Brown v. Shannon

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

3-17-2003

Brown v. Shannon

Precedential or Non-Precedential: Precedential

Docket 01-1308

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PRECEDENTIAL

Filed March 17, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1308

CHARLES BROWN,

Appellant

v.

ROBERT SHANNON; THE DISTRICT ATTORNEY OF THE

COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civ. No. 00-cv-01482)

District Judge: The Honorable Franklin S. Van Antwerpen

Argued: November 4, 2002

Before: BECKER, Chief Judge, McKEE and HILL,*

Circuit Judges.

(Filed: March 17, 2003)

* The Honorable James C. Hill, United States Circuit Judge for the

Eleventh Circuit Court of Appeals, sitting by designation.

2

SALVATORE C. ADAMO (ARGUED)

Two Penn Center Plaza

Suite 200

Philadelphia, PA 19102-1706

Counsel for Appellant

LYNNE ABRAHAM

District Attorney

ARNOLD H. GORDON

First Assistant District Attorney

RONALD EISENBERG

Deputy District Attorney,

Law Division

THOMAS W. DOLGENOS

Chief, Federal Litigation

DAVID CURTIS GLEBE (ARGUED)

Assistant District Attorney

Office of the District Attorney

1421 Arch Street

Philadelphia, PA 19102-1582

Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

Charles Brown appeals from the order of the District

Court dismissing his petition for a writ of habeas corpus as

time-barred under the applicable one-year statute of

limitation. The appeal requires us to consider under what

circumstances an attorney’s withdrawal of representation

after failing to file a federal habeas petition warrants

equitable tolling of the statutory limitation period. At issue

is whether Brown is entitled to statutory or equitable tolling

of the limitation period for the following three time periods:

(1) April 26, 1997, to July 29, 1997; (2) August 15, 1997,

to May 6, 1998; and (3) May 7, 1998, to January 11, 2000.

His petition would be timely, only if the limitation period

were tolled for all three periods. We conclude that Brown is

not entitled to equitable tolling for the period from April 26,

1997, to July 29, 1997, the period of his attorney’s putative

3

abandonment of his claim. Without that period of tolling,

his petition would be untimely even if the entire period from

August 15, 1997, to January 11, 2000, were tolled.

Accordingly, we will affirm.

I.

A jury in the Court of Common Pleas of Philadelphia

County, Pennsylvania, convicted Brown of second-degree

murder, robbery, criminal conspiracy, and possession of an

instrument of crime. The trial court sentenced him to a

term of life imprisonment without the possibility of parole

and concurrent lesser terms of imprisonment. The

Pennsylvania Superior Court affirmed. See Commonwealth

v. Brown, 480 A.2d 1171 (Pa. Super. Ct. 1984). In January

1985, the Pennsylvania Supreme Court denied Brown’s

petition for allowance of appeal. See Commonwealth v.

Brown, No. 546 E.D. Alloc. Dkt. (Pa. 1984). He did not

petition the United States Supreme Court for a writ of

certiorari. He subsequently filed a pro se petition for post-

conviction relief under the Post Conviction Hearing Act, 42

Pa. C.S. §§ 9541 et seq. See Commonwealth v. Brown, 570

A.2d 585 (Pa. Super. Ct. 1989) (table) (affirming dismissal

of petition but vacating sentence imposed for the

possession of an instrument of crime); Commonwealth v.

Brown, 575 A.2d 108 (Pa. 1990) (table) (denying petition for

allowance of appeal).

On December 24, 1996, Brown filed a second pro se

petition for state post conviction relief, this one under the

newly enacted Post Conviction Relief Act (“PCRA”), 42 Pa.

C.S. §§ 9541 et seq.1 He privately retained attorney Daniel

Silverman to represent him. The PCRA court denied this

second petition on March 26, 1997, and informed Brown of

his right to file an appeal to the Pennsylvania Superior

Court within 30 days. Brown asked Silverman to file an

appeal. By letter dated April 16, 1997, Silverman advised

1. In his brief, Brown states that the petition was filed on December 31,

1996. However, in his application for a certificate of appealability, Brown

stated that the petition was filed on December 24, 1996. The

Commonwealth agrees that the petition was filed on December 24, 1996.

4

him to not pursue an appeal in state court and to pursue

federal habeas relief instead. No notice of appeal was filed.

On July 29, 1997, Silverman informed Brown that he

was withdrawing his representation. On August 15, 1997,

Brown submitted to the trial court a pro se “Notice of

Appeal Nunc Pro Tunc,” asserting that Silverman had failed

to timely inform him that he (Silverman) would not file an

appeal from the denial of the second PCRA petition. The

trial court received the notice of appeal nunc pro tunc but

mishandled and apparently lost it; at all events the notice

was never docketed or filed.2 On May 6, 1998, after a

number of inquiries from Brown, the trial court’s “PCRA

Unit” issued a memorandum informing Brown that it had

no record of his notice of appeal nunc pro tunc and advising

him that, if he wished to continue with his request for

permission to appeal nunc pro tunc, he should file a pro se

PCRA petition.

On May 15, 1998, Brown filed a pro se PCRA petition (his

third) requesting permission to file an appeal nunc pro tunc

from the denial of the second PCRA petition.3 The PCRA

court dismissed the petition as untimely filed. The

Pennsylvania Superior Court affirmed. See Commonwealth

v. Brown, 747 A.2d 409 (Pa. Super. Ct. 1999) (table). On

January 11, 2000, the Pennsylvania Supreme Court denied

Brown’s petition for allowance of appeal. See

Commonwealth v. Brown, 749 A.2d 465 (Pa. 2000) (table).

He did not petition the United States Supreme Court for a

writ of certiorari.

On March 19, 2000, Brown filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the United

2. The notice was forwarded to the “Appeals Unit” on or about August

19, 1997. There is no record of it after that. For purposes of this appeal,

we may assume in Brown’s favor that the notice was in fact mishandled

and lost.

3. The petition was actually received by the trial court on May 18, 1998.

It appears that Brown mailed it on May 15, 1998. The petition thus may

be deemed filed on May 15, 1998. See Commonwealth v. Jones, 700 A.2d

423, 426 (Pa. 1997) (“we extend the prison mailbox rule to all appeals by

pro se prisoners”). The Commonwealth does not dispute that the petition

may be deemed filed on that date.

5

States District Court for the Eastern District of

Pennsylvania. The Magistrate Judge to whom the petition

was referred determined that it was untimely filed and that

equitable tolling of the limitation period was not warranted.

The District Court adopted the Magistrate Judge’s findings,

dismissed the petition as time-barred, and declined to issue

a certificate of appealability. Brown timely appealed. On

March 8, 2002, a motions panel of this Court issued a

certificate of appealability on the following issues:

(1) Whether Brown’s notice of appeal nunc pro tunc,

submitted but never ruled on because it was lost

as a result of mishandling by the trial court, may

be considered “properly filed” for purposes of 28

U.S.C. § 2244(d)(2), see Swartz v. Meyers, 204

F.3d 417, 421 n.3 (3d Cir. 2000), and, if the notice

may be considered “properly filed,” when it ceased

to be “pending”; and

(2) Whether appellant is entitled to equitable tolling of

the statute of limitation for the period from May 7,

1998, through January 11, 2000, and the period

from April 26, 1997, through July 29, 1997. See

Miller v. New Jersey Dep’t of Corr., 145 F.3d 616,

618-19 (3d Cir. 1998); Seitzinger v. Reading Hosp.

& Med. Ctr., 165 F.3d 236, 241 (3d Cir. 1999).

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 2254. This Court has jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. Our review of a decision dismissing a

habeas petition as time-barred is plenary. See Johnson v.

Hendricks, 314 F.3d 159, 161 (3d Cir. 2002).

II.

Section 2244(d) of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) provides, in relevant part:

(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of —

(A) the date on which the judgment became final by

the conclusion of direct review or the expiration of

the time for seeking such review;

6

. . .

(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.

28 U.S.C. § 2244(d).

Brown’s conviction became “final” before the AEDPA

came into effect on April 24, 1996. His one-year period for

filing a habeas petition thus began running on that date.

See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). It

is not disputed that the limitation period ran without

interruption from April 24, 1996, to, but not including,

December 24, 1996 (when the second PCRA petition was

filed), a period of eight months. It is also not disputed that

the second PCRA petition was “pending” and tolled the

limitation period pursuant to § 2244(d)(2) from December

24, 1996, to April 25, 1997 (the last day for timely filing an

appeal from the denial of the petition). Thus, on April 26,

1997, Brown had four months left in which to file a habeas

petition. He did not file his petition until March 19, 2000.

Brown makes several contentions for statutory tolling

(pursuant to § 2244(d)(2)) and equitable tolling of the

limitation period. His contentions essentially concern three

time periods: (1) April 26, 1997 (the day the second PCRA

petition ceased to be “pending”) to July 29, 1997 (the day

Silverman withdrew representation); (2) August 15, 1997

(the day the notice of appeal nunc pro tunc was submitted

to the trial court) to May 6, 1998 (the day the trial court

informed Brown it had no record of the notice of appeal

nunc pro tunc); and (3) May 7, 1998 (the day after the trial

court informed Brown it had no record of the notice of

appeal nunc pro tunc) to January 11, 2000 (the day the

Pennsylvania Supreme Court denied Brown’s petition for

allowance of appeal from the denial of the third PCRA

petition). If the limitation period were tolled for those three

periods, his habeas petition would be timely. We turn first

to Brown’s contention that the limitation period should be

equitably tolled from April 26, 1997, to July 29, 1997. He

asserts that he is entitled to equitable tolling for that period

7

because attorney Silverman ineffectively failed to file an

appeal from the denial of the second PCRA petition and

then later “abandoned” him without filing a federal habeas

petition.

After the second PCRA petition was denied, Brown asked

Silverman to file an appeal. Silverman responded by letter

dated April 16, 1997. He wrote:

It is my strong recommendation that you not pursue

an appeal before the Pennsylvania Superior Court. I

believe that paying me money to pursue that appeal

would be a [sic] inefficient use of your resources. With

the record before it as it now stands, the Superior

Court would almost certainly affirm Judge Sabo’s

decision. It is my recommendation that you pursue

your remedies in federal district court via a writ for

petition of habeas corpus [sic]. . . . Consequently, I will

not file a Notice of Appeal to the Superior Court,

although you are certainly permitted to do so.

Supp. App. at 5 (emphases removed). According to Brown,

he received this letter on April 21, 1997. It appears that he

then agreed to have Silverman file a federal habeas petition

on his behalf and to forgo an appeal in state court. App.

123-24 (“Petitioner . . . alternatively advised counsel to file

a habeas corpus petition if counsel knew legal means to do

so despite the exhaustion requirement”).

About a month later, in a letter dated May 20, 1997,

Silverman informed Brown that he had yet to read the trial

transcripts and draft a habeas petition and that he had

been unable, despite his diligent efforts, to obtain the trial

transcripts.4 Subsequently, in a letter dated July 29, 1997,

4. Brown acknowledged Silverman’s diligent efforts. He stated:

Prior to the dismissal of the [second PCRA] petition, attempts were

made by Mr. Silverman to obtain notes of testimony[.] Mr. Silverman

contacted the Court of Common Pleas—Clerk of Courts, Court of

Common Pleas—PCRA Unit, Trial Counsel, Appellate Counsel, and

he wrote several letters to Judge Sabo, stating his desire to obtain

the notes of testimony. All of the attempts to obtain the transcripts

were unsuccessful.

App. 16.

8

Silverman informed Brown that he was unable to obtain a

complete set of the trial transcripts and was unable to

continue to properly represent him.

“[E]quitable tolling is proper only when the ‘principles of

equity would make [the] rigid application [of a limitation

period] unfair.’ ” See Miller v. New Jersey State Dep’t of

Corr., 145 F.3d 616, 618 (3d Cir. 1998) (citation omitted).

“Generally, this will occur when the petitioner has ‘in some

extraordinary way . . . been prevented from asserting his or

her rights.’ ” Id. (citation omitted). Moreover, to be entitled

to equitable tolling, “[t]he petitioner must show that he or

she ‘exercised reasonable diligence in investigating and

bringing [the] claims.’ Mere excusable neglect is not

sufficient.” Id. at 618-19 (citations, including internal

citation, omitted); see Valverde v. Stinson, 224 F.3d 129,

134 (2d Cir. 2000) (“The word ‘prevent’ requires the

petitioner to demonstrate a causal relationship between the

extraordinary circumstances on which the claim for

equitable tolling rests and the lateness of his filing, a

demonstration that cannot be made if the petitioner, acting

with reasonable diligence, could have filed on time

notwithstanding the extraordinary circumstances. If the

person seeking equitable tolling has not exercised

reasonable diligence in attempting to file after the

extraordinary circumstances began, the link of causation

between the extraordinary circumstances and the failure to

file is broken, and the extraordinary circumstances

therefore did not prevent timely filing.”) (internal citations

and internal footnote omitted).

We disagree with Brown insofar as he contends that he

is entitled to equitable tolling because Silverman

ineffectively failed to file an appeal from the denial of the

second PCRA petition. From the outset, Silverman was

forthright about not filing an appeal. In fact, the record

reflects that Brown agreed to pursue federal habeas relief

instead of an appeal in state court. Significantly, he could

have timely filed a pro se notice of appeal in state court

after receiving Silverman’s letter on April 21, 1997. He had

five days in which to do so. He was aware of the filing

deadline (the PCRA court had informed him of the 30-day

appeal period). Given his history of pro se filings, there is

9

no reason to believe that Brown could not prepare and

submit a notice of appeal, a simple one-paragraph

document, within that time. It appears that he simply

chose to not do so. Under these circumstances, equitable

tolling is not warranted. Insofar as Silverman’s advice to

pursue federal habeas relief instead of an appeal in state

court may have been unsound, his negligence in giving that

advice is an insufficient basis for equitable tolling. See Fahy

v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (“attorney error,

miscalculation, inadequate research, or other mistakes

have not been found to rise to the ‘extraordinary’

circumstances required for equitable tolling”), cert. denied

sub nom. Horn v. Fahy, 122 S. Ct. 323 (2001).

We also disagree with Brown insofar as he contends that

he is entitled to equitable tolling because Silverman

“abandoned” him by withdrawing representation without

filing a federal habeas petition. Silverman informed Brown

that he was withdrawing because he was unable to obtain

a complete set of the trial transcripts and felt that he could

no longer properly represent Brown. Prior to withdrawing,

he had made diligent efforts to obtain the trial transcripts

and had been forthright with Brown regarding his lack of

success in obtaining them. He had also been forthright with

Brown regarding his lack of progress in drafting a habeas

petition. The record simply does not reflect that Silverman

misbehaved or acted so irresponsibly that his withdrawal

can be said to be an “extraordinary” circumstance

warranting equitable tolling.

Neither does the case law support Brown’s position. See

Fahy, 240 F.3d at 244 (mere mistake or negligence on the

part of an attorney generally does not “rise to the

‘extraordinary’ circumstances required for equitable

tolling”); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d

236, 241 (3d Cir. 1999) (in the context of a Title VII claim,

“garden variety” attorney misbehavior does not warrant

equitable tolling); cf. United States v. Wynn, 292 F.3d 226,

230-31 (5th Cir. 2002) (equitable tolling may be warranted

where petitioner alleged he “was deceived by his attorney

into believing that a timely § 2255 motion had been filed on

his behalf”). In Seitzinger, 165 F.3d at 241-42, we held that

equitable tolling may be warranted where an attorney

10

“affirmatively lied” to his client that he had filed a

complaint on her behalf. But Silverman was entirely candid

with Brown. Significantly, there was nearly one month left

in the limitation period — time enough for Brown, acting

with reasonable diligence, to prepare and file at least a

basic pro se habeas petition — at the time of Silverman’s

withdrawal.

In sum, we conclude that Brown is not entitled to

equitable tolling for the period from April 26, 1997, to July

29, 1997. The limitation period thus ran during that period.

On July 29, 1997, Brown had a little less than one month

in which to file a habeas petition, and the limitation period

continued running.

III.

Brown’s other contentions concern the period from

August 15, 1997, to January 11, 2000. Essentially, he

contends that: (1) the notice of appeal nunc pro tunc was

“properly filed” and tolled the limitation period pursuant to

§ 2244(d)(2) while it was “pending” from August 15, 1997,

to May 6, 1998; and (2) he is entitled to equitable tolling for

the period from May 7, 1998, to January 11, 2000. Though

we do make several observations in the margin about the

ramifications of these arguments, we do not address them;

Brown’s habeas petition would be untimely even if the

limitation period were tolled for both those periods.5 As

(Text continued on page 12)

5. Brown’s first contention presents a novel issue: whether the notice of

appeal nunc pro tunc may be deemed “properly filed” within the meaning

of § 2244(d)(2). See Swartz v. Meyers, 204 F.3d 417, 421 n.3 & 7 (3d Cir.

2000). To determine whether a petition is “properly filed,” a federal court

“must look to state law governing when a petition for collateral relief is

properly filed.” Fahy, 240 F.3d at 243. Pertinently, § 9542 of the PCRA

provides:

This subchapter provides for an action by which persons convicted

of crimes they did not commit and persons serving illegal sentences

may obtain collateral relief. The action established in this

subchapter shall be the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the

same purpose that exist when this subchapter takes effect,

including habeas corpus and coram nobis.

11

42 Pa. C.S. § 9542. This section “set[s] forth the exclusivity of the PCRA

as the means for collaterally attacking criminal convictions[.]”

Commonwealth v. Eller, 807 A.2d 838, 842 (Pa. 2002). Post-conviction

claims seeking the restoration of appellate rights based on ineffective

assistance of counsel are subject to this exclusivity provision; they must

be raised in a PCRA petition. See Commonwealth v. Lantzy, 736 A.2d

564, 569-70 (Pa. 1999); Commonwealth of Pennsylvania v. Fairiror, 809

A.2d 396, 397 (Pa. Super. Ct. 2002) (Lantzy applies to “all requests for

reinstatement of appellate rights, including PCRA appellate rights”).

Importantly, that is so “irrespective of whether [an] appellant sought

extra-PCRA review before or after the decision in Lantzy was

announced.” Eller, 807 A.2d at 842-43 (“application of Lantzy to

petitioners who sought nunc pro tunc relief before that case was decided

does not operate in an unlawfully retroactive fashion”).

Pennsylvania law thus did not (and does not) recognize extra-PCRA

petitions like Brown’s notice of appeal nunc pro tunc. Because such

petitions are improperly filed as a matter of state law, it seems doubtful

that they may be deemed “properly filed” within the meaning of

§ 2244(d)(2). See Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000)

(“the filing of creative, unrecognized motions for leave to appeal” does not

trigger tolling pursuant to § 2244(d)(2)); cf. Gibson v. Klinger, 232 F.3d

799, 806-808 (10th Cir. 2000) (application for leave to appeal out of time

authorized under state law and filed in accordance with state procedural

rules triggered tolling pursuant to § 2244(d)(2)). In this regard, it is

significant that § 2244(d)(2)’s “tolling rule is designed to protect the

principles of ‘comity, finality, and federalism,’ by promoting ‘the

exhaustion of state remedies while respecting the interest in the finality

of state court judgments.’ ” Carey v. Saffold, 122 S. Ct. 2134, 2139

(2002) (citation omitted). Indeed, “it is the State’s interests that the

tolling provision seeks to protect[.]” Id. at 2139-40. Permitting petitions

not recognized under state law and improperly filed as a matter of state

law to toll the limitation period would not seem to promote exhaustion

in the manner contemplated by the AEDPA. See Adeline, 206 F.3d at 253

(the filing of motions not recognized under state law “is not the sort of

‘exhaustion’ that [ ] the AEDPA Congress . . . had in mind”); see also

O’Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999) (“there is nothing in

the exhaustion doctrine requiring federal courts to ignore a state law or

rule providing that a given procedure is not available”). Moreover, such

permissiveness might seem to disrespect the state’s decision regarding

the proper procedures for challenging state court judgments. Cf. Lovasz

v. Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998) (“if a state allows

petitioners to file second or subsequent petitions for post-conviction

12

noted supra, on July 29, 1997, there was less than one

month left in the limitation period. If the limitation period

ran from July 29, 1997, to August 14, 1997, and then was

tolled for the entire period from August 15, 1997, to

January 11, 2000, there would have been approximately 10

days left in the limitation period on January 12, 2000.

Brown did not file his petition until March 19, 2000.

IV.

To summarize, Brown’s habeas petition was filed beyond

the AEDPA’s one-year statute of limitation. He failed to

show that he is entitled to statutory or equitable tolling of

the limitation period as would render his petition timely.

Accordingly, we will affirm the District Court’s order

dismissing his petition as time-barred.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

relief, federal courts should not undermine the state’s decision by

refusing to toll the one-year period of limitation . . . where a second or

subsequent petition is pending in the state court system”).

With respect to Brown’s second contention, we note that his third

PCRA petition was dismissed by the Pennsylvania courts as untimely

filed. In Fahy, we held that a PCRA petition which the Pennsylvania

Supreme Court had “specifically ruled” was untimely filed and thus was

“not properly filed as a matter of state law” may not be deemed “properly

filed” within the meaning of § 2244(d)(2). Fahy, 240 F.3d at 243-44;

Morris v. Horn, 187 F.3d 333, 342 (3d Cir. 1999). We would note,

though, that two of our sister courts have held that an untimely petition

for state post-conviction relief may be deemed “properly filed” if the

state’s statute of limitations contains exceptions that require the state

court to examine the merits of the petition to determine whether any of

the exceptions apply before dismissing it as untimely. See Dictado v.

Ducharme, 244 F.3d. 724, 727-28 (9th Cir. 2001); Smith v. Ward, 209

F.3d 383, 385 (5th Cir. 2000). The United States Supreme Court

declined to address this question in Artuz v. Bennett, 531 U.S. 4, 8 n.2

(2000).