                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2007

Rinaldi v. Gillis
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2101




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 05-2101

                                MICHAEL RINALDI,
                                        Appellant

                                            v.

             FRANK GILLIS; THE DISTRICT ATTORNEY OF THE
           COUNTY OF DELAWARE; THE ATTORNEY GENERAL OF
                    THE STATE OF PENNSYLVANIA

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (Civ. No. 03-cv-01641)
                       District Judge: Hon. William H. Yohn, Jr.

                             Argued: September 27, 2006

               Before: McKEE and AMBRO, Circuit Judges, and
          RESTANI,* Chief Judge, United States Court of International Trade

                         (Opinion filed: September 19, 2007)

MITCHELL SCOTT STRUTIN, ESQ. (Argued)
936 One Penn Center
1616 JFK Boulevard
Philadelphia, PA 19103
Attorney for Appellant

G. MICHAEL GREEN, ESQ.
District Attorney of Delaware County, Pennsylvania
A. SHELDON KOVACH, ESQ.

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

                                           1
Deputy District Attorney
Chief, Law and Appeals Unit
WILLIAM R. TOAL, III, ESQ. (Argued)
Assistant District Attorney
Delaware County Court House
201 West Front Street
Media, PA 19063
Attorneys for Appellees

                                         OPINION

McKEE, Circuit Judge.

       Michael Rinaldi, a state prisoner serving a life sentence for first degree murder,

appeals from the district court’s dismissal of the habeas petition he filed pursuant to 28

U.S.C. § 2254. The district court dismissed Rinaldi’s § 2254 petition after finding that

the claims he asserted under Brady v. Maryland, 373 U.S. 83 (1963), were procedurally

defaulted. We will affirm the dismissal, but not for the reason stated by the district

court. In our view, Rinaldi’s § 2254 petition is time-barred under the one-year statute of

limitations contained in the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

28 U.S.C. § 2244(d)(1).

                     I. FACTS AND PROCEDURAL HISTORY

       According to the Commonwealth, during the spring of 1980, Michael Rinaldi and

Theodore J. DiPretoro discussed killing Edward J. Bianculli, Jr., on numerous occasions.

The Commonwealth maintained that Rinaldi and DiPretoro each had his own reasons for

killing Bianculli.

       During the early evening of May 19, 1980, Rinaldi and DiPretoro went to


                                             2
Bianculli’s residence on three separate occasions. Each time, Rinaldi knocked on the

door and told Bianculli’s mother he had to see Bianculli. Later that evening, Rinaldi

arranged with DiPretoro for DiPretoro to pick up both himself (Rinaldi) and Bianculli.

Rinaldi, DiPretoro and Bianculli then drove to a secluded marsh in Tinicum Township,

Delaware County, Pennsylvania, near the Philadelphia Airport. There, DiPretoro and

Bianculli got out of the car and walked behind a group of tall weeds where DiPretoro

shot and killed Bianculli. Rinaldi remained in the car during the shooting. DiPretoro and

Rinaldi left the scene of the crime and drove to an area near the Schuykill River. Rinaldi

then wiped the murder weapon to remove fingerprints and threw the gun into the river.

Bianculli’s body was discovered in December of 1980.

       Two years later, DiPretoro began cooperating with the FBI regarding his

knowledge of, and involvement in, mob-related killings in Philadelphia. DiPretoro

admitted to participating in the mob-related murder of Phillip Testa, reputed “boss” of

organized crime in Philadelphia. He also confessed to Bianculli’s murder, and implicated

Rinaldi in that crime. On June 18, 1982, Rinaldi was arrested and charged with the first

degree murder of Bianculli.

       At the ensuing jury trial in the Delaware County Court of Common Pleas,

DiPretoro was the Commonwealth’s chief witness against Rinaldi. DiPretoro testified

that Rinaldi alone planned Bianculli’s murder and that Rinaldi ordered him to kill

Bianculli at the murder scene. DiPretoro also testified that he made a deal with the



                                            3
Commonwealth in exchange for his testimony against Rinaldi, but asserted that he had no

additional agreement with the prosecution regarding any other crimes – i.e, the murder of

Phillip Testa in Philadelphia. DiPretoro testified that, in return for testifying against

Rinaldi, the Commonwealth had agreed: not to seek the death penalty for DiPretoro, not

to oppose his application for commutation should he make such an application, and it had

also agreed to place DiPretoro in the Federal Witness Protection Program.

       Rinaldi testified in his own behalf at the trial. He admitted going to the marsh with

DiPretoro and Bianculli. However, he testified that he waited in the car while DiPretoro

shot Bianculli, and that he did not know that DiPretoro was going to shoot Bianculli until

after DiPretoro returned to the car. Rinaldi also called six witnesses to testify to his good

reputation.

       The jury found Rinaldi guilty of first degree murder and conspiracy and on June 6,

1983, the state trial judge sentenced Rinaldi to life imprisonment for the murder plus a

concurrent term of five to ten years for conspiracy. The Pennsylvania Superior Court

affirmed the trial court’s judgment in an order dated January 25, 1985, and on September

22, 1987, the Pennsylvania Supreme Court denied his petition for allowance of appeal.

       On November 18, 1982, prior to the Pennsylvania Supreme Court’s denial of that

petition, DiPretoro pled guilty to Bianculli’s murder. On January 31, 1983, after

Rinaldi’s trial, a Delaware trial judge sentenced DiPretoro to life imprisonment for his

involvement in the Bianculli murder. DiPretoro also pled guilty to the murder of Phillip



                                              4
Testa in Common Pleas Court in Philadelphia County, and was sentenced to life

imprisonment for his role that killing.

       On August 25, 1994, Rinaldi filed his first petition for post-conviction relief under

Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 PA. CONS. STAT. ANN. § 9541

et seq. On March 13, 1995, the PCRA court denied Rinaldi’s petition pursuant to 42 PA.

CONS. STAT. ANN. § 9543(b), based upon the court’s conclusion that the nearly seven-

year delay in filing it had prejudiced the Commonwealth.1 The Pennsylvania Superior

Court affirmed on June 26, 1996, and the Pennsylvania Supreme Court denied a petition

for allowance of appeal on May 9, 1997.

       On May 1, 1998, Rinaldi filed his first § 2254 habeas petition in the district court.2

On March 21, 2000 that petition was dismissed because the district court found that 42

PA. CONS. STAT. ANN. § 9543(b) created an independent and adequate state procedural

bar to consideration of the merits of Rinaldi’s claims and Rinaldi had not established



       1
          42 PA. CONS. STAT. ANN. § 9543(b), allows a PCRA petition to be dismissed
where delay in filing would prejudice the Commonwealth’s ability to prosecute the case
if relief were granted. Specifically, the PCRA court found that the Commonwealth
would be unable to retry the case because all files relating to Rinaldi’s case had been lost
and neither the District Attorney nor Rinaldi’s trial counsel had a sufficient recollection
of the trial to reconstruct the files for a trial. Commonwealth v. Rinaldi, No. 3323-82, slip
op. at 4, 5, 8. The PCRA court also found that Rinaldi failed to properly explain his
delay in filing. Id. at 9.
       2
         Rinaldi alleged (1) denial of due process because of the trial court’s failure to
instruct on accessory-after-the-fact; (2) ineffectiveness of counsel for counsel’s failure to
ask for that instruction; and (3) ineffectiveness of counsel for counsel’s failure to call
witnesses to impeach DiPretoro.

                                              5
either cause and prejudice or actual innocence to overcome his procedural default. We

declined to issue a certificate of appealability (“COA”) on December 22, 2000.

       In 1999, while Rinaldi’s habeas petition was pending in district court, DiPretoro

filed a PCRA petition in connection with his conviction for the murder of Phillip Testa in

Philadelphia County. During an evidentiary hearing on that motion in July 1999, FBI

agents and Philadelphia police officers testified about their conversations with DiPretoro

relating to the Testa and Bianculli murders.

       On September 9, 1999, Rinaldi filed a second PCRA petition. On October 19,

1999, the PCRA court notified Rinaldi of its intent to dismiss that petition without a

hearing. That December, Rinaldi moved to supplement his pleadings with “newly

discovered evidence,” which he claimed to have learned after reading the Pennsylvania

Superior Court’s decision in DiPretoro’s appeal from the PCRA proceedings in Common

Pleas Court in Philadelphia. Based on that information, Rinaldi claimed that the

Commonwealth had not disclosed inconsistent statements that DiPretoro made to

investigators pertaining to the Bianculli murder. On February 29, 2000, the PCRA court

dismissed Rinaldi’s motion for newly discovered evidence and, on March 3, 2000,

dismissed his second PCRA petition as untimely pursuant to 42 PA. CONS. STAT. ANN. §

9545(b), which imposes a one-year statute of limitations on PCRA petitions. Rinaldi

appealed that order to the Pennsylvania Superior Court and the PCRA court issued its

opinion on February 28, 2001.



                                               6
       On October 11, 2000, while the appeal of his second PCRA petition was pending

in the state court, Rinaldi filed a pro se civil action in the district court pursuant to 42

U.S.C. § 1983 against, inter alia, the Delaware County District Attorney’s Office and its

officials, alleging that his due process rights had been violated by the Commonwealth’s

withholding of exculpatory evidence relating to his trial for Bianculli’s murder. In

addition to damages, Rinaldi sought discovery of documents in DiPretoro’s criminal files

that related to statements DiPretoro had made to the FBI and police officers in the course

of the initial investigation of the Bianculli murder.

       On February 13, 2001, the district court dismissed Rinaldi’s § 1983 action against

the Delaware County District Attorney’s Office. However, on March 19, 2001, the

district court ordered the Delaware County District Attorney to provide Rinaldi with

DiPretoro’s criminal files.

       Rinaldi received the files from the Delaware County District Attorney’s Office on

April 19, 2001. According to Rinaldi, they revealed that DiPretoro initially denied his

own involvement in Bianculli’s murder and implicated an individual named, “Rocco

Marinucci,” as Bianculli’s killer. However, two weeks later, DiPretoro confessed that he

and Marinucci planned and executed the murder of Bianculli. DiPretoro’s statements

denying his involvement in the Bianculli murder and implicating Marinucci as the killer

were made on May 24, and June 4, 5, 8, and 9, 1982. DiPretoro did not implicate Rinaldi

in the Bianculli murder until June 10, 1982, when he made additional statements to the



                                               7
FBI and the Philadelphia Police, and again on June 17, 1982 when he (DiPretoro) made

additional statements to the Delaware County Police.

       DiPretoro’s statements in the files appeared to be inconsistent with DiPretoro’s

testimony at Rinaldi’s trial where he swore that Rinaldi was involved in Bianculli’s

murder. Rinaldi also claims that the files revealed that there were letters from the

Delaware County District Attorney to the Philadelphia County District Attorney relating

to an agreement that the Commonwealth would stand mute on any future

recommendations for DiPretoro’s clemency relating to Bianculli’s murder in exchange

for DiPretoro’s testimony against Rinaldi.

       It is undisputed that the Delaware County District Attorney did not disclose these

files, or the information in them, to Rinaldi prior to his trial. The Delaware County

District Attorney’s Office claims that it did not have any of these files in its possession or

control at the time of Rinaldi’s trial. It claims that it obtained the files for the first time

from the Philadelphia County District Attorney in 1998, in preparation for DiPretoro’s

Delaware County PCRA proceedings.

       Rinaldi presented this as evidence of a Brady violation in his brief to the

Pennsylvania Superior Court.3 However, on November 30, 2001, the Superior Court

       3
        In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution.” The Court has since held that the duty to
disclose such evidence is applicable even though there has been no request by the
                                                                              (continued...)

                                                8
granted the Commonwealth’s motion to strike this evidence because it was not included

in the certified record. On January 2, 2002, the Superior Court affirmed the PCRA

court’s dismissal of Rinaldi’s second PCRA petition as untimely.

       Rinaldi attempted to file a petition for allowance of appeal with the Pennsylvania

Supreme Court, but failed to comply with the thirty-day filing deadline. See Pa.R.App.P.

1113(a). Rinaldi claims that the Pennsylvania Attorney General’s Office mislead his

attorney and thereby caused him to file his petition late. Specifically, he alleges that the

Attorney General’s Office mistakenly told Rinaldi’s counsel that his petition for

allowance of appeal should be filed with the Attorney General instead of the

Prothonotary of the Supreme Court. On February 1, 2002, on the eve of Rinaldi’s



       3
         (...continued)
accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses
impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S.
667, 676 (1985). Such evidence is material “if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.” Id. at 682. Moreover, the rule encompasses evidence “known only to police
investigators and not to the prosecutor.” Kyles v. Whitley, 514 U.S. 419, 438 (1995). In
order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of
any favorable evidence known to others acting on the government’s behalf in this case,
including the police.” Kyles, at 437.
        “[T]he term ‘Brady violation’ is sometimes used to refer to any breach of the
broad obligation to disclose exculpatory evidence – that is, to any suppression of so-
called ‘Brady material’ – although, strictly speaking, there is never a genuine “Brady’
violation unless the nondisclosure was so serious that there is a reasonable probability
that the suppressed evidence would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281 (1999). “There are three components of a true Brady
violation: The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have ensued.” Id. at 281-82.

                                              9
deadline for filing his petition for allowance of appeal, the Attorney General’s Office

returned the petition to Rinaldi’s counsel. Rinaldi’s counsel then tried to file the petition

with the Prothonotary of the Pennsylvania Supreme Court on February 5, 2002, but it

was rejected as untimely. On February 7, 2002, Rinaldi’s counsel filed an unopposed

petition for leave to file the petition for allowance of appeal out of time, but the

Pennsylvania Supreme Court denied it on April 30, 2002. Rinaldi claims that he was not

aware of that denial until he received counsel’s letter advising him of it on May 8, 2002.

       On June 26, 2002, Rinaldi filed a third PCRA petition alleging a Brady claim. On

December 9, 2002, the PCRA court denied the petition as untimely and Rinaldi appealed

to the Pennsylvania Superior Court. On appeal, Rinaldi argued that his petition was not

time-barred because the Commonwealth withheld the exculpatory evidence that provides

the basis for his Brady claims. On May 13, 2004, the Superior Court ruled that even

assuming that the Commonwealth withheld exculpatory evidence, 42 PA. CONS. STAT.

ANN. § 9545(b) barred review because Rinaldi failed to file his third petition within sixty

days of the date he received the alleged exculpatory evidence. Rinaldi argued that the

sixty-day time limit should be tolled because the Pennsylvania Attorney General’s Office

interfered with his attempt to file a petition for allowance of appeal of his second PCRA

petition. The Pennsylvania Superior Court refused to toll the sixty-day period because

responsibility for properly filing an allowance of appeal lay with Rinaldi’s counsel, not

the Attorney General’s Office. Rinaldi did not file a petition for allowance of appeal of



                                              10
the Pennsylvania Superior Court’s affirmance of the dismissal of his third PCRA petition.

       Meanwhile, back in federal court, on March 18, 2003, while the appeal of his third

PCRA petition that had been filed on June 26, 2002, was still pending, Rinaldi filed his

second § 2254 habeas petition.4 He alleged that the Commonwealth had violated Brady

by failing to disclose exculpatory evidence and failing to correct DiPretoro’s false

testimony at trial. On July 21, 2003, the Commonwealth answered arguing that the §

2254 habeas petition should be dismissed because Rinaldi’s third PCRA petition was still

pending and, therefore, he had failed to exhaust his state remedies.

       Rinaldi’s second habeas petition was referred to a magistrate judge who filed her

Report and Recommendation (“R&R”) on December 29, 2003, before the Pennsylvania

Superior Court issued its opinion affirming the PCRA court’s dismissal of Rinaldi’s third

PCRA petition. Because the appeal of Rinaldi’s third PCRA petition was pending, the

magistrate judge recommended that the district court deny the petition because Rinaldi

had failed to exhaust his claims in state court. In a footnote, the magistrate judge

commented that Rinaldi’s claims also appeared time-barred under 28 U.S.C. §

2244(d)(1).

       On January 7, 2004, Rinaldi filed objections to the R&R and, on January 26, 2004,

the Commonwealth submitted a brief in response to the objections. In their respective



       4
       Before filing this petition, Rinaldi filed an application for authorization to file a
second or successive habeas petition pursuant to 28 U.S.C. § 2244(b)(3)(A) on December
30, 2002. We issued an order authorizing the second filing on February 28, 2003.

                                             11
filings, both Rinaldi and the Commonwealth addressed the timeliness of the petition for

the first time. Rinaldi argued that his petition was timely and that the Commonwealth

had waived its timeliness defense by failing to raise it in its answer. The Commonwealth

contended that the petition was time-barred, that it had not been waived its timeliness

defense, and that Rinaldi was not entitled to statutory tolling of the statute of limitations

for federal habeas petitions.

       The district court concluded that when the Pennsylvania Superior Court issued its

opinion on May 13, 2004, holding that Rinaldi’s third PCRA petition was not timely-

filed, and when Rinaldi’s opportunity to file a petition for allowance of appeal with the

Pennsylvania Supreme Court had expired on June 12, 2004, Rinaldi had exhausted his

state remedies thereby rendering the majority of the magistrate judge’s R&R moot. At

the district court’s request, Rinaldi and the Commonwealth submitted supplementary

briefs on the issue of procedural default.

       On March 28, 2005, the district court issued a memorandum and order in which it

concluded that Rinaldi’s Brady claim was procedurally defaulted. It also found that

Rinaldi had not shown “cause and prejudice” or a “fundamental miscarriage of justice”

sufficient to excuse the default.5 The district court did not address whether Rinaldi’s

habeas petition was time-barred. The district court also denied Rinaldi’s request for a



       5
       Because the district court dismissed Rinaldi’s habeas petition on procedural
grounds, it did not decide whether there was an actual Brady violation.


                                              12
COA.

       However, we thereafter granted a Certificate of Appealability limited to the

following issues:

       [W]hether the District Court properly held that [Rinaldi’s] Brady claim is
       procedurally defaulted because his second and third PCRA petitions were
       held untimely filed in state court. Assuming [Rinaldi] committed a
       procedural default, the parties shall address whether [Rinaldi] can show
       “cause and prejudice” or a “fundamental miscarriage of justice” to
       overcome the default. In addition, the parties shall address whether
       [Rinaldi’s] habeas petition is time barred. See 28 U.S.C. § 2244(d).

                                     II. DISCUSSION

       As the issues were framed in the COA, we would have to determine whether

Rinaldi’s Brady claim, a claim that does not appear to be frivolous, was procedurally

defaulted. If it was, he would have to show either “cause and prejudice” or a

“fundamental miscarriage of justice” to overcome the default. However, we need not

undertake that inquiry because we conclude that his habeas petition is time-barred by the

one-year statute of limitations contained in AEDPA. 28 U.S.C. § 2244(d)(1). That issue

was included in the COA.

       Rinaldi’s petition is governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320,

327 (1997) (AEDPA governs § 2254 habeas petitions filed on or after April 24, 1996).

As we noted earlier, AEDPA imposes a one-year statute of limitations on filing petitions

for federal habeas relief. 28 U.S.C. § 2244(d)(1). That statute requires a state prisoner to

file a federal habeas petition within one year of the latest of the following four dates:



                                             13
       (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;

       (B) the date on which the impediment to filing an application created by
       State action in violation of the Constitution or laws of the United States is
       removed, if the applicant was prevented from filing by such State action;

       (C) the date on which the constitutional right asserted was initially
       recognized by the Supreme Court, if the right has been newly recognized
       by the Supreme Court and made retroactively applicable to cases on
       collateral review; or

       (D) the date on which the factual predicate of the claim or claims presented
       could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A) - (D). However, the AEDPA statute of limitations is tolled

for “the time during which a properly filed application for State post-conviction review or

other collateral review with respect to the pertinent judgment or claim is pending. . . .”6

28 U.S.C. § 2244(d)(2) (emphasis added). Because Rinaldi’s conviction became final

before the effective date of AEDPA, absent tolling, he had until April 23, 1997 to file a

federal habeas petition. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Rinaldi

did not file this habeas petition until March 18, 2003, almost six years later.

       Given the circumstances here, AEDPA’s one-year clock began ticking on

Rinaldi’s claim on April 19, 2001; the day Rinaldi received the alleged Brady material

from the Delaware County District Attorney’s Office. That was both “the date on which

       6
        The limitations period for filing a federal habeas corpus petition is statutorily
tolled under § 2242(d)(2) between the Pennsylvania Superior Court’s ruling and the
deadline for filing a timely request for allowance of appeal to the Pennsylvania Supreme
Court, even if a timely request for allowance of appeal is not filed. Swartz v. Meyers, 204
F.3d 417, 420 (3d Cir. 2000).

                                             14
the impediment to filing an application created by State action in violation of the

Constitution or laws of the United States [was] removed” and “the date on which the

factual predicate of the claim or claims presented could have been discovered through the

exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(B), (D). Consequently, Rinaldi had

one year from April 19, 2001 to file a habeas petition, under the statute.

       Because his appeal from the PCRA court’s dismissal of his second PCRA petition

was pending in the Pennsylvania Superior Court, he could not file a third PCRA petition

when he received the alleged Brady material on April 19, 2001. See Commonwealth v.

Lark, 746 A.2d 585, 588 (Pa. 2000) (“When an appellant’s appeal is pending before a

court, a subsequent PCRA petition cannot be filed until the resolution of review of the

pending PCRA petition by the highest state court in which review is sought, or upon the

expiration of the time for seeking such review.”). However, on January 2, 2002, the

Pennsylvania Superior Court affirmed the PCRA court and dismissed Rinaldi’s second

PCRA petition as untimely. The time to seek discretionary review of that order in the

Pennsylvania Supreme Court expired on February 1, 2002. Rinaldi failed to file a

petition for allowance of appeal with the Pennsylvania Supreme Court within that thirty-

day filing deadline. See Pa.R.App.P. 1113(a).

       The PCRA provides, inter alia, that a “petition . . . including a second or

subsequent petition, shall be filed within one year of the date the judgment becomes final,

unless the petition alleges and the petitioner proves that: (1) the failure to raise the claim



                                              15
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. . . .” 42 PA. CONS. STAT. ANN. § 9545(b)(1)(I).

The PCRA further provides that “[a]ny petition invoking an exception provided in

paragraph (1) shall be filed within 60 days of the date the claim could have been

presented.” 42 PA. CONS. STAT. ANN. § 9545(b)(2).

      When the time for seeking discretionary review in the Pennsylvania Supreme

Court expired on February 1, 2002, Rinaldi’s claim of governmental interference based

on a failure to disclose the alleged Brady material “could have been presented” in a third

PCRA petition. He thus had 60 days from that date to file a third PCRA petition, i.e.,

until April 2, 2002. However, he did not file his third PCRA petition, in which he

formally presented his Brady claim, until June 26, 2002, after the 60 day period expired.

      Because his third PCRA petition was not filed within sixty days of April 2, 2002,

the PCRA court denied the petition as untimely, and that denial was affirmed by the

Pennsylvania Superior Court on May 13, 2004. Rinaldi’s opportunity to seek review of

that order in the Pennsylvania Supreme Court expired on June 12, 2004.

      Rinaldi filed the instant habeas petition on March 18, 2003, while his appeal of the

denial of this third PCRA petition was pending in the state court. However, because

Rinaldi’s second PCRA petition, in which he attempted to raise his Brady claim, and his

third PCRA petition, in which he formally presented his Brady claim, were found by state



                                            16
courts to be untimely under state law pursuant to 42 PA. CONS. STAT. ANN. § 9545(b),

they were not “properly filed” within the meaning of 28 U.S.C. § 2244(d)(2). Pace v.

Diguglielmo, 544 U.S. 408, 417 (2005).7 Therefore, because Rinaldi had one-year from

April 19, 2001 to file his habeas petition, and because he is not entitled to statutory

tolling under § 2244(d)(2), this habeas petition, filed on March 18, 2003, is time-barred

under AEDPA.

       Although the district court did not directly address the issue, Rinaldi contends that

the district court erred when it dismissed his habeas petition because equitable tolling

applies to the limitations period. “The statute of limitations for federal habeas corpus

petitions is subject to two tolling exceptions: (1) statutory 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.”8 Merritt v. Blaine, 326 F.3d 157,

161 (3d Cir. 2003) (citation and internal quotations omitted). “Equitable tolling is

available only when the principle of equity would make the rigid application of a


       7
        Although the Supreme Court decided Pace after the state proceedings here were
concluded, we had already held that when the state court deems a PCRA petition
untimely filed, it is not “properly filed” for purposes of 28 U.S.C. § 2244(d)(2). Merritt
v. Blaine, 326 F.3d 157 (3d Cir. 2003); Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001).
       8
        In Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616 (3d Cir. 1998), we
held that AEDPA’s one-year filing requirement is a statute of limitations, not a
jurisdictional rule, and, therefore the period of limitation is subject to equitable tolling.
We note, however, that the Supreme Court has “never squarely addressed . . . whether
equitable tolling is applicable to AEDPA’s statute of limitations.” Pace v. Diguglielmo,
544 U.S. 408, 418 n.8 (2005).


                                              17
limitation period unfair.” Id. at 168 (citation and internal quotations omitted).

       There are 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. (citation and internal quotations and brackets

omitted).

       In support of his claim that he is entitled to equitable tolling, Rinaldi argues:

       The exculpatory materials were finally released on April 19, 2001 after
       Rinaldi sued the prosecutor in federal district court. As soon as Rinaldi
       received the material, he presented it in the then-pending Superior court
       appeal of the denial of this second PCRA petition. The material, however,
       was stricken by the Superior Court. This appeal was finally decided on
       February 1, 2002, when the time to file an allocatur petition on the second
       PCRA petition expired. This period of time, from April 19, 2001, until
       February 1, 2002, should be subject to equitable tolling since reasonable
       diligence was observed, Rinaldi was actively misled, material was withheld
       from him, and Rinaldi was barred from filing a third PCRA until the second
       PCRA was disposed of.

Rinaldi’s Br. at 55. According to Rinaldi, because the one-year limitations period should

be tolled from April 19, 2001, until February 1, 2002, he had until February 1, 2003 to

file his habeas petition. He further argues that he is entitled to an additional period of

equitable tolling from December 30, 2002, when he filed his application to file his second

habeas petition, until February 28, 2003, when we granted that application. In Rinaldi’s

view, these two periods of time during which he contends he is entitled to equitalble

tolling, bring his March 18, 2003 habeas petition within AEDPA’s one-year limitations



                                              18
period.

       There are a number of problems with this argument. First, Rinaldi simply claims

that “reasonable diligence was observed.” He does not even attempt to describe how he

exercised any diligence at all. Second, his claim that he was actively misled, presumably

by the Attorney General’s Office, strains credulity. Rinaldi was not then represented by

present habeas counsel, an exceptionally talented and experienced appellate attorney.

However, he was represented by an attorney who was a former District Attorney of

Philadelphia County. Certainly, if anyone knew where to file the petition, it was his

attorney at that time.9 Pa.R.App.P. 1113(a) clearly requires that subject to certain

exceptions not applicable here, a petition for allowance of appeal must be filed with the

Prothonotary of the Supreme Court, not the Attorney General. Moreover, even assuming

arguendo that prior counsel was unaware of the proper place to file the petition for

allowance of appeal, “[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.” Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.

2001) (citations omitted).

       Third, his claim that the alleged Brady material was withheld does not entitle him

to any period of equitable tolling because we agree that AEDPA’s one-year clock did not



       9
         We realize, of course, that it was not that attorney who tried to file the petition,
but an assistant working in his office. However, that can not change our analysis given
the pertinent principles of agency and professional responsiblity

                                              19
begin ticking until the day he received the alleged Brady material. Therefore, the fact

that the Delaware County District Attorney did not disclose that material until April 19,

2001, does not affect his ability to file timely PCRA petitions or a timely habeas petition.

       Fourth, Rinaldi would not have been able to file a proper habeas petition in any

event because he had not yet exhausted his Brady claims in state court. In that regard,

Rinaldi claims that he was unable to file a timely third PCRA petition because his

counsel did not advise him until May 8, 2002, that the Pennsylvania Supreme Court had

denied his petition for leave to file a petition for allowance of appeal on April 30, 2002.10

However, as noted above, in a non-capital case, attorney error and other mistakes are not

the extraordinary circumstances required for equitable tolling.

       More importantly, however, we do not believe that Rinaldi can possibly

demonstrate that he was “in some extraordinary way . . . prevented from asserting his

rights” or that he “has shown that he . . . exercised reasonable diligence in . . . bring his”

Brady claim. Rinaldi received the alleged Brady material from the Delaware County

District Attorney on April 19, 2001. As we have already held, that is the date that the

limitations period began to run. Therefore, under AEDPA’s limitations period, 28 U.S.C.

§ 2244(d)(1), he had one year from April 19, 2001 to file a habeas petition asserting his

Brady claim. However, he could not file a third PCRA petition to assert (and exhaust)

his Brady claim because his appeal from the PCRA court’s dismissal of his second PCRA

       10
        As noted earlier, Rinaldi had until April 2, 2002, to present his Brady claim in a
third PCRA petition. However, he did not file a third PCRA petition until June 26, 2002.

                                              20
petition as untimely was pending in the Superior Court at the time he received the Brady

material on April 19, 2001. However, on January 2, 2002, the Superior Court affirmed

the PCRA court’s dismissal of his second PCRA petition as untimely. And, the time to

seek discretionary review in the Pennsylvania Supreme Court of the Superior Court’s

order affirming the PCRA court’s dismissal of his second PCRA petition because it was

untimely expired on February 1, 2002.

       Significantly, as of February 1, 2002, AEDPA’s one-year limitations period had

not yet completely run. He still had about one-and-one half months to file a timely

habeas petition, i.e., until April 18, 2002. Admittedly, he still had to exhaust his Brady

claim. But he had until April 2, 2002 (60 days after the time for seeking allocatur

expired), to file a timely third PCRA petition. Had he filed his third PCRA petition any

time prior to April 2, 2002, his PCRA petition would have been timely and, therefore,

“properly filed” pursuant to 28 U.S.C. § 2244(d)(2). Therefore, he would have been

entitled to statutory tolling during the pendency of his third PCRA proceeding. That

means that he would still have had one-and-one-half months left to file a timely § 2254

habeas petition upon the conclusion of his third PCRA proceedings. However, he did not

file a third PCRA petition formally presenting his Brady claim until June 26, 2002, past

the time for a timely third PCRA petition to be filed, i.e., April 2, 2002.

       As noted above, Rinaldi asserts a number of reasons why he should be entitled to

equitable tolling. However, had he filed a timely third PCRA petition, he could have



                                             21
filed a timely habeas petition.11 Therefore, because Rinaldi could have filed a timely

habeas petition, the reasons he gives for saying he is entitled to equitable tolling have no

validity.

                                   III. CONCLUSION

       Regrettably, in the final analysis, what we have here is a very serious allegation

that a prosecutor failed to disclose Brady material in a murder prosecution; material that

may have been highly relevant to cross-examining the only witness whose testimony

could unequivocally establish that the defendant was a cold-blooded killer.

       We realize, of course, that Rinaldi’s habeas petition is not based on a claim of

actual innocence, and that the merit of Rinaldi’s claim has never been established. We

also realize that it is possible that any Brady violation that may have occurred here could

have resulted from inadvertence rather than deliberate prosecutorial misconduct intended

to secure a conviction. However, inadvertence would not excuse a Brady violation. See

Strickler v. Greene, 527 U.S. 263, 282 (1999). 12


       11
         Moreover, we know of no reason why Rinaldi could not have asked the
Pennsylvania Supreme Court to dismiss his second PCRA without prejudice so he could
properly include his Brady claim in a third PCRA once the materials were disclosed.
That would have allowed him to exhaust in state court in time to file a timely habeas in
federal court. Furthermore, even if the Superior Court denied his request or dimissed the
second PCRA petition with prejudice, Rinaldi would have been on far firmer footing
arguing the diligence that is required to equitably toll the period of time the second and
third PCRA petitions were pending.
       12
        It is, of course, true that DiPretoro’s prior statements contradict Rinaldi’s trial
testimony since Rinaldi admitted that he was in the car with Bianculli. We are
                                                                               (continued...)

                                             22
       Thus, even though evidence that appears to have been relevant to impeaching the

prosecution’s main witness in a murder trial may not have been disclosed as required by

law, Rinaldi has not been able to have a single court review the merits of his Brady

claim. The concern is only exacerbated by the fact that the Delaware County District

Attorney’s Office saw fit to oppose Rinaldi’s attempt to have the Superior Court consider

the alleged Brady material during the appeal of the denial of his second PCRA petition

because the material was not part of the certified record. This, even though the material

had been obtained from that same District Attorney’s Office. We are reminded of the

Supreme Court’s explanation of the duty of prosecutors:

       [The prosecutor] is the representative not of an ordinary party to a
       controversy, but of a sovereignty whose obligation to govern impartially is
       as compelling as its obligation to govern at all; and whose interest,
       therefore, in a criminal prosecution is not that it shall win a case, but that
       justice shall be done.


Berger v. United States, 295 U.S. 78, 88 (1935). Although the Court was there referring

the United States Attorney, the statement applies to local prosecutors as well. We realize

that the District Attorney did not oppose Rinaldi’s February 7, 2002, petition to the

Pennsylvania Supreme Court for allowance of appeal out of time, but Rinaldi’s appeal of

the dismissal of his second PCRA had already been dismissed at that point.

       Thus, this appeal is yet another example of the procedural minefield that awaits

       12
        (...continued)
nevertheless concerned that statements that may have undermined DiPretoro’s credibility
were not disclosed as may have been required for Rinaldi’s trial.

                                             23
any attorney attempting to navigate AEDPA’s terrain and obtain federal habeas review of

a state court proceeding. Nevertheless, given the time limitations set forth in AEDPA,

and the procedural history here, we have no alternative but to affirm the district court’s

denial of Rinaldi’s § 2254 petition for the reasons we have set forth above.




                                             24
