                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2003

Pace v. Vaughn
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3049




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"Pace v. Vaughn" (2003). 2003 Decisions. Paper 336.
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                                                 NOT PRECEDENTIAL

       THE UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       ___________

                       No. 02-3049
                       ___________


                      JOHN A. PACE


                              v.

     DONALD VAUGHN; THE DISTRICT ATTORNEY
        OF THE COUNTY OF PHILADELPHIA;
         THE ATTORNEY GENERAL OF THE
            STATE OF PENNSYLVANIA,

                                    Appellants

                       ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                 (D.C. Civil No. 99-cv-06568)
        District Judge: The Honorable James T. Giles

                       ___________

         Submitted Under Third Circuit LAR 34.1(a)
                       July 7, 2003

BEFORE: NYGAARD, SMITH, and GREENBERG, Circuit Judges.




                    (Filed July 30, 2003)
                                        ___________

                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

              In this case, the Commonwealth of Pennsylvania argues that the District

Court erred by both statutorily and equitably tolling the statute of limitations for the

federal habeas corpus petition of appellee John Pace under the Anti-Terrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(2), during the

period of time Pace was pursuing post conviction relief in state court under the

Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541-9546 (1998)

(PCRA). At issue is whether Pace’s application for state post-conviction relief was

“properly filed” under 28 U.S.C. § 2244(d)(2). We hold that our recent case, Merritt v.

Blaine, 326 F.3d 157 (3d Cir. 2003), controls the analysis here, and because we find that

the application was not properly filed and that equitable tolling was not justified, we will

reverse the District Court.

                                              I.

              The one-year limitation of the AEDPA is statutorily 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). Pace’s petition was statutorily tolled only if his petition for state post-



                                               2
conviction review was both pending and “properly filed.” Merritt, 326 F.3d at 162. In

Merritt, which was decided after Judge Giles issued his opinion, we analyzed our

decision in Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001):

              We held in Fahy that an untimely PCRA petition does not toll
              the statute of limitations for a federal habeas corpus petition. .
              . . 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.’ 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.


Id. at 165-66 (citations omitted). Because the highest state court had held that Merritt’s

PCRA petition was untimely, it was not “properly filed” under AEDPA.

              We do not see any material distinctions between our treatment of M erritt’s

pro se second PCRA petition and Pace’s. We are therefore bound by the state court’s

finding that Pace’s second PCRA petition was untimely, and we must reverse the District

Court’s order holding that Pace’s second PCRA petition was tolled by the statute.

                                             II.

              The general requirements for equitable tolling are that (1) the petitioner has

established that he has been prevented from asserting his rights “in some extraordinary

way,” and (2) the petitioner has demonstrated that he “exercised reasonable diligence in

investigating and bringing [the] claims.” Id. at 168 (citations omitted).




                                              3
              The Commonwealth contends that, contrary to the determination of the

District Court, the lack of certainty as to how Pennsylvania courts would interpret the

PCRA is not an “extraordinary” circumstance. We agree. In Merritt, we explained:

              We recognized that in 1997, when Fahy’s PCRA petition was
              filed, the newly established PCRA time limit was ‘unclear’
              and ‘inhibitively opaque.’ Indeed, we stated that based on
              that uncertainty, Fahy ‘reasonably believed that the state
              petition was properly filed.’ However . . . in Fahy we ‘did not
              hold that this lack of clarity in Pennsylvania law constituted
              extraordinary circumstances.’ In fact, we stated that ‘in 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.’
              Instead of finding extraordinary circumstances, we based our
              decision to apply equitable tolling in Fahy on the accepted
              principle that ‘death is different.’ . . . This case is similar to
              Fahy. . . . [I]t was not unreasonable (indeed it was
              appropriate) for M erritt to have 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
              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 intracircuit conflict of precedent.


Merritt, 326 F.3d at 169-70 (citations omitted). Merritt established that the uncertain

PCRA time limit is not an “extraordinary” circumstance in the case of mandatory life

sentence without the possibility of parole. In addition, the Merritt panel held that because

Merritt did not act promptly after the decisions of the Pennsylvania Superior Court in




                                              4
1997,1 at which point “Pennsylvania law as to the time bar of the PCRA became clear,”

there was no basis to find M erritt’s habeas petition timely under the doctrine of equitable

estoppel. This case is on all fours with Merritt. We therefore conclude that there are no

extraordinary circumstances that would allow for equitable tolling.

                                            III.

              In conclusion, we hold that there is no basis to find Pace’s habeas petition

timely, either under the statute or under the doctrine of equitable estoppel. Indeed, Pace

himself concedes that “Merritt is materially indistinguishable from Pace and, thus,

Merritt’s denial of both statutory and equitable tolling would apply here.” Appellee’s

Supp. Br. Re: Merritt, at 1. Based on the foregoing, we will reverse the District Court,

and dismiss Pace’s petition for habeas corpus as time-barred under the AEDPA.




1.    See Commonwealth v. Alcorn, 703 A. 2d 1054 (Pa. Super. Ct. 1997);
Commonwealth v. Conway, 706 A. 2d 1243 (Pa. Super. Ct. 1997).

                                              5
_________________________


TO THE CLERK:

           Please file the foregoing opinion.




                                          /s/ Richard L. Nygaard
                                          Circuit Judge




                                          6
