s delay in filing the state petition was ultimately

found to have been unreasonable it would not toll the

AEDPA statute of limitations. An untimely petition does not

toll AEDPA’s statute of limitations. Carey, 122 S. Ct. at

2141.

Our reading of Carey is supported by the Seventh

Circuit’s recent decision in Brooks v. Walls, 301 F.3d 839,

841 (7th Cir. 2002), petition for cert. filed, No. 02-7612 (U.S.

Nov. 20, 2002), stating:

Saffold tells us (ending any ambiguity left by Artuz)

that to be properly filed an application for collateral

review in state court must satisfy the state’s timeliness

requirements. This means that decisions such as Nara

v. Frank, 264 F.3d 310 (3d Cir. 2001);[7] Smith v. Ward,

7. The Seventh Circuit may not have realized that, as we noted in Nara,

we had been advised by the petitioner that the Pennsylvania courts had

a practice to accept motions to withdraw guilty pleas nunc pro tunc, as

they did Nara’s. It was only after considering Nara’s motion did the

15

209 F.3d 383 (5th Cir. 2000); Emerson v. Johnson, 243

F.3d 931 (5th Cir. 2001), and Dictado v. Ducharme,

244 F.3d 724 (9th Cir. 2001), to the extent they hold

that petitions untimely under state rules nonetheless

may be deemed properly filed, were wrongly decided.

Similarly, we hold that we are bound by the state court’s

finding that Merritt’s second PCRA petition was untimely.

Therefore, we affirm the District Court’s order holding that

Merritt’s second PCRA petition was not “properly filed.”

With all due respect to our dissenting colleague, even a

brief reading of the above will demonstrate that it is simply

wrong to state that our ruling departs from our precedent

in Fahy and that we hold that a federal petition may be

viewed as improperly filed regardless of the determination

of the state court. As is evident from the above, nothing

could be farther from the holding and language of this

opinion.

The dissent’s position stems from its interpretation of the

sentence in Fahy where we stated, “[h]ere the Pennsylvania

Supreme Court has specifically ruled that Fahy’s petition

was not properly filed as a matter of state law.” Fahy, 240

F.3d at 244. The dissent interprets that sentence to mean

that the Pennsylvania Supreme Court stated in its Fahy

opinion that Fahy’s PCRA petition was not “properly filed.”

One searches the Pennsylvania Supreme Court’s opinion in

Fahy in vain to find such language. See Commonwealth v.

Fahy, 737 A.2d 214 (Pa. 1999). The dissent does not point

to any page in the opinion nor have we found any such

statement in the Pennsylvania Supreme Court’s Fahy

opinion. It is not reasonable to assume that the

Pennsylvania court would have so stated because the

language “properly filed” comes from a federal law, i.e., a

Pennsylvania court deny Nara’s motion because he failed to give a

compelling reason why he waited 12 years to ask to withdraw his guilty

plea. See Nara, 264 F.3d at 313. The Pennsylvania court’s reason for

denying Nara’s motion appears to have been based on the merits of the

motion to withdraw the guilty plea rather than its failure to comply with

the state’s time requirements for filing a PCRA petition. After Carey,

Nara would be analyzed differently.

16

provision of AEDPA, and not from Pennsylvania’s PCRA

statute.

As we stated above, AEDPA provides that the one-year

period of limitation shall not run during “[t]he time during

which a properly filed application for State post-conviction

. . . review . . . is pending.” 28 U.S.C. § 2244 (d)(2)

(emphasis added). We are not persuaded by the dissent’s

contention that if “untimely” and “improperly filed” are

coterminous, “Congress would have said ‘timely filed’ rather

than ‘properly filed’ in § 2244(d)(2).” Dis. Op. at 26-27. The

“properly filed” phrase encompasses more than timeliness.

The Supreme Court stated in Artuz, “an application is

‘properly filed’ when its delivery and acceptance are in

compliance with the applicable laws and rules governing

filings,” including “the time limits upon its delivery.” 531

U.S. at 8.

Our opinion in Fahy holds that we must look to state law

to determine whether the state petition is “properly filed.”

240 F.3d at 243. But it is federal law that sends us to the

state court. We need not read that into our Fahy opinion,

because the opinion so states explicitly: “Fahy is correct

that in applying a federal statute we must construe its

terms as a matter of federal law. . . . Therefore, to apply

this statute [AEDPA] as a matter of federal law we must

look to state law governing when a petition for collateral

relief is properly filed.” Id. The Pennsylvania Supreme Court

ruled that Fahy’s state petition was untimely.

Commonwealth v. Fahy, 737 A.2d at 220, 224. Therefore,

and with this procedural background, the Third Circuit

panel stated, “the Pennsylvania Supreme Court has

specifically ruled that Fahy’s PCRA petition was not

properly filed as a matter of state law,” Fahy, 240 F.3d at

244, the sentence on which the dissent hinges. Had we

stated, “the Pennsylvania Supreme Court has specifically

ruled that Fahy’s PCRA petition was untimely as a matter of

state law,” there would be nothing on which the dissent

could be based. But the fact is that timeliness of the PCRA

petition was the issue before the Pennsylvania Supreme

Court and that was the issue that court decided. Its

decision that the petition was untimely was the predicate

for Fahy’s holding that the petition was not “properly filed”

17

under AEDPA. Rather than being inconsistent with our

decision in Fahy, this decision follows precisely the same

path. The Pennsylvania Superior Court rejected Merritt’s

contention that his PCRA petition was timely, and we

therefore hold that it was not “properly filed” for purposes

of AEDPA.

Our difference with the dissent is more than a semantic

one. The dissent includes two sentences that we believe are

inconsistent with our requirement of deference to the state

court’s decision. The dissent states “a state court

determination that a petition was untimely filed does not

lead automatically to the conclusion that it was improperly

filed for the purposes of § 2244(d)(2),” Dis. Op. at 27, and

again, “a state court determination that a petition is

untimely does not suffice to establish as a matter of state

law that it is also improperly filed.” Id. at 28. But the

Supreme Court in Carey said precisely the opposite when it

stated, in language quoted above, “[i]f the California

Supreme Court had clearly ruled that Saffold’s 4 ½-month

delay was ‘unreasonable,’ that would be the end of the

matter . . .” 122 S. Ct. at 2141. “Unreasonable” under

California law is comparable to “untimely” under

Pennsylvania law. Although the dissent disagrees, we read

the decision as holding that if a state’s Supreme Court has

determined that a petition was not timely, then we must

hold that it was not properly filed.

Finally, the dissent’s proposed disposition is directly

counter to our responsibility to give deference to the state

court’s determination of the timeliness of the state PCRA

petition. The dissent “would remand this case to the district

court for a determination whether under Pennsylvania law

Merritt’s state petition was properly filed.” Dis. Op. at 30.

However, as we stated above, the Pennsylvania Superior

Court (the highest Pennsylvania court to have ruled on the

matter) has already expressly rejected the one ground on

which Merritt claims his PCRA petition was timely, i.e., that

it fell within the state exception for petitions claiming new

evidence. The Pennsylvania court stated, “[w]e have

reviewed these exceptions [in PCRA § 9545] in light of the

allegations of the petition and conclude that none of the

exceptions is applicable to this proceeding.” Commonwealth

18

v. Monroe, No. 3909 Phila. 1997, slip op. at 4 (Pa. Super.

Oct. 12, 1999).8 Once the Pennsylvania court has so

decided, it would be an undue interference for a federal

district court to decide otherwise.

It follows that nothing in the dissent causes us to revise

our disposition to affirm.

D. Equitable Tolling

This court has held that the AEDPA statute of limitations

is subject to the doctrine of equitable tolling. Fahy, 240

F.3d at 244. Equitable tolling is available “ ‘only when the

principle of equity would make the rigid application of a

limitation period unfair.’ ” Id. (quoting Miller v. New Jersey

Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)). In Fahy,

we restated the two general requirements for equitable

tolling: (1) that “the petitioner has in some extraordinary

way been prevented from asserting his or her rights;” and

(2) that the petitioner has shown that “he or she exercised

reasonable diligence in investigating and bringing [the]

claims.” Id.

Merritt argues that the statute of limitations for his

habeas petition should be equitably tolled, and relies on the

finding of the Magistrate Judge that Merritt “acted diligently

and reasonably when he filed his second PCRA petition

rather than filing a habeas petition.” App. at 11 (Magistrate

Judge’s Report & Recommendation). The Magistrate Judge

remarked that both Merritt and Fahy “filed second or

successive PCRA petitions at a time when ‘Pennsylvania law

was unclear on the operation of the new PCRA time limit.’ ”

App. at 10 (quoting Fahy, 240 F.3d at 245) (footnotes

omitted).9

8. Indeed, Fahy had also argued unsuccessfully that his PCRA petition

was timely because he invoked one of the exceptions to the PCRA

timeliness requirement (albeit a different exception than Merritt invoked).

The Pennsylvania Supreme Court rejected Fahy’s argument, and we held

it was not “properly filed.”

9. We note that the Magistrate Judge also stated that Merritt had not

provided evidence to support his claim that he could not have learned of

the existence of SEM technology before November 1996. She stated:

19

Like the present case, Fahy dealt with the timeliness of

a habeas corpus petition where the petitioner’s state post-

conviction petition was dismissed in state court as

untimely. We recognized that in 1997, when Fahy’s PCRA

petition was filed, the newly established PCRA time limit

was “unclear” and “inhibitively opaque.” Fahy, 240 F.3d at

245. Indeed, we stated that based on that uncertainty,

Fahy “reasonably believed that the state petition was

properly filed.” Id. at 244. However, as the Magistrate Judge

recognized in this case, in Fahy we “did not hold that this

lack of clarity in Pennsylvania law constituted extraordinary

circumstances.” App. at 11. In fact, we stated that “[i]n

non-capital cases, attorney error, miscalculation,

inadequate research, or other mistakes have not been

found to rise to the ‘extraordinary’ circumstances required

for equitable tolling.” 240 F.3d at 244. Instead of finding

extraordinary circumstances, we based our decision to

apply equitable tolling in Fahy on the accepted principle

that “death is different.” Id. at 244. We stated that “[i]f the

limitation period is not tolled in this case, Fahy will be

denied all federal review of his claims.” Id. at 245; see also

Banks v. Horn, 271 F.3d 527, 534-35 (3d Cir. 2001), rev’d

on other grounds, Horn v. Banks, 536 U.S. 266, 122 S.Ct.

2147 (2002).

This case is similar to Fahy. In 1996, when Merritt filed

his second pro se PCRA petition, the operation of the PCRA

statute of limitations was uncertain, and it was not

unreasonable (indeed it was appropriate) for Merritt to have

there is evidence in the record that SEM technology existed well

before the petitioner learned of it by watching a television program

in November 1996. In his memorandum of law, the petitioner cites

to a chapter on SEM in a 1981 book titled Scientific and Expert

Evidence. Further, the petitioner has attached a copy of Chapter 29

of this book to his memorandum of law. That chapter clearly

indicates that SEM technology existed as early as 1971 and its use

in forensic science was being considered in the 1970’s. Thus, it is

not clear that petitioner exercised due diligence in learning of the

existence of SEM technology.

App. at 7 n.5.

20

believed he was required to exhaust his state remedies by

filing a second PCRA petition prior to filing a habeas

petition in federal court. Although the Magistrate Judge

was aware of the comparability, she did not recommend

equitable tolling for Merritt because she stated that, unlike

Fahy, Merritt does not face the death penalty. The fact that

Fahy was a death penalty case was the dispositive factor in

that case, as we stated that, “[i]n a capital case . . . the

consequences of error are terminal, and we therefore pay

particular attention to whether principles of ‘equity would

make the rigid application of a limitation period unfair’

. . . .” Fahy, 240 F.3d at 245 (citation omitted). We then

concluded, “[b]ecause the consequences are so grave and

the applicable law is so confounding and unsettled, we

must allow less than ‘extraordinary’ circumstances to

trigger equitable tolling of the AEDPA’s statute of

limitations. . . .” Id. (emphasis added).

In Fahy, we clearly limited the lower bar that we

established for equitable tolling to capital cases, and Merritt

is not in that position. Although Merritt faces the grave

penalty of mandatory life sentence without the possibility of

parole, we cannot apply the rationale of Fahy to Merritt’s

situation without violating our tradition of avoiding intra-

circuit conflict of precedent.10

10. See 3d Cir. I.O.P. 9.1. Undoubtedly, there will be other habeas

petitioners who find themselves in similar situations where their need to

exhaust state remedies will create a tension with the one-year statute of

limitations in AEDPA. Some of these petitioners may have simply been

neglectful of their responsibility to exhaust at the outset, but others,

such as those who have legitimate grounds to claim discovery of new

evidence, may not have had that opportunity. The federal courts should

seek ways to ameliorate the consequences for these petitioners in

appropriate cases.

Thus, for example, when petitioners have filed habeas actions in

federal court before they have fully exhausted their state remedies, many

federal courts have suggested that the federal action should be stayed to

give the petitioners an opportunity to file their state action because an

outright dismissal, even if without prejudice, could jeopardize the

timeliness of a collateral attack. See, e.g., Palmer v. Carlton, 276 F.3d

777 (6th Cir. 2002) (approving Second Circuit approach of granting a

stay with time limits upon the petitioner to bring his claims); Zarvela v.

21

Nor do we see any reason under the facts of this case to

decide whether to apply equitable tolling, which Merritt

seeks to invoke based on the uncertainty of Pennsylvania

law regarding its time bar. Pennsylvania law as to the time

bar of the PCRA became clear with the decisions of the

Pennsylvania Superior Court in Commonwealth v. Alcorn,

703 A.2d 1054 (Pa. Super. Ct. 1997), and Commonwealth v.

Conway, 706 A.2d 1243 (Pa. Super. Ct. 1997). Merritt did

not act promptly thereafter to file his petition for habeas

corpus in federal court. Instead, he waited more than two

years, filing his petition on May 5, 2000. Accordingly, we

agree with the District Court that there is no basis to find

Merritt’s habeas petition timely, either under the statute or

under the doctrine of equitable estoppel.

III.

CONCLUSION

Based on the foregoing analysis, we will affirm the order

of the District Court, entered May 30, 2001, dismissing

Merritt’s petition for a writ of habeas corpus as untimely.

Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 534 U.S. 1015 (2001) (holding

district court should have stayed habeas petition and only dismissed

unexhausted claims where complete dismissal jeopardized the timeliness

of collateral attack); Calderon v. United States Dist. Court, 134 F.3d 981

(9th Cir. 1998) (denying state’s challenge to district court order holding

habeas petition in abeyance while petitioner exhausted claims in state

court); Neverson v. Bissonnette, 261 F.3d 120, 126 n.3 (1st Cir. 2001)

(noting that post-AEDPA, it may be appropriate to stay a habeas corpus

petition until state remedies are exhausted); Freeman v. Page, 208 F.3d

572, 577 (7th Cir.), cert. denied, 531 U.S. 946 (2000) (noting that

dismissal of habeas corpus petition is not proper when it would

jeopardize the timeliness of a collateral attack). These opinions often cite

the concurrence of Justice Stevens, joined by Justice Souter, suggesting

this approach in Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (a non-

capital case). Because Merritt chose to file his petition in state court

rather than in federal court when he had to make a choice, this

procedure would be inapplicable.

22

ROSENN, Circuit Judge, dissenting:

The majority’s ruling departs from our precedent in Fahy

v. Horn, 240 F.3d 239 (3d Cir. 2001), in enunciating a

federal rule that all untimely filed state petitions are per se

filed improperly for the purposes of 28 U.S.C. § 2244(d)(2).

The majority so holds regardless of whether or not the state

court makes this determination and whether the petitioner

has a colorable argument that his or her state post-

conviction petition fits into a valid exception to the state

statute of limitations. The majority is also in conflict with

the well-reasoned opinions of the Fifth and Ninth Circuit

Courts of Appeal. See Smith v. Ward, 209 F.3d 383 (5th Cir.

2000); Dictato v. Ducharme, 244 F.3d 724 (2001). Moreover,

the majority’s approach is not compelled by Supreme Court

precedent in Artuz v. Bennett, 531 U.S. 4 (2000) or Carey

v. Saffold, 122 S. Ct. 2134 (2002). Finally, the majority

opinion undermines well-established principles of comity

emphasized by the Supreme Court in Carey. I, therefore,

respectfully dissent.

I.

AEDPA imposes a one-year statute of limitations on

applications for a writ of habeas corpus by a person in

custody pursuant to the judgment of a state court. See 28

U.S.C. § 2244(d)(1).1 This subsection contains a tolling

provision during the pendency of a properly filed

application for state post-conviction review. See 28 U.S.C.

§ 2244(d)(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.”). Merritt’s habeas petition

was filed after April 23, 1997. Thus, his claim is time-

barred unless § 2244(d)(1)’s one-year statute of limitations

was tolled. The current dispute hinges on whether an

untimely claim for state post-conviction review can

nevertheless have been a “properly filed application” for the

1. A prisoner with a state conviction that became final prior to the

enactment of AEDPA had until April 24, 1997 to file a federal habeas

corpus petition. See Smith, 209 F.3d at 384.

23

purposes of tolling the statute of limitations under

§ 2244(d)(2).

The Supreme Court has given some guidance on this

question. An application is “filed” when it is delivered to,

and accepted by, the appropriate court officer for placement

into the official record. See Artuz, 531 U.S. at 8. An

application is “properly filed” when its delivery and

acceptance are in compliance with the applicable laws and

rules governing filings. Id. These usually prescribe, for

example, the form of the document, the time limits upon its

delivery, the court and office in which it must be lodged,

and the requisite filing fee. Id. The question of whether an

application has been “properly filed” is “quite separate”

from the question of whether the claims contained in the

application are meritorious and free of procedural bar. Id.

at 9. Artuz held that untimely filing and improper filing

were interrelated, but declined to state that they were

coterminous.

As the majority acknowledges, the Supreme Court in

Artuz expressly reserved the central question presented

here, namely whether the existence of certain exceptions to

a timely filing requirement can prevent a late application

from being considered improperly filed. Id. at 8 n.2 (“We

express no view on the question whether the existence of

certain exceptions to a timely filing requirement can

prevent a late application from being considered improperly

filed. See, e.g., Smith v. Ward, 209 F.3d 383, 385 (CA5

2000).”).

The majority’s choice of law analysis is inconsistent with

our holding in Fahy. The majority enunciates a federal per

se rule that an untimely state petition can never meet

§ 2244(d)(2)’s requirement of “properly filed,” regardless of

state law or state court findings of fact. See Majority op. at

14 (“An untimely petition does not toll AEDPA’s statute of

limitations”). In contrast, the Court stated in Fahy that:

Fahy argues that we must decide whether his state

PCRA petition was “properly filed” as a matter of

federal law and that the state court’s determination of

this issue is not binding on us. Fahy is correct that in

applying a federal statute we must construe its terms

24

as a matter of federal law. However, the AEDPA

explicitly directs us to toll the statute of limitations

only when a collateral petition for state relief was

“submitted according to the state’s procedural

requirements, such as the rules governing the time and

place of filing.” Morris, 187 F.3d at 338. Therefore, to

apply this statute as a matter of federal law we must

look to state law governing when a petition for collateral

relief is properly filed. The AEDPA requires us to

interpret state law as we do when sitting in diversity

cases, and we therefore must defer to a state’s highest

court when it rules on an issue. Here the Pennsylvania

Supreme Court has specifically ruled that Fahy’s PCRA

petition was not properly filed as a matter of state law.

Fahy, 240 F.3d at 243-44 (emphasis added). Fahy requires

this Court to decide as a matter of state law whether the

petition was properly filed before coming to a conclusion as

to whether the statute of limitations is tolled under

§ 2244(d)(2). To create a federal per se rule that untimely

filing always equals improper filing deprives the

Commonwealth of Pennsylvania of the ability to determine

what constitutes proper filing.

Although the Fahy court ultimately held that under state

law Fahy’s petition was not properly filed, Merritt presents

a much stronger case for proper filing. The Pennsylvania

courts held that Merritt’s claim was untimely filed, but did

not specifically hold that it was improperly filed. In

contrast, Fahy specifically states that the Pennsylvania

Supreme Court found that Fahy’s claim was improperly

filed. Fahy, 240 F.3d at 244 (“Here the Pennsylvania

Supreme Court has specifically ruled that Fahy’s petition

was not properly filed as a matter of state law”).2

2. The majority implies that this Court made a misstatement in Fahy

when it held that “the Pennsylvania Supreme Court has specifically ruled

that Fahy’s petition was not properly filed as a matter of state law.”

Fahy, 240 F.3d at 244 (emphasis added). The majority looks to the

underlying Pennsylvania state court opinion to challenge the basis for

this Court’s reading of Pennsylvania law and the state court’s application

of Pennsylvania law to the facts of that case. See Majority Op. at 16. In

my view, this question has already been adjudicated by this Court and

25

Two of the other three Courts of Appeals that have

considered the question reserved in Artuz have ruled that

untimely filed petitions can nevertheless be properly filed if

the state courts rule that the petitioner had a colorable

argument that the petition fits within a recognized

exception to the statute of limitations.

In Smith, the Fifth Circuit Court of Appeals held that a

petition is properly filed, even if eventually dismissed as

untimely, when the state statute governing timely filings

contains certain exceptions. See Smith, 209 F.3d at 385.

The court reasoned that the state statute “does not impose

an absolute bar to filing; instead it limits the state court’s

ability to grant relief.” Id. Smith drew the line between a

condition to filing and a condition to relief at the point

when the court accorded the petition “some level of judicial

review.” See id. at 384 (emphasis in original) (citing Villegas

v. Johnson, 184 F.3d 467, 470 n.2 (5th Cir. 1999)).3

Likewise, the Ninth Circuit Court of Appeals has ruled

that “if a state’s rule governing the timely commencement

we are bound by the holding of the Fahy court with respect to the

meaning of the underlying opinion. See 3d Cir. Internal Operating

Procedures Rule 9.1 (“It is the tradition of this court that the holding of

a panel in a precedential opinion is binding on subsequent panels.”).

Moreover, whatever factors Fahy took into account in reaching this

interpretation of the state law question of whether Fahy’s petition was

properly filed, the Fahy panel looked to Pennsylvania law, not federal

law, to answer the question. See Fahy, 240 F.3d at 243-44 (“. . . to apply

this statute as a matter of federal law we must look to state law

governing when a petition for collateral relief is properly filed. The

AEDPA requires us to interpret state law as we do when sitting in

diversity cases, as we therefore must defer to a state’s highest court

when it rules on an issue.”).

3. In Villegas, the Court of Appeals held that § 2244(d)(2) should be

interpreted in light of principles of statutory construction and in light of

concerns regarding comity and exhaustion. See Villegas, 184 F.3d at

470. Thus, a state habeas petition is properly filed when it conforms

with a state’s applicable procedural filing requirements — i.e., those

prerequisites that must be satisfied before a state court will allow a

petition to be filed and accorded some level of judicial review. See id. at

470 n.2.

26

of state post-conviction relief petitions contains exceptions

that require a state court to examine the merits of a

petition before it is dismissed, the petition, even if untimely,

should be regarded as ‘timely filed.’ ” Dictado, 244 F.3d at

727-28. The Ninth Circuit reasoned that the statute is

properly regarded as a “condition to obtaining relief ” rather

than a “condition to filing.” Id. at 728 (citing Artuz).

Recently, the Seventh Circuit Court of Appeals also

considered this question and reached an opposite

conclusion. In Brooks v. Walls, 301 F.3d 839 (7th Cir.

2002), the court ruled that the Supreme Court had

overruled Smith and Dictato and resolved the question left

open in Artuz. Like the majority today, the Brooks court

pointed to Carey v. Saffolk, 122 S. Ct. 2134 (2002), in

support of its federal per se rule. Carey involved the

question of whether California’s unique “reasonable

timeliness” standard tolled AEDPA’s statute of limitations.

The United States Supreme Court held that AEDPA’s

statute of limitations would not be tolled while the question

of unreasonable delay was pending before the state court if

the petition was ultimately found to be unreasonable. See

Carey, 122 S. Ct. at 2141 (“If the California Supreme Court

had clearly ruled that Saffold’s 4 ½-month delay was

‘unreasonable,’ that would be the end of the matter,

regardless of whether it also addressed the merits of the

claim, or whether its timeliness ruling was ‘entangled’ with

the merits”) (emphasis added). Interpreting this passage,

Brooks concluded that “[Carey v.] Saffold tells us (ending

any ambiguity left by Artuz) that to be properly filed an

application for state collateral review in state court must

satisfy the state’s timeliness requirements.” Brooks, 301

F.3d at 841; Majority op. at 14.

In my view, Carey’s holding is narrower than this. Carey

holds that state habeas petitioners who unreasonably delay

filing a state collateral petition will not obtain the benefit of

the tolling provisions of the AEDPA. Carey does not make

the much broader claim that the majority here makes that

“[a]n untimely petition does not toll AEDPA’s statute of

limitations.” Majority op. at 14.

“Untimely,” “unreasonable,” and “improperly filed” are not

all synonymous. If they were, Congress would have said

27

“timely filed” rather than “properly filed” in § 2244(d)(2).

“Timely” is defined as “done or occurring at a suitable time”

and “improper” is defined as “not accordant with fact,

truth, or right procedure.” Webster’s Third New Int’l

Dictionary Unabridged 2395 (1993); id. at 1137. The

Supreme Court determined in Carey that when a California

court finds that a state petition was unreasonably delayed

under California law, it was therefore never “pending” for

AEDPA law purposes. It does not follow that Carey sought

to resolve — without saying so — the question of whether

all untimely filed petitions are per se improperly filed as a

matter of federal law. Carey reasonably or plausibly cannot

be read to overrule not only Smith and Dictato, but also

Fahy’s choice of law analysis. It is paradoxical to suggest

that Carey overruled Fahy on the choice of law question

because the Carey opinion is an intricate exegesis of a

unique California state law that based its outcome on

comity grounds.

If “untimely filed” and “improperly filed” are not

coterminous, a state court determination that a petition

was untimely filed does not lead automatically to the

conclusion that it was improperly filed for the purposes of

§ 2244(d)(2). The majority opinion depends on the following

syllogism: (1) All untimely petitions are improper; (2) This

petition was untimely; (3) Therefore, this petition is

improper. If one accepts the first premise, the other steps

follow ineluctably, but the first step is in conflict with Fahy.

For instance, the majority states that: “Consequently, just

as in Fahy, we must defer to the state court’s holding that

Merritt’s PCRA petition was untimely and it follows that it

was not ‘properly filed’ under AEDPA.” Majority op. at 13.

This syllogism is also apparent in the majority’s statement

that “. . . we hold that we are bound by the state court’s

finding that Merritt’s second PCRA petition was untimely.

Therefore, we affirm the District Court’s order holding that

Merritt’s second PCRA petition was not ‘properly filed.’ ”

Majority op. at 15. However, Fahy states that the

Pennsylvania Supreme Court found that the petition was

improperly filed, not just untimely filed. Fahy, 240 F.3d at

244. Unless untimely filing is per se improper as a matter

of federal law (as the majority today holds), Fahy holds that

state law should govern the question of whether the petition

28

was properly filed even after a determination that it was

untimely. Fahy did not hold that “untimely” and “improper”

were coterminous.

Fahy requires that we defer to the state court’s

conclusions both with regard to untimely filing and

improper filing separately. Thus, a state court

determination that a petition is untimely does not suffice to

establish as a matter of state law that it is also improperly

filed. To conclude that a petition was not properly filed, we

must either: (1) conclude that the state court determined as

a question of fact that the petition was improperly filed and

not just untimely filed; or (2) look to state law rather than

federal law to answer the question of whether timely filing

and proper filing should be equated for the purposes of

§ 2244(d)(2). In contrast, the majority opinion bypasses the

question of how Pennsylvania law would interpret the

proper filing requirement and instead creates a federal per

se rule that untimely filing is categorically improper. In

doing so, the majority ignores all notions of comity.

In Carey, the Supreme Court made it clear that its main

interest was in promoting principles of comity. As Justice

Breyer wrote for the majority:

The exhaustion requirement serves AEDPA’s goal of

promoting “comity, finality, and federalism” by giving

state courts “the first opportunity to review [the]

claim,” and to “correct” any “constitutional violation in

the first instance.” And AEDPA’s limitations period —

with its accompanying tolling provision — ensures the

achievement of this goal because it “promotes the

exhaustion of state remedies while respecting the

interest in the finality of state court judgments.”

Carey, 122 S. Ct. at 2138 (internal citations omitted). The

majority opinion undermines this strong policy because it

encourages habeas petitioners with colorable arguments

that they have an unexpired state collateral claim to file a

federal habeas claim, rather than pursue a non-frivolous

state collateral claim, for fear of being barred by AEDPA’s

statute of limitations.

The principles of comity that were an important

consideration in Carey favor Merritt’s interpretation of

29

“properly filed” and the ruling in Fahy, rather than the

approach taken by the majority. As Chief Judge Becker

explained in Lovasz v. Vaughn, 134 F.3d 146 (3d Cir.

1998), “[p]rinciples of comity inform our decision . . . and

a federal court should not find a state prisoner’s claims

procedurally barred from federal habeas review unless state

law ‘clearly foreclose[s]’ review of the claims.” See id. at 148.

This admonition ensures that states have “the first

opportunity to address and correct alleged violations of

state prisoner’s federal rights.” See id.

In enacting AEDPA, Congress aimed to reduce federal

intrusions into state criminal proceedings. See id. The rule

in Fahy advances this goal by permitting the state courts to

determine as a matter of fact and law whether an

application for post-conviction comports with state law,

rather than insisting that a federal habeas claim must be

filed despite a plausible state claim in order to avoid

running afoul of § 2244(d)(1). To rule otherwise usurps the

power of the state court to adjudicate claims that arguably

fit within a recognized exception to a statute of limitations

and undermine the policy principle underlying Carey.

When a petitioner makes a colorable argument that his

claim fits into a recognized exception to a time limit for

filing, such that the state court must examine the petition

before dismissing it to determine whether the exception

applies, the state court should be empowered to find as a

fact that the claim fits and determine as a matter of law

that fitting within the exception is a “condition to obtaining

relief ” and not a “condition to filing.” Cf. Artuz, 531 U.S. at

11; Dictado, 244 F.3d at 727; Smith, 209 F.3d at 385.

Comity requires nothing less. Contrary to the view of the

majority opinion at 18, our proposed disposition is in

keeping with our responsibility as stated in Fahy to defer to

the state courts’ determination whether the filing was

“proper.”

I agree with the majority that under the liberal pleadings

standards customarily afforded to pro se petitioners, the

Magistrate Judge erred in concluding that Merritt did not

claim that his petition falls within a recognized exception to

30

Pennsylvania’s statute of limitations for post-conviction

petitions. Majority op. at 11.4

II.

Accordingly, for the reasons set forth above, I would

remand this case to the district court for a determination

whether under Pennsylvania law Merritt’s state petition was

properly filed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

4. I agree with the majority that equitable tolling does not apply here.

Majority op. at 18.