                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-4465
                                    _____________

                              ROBERT KEVIN OHLER,
                                             Appellant

                                           v.

                         MARIROSA LAMAS; ATTORNEY
                       GENERAL OF THE COMMONWEALTH
                       OF PENNSYLVANIA, TOM CORBETT;
                      DISTRICT ATTORNEY OF THE COUNTY
                                OF SOMERSET

                                     ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                           District Court No. 3-11-cv-00011
                     District Judge: The Honorable Kim R. Gibson

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  September 9, 2013

             Before: SMITH, ALDISERT, and SLOVITER, Circuit Judges

                                (Filed: October 1, 2013)

                               _____________________

                                      OPINION
                               _____________________

SMITH, Circuit Judge.

      The United States District Court for the Western District of Pennsylvania

dismissed Robert Ohler’s petition for writ of habeas corpus on the grounds that Ohler’s
claims were untimely and procedurally defaulted. Ohler argues on appeal that the statute

of limitations for his habeas claim should have been equitably tolled and that his

procedural default should have been excused by the ineffective assistance of his post-

conviction counsel during collateral proceedings in state court. For the reasons that

follow, we will affirm.

                                              I.

       Robert Ohler pled guilty to third degree murder in the Court of Common Pleas of

Somerset County, Pennsylvania (“Court of Common Pleas”) and was sentenced to 20 to

40 years imprisonment. On October 5, 2006, Ohler’s post-sentencing motions were

denied and he was given 30 days to appeal his sentence. Although Ohler alleges that he

instructed his trial counsel to file a notice of appeal, such notice was never filed and his

conviction became final on November 5, 2006.

       Between October 5, 2006 and October 23, 2008, Ohler claims to have sent an

unspecified number of letters to his trial counsel inquiring about the status of his appeal.

He also alleges that none of these were answered. Ohler’s family members also contend

in an affidavit that, on one occasion during this period,1 Ohler’s trial counsel assured

them that he would discuss the appeal with Ohler during their next visit. One of these

family members, Brenda Ohler, further claims that sometime in 2008 she received

additional assurance from Ohler’s trial counsel that an appeal would be filed. On

October 23, 2008, Ohler first contacted the Court of Common Pleas to inquire about the

status of his appeal. According to Ohler, he received a response on July 29, 2009 from


                                              2
the Pennsylvania Superior Court indicating that his appeal had not been filed.

           On August 26, 2009, Ohler filed a claim in the Court of Common Pleas under

Pennsylvania’s Post Conviction Relief Act (“PCRA”). Although this claim was filed

long after the PCRA’s one-year statute of limitations had expired, Ohler argued that the

delay was excused under 42 Pa. Cons. Stat. § 9545(b)(1)(iii), the PCRA’s exception for

newly recognized constitutional rights. The Court of Common Pleas rejected this

argument and afforded Ohler 20 additional days to respond to the Court’s Notice of Intent

to Dismiss. Ohler advanced no further argument, and the Court of Common Pleas

dismissed Ohler’s PCRA claim on March 8, 2010. Ohler timely appealed to the Superior

Court of Pennsylvania, which affirmed on November 23, 2010.

           On January 13, 2011, Ohler petitioned the Western District of Pennsylvania for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Relying heavily on the Magistrate

Judge’s Report and Recommendation (“R&R”), the District Court dismissed the petition

on the grounds that the petition was untimely under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1), and that Ohler’s claims had been

procedurally defaulted in the Pennsylvania courts. This appeal followed.

           The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254, and we

have jurisdiction under §§ 1291 and 2253. Our review of the District Court’s rulings on

timeliness and procedural default is plenary. Reinhold v. Rozum, 604 F.3d 149, 151 (3d

Cir. 2010); Hodge v. United States, 554 F.3d 372, 377 (3d Cir. 2009).



1
    Or, at least, sometime prior to July 14, 2010, when the affidavit was filed.
                                                             3
                                                 II.


       We agree with the District Court that Ohler’s petition is untimely under the

AEDPA and not entitled to equitable tolling. The AEDPA requires federal habeas

petitions to be filed within one year of the “date on which the judgment became final”

unless certain exceptions are met.2 See 28 U.S.C. § 2244(d). Here, Ohler’s judgment

became final on November 5, 2006—30 days after he failed to file his appeal following

denial of his post-sentencing motions. See Pa. R. App. P. 903(a). Ohler did not file his

habeas petition until January 13, 2011. Without the benefit of equitable tolling, his claim

is unquestionably time barred.

       For equitable tolling to apply, Ohler was required to demonstrate “(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in

his way and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)

(internal quotation marks and citation omitted). While the diligence requirement “does

not require the maximum feasible diligence, . . . it does require reasonable diligence in

the circumstances.” LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (internal

quotation marks and citation omitted).


       As the District Court explained in its well-reasoned opinion, Ohler’s actions fell

short of reasonable diligence. Ohler waited nearly two years “with little or no

communication from counsel” before contacting the Court of Common Pleas and waited

an additional nine months for a response, “all the while doing nothing to protect his



                                             4
interests.” We agree with the District Court that these efforts constituted a “far cry from

the diligence demonstrated by the petitioner in Holland,” where as soon as

“communications slowed down and ceased, the petitioner . . . wasted no time in

contacting the state courts.”

         For the reasons expressed by the District Court, we are also unpersuaded by

Ohler’s argument, raised for the first time in an objection to the R&R, that equitable

tolling was appropriate because Ohler’s consumption of various prescription medications

placed him in a “fog.”

         Because we hold that Ohler’s petition is untimely under the AEDPA, we need not

reach the merits of his claims. We also need not reach the question of whether Ohler’s

claims were procedurally defaulted in the Pennsylvania courts.3

                                                               ***

         Accordingly, we will affirm the judgment of the District Court.




2
  Ohler has not claimed that any of these exceptions apply.
         3
           Specifically, we need not address Ohler’s argument that the Supreme Court’s recent decision in Martinez
v. Ryan, 132 S. Ct. 1309 (2012) would allow him to avoid procedural default by demonstrating the ineffective
assistance of his post-conviction counsel during the PCRA proceedings. Additionally, we reject Ohler’s Martinez-
based constitutional claim of ineffective assistance of his post-conviction counsel, as Martinez explicitly refused to
provide this cause of action. See id. at 1319 (contrasting “[a] constitutional ruling [that] would provide defendants a
freestanding constitutional claim to raise” with “the equitable ruling of this case”).
                                                           5
