                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-1998

Lovasz v. Vaughn
Precedential or Non-Precedential:

Docket 97-3505




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Recommended Citation
"Lovasz v. Vaughn" (1998). 1998 Decisions. Paper 10.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/10


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Filed January 14, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-3505

STEVEN R. LOVASZ,
       Appellant

v.

SCIG SUPT. DONALD T. VAUGHN

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 97-cv-01389)

Submitted by the Clerk for a certificate of
appealability pursuant to 28 U.S.C. S 2253
October 23, 1997

Before: BECKER, NYGAARD, and ROTH, Circuit Judges.
(MOTIONS PANEL A)

(Filed January 14, 1998)

       STEVEN ROBERT LOVASZ #AJ-1800
       Graterford SCI
       P.O. Box 244
       Graterford, PA 19426

       Pro se
OPINION OF THE COURT

BECKER, Circuit Judge.

The habeas petition of Steven Lovasz currently before us,
on application for a certificate of appealability, presents the
question whether a second or subsequent petition for post-
conviction relief, filed according to the procedural rules of
the state, constitutes "a properly filed application" for the
purpose of triggering the tolling mechanism of 28 U.S.C.
S 2244(d)(2) without regard to the merits of the petition.
Because we conclude that it does, we will grant the
certificate of appealability, reverse the dismissal of Lovasz's
petition, and remand this matter to the district court for
further consideration.

I.

In April 1988, Lovasz was sentenced in the Court of
Common Pleas of Fayette County, Pennsylvania, to life in
prison for murder. After his conviction was affirmed on
direct appeal, Lovasz filed a petition for post-conviction
relief under Pennsylvania's Post Conviction Relief Act
("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541-9546. After relief
was denied, Lovasz filed a second PCRA petition, which was
dismissed on May 18, 1995. The Pennsylvania Superior
Court affirmed on March 4, 1996. The Pennsylvania
Supreme Court denied Lovasz's petition for allowance of
appeal on September 26, 1996.

On July 30, 1997, Lovasz filed in the district court the
current petition for a writ of habeas corpus under 28 U.S.C.
S 2254. The district court dismissed the petition as time-
barred under S 2244(d)(1), without discussing the tolling
mechanism of 28 U.S.C. S 2244(d)(2). Before us now is
Lovasz's request for a certificate of appealability to appeal
from this dismissal.

II.

Title 28 U.S.C. S 2244(d), enacted as part of the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), in relevant part provides:

                               2
       (1) A 1-year period of limitation shall apply to an
       application for a writ of habeas corpus by a person
       in custody pursuant to the judgment of a State
       court. The limitation period shall run from the
       latest of --

       (A) the date on which the judgment became final by
       the conclusion of direct review or the expiration
       of the time for seeking such review;

       . . .

       (2) The time during which a properly filed application
       for State post-conviction or other collateral review
       with respect to the pertinent judgment or claim is
       pending shall not be counted toward any period of
       limitation under this subsection.

28 U.S.C. S 2244(d). We have yet to consider what
constitutes "a properly filed application" to trigger the
tolling mechanism of S 2244(d)(2).

Principles of comity inform our decision. In our federal
system, "the States should have the first opportunity to
address and correct alleged violations of state prisoner's
federal rights." Coleman v. Thompson, 501 U.S. 722, 731
(1991). Such respect for the states has given rise to the
well-established rule that 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. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.
1993); see Banks v. Horn, 126 F.3d 206, 211 (3d Cir.
1997); Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996).
Moreover, in enacting AEDPA, of which S 2244(d) is a part,
Congress intended to "reduce federal intrusion into state
criminal proceedings." Banks, 126 F.3d at 213.

Thus, if a state allows petitioners to file second or
subsequent petitions for post-conviction relief, federal
courts should not undermine the state's decision by
refusing to toll the one-year period of limitation of
S 2244(d)(1) where a second or subsequent petition is
pending in the state court system. Nor should we
discourage petitioners from exhausting all their claims in
state court, even by means of a second or subsequent

                                3
petition for post-conviction relief where permissible under
state law, before seeking habeas review in federal court.

We believe that "a properly filed application" is one
submitted according to the state's procedural requirements,
such as the rules governing the time and place of filing. A
Pennsylvania PCRA petitioner, for example, must file a
motion with the clerk of the court in which he was
convicted and sentenced, Pa. R. Crim. P. 1501, generally
within one year of the date the judgment becomes final, 42
Pa. Cons. Stat. Ann. S 9545(b)(1). If a petitioner complies
with these procedural requirements, or other procedural
requirements the state imposes, his petition, even a second
or successive petition, is "a properly filed application" for
purposes of S 2244(d)(2). While we recognize that the
Pennsylvania Supreme Court has announced strict rules
regarding the granting of second and subsequent PCRA
petitions, see Commonwealth v. Lawson, 549 A.2d 107 (Pa.
1988), Pennsylvania allows for the filing of second or
subsequent PCRA petitions, see 42 Pa. Cons. Stat. Ann.
S 9545(b)(1), and courts occasionally grant relief in such
proceedings, see e.g., Commonwealth v. Morales, 701 A.2d
516 (Pa. 1997).

Further, we reject the notion that a meritless PCRA
petition cannot constitute "a properly filed application"
under S 2244(d)(2). Rather, in considering whether a
petition for post-conviction relief is properlyfiled, district
courts should not inquire into its merits. A rule requiring
an inquiry into the merits of a second or subsequent PCRA
petition in order to determine if it was properlyfiled could
become problematic, as exemplified in Hughes v. Irvin, 967
F. Supp. 775 (E.D.N.Y. 1997). In Hughes, the district court
considered whether a seventh motion for post-conviction
relief constituted "a properly filed application" under
S 2244(d)(2). The state's lower court had denied the motion
without a hearing, but the state appeals court reversed and
remanded for an evidentiary hearing. On remand, the lower
court made findings of fact and again denied the motion.

If it were to consider the merits, the Hughes court
mused, was the seventh motion "a properly filed
application," and if so, at what points in time? Was it
"improperly filed" because the lower court found it

                               4
meritless? Did it become "properly filed" when the state
appellate court reversed and remanded, only to lose that
status when the lower court again denied it on the merits?
Id. at 779. While such questions may be intriguing or
provocative, we, like the Hughes court, find them both
inappropriate and unnecessary in determining whether the
petition for post-conviction relief was properlyfiled. After
all, Congress chose the phrase "a properly filed
application," one into which we do not read any
requirement that the application be non-frivolous. But see
Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y.
1997) (assuming that an application for collateral review
must be non-frivolous in order to be properly filed under
S 2244(d)(2)).

In the case at bar, how the district court calculated the
untimeliness of Lovasz's habeas petition is unclear.
Apparently the magistrate judge was unaware that Lovasz's
petition for allowance of appeal in his second PCRA
proceedings was pending before the Pennsylvania Supreme
Court until September 26, 1996. Lovasz did not bring this
to the court's attention until he filed objections to the
magistrate judge's report and recommendation. The district
court adopted the report and recommendation without
discussing whether Lovasz's second PCRA petition was
properly filed for the purposes of S 2244(d)(2).

We conclude that Lovasz's habeas petition was timely
filed. When AEDPA took effect on April 24, 1996, Lovasz's
second PCRA petition was pending before the Pennsylvania
Supreme Court until September 26, 1996. Under
S 2244(d)(2), this period of time "shall not be counted" as
part of S 2244(d)(1)'s one-year period of limitation. Thus,
Lovasz's one-year period did not expire until September 26,
1997. Lovasz filed his habeas petition on July 31, 1997,
well within S 2244(d)(1)'s time limitation, and the district
court erred in dismissing it as untimely.

III.

Because we find that Lovasz's habeas petition was timely
filed under S 2244(d)(1) and (2), we grant the certificate of

                                5
appealability and reverse and remand to the district court
for further consideration.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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