                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2002

Miller v. Dragovich
Precedential or Non-Precedential: Precedential

Docket No. 00-1465




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PRECEDENTIAL

       Filed November 25, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1465

KENNETH MILLER,

       Appellant

v.

MARTIN DRAGOVICH; THE DISTRICT ATTORNEY
OF THE COUNTY OF PHILADELPHIA PA;
THE ATTORNEY GENERAL OF THE
COMMONWEALTH OF PENNSYLVANIA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 99-05068)
Honorable Clarence C. Newcomer, District Judge

Argued October 17, 2002

BEFORE: ROTH and GREENBERG, Circuit Judges, and
WARD, District Judge*

(Filed: November 25, 2002)

       Ramy I. Djerassi (argued)
       1515 Market Street, Suite 1915
       Philadelphia, PA 19102

        Attorney for Appellant
_________________________________________________________________

* Honorable Robert J. Ward, Senior Judge of the United States District
Court for the Southern District of New York, sitting by designation.




       Robert M. Falin (argued)
       Assistant District Attorney
       Jeffrey M. Krulik Esq.
       Assistant District Attorney
       David Curtis Glebe
       Assistant District Attorney
       Thomas W. Dolgenos
       Chief, Federal Litigation
       Ronald Eisenberg
       Deputy District Attorney
       Law Division
       Arnold H. Gordon
       First Assistant District Attorney
       Lynne Abraham
       District Attorney
       1421 Arch Street
       Philadelphia, PA 19102-1582

        Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on an appeal from
an order entered on April 3, 2000, dismissing appellant
Kenneth Miller’s petition for habeas corpus under 28 U.S.C.
S 2254 on the ground that it was not timely. The
circumstances of the case are straightforward. Miller shot
and killed Carey McCrae in Philadelphia on August 26,
1984, and as a consequence a jury convicted him on
October 29, 1986, in the Philadelphia Common Pleas Court
of murder in the first degree and possession of an
instrument of a crime. The jury subsequently set the
penalty for the murder at life imprisonment following which
the court imposed this sentence along with a concurrent
sentence of one to two years on the possession count. Miller
appealed but the Superior Court of Pennsylvania affirmed
his conviction on September 11, 1990. See Commonwealth

                                  2


v. Miller, 583 A.2d 833 (Pa. Super. Ct. 1990) (table).1
Inasmuch as Miller did not seek allocatur from the
Pennsylvania Supreme Court, the direct proceedings in his
prosecution ended with the Superior Court’s decision.

On April 27, 1995, Miller filed a pro se petition for relief
under the Pennsylvania Post Conviction Relief Act, 42 Pa.
Cons. Stat. S 9541 (1998), in the Common Pleas Court.
That court, after appointing counsel for Miller who filed an
amended petition, denied him relief on September 19, 1996.
Miller appealed but the Superior Court affirmed the denial
of relief on August 28, 1997, see Commonwealth v. Miller,
704 A.2d 164 (Pa. Super. Ct. 1997) (table), and the
Pennsylvania Supreme Court denied allocatur on June 22,
1998, see Commonwealth v. Miller, 725 A.2d 180 (Pa. 1998)
(table). Miller then filed a timely petition for certiorari which
the Supreme Court of the United States denied on
November 9, 1998. See Miller v. Pennsylvania, 565 U.S.
985, 119 S.Ct. 451 (1998).

On October 14, 1999, more than one year after the
Supreme Court of Pennsylvania denied his petition for
allocatur but less than one year after the Supreme Court of
the United States denied his petition for certiorari, Miller
filed his petition for habeas corpus. In his petition he
alleged various constitutional errors which, in view of our
disposition of this appeal, we need not describe. The district
court referred the petition to a magistrate judge who filed a
report and recommendation suggesting that the court
dismiss it as untimely. The district court accepted the
recommendation and denied Miller’s petition by an order
and memorandum dated March 28, 2000, and entered April
3, 2000. In its memorandum the court adopted the
magistrate judge’s order but nevertheless explained itself
why the petition was untimely. The court pointed out that
under 28 U.S.C. S 2244(d)(1), a provision of the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), there was a one-year period of limitation
_________________________________________________________________

1. Miller had appealed earlier but the Superior Court dismissed this
appeal as he did not file a brief. He then filed a petition for post-
conviction relief which resulted in his obtaining an order allowing him to
appeal nunc pro tunc which he did.

                                3


governing a petition for habeas corpus filed by a person "in
custody pursuant to the judgment of a State court" and
that the limitation period runs from the latest of

       (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.

The court observed that section 2244(d)(1) became
effective on April 24, 1996, but noted that we provided in
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998), that
there would be a one-year grace period following its
enactment in cases in which a prisoner’s conviction had
become final before April 24, 1996. Thus, inasmuch as
Miller’s conviction became final on October 11, 1990,2 the
court indicated that ordinarily he would have had until
April 23, 1997, to file his petition in the district court.

The court explained, however, that the April 23, 1997
date had been extended because Miller filed his state post-
conviction petition in April 1995, and it was pending when
28 U.S.C. S 2244(d)(1) became effective. The circumstance
that the state proceeding was pending was significant
because 28 U.S.C. S 2244(d)(2) provides that"[t]he time
during which a properly filed application for State post-
conviction or other collateral review with respect to the
_________________________________________________________________

2. The district court stated that Miller’s conviction became final 30 days
after the Superior Court affirmed it.

                                4


pertinent judgment or claim is pending shall not be
counted toward any period of limitation under [28 U.S.C.
S 2244(d)(1).]"3 The court said that section 2244(d)(2) tolling
was applicable until June 22, 1998, when the Supreme
Court of Pennsylvania denied allocatur and accordingly the
court concluded that, absent further tolling, Miller had
been required to have filed his habeas corpus petition on or
before June 21, 1999, for it to be timely. In making these
calculations the court did not mention Miller’s petition for
certiorari. Of course, inasmuch as Miller filed his petition
on October 14, 1999, it was untimely according to the
district court.

Finally the district court considered Miller’s contention
that he was entitled to tolling beyond the period allowable
under section 2244(d)(2). In this regard Miller contended
that he was entitled to equitable tolling because he had
been delayed in the prosecution of his petition for habeas
corpus by his need to engage a private investigator. The
court rejected this argument on the ground that Miller had
not been diligent and thus it entered the order denying the
petition.

Miller then appealed and sought a certificate of
appealability pursuant to 28 U.S.C. S 2253(c)(1)(A) which
provides that "[u]nless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from . . . the final order in a habeas
corpus proceeding in which the detention complained of
arises out of process issued by a State court." This court
denied the petition with an order reading as follows:

       The foregoing request for certificate of appealability is
       denied, as the District Court correctly concluded that
       the claims raised in Mr. Miller’s petition pursuant to 28
       U.S.C. S 2254 are barred under the applicable one-year
       statute of limitations. See 28 U.S.C. S 2244(d)(1); Burns
       v. Morton, 134 F.3d 109 (3d Cir. 1998); Stokes v.
       District Attorney of the County of Philadelphia, no. 99-
       1493, slip op. (3d Cir. April 17, 2001). Appellees’
       motion to file their response nunc pro tunc is granted.
_________________________________________________________________

3. There is no suggestion that Miller had not filed the state petition
properly.

                                5


Miller then petitioned for panel rehearing leading us to
enter an order providing that "[t]he certificate of
appealability is granted with respect to the issue pertaining
to Stokes v. District Attorney of the County of Philadelphia,
247 F.3d 539 (3d Cir. 2001), and the matter is referred to
a merits panel."

II. JURISDICTION AND STANDARD OF REVIEW

Miller raises two points on this appeal. First, he contends
that the "actual filing of a petition for writ of certiorari tolls
the time to apply for writ of habeas corpus under the
AEDPA at 28 U.S.C. S 2244(d)(1)(A)." As will be seen this
point implicates our holding in Stokes v. District Attorney of
the County of Philadelphia, 247 F.3d 539 (3d Cir. 2001),
cited in both our original order denying a certificate of
appealability and our order granting rehearing. Of course,
inasmuch as Miller filed his petition for habeas corpus
more than one year after the Supreme Court of
Pennsylvania denied him allocatur but less than one year
after the Supreme Court of the United States denied his
petition for certiorari acceptance of his argument would
mean that his petition was timely. Miller’s second point is
that he is entitled to equitable tolling because in
prosecuting his habeas petition he "has demonstrated
vigilance, tenacity and tremendous effort" but has been
confronted with "an unfortunate minefield of conflicting
statutes, circuits, linguistics and mindsets." Br. of
Appellant at 19-20. We, however, will not consider the
equitable tolling argument as it is not within the scope of
the issue on which we granted a certificate of appealability.
See Banks v. Horn, 271 F.3d 527, 535 n.7 (3d Cir. 2001).
To the extent that we exercise jurisdiction we do so on the
basis of 28 U.S.C. SS 1291 and 2253(c)(1)(A) and our review
is plenary. See Johnson v. Rosemeyer, 117 F.3d 104, 109
(3d Cir. 1997).

III. DISCUSSION

As we set forth above we are concerned on this appeal
with the applicability of Stokes and thus we commence our
discussion by describing that opinion. In Stokes the

                                6


petitioner, Stokes, had been convicted at a jury trial in
Pennsylvania in proceedings completed on direct appeal in
1987. After he initially was unsuccessful in a state post-
conviction relief proceeding he filed a second petition for
such relief but the state trial court denied that petition on
January 3, 1996. He appealed from that denial but the
Superior Court affirmed the denial on December 26, 1996,
and the Supreme Court of Pennsylvania denied allocatur on
July 2, 1997. Stokes did not petition for certiorari but on
September 28, 1998, filed a petition for habeas corpus in
the district court under 28 U.S.C. S 2254. The district court
held that the petition was untimely under 28 U.S.C.
S 2254(d)(1) and therefore denied Stokes relief. Stokes then
filed a timely appeal.

We granted a certificate of appealability, framing the
issue before us as follows: Was "Stokes’ time to file a
federal habeas corpus petition under 28 U.S.C. S 2244(d)(1)
. . . tolled under 28 U.S.C. S 2244(d)(2) for the ninety day
period during which Stokes could have filed a petition for
certiorari in the United States Supreme Court." Stokes, 247
F.3d at 540. Our answer was clear: "We join all of the other
Courts of Appeals to have decided this issue, holding that
the ninety day period during which a certiorari petition may
be filed does not toll the applicable statute of limitations."
Id. Thus, we affirmed the order of the district court denying
the petition on timeliness grounds.

After citing the numerous cases consistent with the
result we were reaching, id. at 542, we explained our
reasons for our conclusion as follows. First, we pointed out
that the tolling provision for "State post-conviction or other
collateral review" proceedings in section 2244(d)(2) differed
from section 2244(d)(1)(A) as the latter section indicated
that the limitation period would run from the time"the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review." Section
2244(d)(2) did not have parallel language as it merely
excluded the time during which the state proceeding"is
pending" for computation of the limitations period. Stokes,
247 F.3d at 542. Next we pointed out that our reading of
section 2244(d)(2) was consistent with "the requirement
that a petitioner exhaust state remedies prior to instituting

                                7


a federal habeas petition." Id. Then we stated that our
result was consistent with our holding in Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999), in which we held that a
properly filed federal habeas petition did not toll the statute
of limitations under section 2244(d)(2) for filing a
subsequent federal habeas petition as "State" in "State
post-conviction or other collateral review" modifies both
"post-conviction" and "collateral review." Finally, we held
that, in any event, there would not be tolling under section
2244(d)(2) as Stokes in fact had not filed a petition for
certiorari. Stokes, 247 F.3d at 543.4

Miller understandably seeks to distinguish Stokes on the
ground that, unlike Stokes, he actually filed a petition for
certiorari. Thus, he contends that "[a]n actually filed
petition for writ of certiorari following denial of[state post-
conviction relief] is a petition for direct review of a state
judgment which is not final until the direct review process
itself is over." Brief of Appellant at 15. In making this
argument he argues that "the applicable AEDPA subsection
in this case is S 2244(d)(1)(A)," Brief of Appellant at 11, thus
contending that somehow we are dealing with a "direct
review" of his conviction. In support of his argument he
cites Kapral v. United States, 166 F.3d 565, 577 (3d Cir.
1999), in which we held that within 28 U.S.C. S 2255 a
"‘judgment of conviction becomes final’ . . . on the later of
(1) the date on which the Supreme Court affirms the
conviction and sentence on the merits or denies the
defendant’s timely filed petition for certiorari, or (2) the date
on which the defendant’s time for filing a timely petition for
certiorari review expires."5Kapral, however, does not help
Miller because a court by answering the question of when
a federal judgment of conviction becomes final on direct
_________________________________________________________________

4. In Nara v. Frank, 264 F.3d 310, 318 (3d Cir. 2001), we indicated that
in Stokes our opinion was based "in part because Stokes had not filed
a petition for certiorari review." We did not suggest however, that our
result would have been different if he had done so.

5. We also held that if a defendant does not pursue a timely direct
appeal to the court of appeals the conviction becomes final "on the date
on which the time for filing such an appeal expired." Kapral, 166 F.3d
at 577. We are not concerned, however, with this aspect of the holding
here.

                                8


appeal does not answer the very different question of
whether "a properly filed application for State post-
conviction or other collateral review . . . is pending" under
section 2244(d)(2) when the proceedings in the state courts
have been completed and only a petition for certiorari is
pending.

Miller’s brief makes clear that he is attempting to place
his argument under section 2244(d)(1)(A) rather than
section 2244(d)(2) as he acknowledges that in Duncan v.
Walker, 533 U.S. 167, 121 S.Ct. 2120 (2001), the Supreme
Court "virtually closed the door on a petition for certiorari
qualifying under S 2244(d)(2)" as a tolling mechanism. Brief
of Appellant at 12. We agree with Miller’s understanding of
the impact of Duncan except that we would omit the word
"virtually" from our description of its effect. After all, the
Court in Duncan held, just as we earlier had held in Jones,
that a properly filed and pending section 2255 petition in a
federal court would not toll the statute of limitations under
section 2244(d)(2) because the word "State" in that section
applied to the complete phrase "post-conviction or other
collateral review." Duncan, 533 U.S. at 175, 121 S.Ct. at
2126. Thus, the Court indicated that Congress by omitting
the word "Federal" in the section demonstrated that it "did
not intend properly filed applications for federal review to
toll the limitations period." Id. at 2125. To avoid Duncan we
would have to hold that Congress intended to distinguish
between the exercise of Supreme Court certiorari
jurisdiction and federal habeas corpus jurisdiction in
enacting section 2244(d)(2). Inasmuch as we would not be
justified in reaching that conclusion as it would require us
in effect to rewrite section 2244(d)(2) we are constrained to
affirm the order denying Miller’s petition.6

In reaching our result we have not overlooked our
opinion in Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000),
in which we held that a petition brought under the
Pennsylvania Post Conviction Relief Act is "properly filed"
and "pending" for purposes of section 2244(d)(2) during the
_________________________________________________________________
6. We do not consider what our result might have been if the Supreme
Court had granted certiorari. See Coleman v. Davis, 175 F. Supp. 2d
1109 (N.D. Ind. 2001).

                                9


time between the Superior Court’s ruling on the petition
and the expiration of time for seeking an allowance of
appeal from the Pennsylvania Supreme Court even though
the petitioner did not file a timely request for allowance of
appeal to the Pennsylvania Supreme Court. Id. at 418. In
Swartz we looked to our ruling in Kapral and applied its
definition of finality under section 2255 in determining the
meaning of "pending" for purposes of section 2244(d)(2).
Swartz, however, did not address the relationship between
the state courts and the federal courts, in particular the
Supreme Court of the United States when a petitioner seeks
a writ of certiorari from it and thus is not of assistance
here.

Nor have we overlooked our opinion in Morris v. Horn,
187 F.3d 333 (3d Cir. 1999).7 In Morris we stated that the
statute of limitations did not begin to run on a habeas
corpus petition a state petitioner filed under section 2254
until the Supreme Court of the United States denied his
petition for certiorari seeking review of a Pennsylvania
Supreme Court decision affirming the denial of the first of
the petitioner’s two post-conviction petitions. Id. at 336-37.
In Morris, however, the respondent did not contend that the
habeas petition was untimely and, in fact, the petition was
timely as the petitioner filed it within one year of the
Supreme Court of Pennsylvania’s decision.8 The actual
issue in Morris was whether we should grant a certificate of
appealability which determination turned on whether the
district court erred in denying the petitioner’s Fed. R. Civ.
_________________________________________________________________

7. We note that Miller has not cited Morris   in either of his briefs.

8. In fact the Supreme Court of Pennsylvania ruled on October 30, 1996,
and the petitioner filed his habeas petition on October 27, 1997, even
though the Supreme Court of the United States denied certiorari on
June 23, 1997. It is obvious, therefore, that the petitioner in Morris did
not rely on a construction of section 2244(d)(2) supporting a conclusion
that the time for his petition was tolled during the time his petition for
certiorari was pending. Indeed, inasmuch as his petition for habeas
corpus was timely without regard for the filing of his petition for
certiorari and was filed immediately prior to the expiration of one year
from the decision of the Supreme Court of Pennsylvania it might be
inferred that he or his attorney construed section 2244(d)(2) just as we
do today.

                                10


P. 60(b) motion in which he sought relief from an order
dismissing his habeas corpus petition. Id. at 341. The
petitioner by his motion sought to have his habeas corpus
petition held in abeyance to preclude the statute of
limitations from running on it in the event that the state
courts held that his second petition for post-conviction
relief was not timely and thus was not properly filed for
purposes of section 2244(d)(2). Therefore, Morris cannot
control our outcome.9

While we are aware that in most cases petitioners seeking
tolling after the final state court opinion in fact have not
filed petitions for certiorari, to the extent the courts have
considered cases in which petitioners have filed such
petitions they have reached the same result we do today.
See Crowley v. Catoe, 257 F.3d 395 (4th Cir. 2001); Rhine
v. Boone, 182 F.3d 1153 (10th Cir. 1999); cf . White v.
Klitzkie, 281 F.3d 920 (9th Cir. 2002) (petition for certiorari
to court of appeals under 48 U.S.C. S 1424-2 to review a
decision of the Supreme Court of Guam is a federal
proceeding and thus does not toll time under section
2244(d)(2) for filing habeas petition). We find these cases
convincing and reach the same conclusion as the courts
did there.

In closing we make one final point. We recognize that it
is conceivable that the Supreme Court might grant a
petition for certiorari to review a decision of a state
supreme court in a post-conviction relief or other collateral
review proceeding and that a petitioner nevertheless in
order to avoid the bar of section 2244(d)(1) might file a
federal habeas corpus petition that could be pending at the
same time that the Supreme Court is considering the
petitioner’s appeal on the merits. As a practical matter we
doubt that such a situation would be common. In any
event, we think that a district court considering the habeas
_________________________________________________________________

9. In Morris inasmuch as the petitioner could not make a credible
showing that the district court’s denial of the Rule 60(b) motion was
erroneous we denied a certificate of appealability and dismissed the
appeal. Morris, 187 F.3d at 344. We point out, however, that even if we
had reached a different result Morris would not be instructive on the
issue involved here.

                                11


petition in such circumstances would stay the proceedings
before it pending the Supreme Court’s disposition of the
case. Cf. Coleman v. Davis, 175 F. Supp. 2d 1109, 1110
(N.D. Ind. 2001) (staying federal habeas proceedings
pending final resolution of state post-conviction proceedings
remanded to state supreme court by Supreme Court of
United States). Thus we cannot believe our result ever will
lead to a habeas decision inconsistent with a Supreme
Court opinion rendered in a parallel proceeding upon the
grant of certiorari to review a decision of a state supreme
court.

IV. CONCLUSION

For the foregoing reasons we will affirm the order of April
3, 2000.
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                12
