                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2006

Satterfield v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 04-3108




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                                      PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 04-3108


               PAUL SATTERFIELD,

                               Appellee,

                          v.

PHILIP L. JOHNSON; THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA; THE ATTORNEY
  GENERAL OF THE STATE OF PENNSYLVANIA,

                               Appellants


     Appeal from the United States District Court
      for the Eastern District of Pennsylvania,
            (D.C. Civ. No. 02-CV-00448)
      District Judge: Honorable Jan E. DuBois


     Submitted Under Third Circuit LAR 34.1(a)
               (September 30, 2005)
        Before: ALITO and AMBRO, Circuit Judges,
                    RESTANI* , Judge

                   (Filed January 17, 2006)

PAUL SATTERFIELD
Fayette State Correctional Institute
P.O. Box 9999
LaBelle, Pennsylvania 15450

       Pro Se

J. HUNTER BENNETT, ESQUIRE
Office of the District Attorney
1421 Arch Street
Philadelphia, Pennsylvania 19102

       Attorney for the Appellants


                OPINION OF THE COURT


RESTANI, Judge

      This appeal arises out of a petition for post-conviction
review of a state-court conviction for first-degree murder and


*
 Honorable Jane A. Restani, Chief Judge of the United States
Court of International Trade, sitting by designation.

                               2
possession of an instrument of crime entered against Paul
Satterfield in 1985. Appellee, Satterfield, was granted a writ of
habeas corpus by Judge Jan E. DuBois of the Eastern District of
Pennsylvania on the basis of ineffective assistance of counsel
arising from trial counsel’s failure to call potentially exculpatory
eye-witnesses at trial. Appellants Philip L. Johnson, the District
Attorney for Philadelphia County, and the Attorney General of
the Commonwealth of Pennsylvania (“The Commonwealth”),
challenge the District Court’s ruling on ineffective assistance of
counsel and also argue that Satterfield’s federal habeas petition
should have been dismissed as time-barred under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). We
agree that Satterfield’s petition is time-barred and reverse the
judgment of the District Court.

               I. FACTUAL BACKGROUND

       In April 1983, Satterfield, a repairman, was called to the
house of William Bryant to repair a television set. After
receiving partial payment, Satterfield attempted but failed to fix
Bryant’s television set, returning several times without success.
Eventually, Bryant demanded a refund of his fee, threatening
Satterfield with a baseball bat. Satterfield returned the fee and
left.

       On April 28, 1983, at about 3:30 in the morning, Bryant
was shot to death outside his home. Immediately after the
shooting, the police spoke with two eyewitnesses, Eric and

                                 3
Grady Freeman. Eric Freeman described the shooter as a
blonde-haired white male, about five-feet-nine-inches tall,
driving a blue station wagon. Grady Freeman described the
shooter as a “light-skin guy,” about five-feet-eight-inches tall,
driving a dark station wagon, but did not specify his hair color
or ethnicity. Satterfield is a brown-haired African-American.
At that time, the police obtained a warrant to search Satterfield’s
home, but were unable to obtain sufficient evidence to make an
arrest.

       In 1984, Satterfield made the acquaintance of Patricia
Edwards and her husband, Wayne. Mr. Edwards testified at trial
that on May 2, 1984, during a conversation after playing tennis,
Satterfield confessed that he murdered Bryant, that he had done
so because Bryant threatened him, and that he had disposed of
his .44 caliber gun after the murder. That day, Edwards
contacted his attorney, who contacted the police on his behalf to
report Satterfield’s admission. Satterfield contended at trial that
Edwards fabricated his confession to punish Satterfield for his
alleged romantic advances towards Edwards’s wife.

        Satterfield’s defense consisted of impeaching Edwards’s
testimony as biased and arguing that a different shooter
committed the crime. Defense counsel entered the warrant
describing Eric Freeman’s police report into the record, but
neither Eric nor Grady Freeman testified to their recollection of
the crime. Defense counsel declined to call these witnesses out
of concern that the perhaps helpful effect of the witnesses’

                                4
police statements would be undermined. Counsel’s belief was
based, at least in part, on the fact that Eric Freeman had
identified the shooter as a white male while his brother Grady
had identified the shooter as a “light-skin guy,” which to counsel
meant a light-skinned African-American.

       On June 10, 1985, Satterfield was convicted on both
counts and sentenced to life in prison.

               II. PROCEDURAL HISTORY

        The Superior Court affirmed judgment against Satterfield
on July 22, 1987. The Pennsylvania Supreme Court denied
allocatur on January 27, 1988. On April 1, 1996, Satterfield,
acting pro se, filed a petition with the Pennsylvania Supreme
Court, entitled “Petition for Writ of Habeas Corpus Ad
Subjiciendum – Inter Alia – King’s Bench Matter” (“King’s
Bench Petition”), which was denied on June 7, 1996. On
October 11, 1996, the Pennsylvania Supreme Court denied
Satterfield’s motion to reconsider dismissal of his King’s Bench
Petition.2 On January 13, 1997, Satterfield filed a petition for
relief pursuant to the Pennsylvania Post Conviction Relief Act



2
 The Pennsylvania Supreme Court denied the Petition without
opinion. We accept as true the uncontested denial date of
October 11, 1996. See Satterfield v. Johnson, 218 F. Supp. 2d
715, 716 (E.D. Pa. 2002) [hereinafter Satterfield I].

                                5
(“PCRA”), 42 Pa. Cons. Stat. § 9541.3 The PCRA Court denied
Satterfield’s PCRA petition on September 21, 1998, which the
Superior Court affirmed August 22, 2000. The Pennsylvania
Supreme Court denied allocatur on April 30, 2001.

       On January 23, 2002, Satterfield filed the pro se Petition
for Writ of Habeas Corpus that is before us. Magistrate Judge
Scuderi initially dismissed the petition as time-barred, but, on
September 6, 2002, Judge DuBois remanded for additional
consideration of statutory tolling. Judge Dubois ruled that
Satterfield’s King’s Bench Petition was “properly filed” for
purposes of tolling the statute of limitations in federal habeas
cases under AEDPA, 28 U.S.C. § 2244(d)(2). Satterfield I, 218
F. Supp. 2d at 723.

      On May 16, 2003, Magistrate Judge Scuderi issued a
Supplemental Report and Recommendation (“Supplemental



3
 United States Magistrate Judge Peter B. Scuderi initially found
that Satterfield’s PCRA petition was filed on January 16, 1997.
Magistrate Judge Scuderi, in his Supplemental Report and
Recommendation, later found that Satterfield’s PCRA petition
was in fact dated January 9 and filed January 13, 1997, the day
Satterfield now alleges he delivered his petition to prison
officials for filing. Pennsylvania deems the date a prisoner
delivers a pro se petition to prison authorities to be the date of
filing under the prison “mailbox rule.” Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997).

                                6
Report”) recommending that Satterfield's claims be denied on
their merits. When Satterfield filed no objections, on July 16,
2003, Judge DuBois issued an order adopting the report. See
Satterfield v. Johnson, 322 F. Supp. 2d 613, 617 (E.D. Pa. 2004)
[hereinafter Satterfield II].

       On July 25, 2003, Satterfield filed objections to the
Supplemental Report, requesting the opportunity to file out of
time, which Judge Dubois eventually granted.4 On June 21,
2004, Judge DuBois vacated the report and order issued July 16,
2003, holding that Satterfield’s defense counsel had been
ineffective for failing to interview and call Eric and Grady
Freeman, and vacated Satterfield’s sentence. Satterfield’s
remaining claims of actual innocence and absence of notice of
charges against him were denied. The mandate was stayed for
180 days to permit Pennsylvania to retry Satterfield. Id. at
616–17.

       Both Satterfield and the Commonwealth filed timely
notices of appeal from the court’s order.

    III. JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction to review the District Court’s grant


4
 Judge DuBois initially treated this petition as a motion for
reconsideration, but vacated that order, treating it instead as
objections filed out of time to the Supplemental Report.

                               7
of a writ of habeas corpus under 28 U.S.C. § 2253(a). We
exercise plenary review over issues related to statutes of
limitations. Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003).
Where the District Court relies entirely on the state court record
and does not hold an evidentiary hearing, our review of the
District Court’s decision is also plenary. Lewis v. Johnson, 359
F.3d 646, 652–53 (3d Cir. 2004).

                        IV. DISCUSSION

A.       T HE C OMMONWEALTH D ID N OT W AIVE THE R IGHT
         T O A SSERT T HAT S ATTERFIELD’S F EDERAL H ABEAS
         P ETITION I S T IME-B ARRED

        Satterfield argues that the Commonwealth has failed to
appeal the portion of the District Court’s order holding that
Satterfield’s federal habeas petition was not time-barred under
AEDPA, and that therefore the Commonwealth has waived any
right to assert that his federal habeas petition is time-barred
under Federal Rules of Appellate Procedure 3(c)(1)(B) and
4(a)(1)(A). (Appellee’s Br. 21.)5 The Commonwealth’s Notice


5
    The Commonwealth’s Notice of Appeal states that:

         Notice is given that [the Commonwealth]. . .
         hereby appeal[s] to the United States Court of
         Appeals for the Third Circuit, from that portion of
         the Order of the Honorable Jan E. DuBois,

                                 8
of Appeal does not mention any appeal from the portion of the
June 21, 2004 order adopting Magistrate Judge Scuderi’s
Supplemental Report (which held, pursuant to the District
Court’s remand order of September 6, 2002, that Satterfield’s
King’s Bench Petition was properly filed and therefore tolled
under AEDPA’s statutory tolling provisions). See 28 U.S.C.
§ 2244(d)(2).

        Had the Commonwealth filed a notice of appeal from the
entire order granting collateral relief, the appeal of that final
judgment would have “draw[n] into question all prior non-final
orders and rulings.” MCI Telecommunications Corp. v.
Teleconcepts, Inc., 71 F.3d 1086, 1092 (3d Cir. 1995) (quoting
Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.
1990)). The Commonwealth’s notice only identified the portion
of the District Court’s order dealing with ineffective assistance
of counsel. Thus, the question is not whether an appeal from a
final order implicates all prior non-final orders, but whether an
appeal from a portion of a final order determining the merits of



       granting the Petition for Writ of Habeas Corpus
       with respect to petitioner’s claim that trial counsel
       was ineffective for failing to call Eric Freeman
       and Grady Freeman as witnesses at trial and
       vacating petitioner’s conviction, entered in this
       case on the 23rd day of June, 2004. (Appellants’
       Addendum to App. at AA.11.)


                                9
a federal habeas petition implies an appeal from another portion
of that same final order dealing with time-bar under AEDPA.6

        We interpret the notice requirements of Rules 3 and 4
liberally, exercising appellate jurisdiction over orders not
specified in a notice of appeal if: “(1) there is a connection
between the specified and unspecified orders; (2) the intention
to appeal the unspecified order is apparent; and (3) the opposing
party is not prejudiced and has a full opportunity to brief the
issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139,
144 (3d Cir. 1998).

       The District Court’s order adopting the magistrate
judge’s Supplemental Report regarding statutory tolling was
related to the claim for ineffective assistance of counsel because
the ineffective assistance of counsel claim could not be reached
without disposing of the issue of timeliness. See id. (treating
notice of appeal specifying summary judgment order as
including appeal of separate order granting attorney’s fees);
Drinkwater, 904 F.2d at 858 (notice of appeal designating
portions of a summary judgment order on sex discrimination
claim treated as related to prior order dismissing retaliation
count of same complaint).


6
 The issue of timeliness under AEDPA is not jurisdictional; thus
the court is not required to raise the issue if waived by one of the
parties. United States v. Bendolph, 409 F.3d 155, 164–165 (3d
Cir. 2005).

                                10
        The Commonwealth’s intention to appeal the issue of
timeliness was “clearly manifest” from its first brief. The
Commonwealth’s brief, filed February 7, 2004, devotes thirteen
pages to arguing the District Court’s ruling on statutory tolling.
(Appellants’ Br. 14–27.) There is no evidence that the
Commonwealth’s failure to include its objection to statutory
tolling prejudiced Satterfield. He had ample time to prepare a
response on the issue of statutory tolling, although he declined
to address statutory tolling and argued only the question of
equitable tolling in his brief. (Appellee’s Br. 21.) Cf. United
States v. Bendolph, 409 F.3d at 169 (holding that one-month
notice for habeas corpus petitioner to prepare brief on issue of
timeliness raised sua sponte is sufficient to avoid prejudice).

B.     S ATTERFIELD I S N OT E NTITLED TO S TATUTORY
       T OLLING

        AEDPA imposes a one-year statute of limitations on all
federal habeas claims, subject to tolling for the time 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). The one-year statute of
limitations on Satterfield’s federal habeas petition began to run
on AEDPA’s effective date, April 24, 1996. Burns v. Morton,
134 F.3d 109, 111 (3d Cir. 1998). Satterfield filed his King’s
Bench Petition prior to AEDPA’s effective date, on April 1,
1996. Assuming for the moment that this petition tolled
AEDPA’s statute of limitations, Satterfield’s time began to run

                               11
when the Pennsylvania Supreme Court denied reconsideration
of its order dismissing the King’s Bench Petition on October 11,
1996. The statute of limitations then ran until January 13, 1997,
when Satterfield filed a petition for relief pursuant to the PCRA,
which is conceded to have tolled AEDPA’s one-year limitation
until the petition was finally denied on April 30, 2001. The
statute of limitations ran from that date until January 23, 2002,
when Satterfield filed his pro se petition for writ of habeas
corpus in federal court. If the King’s Bench Petition tolled
AEDPA’s statute of limitations, Satterfield timely filed his
federal habeas petition. The timeliness of Satterfield’s federal
habeas petition therefore hinges on whether his King’s Bench
Petition was “properly filed” with the Commonwealth.

       1.     The Meaning of “Conditions to Filing”

        In Artuz v. Bennett, 531 U.S. 4 (2000), the Supreme
Court held that a petition is properly filed when “its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings.” Id. at 8. A properly filed petition must be in
the proper form, and be timely delivered to the proper court or
office. Id. The key distinction developed in Artuz is between
“condition[s] to filing,” which go to the application for post-
conviction review, and “condition[s] to obtaining relief,” which
go to the individual legal claims contained within the application
for review. See id. at 11. Failure to satisfy the former prevents
a petition from being “properly filed,” which in turn prevents
application of AEDPA’s tolling provision. Failure to satisfy the

                                12
latter does not prevent statutory tolling. Artuz, 531 U.S. at 10
(“The statute . . . refers only to ‘properly filed’ applications . . .
.”).

        Untimely filing, absence of jurisdiction, failure to pay
fees, and failure to obtain a requisite certificate of appealability
are all examples of flaws going to the application for relief
itself. See Pace v. DiGuglielmo, 125 S. Ct. 1807, 1812–13
(2005) (discussing untimely filing and absence of jurisdiction);
Artuz 531 U.S. at 8–9 (discussing filing fees and certificates of
appealability). These requirements prevent tolling because they
“go to the very initiation of a petition and a court’s ability to
consider that petition . . . .” Pace, 125 S. Ct. at 1814. By
contrast, a procedural bar on the relitigation of an issue raised on
appeal or a bar on claims that could have been raised on direct
appeal are examples of “mandatory state-law procedural
requirements” that go to conditions of relief, not conditions of
filing. Artuz, 531 U.S. at 8, 11.

        The mere fact that a court reviewed an application before
dismissing it does not necessarily mean that an application was
“properly filed.” For example, the Court in Pace made clear that
a petition ruled untimely by a state court cannot be “properly
filed” even if some judicial review is necessary to determine if
the filing condition, or an exception to it, is met. Id. at 1812
(finding timeliness, like “jurisdictional matters and fee
payments” to be conditions to filing even though they “often
necessitate judicial scrutiny”). If a state court determines that a

                                 13
petition is untimely, “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.” Carey v. Saffold, 536 U.S. 214, 226 (2002); see also
Pace, 125 S. Ct. at 1813 (consideration by judge of whether
petitioner may proceed in forma pauperis does not prevent claim
from being dismissed as not “properly filed” for failure to pay
filing fees).

       2.      Satterfield’s King’s Bench Petition Did Not
              Meet Certain Conditions to Filing Under
              Pennsylvania Law

         Satterfield appears to concede, while arguing for the
application of equitable estoppel, that he “mistakenly asserted
his rights in the wrong forum” with respect to his King’s Bench
Petition. (Appellee’s Br. 6, 21.) The District Court likewise
found that it was “abundantly clear that the only means of
collaterally attacking a conviction is via a PCRA petition.”
Satterfield I, 218 F. Supp. 2d at 719. We agree that Satterfield’s
King’s Bench Petition was denied for failure to satisfy
conditions of filing and therefore was “improperly filed” under
Pennsylvania law.

       If considered strictly as a petition for habeas corpus,
Satterfield’s King’s Bench Petition was improperly filed under
Pennsylvania law. The procedures for filing a petition for post-
conviction relief in Pennsylvania are defined by the PCRA.

                               14
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“[T]he
PCRA subsumes the writ of habeas corpus with respect to
remedies offered under the PCRA.”). It required Satterfield to
file three verified copies of the application for post-conviction
relief with the court in which he was convicted. Pa. R. Crim. P.
901(B) (2005). Satterfield failed to comply because he filed his
King’s Bench Petition with the Pennsylvania Supreme Court.
The Court in Pace implied that such failures to comply with the
PCRA’s requirements would prevent statutory tolling. 125 S.
Ct. at 1813 (the PCRA’s timeliness requirement is “every bit as
much a ‘condition to filing’” as the requirement that three copies
of a PCRA petition be filed “with the clerk of the court in which
the defendant was convicted”).

        The King’s Bench Petition, if construed as an application
for extraordinary relief, also failed to meet certain conditions of
filing. Extraordinary relief may be granted “in any matter
pending before any court.” 42 Pa. Cons. Stat. Ann. § 726
(2005).7 Because Satterfield had already been convicted and his


7
    Section 726 provides:

        Notwithstanding any other provision of law, the
        Supreme Court may, on its own motion or upon
        petition of any party, in any matter pending before
        any court or magisterial district judge of this
        Commonwealth involving an issue of immediate
        public importance, assume plenary jurisdiction of

                                15
direct appeals exhausted, there was no “pending” matter over
which the Pennsylvania Supreme Court could exercise
jurisdiction. See In re Assignment of Judge Bernard J. Avellino,
690 A.2d 1138, 1140 (Pa. 1997). The Pennsylvania Supreme
Court’s lack of jurisdiction goes to the initiation of a petition
and its ability to provide relief, and therefore was dismissed for
failure to meet a condition of filing. See Pace, 125 S. Ct. at
1812 (finding jurisdictional matters are conditions to filing).

        Finally, the fact that the Pennsylvania Supreme Court is
vested with the authority to disregard these procedural
shortcomings pursuant to its King’s Bench powers does not
convert Satterfield’s improperly filed petition for post-
conviction relief into a properly filed petition for purposes of
AEDPA. Merely because the Pennsylvania Supreme Court is
vested with the authority to exercise its King’s Bench powers as
it sees fit does not mean that prisoners are therefore granted the
power to delay indeterminately AEDPA’s statute of limitations
by filing King’s Bench petitions.8


       such matter at any stage thereof and enter a final
       order or otherwise cause right and justice to be
       done.
8
 While a petition for extraordinary relief is limited to plenary
power over cases pending in lower courts, “[t]he ‘power of
general superintendency over inferior tribunals,’ may be
exercised where no matter is pending in a lower court.” In re
Avellino, 690 A.2d at 1140.

                               16
        The Seventh Circuit addressed a similar situation in
Brooks v. Walls, 279 F.3d 518 (7th Cir. 2002). In that case,
Illinois law provided that a trial judge could examine whether
untimely filing was the result of the petitioner’s “culpable
negligence” before dismissing. Petitioner Brooks contended
that any review of her claim for culpable negligence constituted
a consideration of the merits, and therefore her petition was
necessarily “properly filed.” The Court refused to accept this
argument, noting that “[i]f this is so, then almost every collateral
attack in Illinois is ‘properly filed’ for purposes of
§ 2244(d)(2).” Id. at 521. This was so despite the fact that the
trial judge could “cast . . . a sidelong glance at the merits” of a
petition before deciding whether to dismiss. Id. Analogizing to
the doctrine of independent and adequate state grounds and
plain error review, the Court concluded that “[a] state does not
abandon the benefits of [the independent and adequate state
grounds doctrine] by allowing plain-error review – or by
accepting untimely collateral attacks when the standards of plain
error have been met.” Id. at 524. Thus, the Court refused to
treat the inclusion of consideration of “culpable negligence” as
rendering untimely filed petitions “properly filed” under
AEDPA.

       Even if the Pennsylvania Supreme Court’s justices took
a “sidelong glance” at the merits of Satterfield’s petition when
deciding whether to exercise their King’s Bench powers, we
find that this would not excuse the substantial procedural
deficiencies in Satterfield’s King’s Bench Petition. See

                                17
Commonwealth v. Fahy, 737 A.2d at 224 (“[I]t goes without
saying that this court’s King’s Bench powers do not constitute
a vehicle by which we may circumvent the time requirements of
the PCRA to reach the merits of an appeal.”); Cf. Stokes v.
Vaughn, 132 Fed. App’x 971, 973 (3d Cir. 2005) (non-
precedential per curiam) (finding Pennsylvania Supreme Court’s
dismissal, “without comment,” of prisoner’s petition for
allowance of appeal nunc pro tunc “indicates that it did not
accept [petitioner’s] petition . . . as properly filed under state
law, and thus the pendency of the [petition] did not result in
statutory tolling”).

      We conclude that Satterfield’s King’s Bench Petition was
dismissed for failure to comply with conditions of filing
imposed by Pennsylvania law.

       3.      A Petition For Relief That Is Improperly Filed
               Under State Law May Not Be Treated As
               Properly Filed For the Purposes of AEDPA

       The remaining question in this case is whether a petition
for post-conviction relief, improperly filed under state law, may
nonetheless be considered “properly filed” for purposes of
AEPDA’s tolling statute. We conclude that it may not here.

       In Satterfield I, the District Court noted that, at the time,
it remained an open question whether the Third Circuit’s
“flexible approach” to AEDPA’s “properly filed” requirement

                                18
extended to petitions seeking remedies “not available under
Pennsylvania law.” 218 F. Supp. 2d at 720–21. Judge DuBois
decided the issue in favor of Satterfield, finding that his King’s
Bench Petition was sufficiently similar to a PCRA petition to
count as properly filed. Id. at 721. The District Court’s opinion
relied on Nara v. Frank, which held that an untimely petition
may nonetheless constitute a properly filed application under
§ 2244(d)(2) so long as it is “akin to an application for state
post-conviction or other collateral review.” 264 F.3d 310, 316
(3d Cir. 2001) (finding a motion to withdraw a guilty plea nunc
pro tunc was sufficiently similar to a PCRA petition to warrant
equitable tolling under § 2244(d)). In his opinion, Judge
DuBois recognized that the Supreme Court’s holding in Carey
v. Saffold may have undermined his analysis, but noted that
“this determination is one better left to the Third Circuit.”
Satterfield I, 218 F. Supp. 2d at 722 n.8.

       Consistent with Judge DuBois’ recognition, we
subsequently held that Carey overruled Nara to the extent Nara
implied that an untimely petition for state collateral relief may
be deemed “properly filed” under AEDPA. Merritt v. Blaine,
326 F.3d 157, 166 (3d Cir. 2003) (“[D]ecisions such as Nara v.
Frank . . . to the extent they hold that petitions untimely under
state rules nonetheless may be deemed properly filed, were
wrongly decided.”).

      An untimely state petition for post-conviction relief
cannot be “properly filed” for purposes of § 2244(d)(2).

                               19
Pace,125 S. Ct. at 1811. The Court expressed particular concern
that allowing untimely state applications for post-conviction
relief to toll AEDPA would transform AEDPA’s statute of
limitations into “a de facto extension mechanism.” Id. at 1812.

        Although Pace and Merritt dealt specifically with cases
involving untimely state-law petitions for post-conviction
review, we find that the logic of those cases applies to cases
such as this, where the state petition is improperly filed for
reasons other than timeliness. See Brown v. Shannon, 322 F.3d
768, 776 n.5 (3d Cir. 2003) (“Pennsylvania law . . . 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).”).

        A rule allowing prisoners to toll AEDPA’s statute of
limitations by filing applications not conforming with state law
would undermine the purpose of AEDPA. Petitioners could,
with the exercise of some creativity, deliberately delay the onset
of AEDPA’s statute of limitations by filing numerous petitions
“akin” to legitimate state-law petitions for post-conviction relief
– creating just the “de facto extension mechanism” feared by the
Supreme Court in Pace. Other circuits have arrived at similar
conclusions. See, e.g., Sibley v. Culliver, 377 F.3d 1196,
1202–04 (11th Cir. 2004) (assuming petition filed with Florida
Supreme Court to be a petition for collateral review, refusing to
toll statute in part because petition was not “properly filed” for

                                20
failure to comply with Alabama laws governing the location and
form of filing); Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir.
2000) (“[T]he filing of creative, unrecognized motions for leave
to appeal” does not trigger tolling pursuant to § 2244(d)(2)).

        Where state law mandates that petitions for collateral
relief be resolved through a unified system in a definite period,
a practice of accepting non-conforming petitions as “properly-
filed” for the purposes of AEDPA would encourage prisoners to
abuse state post-conviction procedures, undermining the finality
of state-law judgments. This is exactly what AEDPA was
designed to prevent. Carey, 536 U.S. at 220 (“The exhaustion
requirement serves AEDPA’s goal of promoting comity, finality,
and federalism.”) (citation omitted); Duncan v. Walker, 533
U.S. 167, 178 (2001) (AEDPA’s purpose is not only to further
the interests of comity and federalism, but also to further finality
of convictions).

       We conclude that Satterfield’s King’s Bench Petition was
not “properly filed” for purposes of § 2244(d)(2) and therefore
did not toll AEDPA’s one-year statute of limitations. Thus,
Satterfield’s federal habeas petition should be dismissed as time-
barred unless equitable principles warrant tolling of the statute
of limitations.

C. S ATTERFIELD H AS N OT D EMONSTRATED D ILIGENCE AND
E XTRAORDINARY C IRCUMSTANCES J USTIFYING E QUITABLE
     T OLLING OF AEDPA’S S TATUTE OF L IMITATIONS

                                21
        Having failed to meet AEDPA’s one-year statute of
limitations, Satterfield’s petition can only be saved by
application of the doctrine of equitable tolling. Equitable tolling
is available “‘only when the principle of equity would make the
rigid application of a limitation period unfair.’” Merritt, 326
F.3d at 168 (quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
2001)). A petitioner seeking equitable tolling bears the burden
to show that he diligently pursued his rights and that some
“extraordinary circumstance stood in his way.” Pace, 125 S. Ct.
at 1814.

         Equitable tolling may be had if: “(1) the defendant has
actively misled the plaintiff; (2) if the plaintiff has in some
extraordinary way been prevented from asserting his rights; or
(3) if the plaintiff has timely asserted his rights mistakenly in the
wrong forum.” Fahy v. Horn, 240 F.3d at 244 (citing Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999)). There are no
allegations that the Commonwealth misled Satterfield regarding
his claim. Therefore equitable tolling must be justified either
because of extraordinary circumstances or a timely assertion of
rights in the wrong court.

        Satterfield alleges “extraordinary circumstances” in the
form of a prison riot that deprived him of his legal materials in
1989. He concedes, however, that the materials were replaced
by May 4, 1995, almost a full year before the AEDPA statute of
limitations went into effect on his claim. (Appellee’s Br. 22.)
Where a petitioner is ultimately able to file his habeas petition,

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with or without having received replacement materials, the
deprivation of legal documents does not justify equitable tolling.
See Brown, 322 F.3d at 773 (failure of attorney to obtain a
complete set of trial transcripts not an “extraordinary
circumstance[]” justifying equitable tolling).

        Equitable tolling may also apply if Satterfield’s
improperly filed King’s Bench Petition constitutes a timely
application for relief in the wrong forum. Jones v. Morton, 195
F.3d at 159. The Commonwealth claims that the “wrong forum”
test does not toll the federal habeas deadline on the basis of a
state collateral-relief petition filed with the wrong state court.
(Appellants’ Reply Br. 2–3.) The Commonwealth is correct that
cases interpreting the “wrong forum” element of Jones v.
Morton usually refer to a peremptory filing in federal court prior
to exhaustion of state-law claims. See Pace 125 S. Ct. at 1813
(noting the right of a petitioner to file a “protective petition” in
federal court to guard against AEDPA’s statute of limitations).
Because Satterfield has failed to exercise reasonable diligence
in the pursuit of his claims, we do not decide whether a
petitioner who files a state-law petition in the wrong state court
may invoke the doctrine of equitable tolling for filing in the
“wrong forum.”

       Even if Satterfield’s filing in the wrong court constituted
an extraordinary circumstance, he would not be eligible for
equitable tolling because of his lack of diligence in pursuing his
petition. The record shows that Satterfield waited nearly a year

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to initiate the process of petitioning for post-conviction relief
alleging ineffective assistance of counsel after receiving
replacement legal materials. Following dismissal of his PCRA
petition, he waited more than eight months to file his habeas
petition in federal court. Such a delay demonstrates that
Satterfield did not diligently pursue available routes to collateral
relief. Pace, 125 S. Ct. at 1815 (The “lack of diligence
precludes equity’s operation” where petitioner waited years to
bring first post-conviction claim, and over five months after
denial of state post-conviction relief to pursue federal habeas
corpus).

                      V. CONCLUSION

       For the foregoing reasons, the order of the District Court
granting Appellee’s petition for habeas corpus is REVERSED
and the petition is ordered REMANDED for dismissal in
accordance with this opinion.




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