                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-2004

Douglas v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 02-2339




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Recommended Citation
"Douglas v. Horn" (2004). 2004 Decisions. Paper 961.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/961


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                     PRECEDENTIAL          Defender Association of Philadelphia
                                           Federal Court Division
    UNITED STATES COURT OF                 The Curtis Center - Suite 545 West
           APPEALS                         Independence Square West
     FOR THE THIRD CIRCUIT                 Philadelphia, PA 19106

                                              Attorneys for Appellant
              No. 02-2339
                                           David Curtis Glebe
                                           Assistant District Attorney
         ROBERT DOUGLAS,                   Thomas W. Dolgenos
                                           Chief, Federal Litigation
                            Appellant      Ronald Eisenberg
                                           Deputy District Attorney,
                    v.                     Law Division
                                           Arnold H. Gordon
   MARTIN HORN, Commissioner,              First Assistant District Attorney
      Pennsylvania Department of           Lynne Abraham
  Corrections; DONALD VAUGHN,              District Attorney
      Superintendent of the State          1421 Arch Street
  Correctional Institution at Graterford   Philadelphia, PA 19102-1582

                                              Attorneys for Appellees
  On Appeal from the United States
 District Court for the Eastern District
            of Pennsylvania                      OPINION OF THE COURT
        (D.C. Civ. No. 00-4935)
      Honorable John R. Padova,
             District Judge                GREENBERG, Circuit Judge.

                                                     This matter comes on before this
     Submitted under Third Circuit         court on appeal from an order of the
     LAR 34.1(a) January 12, 2004          district court dated April 12, 2002, and
                                           entered on April 15, 2002, denying the
   BEFORE: BARRY, SMITH, and               petition of Robert Douglas (“Douglas”)
    GREENBERG, Circuit Judges              for habeas corpus relief under 28 U.S.C.
                                           § 2254 on the ground that it was
        (Filed: February 9, 2004)          untimely under 28 U.S.C. § 2244(d)(1).
                                           The district court had jurisdiction
                                           pursuant to 28 U.S.C. § 2254 and we
Matthew Lawry                              have jurisdiction pursuant to 28 U.S.C.
James J. McHugh, Jr.                       §§ 1291 and 2253(c)(1)(A). Our review
of the order denying the habeas petition          filed a “no merit” letter with the court
as time-barred is plenary. See Johnson v.         which thereafter dismissed Douglas’s
Hendricks, 314 F.3d 159, 161 (3d Cir.             petition. Douglas again appealed to the
2002). For the reasons stated herein, we          Superior Court, but that court affirmed
will affirm the district court’s order.           the dismissal on July 15, 1999, partially
                                                  on the merits and partially for procedural
                                                  reasons.2

           I. BACKGROUND                                    Thereafter, Douglas attempted
                                                  to submit a motion for reconsideration to
         On April 2, 1982, a jury in the          the Superior Court, but the court’s
Court of Common Pleas of Philadelphia             prothonotary returned the motion to him,
County, Pennsylvania, found Douglas               originally for procedural reasons and
guilty of conspiracy, aggravated assault,         then, when Douglas resubmitted it,
robbery, and possession of an instrument          because it was untimely. When the
of crime. On July 10, 1984, the trial             prothonotary returned it the second time,
court sentenced him to a total period of          he informed Douglas in his letter that if
incarceration of 20 to 40 years. Douglas          Douglas planned to appeal to the
appealed, but the Pennsylvania Superior           Pennsylvania Supreme Court, his petition
Court affirmed on December 13, 1985.              for allowance of appeal was required to
Douglas did not file a timely petition for        be postmarked by August 16, 1999.
allocatur with the Pennsylvania Supreme           Douglas, however, did not meet that
Court but did file a request for                  deadline but instead, on September 10,
permission to appeal nunc pro tunc                1999, submitted a petition for allowance
which that court denied on October 5,             of appeal nunc pro tunc to prison
1987. Thus, the proceedings on his                officials at his place of confinement for
direct appeal were concluded at that              mailing to the Pennsylvania Supreme
time.                                             Court. The officials apparently did mail
                                                  the petition as he requested and it was
          On December 16, 1996, Douglas           filed on September 14, 1999. But on
filed a pro se petition for post conviction       January 28, 2000, the Supreme Court
relief under the Post Conviction Relief           denied his request. On February 4, 2000,
Act (“PCRA”), 42 Pa. Cons. Stat. Ann.             Douglas moved for reconsideration of
§§ 9541 et seq. (West 1998 & West                 the denial, but on June 12, 2000, the
Supp. 2003), in the common pleas court.1
Douglas’s appointed counsel, however,               2
                                                     We note that the Superior Court
                                                  indicated in its opinion that the jury
  1
   The appellees do not contend that this         found Douglas guilty on March 29, 1982,
petition was not filed properly under 28          though he indicates that the correct date
U.S.C. § 2244(d)(2).                              was April 2, 1982.

                                              2
court denied this motion. As of that date,        almost timely as the court counted 374
then, his state post conviction relief            untolled days after the effective date of
proceedings were exhausted.                       the Anti-Terrorism and Effective Death
                                                  Penalty Act (“AEDPA”) before Douglas
         On September 29, 2000,                   filed his federal habeas petition on
Douglas filed a petition for a writ of            September 29, 2000. As will be seen
habeas corpus pursuant to 28 U.S.C. §             below, if Douglas had filed his habeas
2254 in the district court. The court             corpus petition within one year of the
referred the petition to a magistrate judge       effective date of that statute (excluding
who, on September 28, 2001,                       tolled periods), it would have been
recommended that the court deny it as             timely. On the other hand, inasmuch as
untimely. On April 12, 2002, the district         the magistrate judge did not recommend
court adopted the magistrate judge’s              tolling during the period in which
recommendation and denied Douglas’s               Douglas’s petition for allowance of
petition as time-barred.                          appeal nunc pro tunc and the motion for
                                                  reconsideration of the order denying the
          The district court and the              petition were pending, she calculated that
magistrate judge made significantly               Douglas’s federal petition was almost
different calculations with respect to the        nine months late.
timeliness of the petition, though their
conclusion that it was untimely was the                    Douglas then appealed and we
same. The difference was that the                 treated his notice of appeal as a request
district court, but not the magistrate            for a certificate of appealability under 28
judge, assumed that the time for filing           U.S.C. § 2253(c)(1). On February 25,
the petition had been tolled during the           2003, we issued a certificate of
period in which Douglas’s petition for            appealability on the following question:
allowance of appeal nunc pro tunc and
subsequent motion for reconsideration                      Whether the District
were pending in the post conviction                        Court erred by
relief proceedings in the Pennsylvania                     dismissing Appellant’s
Supreme Court. Nevertheless, the                           petition for a writ of
district court would not toll the period                   habeas corpus as time-
between January 28, 2000, when the                         barred by the one-year
Supreme Court denied Douglas’s petition                    period of limitation
for allowance of appeal nunc pro tunc,                     prescribed in 28 U.S.C.
and February 4, 2000, when he moved                        § 2244(d)(1) without
for reconsideration of the denial.                         statutorily tolling the
                                                           period of time from
         Under the district court’s                        September 10, 1999
calculations, Douglas’s petition was                       (the date Appellant’s

                                              3
         petition for allowance                    the period of September 10, 1999,
         of appeal nunc pro tunc                   through June 12, 2000, in our certificate
         was filed with the                        of appealability, in fact, as we have
         Pennsylvania Supreme                      explained, the district court did toll the
         Court) through June 12,                   running of the statute of limitations
         2000 (the date the                        during that period except for the time
         Pennsylvania Supreme                      between when the Supreme Court denied
         Court denied                              Douglas’s petition for allowance of an
         Appellant’s motion for                    appeal nunc pro tunc and when he filed
         reconsideration).                         his motion for reconsideration of that
                                                   denial. In view of our granting the
A. 35.3 Notwithstanding the reference to           certificate of appealability, the appeal has
                                                   gone forward. See 28 U.S.C. §
  3
                                                   2253(c)(1)(A).
   Douglas moved in this court for an
order expanding the scope of the
certificate of appealability but on July 21,
2003, we denied his motion.
Nevertheless, in our order we invited
supplemental briefing based on these                      mailbox rule. See Brown v.
observations:                                             Shannon, 322 F.3d 768, 771
                                                          n.3 (3d Cir. 2003) (citing
       In conducting its statutory                        Commonwealth v. Jones,
       tolling analysis, the District                     700 A.2d 423, 426 (Pa.
       Court ultimately concluded                         1997)). Additionally, the
       that 374 days lapsed before                        District Court declined to
       Appellant filed his federal                        statutorily toll the six-day
       habeas petition. We are                            period between January 28,
       persuaded that jurists of                          2000, and February 4, 2000.
       reason would debate the                            See Nara v. Frank, 264 F.3d
       correctness of this                                310, 319 (3d Cir. 2001).
       conclusion for the following
       two reasons.       First, the               Supp. A. 1-2. Of course, in view of our
       District Court found that                   result there could not be any tolling
       236 days lapsed before                      during the six-day period as that period
       Appellant filed his petition                was nothing more than a gap in the nunc
       for postconviction relief                   pro tunc proceedings which themselves
       filed on Monday, December                   did not trigger a tolling period. As we
       16, 1996, without extending                 explain below, we have no need to
       Appellant the benefit of                    consider the mailbox rule question. See
       Pen nsylvania’s prison                      infra n.6.

                                               4
           II. DISCUSSION                      tolling of the one-year clock.5

         The AEDPA established a one-                   The one-year period is, however,
year limitation period for the filing of       not an absolute limit. For example, 28
petitions of habeas corpus by state            U.S.C. § 2244(d)(2) (“section
prisoners which has been codified at 28        2244(d)(2)”), which is involved here,
U.S.C. § 2244(d)(1) (“section                  provides for “statutory tolling” in the
2244(d)(1)”).4 Douglas’s conviction            following circumstance:
became “final” before the AEDPA came
into effect on April 24, 1996, and thus                 The time during which
his one-year period for filing a habeas                 a properly filed
petition began running on that date. See                application for State
Burns v. Morton, 134 F.3d 109, 111 (3d                  post-conviction or other
Cir. 1998) (establishing a one-year                     collateral review with
“grace period” for petitioners whose                    respect to the pertinent
convictions became “final” before the                   judgment or claim is
AEDPA became effective).                                pending shall not be
Accordingly, his petition would have                    counted toward any
been due by April 23, 1997, absent any                  period of limitation
                                                        under this subsection.

  4
                                               In this appeal, Douglas contends that he
    Section 2244(d)(1) provides in             was entitled to statutory tolling during
relevant part:                                 the entire pendency of his nunc pro tunc
                                               petition in his post conviction relief
      A 1-year period of limitation            proceedings before the Pennsylvania
      shall apply to an application            Supreme Court including the period the
      for a writ of habeas corpus              district court excluded from tolling after
      by a person in custody                   the Supreme Court denied his petition
      pursuant to the judgment of
      a State court. The limitation
                                                 5
      period shall run from the                   In Burns v. Morton, we indicated that
      latest of --                             a petition filed “on or before April 23,
      (A) the date on which the                1997, may not be dismissed for failure to
      judgment became final by                 comply with § 2244(d)(1)’s time limit.”
      the conclusion of direct                 134 F.3d at 111. Arguably we should
      review or the expiration of              have used April 24, 1997, rather than
      the time for seeking such                April 23, 1997, as the cut-off date. See
      review.                                  Fed. R. Civ. P. 6(d). In these
                                               proceedings, however, the one-day
                                               discrepancy is not germane.

                                           5
and until he sought reconsideration from         We therefore conclude that Douglas’s
that court and the period during which           habeas filing on September 29, 2000,
his motion for reconsideration was               was more than nine months late.
pending.
                                                           We reject Douglas’s contention
          We calculate Douglas’s one-            that the clock should be tolled during the
year “grace period” as follows. The              following time-frames: (1) from the
period ran without interruption from             filing of his nunc pro tunc petition in the
April 24, 1996, the effective date of the        post conviction relief proceedings before
AEDPA, to December 16, 1996, when                the Pennsylvania Supreme Court through
Douglas filed his PCRA petition. Thus,           the denial of that petition; (2) from the
without taking a potential four-day              filing of his motion to reconsider the
tolling under Pennsylvania’s prisoner            denial of his nunc pro tunc petition
mailbox rule into account, 236 days had          through the denial of the motion to
run on his clock.6 His PCRA petition             reconsider; and (3) during the time gap
statutorily tolled the limitations period        between the denial of his nunc pro tunc
until August 16, 1999, the last date by          petition and the filing of his motion to
which he timely could have appealed the          reconsider the denial of his nunc pro tunc
denial of his PCRA petition to the               petition.7
Pennsylvania Supreme Court. See
Swartz v. Meyers, 204 F.3d 417, 424 (3d                  We decline to toll any of these
Cir. 2000). The clock then ran from              time frames because we hold that
August 16, 1999, to December 23, 1999,
thereby exhausting the 129 days                    7
remaining on his 365-day grace period.                Douglas also argues for equitable
                                                 tolling from August 16, 1999 (the last
                                                 date upon which he timely could have
  6
    Douglas argues that although his             appealed the denial of his PCRA petition
PCRA petition was filed on December              to the Pennsylvania Supreme Court) until
16, 1999, according to the mailbox rule it       the date of filing of his nunc pro tunc
should be deemed to have been filed on           petition. His position is meritless
December 12, 1996, the day he gave it to         because he has made no showing of an
prison authorities for filing. Appellees         “extraordinary” circumstance that would
contend that the mailbox rule had not            allow such tolling. See Miller v. New
been established under Pennsylvania law          Jersey State Dept. of Corr., 145 F.3d 616,
at the time that Douglas submitted his           618 (3d Cir. 1998) (equitable basis for
PCRA application. We decline to                  tolling may be shown “when the
address this issue because under our             petitioner has in some extraordinary way
conclusions, Douglas’s petition is               . . . been prevented from asserting his or
untimely regardless of whether he is             her rights”) (citation and internal
credited with these four days.                   quotation marks omitted).

                                             6
Douglas’s nunc pro tunc petition was not         Id. at 775 n.5 (citations omitted). 8
“properly filed” under the AEDPA. In             Likewise, in Swartz v. Meyers, 204 F.3d
determining whether a petition is                at 424 n.6, we noted that we “agree that
“properly filed,” a federal court “must          the time during which Swartz’s nunc pro
look to state law governing when a               tunc request for allowance of appeal was
petition for collateral relief is properly       pending does not toll the statute of
filed.” Fahy v. Horn, 240 F.3d 239, 243          limitation.” 9 Consistently with these
(3d Cir. 2001). We recognized in Brown           views, we hold herein that Douglas’s
v. Shannon, 322 F.3d 768 (3d Cir. 2003),         nunc pro tunc petition was not properly
that a notice of appeal nunc pro tunc is         filed, and thus did not toll the clock. By
filed improperly as a matter of state law,       extension, neither Douglas’s motion to
noting as follows:                               reconsider the denial of that petition, nor
                                                 the time between the two filings,
        Pennsylvania law thus                    constituted grounds for statutory tolling.
        did not (and does not)
        recognize extra-PCRA                              We thus reject the district
        petitions like Brown’s                   court’s determination in Chhoeum v.
        notice of appeal nunc                    Shannon, 219 F. Supp. 2d 649, 652 (E.D.
        pro tunc. Because such                   Pa. 2002), that the petitioner’s
        petitions are improperly                 application in that case for allowance of
        filed as a matter of state               appeal nunc pro tunc tolled the statute of
        law, it seems doubtful
        that they may be
                                                   8
        deemed ‘properly filed’                      In Brown v. Shannon, we indicated
        within the meaning of §                  that we were not “address[ing]” certain
        2244(d)(2) . . . .                       of the petitioner’s contentions but rather
        Permitting petitions not                 merely making “several observations”
        recognized under state                   regarding them because even if we
        law and improperly                       accepted his arguments his petition
        filed as a matter of state               would have been untimely. 322 F.3d at
        law to toll the limitation               774-75.
        period would not seem                      9
        to promote exhaustion                        We recognize that in Swartz our
        in the manner                            comments with respect to the statute of
        contemplated by the                      limitations not being tolled during the
        AEDPA.                                   time that a nunc pro tunc request for
                                                 allowance of appeal was pending were
                                                 not necessary to our result inasmuch as
                                                 the petitioner’s petition for habeas corpus
                                                 was timely without regard for that period.
                                                 See Swartz, 204 F.3d at 424-25.

                                             7
limitations until that request had been            that Nara be applied so broadly that by
denied. We note that Nara v. Frank, 264            filing a nunc pro tunc petition for leave
F.3d 310, 316 (3d Cir. 2001), in which             to appeal a petitioner could obtain further
we held that a state-court motion to               tolling after the time for even
withdraw a guilty plea nunc pro tunc was           discretionary review of a judgment has
“properly filed,” and on which the                 expired. See Kapral v. United States,
district court relied in Chhoeum, is               166 F.3d 565, 577 (3d Cir. 1999).
distinguishable because Nara involved a
nunc pro tunc petition that was filed at                     Accordingly, we conclude that
what reasonably may have been                      Douglas’s one-year grace period should
considered the suggestion of the Superior          not be tolled during the pendency of his
Court and because that motion was                  nunc pro tunc petition from September
denied for substantive reasons, rather             10, 1999, when he submitted it to the
than a failure to follow the state’s filing        prison officials, through June 12, 2000,
rules.10 See Merritt v. Blaine, 326 F.3d           when the Pennsylvania Supreme Court
157, 165-66 & n.6 (3d Cir. 2003) (noting           denied his motion for reconsideration of
same and holding that because                      its denial of his petition for allowance of
petitioner’s second PCRA petition was              his appeal nunc pro tunc. Consequently,
untimely under state law, it was not               his petition for habeas corpus was
“properly filed” for purposes of the               untimely and the district court properly
AEDPA). 11 We certainly did not intend             denied it.


  10
    In Chhoeum the district court cited
Swartz but did not mention it for the                         III. CONCLUSION
point in our quotation of that case above.
  11
                                                             For the foregoing reasons, we
    We reject Douglas’s claim that his             will affirm the order of the district court
nunc pro tunc petition should be                   dated April 12, 2002, and entered April
considered properly filed under                    15, 2002.
Commonwealth v. Hernandez, 817 A.2d
479 (Pa. 2003), which held that a nunc
pro tunc petition should not have been
dismissed as improper when it was filed            direct appeal . . . .” Id. at 570. In our
prior to the Pennsylvania Supreme                  view, Hernandez does not help Douglas
Court’s decision in Commonwealth v.                here because he filed his nunc pro tunc
Lantzy, 736 A.2d 564 (Pa. 1999). Lantzy            petition approximately two months after
held that “the PCRA provides the                   the Supreme Court decided Lantzy. By
exclusive remedy for post-conviction               that time, the window that Hernandez
claims seeking restoration of appellate            retroactively opened for a pre-Lantzy
rights due to counsel’s failure to perfect a       nunc pro tunc appeal had been closed.

                                               8
