                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               ______________

                     No. 12-2083
                   ______________

                 TIMOTHY J. ROSS

                          v.

               DAVID VARANO;
         PA STATE ATTORNEY GENERAL

              PA State Attorney General,
                                    Appellant
                  ______________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
               (D.C. No. 1-11-cv-00838)
      District Judge: Hon. William W. Caldwell
                   ______________

              Argued December 13, 2012

Before: GREENAWAY, JR., GREENBERG and COWEN,
                Circuit Judges

            (Opinion Filed: April 5, 2013)
Matthew D. Fogal, Esquire
Franklin County District Attorney
Zachary I. Mills, Esquire (argued)
David W. Rahauser, Esquire
Franklin County Office of District Attorney
157 Lincoln Way East
Chambersburg, PA 17201

   Attorneys for Appellant

James V. Wade, Esquire
Federal Public Defender
Frederick W. Ulrich, Esquire (argued)
Assistant Federal Public Defender
Office of Federal Public Defender
Suite 306
100 Chestnut Street
Harrisburg, PA 17101

   Attorneys for Appellee

                      ______________

                OPINION OF THE COURT
                    ______________


GREENBERG, Circuit Judge.

                  I. INTRODUCTION


                              2
       The Attorney General of Pennsylvania (the
“Commonwealth”) appeals from an order of the District Court
dated December 29, 2011, denying the Commonwealth‟s motion
to dismiss the habeas corpus proceedings brought by the
petitioner, Timothy J. Ross, as untimely and granting equitable
tolling from the one-year statute of limitations of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d), in this action under 28 U.S.C.
§ 2254. The Commonwealth also appeals from a subsequent
order of the District Court dated March 16, 2012, granting Ross
substantive habeas corpus relief.

        This case arose in the aftermath of Ross‟s conviction of
first degree murder by a jury in the Franklin County,
Pennsylvania, Common Pleas Court on June 14, 2000, and his
sentence based on that conviction of life imprisonment on June
21, 2000. For reasons that we will explain, Ross was unable to
obtain a state appellate court review of his conviction and
sentence. He subsequently brought this habeas corpus case
charging that because his attorney wrongfully abandoned him,
he lost his appellate rights in violation of the Sixth Amendment.1

1
 We recognize that this right is founded in the Due Process
Clause. While Ross does not have a constitutional right to
appeal, see McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913
(1894), “if a State has created appellate courts . . ., the
procedures used in deciding appeals must comport with the
demands of the Due Process and Equal Protection Clauses of
the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393, 105
S.Ct. 830, 834 (1985). Consequently, “[a] first appeal as of
right . . . is not adjudicated in accord with due process of law

                                3
 Although the AEDPA statute of limitations, in terms, barred
this action as untimely, the District Court found that equitable
tolling of the running of the statute was warranted because Ross
had been diligent in pursuing his state court appellate remedies
but that extraordinary circumstances beyond his control
frustrated this attempt.

       The District Court reached its conclusion with respect to
equitable tolling by adopting a report and recommendation of a
magistrate judge that he submitted to the Court following an
evidentiary hearing on November 3, 2011. The testimony at the
hearing demonstrated that Ross, though diligent in attempting to
prosecute what should have been a routine appeal in the state
courts, was unsuccessful in this attempt by reason of
extraordinary circumstances attributable to his attorney‟s
extreme neglect of his case. This neglect included the attorney
missing deadlines for filing documents with the state courts, the
attorney‟s failure to communicate with Ross, and the attorney‟s
misleading statements when he did communicate with Ross.
Moreover, when Ross sought to remedy the situation by filing a
motion for appointment of a new attorney, the Common Pleas
Court denied his motion. Ross‟s mental health issues, limited
education, and limited cognitive ability magnified his problems.
 Moreover, Ross‟s status as a prison inmate placed structural
obstacles in his path when he attempted to pursue state court
appellate proceedings. Subsequently, on March 16, 2012, the
District Court adopted a second report and recommendation by
the magistrate judge and in so doing granted Ross substantive

if the appellant does not have the effective assistance of an
attorney.” Id. at 398, 105 S.Ct. at 836 (footnote omitted).

                               4
relief for the same reasons that it denied the Commonwealth‟s
motion to dismiss his petition. The magistrate judge based the
second report and recommendation on the same record on which
he had predicated his original report and recommendation. The
District Court‟s order required the Commonwealth to reinstate
Ross‟s direct appeal from his conviction within 90 days.

        On this appeal the Commonwealth contests the District
Court‟s findings and argues that the Court incorrectly applied
equitable tolling principles. According to the Commonwealth,
Ross did not diligently pursue his appellate rights between 2004
and 2008, despite being required to do so continuously during
the entire period in which he was exhausting his state remedies,
as required to preserve his claim for equitable relief from the
AEDPA‟s statute of limitations, prior to bringing these habeas
corpus proceedings. For the reasons that we set forth, we will
affirm the District Court‟s decision and order tolling the running
of the statute of limitations with respect to Ross‟s habeas
petition, so that the filing of the petition will be deemed timely.
We also will affirm its grant of a writ of habeas corpus on the
same basis that the Court tolled the running of the statute of
limitations. We, however, will remand the case to the District
Court with instructions to modify its order that the
Commonwealth reinstate Ross‟s appeal, and, instead, to order
Ross‟s release within 90 days unless the Commonwealth
reinstates Ross‟s right to appeal from his conviction and
sentence within that period.2


2
Throughout this opinion when we refer to the District Court
making findings of fact we are referring to the Court adopting

                                5
        II. FACTS AND PROCEDURAL HISTORY

        The details of the proceedings in the state courts
following Ross‟s sentencing in the Common Pleas Court are
convoluted and lengthy, but inasmuch as it is necessary to
understand them to make an analysis of the equitable tolling
issue, we recite them in great detail. The facts largely were
developed at the evidentiary hearing before the magistrate judge,
though much of the record in this case consists of documents
filed in the state courts.

       As we have indicated, Ross was convicted of first degree
murder on June 14, 2000, in the Common Pleas Court.3 In an
order dated July 11, 2000, that court appointed an attorney,

the magistrate judge‟s report and recommendation making the
findings. As a matter of convenience we will refer to the
Franklin County Common Pleas Court simply as the Common
Pleas Court as the only state trial court proceedings in this
matter were in Franklin County.
3
 The murder appears to have been precipitated by a bar fight.
Though we have not studied the transcripts of the trial as we
have had no need to do so to resolve the narrow issue before
us, we note that the parties‟ briefs indicate that Ross had been
arguing in a bar with the victim, Drake Luckett, and exited the
bar shortly before Luckett. When Luckett left the bar, Ross
shot him three times in the chest. Luckett was alive when the
police arrived but subsequently died of his wounds.
Appellant‟s br. at 12; Appellee‟s br. at 4.


                               6
Christopher Sheffield, to represent Ross in “all post-sentence
proceedings including appeal.” In the same order, the court
stayed the time for filing an amended post-sentence motion by
ten days “to permit new counsel to consult with Mr. Ross.”4
J.A. at 328.

       Following Sheffield‟s appointment, Ross wrote to
Sheffield in July, September, and October 2000 suggesting
strategies for his appeal and asking for basic information as to
the status of his case. When Sheffield did not respond, Ross
also wrote to his trial attorney asking for his assistance because
Sheffield had not contacted him. Ross‟s former attorney
forwarded Ross‟s correspondence to Sheffield on October 9,
2000. Sheffield did not respond to any of these four letters sent
over a period of approximately two and one-half months.
Furthermore, Sheffield did not file a post-sentence motion
within the extended ten-day period the Common Pleas Court
allowed for the filing of such a motion when it appointed him to
represent Ross.

    On October 16, 2000, Ross wrote to the clerk of the
Common Pleas Court to inquire about what steps he might take

4
 Under Pennsylvania‟s post-sentencing procedures, a
defendant must file a post-sentence motion within 10 days of
the imposition of sentence for it to be timely. If the defendant
files a timely post-sentence motion he then has 30 days after
the order on the motion is entered to file a notice of appeal. If
the defendant does not file a timely post-sentence motion, he
has 30 days from the imposition of the sentence to file an
appeal. 234 Pa. Code § 720.

                                7
to pursue his appeal. On December 11, 2000, five months after
the Common Pleas Court appointed him to represent Ross,
Sheffield, without informing Ross, filed a motion in that court
on Ross‟s behalf for leave to appeal nunc pro tunc. The court
granted this motion on December 13, 2000. On January 1, 2001,
Ross wrote to the judge assigned to his case in the Common
Pleas Court, explaining that he had not heard anything about his
case since the court had appointed Sheffield to represent him.
Ross also filed a pro se motion for appointment of a new
attorney on January 5, 2001. On January 11, 2001, the court
denied this motion because “the record indicates that petitioner‟s
court-appointed counsel recently filed a motion for transcripts
and leave to file an appeal nunc pro tunc, which was granted by
this court on December 13, 2000.” J.A. at 270.

        On January 15, 2001, after receiving a copy of this order
denying his motion from the court, Ross wrote an apologetic
letter to Sheffield in which he requested copies of the appeal
documents in his case and emphasized how important the appeal
was to him because he was serving a term of life in prison.
However, despite the many beseeching letters from his client,
Sheffield did not file a notice of appeal to the Superior Court of
Pennsylvania until May 9, 2001, six months after the Common
Pleas Court granted him leave to do so, and then, apparently,
only in reaction to a phone call that the Common Pleas Court
made to him indicating its concern that it had not yet seen an
appeal filed.5 Ross testified at the evidentiary hearing before the

5
Sheffield sent the following letter to the Common Pleas
Court on May 9, 2001: “Dear Judge Walker, The Court
Administrator called me, and upon my return call he informed

                                8
magistrate judge that he did not receive a copy of that notice of
appeal. On June 8, 2001, a month after receiving the telephone
call from the court, Sheffield visited Ross in prison for the first
and only time during the approximately eight years that he was
Ross‟s attorney of record and at that meeting assured Ross that
his appeal was moving forward. During the meeting Ross
stressed that he had sent several letters to Sheffield outlining the
issues he felt needed to be raised on appeal.6

        Notwithstanding his representation to Ross that his
appeal was going forward, on June 11, 2001, Sheffield filed a
petition with the Common Pleas Court for leave to withdraw
Ross‟s direct appeal and, instead, to file post-trial motions nunc
pro tunc for the purpose of establishing an ineffective trial
counsel claim. Sheffield explained in this petition that, after his
meeting with Ross, “it became evident” to him, apparently for
the first time in the almost full year that he had represented
Ross, “that there are issues regarding ineffectiveness of trial
counsel” and that those issues must “be decided by the trial
court and a record on those issues be made prior to continuing
on direct appeal.” Id. at 276-77. Though our result is not
dependent on the point, we believe that in filing this petition
Sheffield was implying that he intended to submit these post-
trial motions pursuant to Pennsylvania‟s Post Conviction Relief

me of your concern regarding proceeding in the [J.K. case]
and the above referenced [Ross case.]” J.A. at 272.
6
The record also indicates that Sheffield‟s purpose in visiting
Ross was in part to interview Ross about his former cellmate
whom Sheffield also was representing.

                                 9
Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq. (West 1998).
Sheffield, however, did not refer to the PCRA in his petition for
leave to withdraw the appeal and could not answer questions
about the PCRA at the evidentiary hearing before the magistrate
judge.

        The Common Pleas Court granted the petition on June
18, 2001, to the extent of giving Ross leave to petition the
Superior Court to withdraw his direct appeal. Moreover, the
Common Pleas Court instructed Sheffield to file post-trial
motions in Ross‟s case within 30 days after what it correctly
anticipated would be the grant by the Superior Court of the
petition to withdraw Ross‟s direct appeal.7 On August 30, 2001,
two months and 12 days after the Common Pleas Court granted
his petition, Sheffield filed a petition with the Superior Court to
withdraw Ross‟s direct appeal, which the Superior Court granted
on September 4, 2001. Sheffield, however, never filed post-trial
motions with the Common Pleas Court, despite that court having
directed him to do so within 30 days of the Superior Court‟s
anticipated grant of his petition to withdraw Ross‟s direct
appeal.

       In addition to the letters to which we already have

7
 The Common Pleas Court gave this instruction because
Sheffield should have submitted the motion to withdraw the
appeal originally to the Superior Court, a further indication (in
addition to Sheffield‟s testimony on November 3, 2011,
before the magistrate judge) that Sheffield was not well-
versed in appellate procedures in criminal cases in
Pennsylvania.

                                10
referred, there are copies of seven additional letters in the record
dated June 26, 2001, October 17, 2001, January 7, 2003, March
31, 2003, May 18, 2003, June 14, 2003, and September 6, 2003,
from Ross to Sheffield inquiring about the status of his appeal.
On December 3, 2001, Sheffield‟s secretary wrote a brief letter
to Ross indicating that she shortly would be sending him a copy
of his original trial transcript, and the record indicates that Ross
received the transcript later that month. The District Court
noted in describing this communication that “even as counsel
provided this rudimentary information to Ross, he failed to
disclose a greater truth to the petitioner . . . that he had
withdrawn Ross‟ appeal months earlier, and had taken no further
action to pursue any post-conviction relief for Ross.” J.A. at
58.

        The record contains only three letters from Sheffield to
Ross in response to Ross‟s inquiries, all written between March
and September 2003. In a March 25, 2003 letter Sheffield
informed Ross that he “just noticed [Ross‟s] letter of January 8,
2003 in the file. I will be following up on your matter to see
exactly where it stands.”8 Id. at 301 (emphasis added). Two
months later in a May 30, 2003 letter to Ross, Sheffield implied
that the Superior Court had misplaced Ross‟s file, and assured
Ross that he would take appropriate action once the file was
located, or within a short period of time if the file could not be


8
 It seems clear from the record that Sheffield was referring to
Ross‟s letter dated January 7, 2003, the postmark of which
was January 8, 2003.


                                11
located.9 In a September 11, 2003 letter to Ross, Sheffield
indicated that he would file a nunc pro tunc appeal by the end of
that month but, in fact, he never filed that appeal or, for that
matter, any other appeal for Ross other than the appeal that the
Superior Court had dismissed on Sheffield‟s petition.

        On February 8, 2004, Ross wrote to the clerk of the
Common Pleas Court requesting a copy of the docket in his case
so that he could determine whether Sheffield had filed a nunc
pro tunc appeal as he had promised. There is then a gap in the
paper record, at least as presented on this appeal, until four years
later, when, on April 15, 2008, Ross again wrote to the clerk of
the court requesting an update on the status of the appeal, which

9
 Sheffield‟s letter recited that: “I believe your file was never
returned from Superior Court from the [sic] when we filed a
Motion to withdraw your appeal and seed [sic] instead Post-
trial motions as we discussed. Once your file is located, or
within a short time even if your file is not located, I will be
moving to place your matter back on the court docket.” J.A.
at 309. There is, however, no indication in the record of
which we are aware to support Sheffield‟s assertion that the
Superior Court somehow misplaced or misdirected the file in
Ross‟s case. Sheffield went on to suggest in that same letter
that when he did make a motion “to place your matter back on
the court docket, . . . [i]t may be through an appeal Nunc Pro
Tunc, as you suggest, although technically it appears that you
have never lost your immediate right to an appeal so I would
not recommend jumping immediately to a Nunc Pro Tunc
position.” Id.


                                12
he had been led to believe that Sheffield had filed on his behalf.
 Although there is no paper trail on the point, in testimony which
the District Court accepted as true, Ross testified that he
repeatedly and regularly called10 and wrote Sheffield between
2004 and 2008, and also enlisted his father‟s help to
communicate with Sheffield, but that his efforts were fruitless.
In addition, after receiving a copy of the docket from the clerk
of the Common Pleas Court in 2004, Ross unsuccessfully
attempted to find a “jailhouse attorney” to represent him. Id. at
231.

       In addition to seeking relief by having Sheffield file a
direct appeal for him, on June 26, 2008, Ross, acting pro se,
filed a Common Pleas Court petition for post-conviction
collateral relief, a step that Sheffield never had undertaken on
his behalf. It appears that Ross, by filing his petition, caused the
Common Pleas Court to take action in his case for, on July 2,
2008, that court appointed a new attorney, Joseph Curcillo, to
represent Ross.

      On July 10, 2009, Curcillo filed an amended PCRA
motion to reinstate Ross‟s appellate rights with the Common
Pleas Court.11 On November 17, 2009, the Common Pleas

10
 Ross testified that it was his habit to call Sheffield
approximately twice a month, but that usually Sheffield‟s
office refused to take his calls. Sheffield confirmed that his
office would not always accept collect calls from inmates.
11
  It is unclear why Curcillo did not file this motion until more
than one year after his appointment. We note, however, that

                                13
Court, noting that the Commonwealth had agreed to the order,
entered an order reinstating Ross‟s appellate rights nunc pro
tunc and giving Ross and his attorney what seems to us to be a
generous period of 120 days to file an appeal from the
underlying conviction and sentence. Curcillo filed a notice of
appeal to the Superior Court on January 28, 2010, within the
120-day period, and on February 5, 2010, in response to
Curcillo‟s motion, the Common Pleas Court granted Ross in
forma pauperis status. On February 24, 2010, Curcillo
submitted a concise statement of errors complained of on appeal
to the Common Pleas Court, which transmitted the case to the
Superior Court on March 23, 2010.

       On September 28, 2010, the Superior Court issued a per
curiam order reversing the November 17, 2009 order of the
Common Pleas Court that had granted Ross relief under the
PCRA allowing him to appeal from his conviction and
sentence.12 Ross then filed another pro se PCRA petition in the

the Common Pleas Court docket indicates that there was
additional correspondence from Ross to the court in June
2009.
12
  The District Court concluded that when the Superior Court
reversed the Common Pleas Court‟s reinstatement of Ross‟s
direct appeal rights, an action in which the Commonwealth
had acquiesced, “in a telling and tacit recognition of the
extraordinary circumstances of this case,” the Superior Court
evidently had been “unaware of Ross‟ tortured history with
his prior counsel [and therefore] simply found that the appeal
did not fall within any clearly recognized statutory exceptions

                              14
Common Pleas Court, contending that Curcillo had been
ineffective. However, on November 10, 2010, that court, in an
order including language suggesting that it believed the Superior
Court opinion had required it to enter, dismissed the petition.

       On November 24, 2010, Ross again filed an appeal to the
Superior Court in the Common Pleas Court, this time from the
November 10, 2010 order. Ross also again moved in the
Common Pleas Court for leave to proceed in forma pauperis.
On December 1, 2010, the Common Pleas Court granted Ross‟s
motion to proceed in forma pauperis and gave him 21 days to
submit a statement of errors complained of on appeal. On
December 20, 2010 (seemingly mindful of the court‟s 21-day
deadline for submission of a statement of errors), Ross withdrew
his November 24, 2010 appeal, and, instead, on December 28,
2010, filed a petition for post-conviction collateral relief in the
Common Pleas Court. That court, however, denied the petition
on January 10, 2011.

       Following a decade of procedural frustration in the state
courts, Ross filed a pro se petition for a writ of habeas corpus
(the “habeas petition”) in the District Court on May 4, 2011. On
June 7, 2011, the Commonwealth filed a motion to dismiss the

under the state post-conviction relief act, authorizing
reinstatement of appellate rights.” J.A. at 62. The District
Court concluded that it was “[o]n the basis of this reading of
state law, and without the benefit of the disturbing factual
context of this case” that the Superior Court had “quashed and
dismissed Ross‟ appeal.” Id.


                                15
habeas petition, arguing that it was statutorily untimely and that
the running of the statute of limitations should not be equitably
tolled to render the habeas petition timely because although a
“duly diligent petitioner may be allowed some time in order to
realize that he has been abandoned by counsel, . . . five years is
clearly too long.” Id. at 147. In particular, the Commonwealth
contended that Ross had not been reasonably diligent between
the time that Sheffield wrote him on September 11, 2003, and
the time Ross once again began his direct communications with
the Common Pleas Court on April 15, 2008. The District Court
appointed an attorney to represent Ross in the habeas corpus
proceedings on July 18, 2011, and deferred ruling on the motion
to dismiss.

       The District Court referred the habeas petition to a
magistrate judge who conducted the evidentiary hearing to
which we have made reference on November 3, 2011, on the
motion to dismiss the habeas petition. During that hearing, Ross
and Sheffield testified with respect to Ross‟s claim that
Sheffield had abandoned him. There also was testimony
addressing Ross‟s efforts to pursue his appeal.13 Sheffield‟s

13
  Both the Commonwealth and Ross were aware that the
findings of fact resulting from the hearing on the motion to
dismiss would be directly pertinent to the issue of equitable
tolling with respect to both the motion to dismiss and, if that
motion was denied, the substantive disposition of the habeas
petition. In this regard, at the beginning of that hearing the
magistrate judge stated: “I have spoken with the parties before
this proceeding began and have noted for them that it is my
view that there is a substantial overlap between the factual

                               16
testimony was remarkable because he seemed to know very little
about Ross‟s case, a circumstance that he attributed to the fact
that he had sent the file in Ross‟s case to Curcillo, Ross‟s new
attorney.

       As we stated previously, Ross testified that he regularly
attempted to telephone and correspond with Sheffield between
2004 and 2008. Ross, however, was unable to produce any
documentation supporting his claim that he made those efforts
because there was no record of his telephone calls, and much of
the documentation reflecting his written attempts had been lost
during his transfers among different correctional facilities.14

issues that need to be addressed on this question of
abandonment for purposes of statute of limitations and the
issue of whether the abandonment, if found, would constitute
a violation that would entitle the petitioner for relief, that is,
reinstatement of direct appellate rights. And it is my
understanding that the parties agree with me that there is a
substantial factual overlap there, although that there are
substantial factual issues that have to be developed here
today. Is that correct, Counsel?” At that time the attorneys
agreed with the magistrate judge‟s statements. J.A. at 153.
14
  The record indicates that certain documentation was lost,
perhaps because of the practice of the Pennsylvania prison
authorities to leave the packing of a prisoner‟s personal effects
to the prisoner‟s cellmate when the prisoner is being relocated.
In these circumstances, Ross‟s testimony that he had lost
possessions when being moved to a different facility is hardly
surprising.

                                17
Ross also testified at the evidentiary hearing that Sheffield‟s
office often did refuse to take his calls, and Sheffield‟s
testimony indicated that sometimes his office did refuse to take
inmates‟ calls, particularly if Sheffield was not available to
speak to the inmate. As we have indicated, however, Sheffield
could not recall the details of Ross‟s case, nor could he testify as
to the proper avenues of appeal or to post-conviction motion
procedures under Pennsylvania law. Overall, Ross‟s and
Sheffield‟s testimony, to the extent that Sheffield knew anything
about Ross‟s case, was not inconsistent.

       On November 4, 2011, the magistrate judge issued his
report and recommendation (the “first R&R”), recommending
that the District Court deny the Commonwealth‟s motion to
dismiss Ross‟s habeas petition. The District Court adopted the
first R&R in an order of December 29, 2011, in which it
remanded the case to the magistrate judge for consideration of
the habeas petition on the merits.

       Subsequently, on January 11, 2012, the magistrate judge
issued a report and recommendation on the merits of the habeas
petition (the “second R&R”),15 recommending to the District


15
  Each of the magistrate judge‟s reports and recommendations
(both of which were issued after the evidentiary hearing held
on November 3, 2011) contained a “Statement of Facts and of
the Case.” These two statements of facts are substantively
identical, with very limited variations in wording or grammar
in a few places.


                                18
Court that it grant the petition and that Ross “be granted narrow
relief in the form of reinstatement of his direct appeal rights in
state court, a direct appeal denied Ross through the inaction of
his first state post-conviction counsel.” Id. at 78. The second
R&R noted that the record demonstrated that Ross “diligently
sought to pursue a direct appeal for years, only to be frustrated
in those efforts by his own counsel.” Id. at 75. Thus, though the
findings were not comprehensively set forth with respect to the
2004-2008 period, it is evident that the magistrate judge and,
accordingly, the District Court, believed that Sheffield had
ignored Ross‟s correspondence, refused his phone calls, did not
take the necessary steps to preserve Ross‟s appellate rights even
when Ross prompted him to do so, and made misleading
statements and gave false assurances to Ross regarding the
status of the appeal.16 The District Court found that the facts in
this case were extraordinary, particularly when considered in
light of Ross‟s limited intelligence and education, his status as
an incarcerated prisoner,17 and the Common Pleas Court‟s denial

16
 In fact in his first R&R the magistrate judge pointed out that,
although Ross‟s documentation supporting his diligence
“became . . . sparse from 2004 through 2008, Ross testified
without contradiction, that he continued to try to pursue his
appeals during these years and some documentation supports
this testimony.” J.A. at 46 n.6. We are uncertain as to what
this documentation was as it does not seem to be in the
record. In any event, we are deciding this case on the basis of
our belief that there is no such documentation.
17
  The difficulties of this status included having limited
financial and other resources with which to pursue an appeal,

                               19
of his motion for the appointment of a new attorney to replace
Sheffield. The order denying Ross‟s motion for the appointment
of a new attorney was particularly significant because it recited
that Ross‟s attorney had sought and obtained an order allowing
him to appeal nunc pro tunc, thus implying that Sheffield was
prosecuting the appeal, a statement on which Ross relied.

       On March 16, 2012, the District Court issued an order
adopting the second R&R, thus granting Ross‟s habeas petition,
and ordered the Commonwealth to reinstate Ross‟s direct
appellate rights within 90 days. The Commonwealth has filed a
timely appeal from that order which, though recited to be only
from the March 16, 2012 order, includes an appeal from the
order of December 29, 2011, denying the Commonwealth‟s
motion to dismiss.18


as well as problems caused by being moved within
correctional facilities, resulting, as we have noted, in a loss of
his personal records.

 Under the “merger rule” because notices of appeal are
18


construed liberally and a case ordinarily may not be appealed
until a final judgment has been entered, even if the notice of
appeal recites that the appeal is from the final order of the
district court without mentioning any other order,
interlocutory orders that are interdependent upon or necessary
to the disposition in the final order usually are considered by a
court of appeals as having been appealed. See In re
Westinghouse Sec. Litig., 90 F.3d 696, 706 (3d Cir. 1996).
This case is a classic case for the application of the merger

                                20
 III. STATEMENT OF JURISDICTION AND STANDARD
                   OF REVIEW

        We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291, because this appeal is from a final decision of the
District Court, and pursuant to 28 U.S.C. § 2253, because this
appeal is from the District Court‟s final order in a 28 U.S.C. §
2254 habeas corpus proceeding. We review a district court‟s
factual findings on a clear error standard, Rolan v. Vaughn, 445
F.3d 671, 677 (3d Cir. 2006), Love v. Morton, 112 F.3d 131,
137 (3d Cir. 1997);19 but when the facts are determined by a
district court, we review the application of the equitable
principles implicated on the appeal on a de novo standard,
Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012) (“‟[A]
District Court‟s decision on the question of whether a case is
sufficiently „extraordinary‟ to justify equitable tolling should be
reviewed de novo.‟”) (quoting Brinson v. Vaughn, 398 F.3d
225, 231 (3d Cir. 2005); Taylor v. Horn, 504 F.3d 416, 427 (3d




rule as both of the District Court orders “produced the
judgment.” Id.

19
  But see Rolan, 445 F.3d at 680-81 (A district court‟s
findings of fact following an evidentiary hearing should not
be disturbed absent clear error except where district court held
a superfluous evidentiary hearing when there were legitimate
and sufficient state court findings of fact in the record on the
issue in question).


                                21
Cir. 2007)).20

        In applying the clear error standard of review, a
reviewing court should “not disturb [a finding of a district court]
unless it is wholly unsupported by the evidence.” United States
v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008). Moreover, in
making that review an appellate court ordinarily accepts a
district court‟s credibility determinations. See United States v.
Marcavage, 609 F.3d 264, 281 (3d Cir. 2010).



                        IV. ANALYSIS

       On this appeal we consider two narrow issues, the first
issue being in two parts:

       1. Did the District Court clearly err when, after an
evidentiary hearing, it made a factual determination that Ross
attempted to prosecute a direct appeal for many years, including
the period from 2004 to 2008, even though the record does not

20
  As we noted in Munchinski, and contrary to the
Commonwealth‟s assertion, we did not adopt the standard of
de novo review of a grant of equitable tolling where the facts
are not in dispute in Brinson, 398 F.3d at 231, but rather only
suggested that de novo review was probably appropriate in
that circumstance as it was not necessary to reach that issue in
that case. See Munchinski, 694 F.3d at 329 n.17. Taylor later
implicitly adopted the de novo standard. 504 F.3d at 427 n.6.


                                22
contain documentation to support the finding with respect to that
four-year period? In adjudicating this issue we consider Ross‟s
testimony that he had made calls to Sheffield and had sent him
correspondence during the 2004-2008 period and we also
consider Sheffield‟s testimony that his office often did not
accept inmates‟ calls, at least when he was not available, he did
not remember much regarding Ross‟s attempts to contact him,
and he may have lost documents during an office move. Then,
if we accept the District Court‟s factual findings with respect to
Ross‟s efforts to prosecute his appeal, as we do, we decide
whether Ross‟s efforts satisfied the reasonable diligence prong
of the showing needed to obtain equitable tolling of the statute
of limitations. In making the determination with respect to the
sufficiency of Ross‟s diligence, it does not matter whether we
exercise a de novo or a deferential fact finding standard of
review because our result is the same under both tests.

       2. If we conclude that the District Court‟s factual
findings in this case demonstrate that Ross acted with reasonable
diligence, then exercising de novo review, we must determine
whether extraordinary circumstances warranted equitable tolling
of the statute of limitations. In answering this question we
consider that the record shows that (a) Ross regularly contacted
Sheffield regarding his appeal, but Sheffield misled and lied to
him, ignored his correspondence, refused his phone calls, and
consulted with him in person only once during the eight years
that he was Ross‟s attorney of record; (b) Ross has a history of
mental illness; (c) Ross has limited cognitive abilities and
education; (d) Ross is incarcerated and during the period of time
in question was moved within the prison system, resulting in a
loss of personal effects, including documents; (e) Ross

                               23
unsuccessfully requested the Common Pleas Court to appoint a
new attorney for him; and, (f) in that denial, the court implied
that Sheffield was taking steps to prosecute Ross‟s appeal, a
suggestion that later turned out to be incorrect.

       The Commonwealth argues that the District Court erred
in granting equitable tolling because Ross did not diligently
pursue his case between February 2004 and April 15, 2008,
when he wrote the clerk of the Common Pleas Court requesting
information regarding the status of his appeal, and, therefore,
Ross did not satisfy the “reasonable diligence” test required for
equitable tolling. Appellant‟s br. at 15.21 The Commonwealth
more specifically alleges that this lack of diligence is evident
because: (1) Ross did not file any complaint about Sheffield
with the Pennsylvania attorney disciplinary authorities; (2) other
than his first motion to have Sheffield removed in January 2001,
Ross did not file a motion to have Sheffield removed; (3) Ross
21
  The Commonwealth acknowledges in its brief that Ross
demonstrated that certain of the requirements for equitable
tolling were met for it recites that: “Under the circumstances
of this case, the Commonwealth does not dispute the
extraordinary circumstances that appellee faced (namely,
abandonment by appellate counsel Christopher Sheffield), but
avers that the record establishes that appellee failed to
exercise reasonable diligence. . . . [P]etitioner admittedly
displayed diligence in keeping abreast of his case between
2001 and 2004.” Appellant‟s br. at 17.




                               24
was aware that he could seek relief under the PCRA at least as
early as June 14, 2003, yet he did not file his pro se PCRA
petition until 2008; and (4) Ross‟s letter of January 7, 2003,
threatening to seek help by writing the federal courts indicates
that Ross knew as early as 2003 that he had the right to pursue
federal relief. Appellant‟s br. at 20-22.

        Ross counters that the District Court credited his
testimony at the hearing before the magistrate judge to the end
that he regularly telephoned Sheffield and sent correspondence
to him between 2004 and 2008, and argues that we should
accept this factual determination, as it was not clearly erroneous.
 Ross also contends that we should accept the District Court‟s
conclusions that he was reasonably diligent in attempting to
pursue his appeal, and that the circumstances he faced were
extraordinary so that equitable tolling of the running of the
statute of limitations was warranted.

       A person in custody pursuant to a judgment of a state
court may apply for a writ of habeas corpus in a district court on
the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States, provided that he has
exhausted the remedies available in the state courts, a state
corrective process is not available, or there are circumstances
that render the process to protect his rights ineffective. 28
U.S.C. § 2254(a)-(b). Ross has claimed that his trial counsel
rendered ineffective assistance and that his appellate counsel,
Sheffield, abandoned him during the proceedings on his state
court appeal, and thus his rights under the Sixth Amendment



                                25
were violated.22

        The Supreme Court “has recognized that the right to
counsel is the right to the effective assistance of counsel.
Government violates the right to effective assistance when it
interferes in certain ways with the ability of counsel to make
independent decisions about how to conduct the defense.
Counsel, however, can also deprive a defendant of the right to
effective assistance, simply by failing to render adequate legal
assistance.” Strickland v. Washington, 466 U.S. 668, 685-86,
104 S.Ct. 2052, 2063-64 (1984) (internal quotation marks and
citations omitted) (citing and quoting McMann v. Richardson,
397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14 (1970), and
Cuyler v. Sullivan, 446 U.S. 335, 344-50, 100 S.Ct. 1708, 1716–
19 (1980)). “The benchmark for judging any claim of
ineffectiveness must be whether counsel‟s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

       To prevail on an ineffective assistance of counsel claim, a
petitioner must demonstrate that his counsel‟s performance fell
below an objective standard of reasonableness and that but for
counsel‟s errors the result of the underlying proceeding would
have been different. Id. at 687-88, 104 S.Ct. at 2064. The

22
  Of course, we do not address the question of whether his
trial counsel had been ineffective inasmuch as in these habeas
corpus proceedings we are concerned only with the question
of whether Ross can pursue a direct appeal from his
conviction.

                               26
Supreme Court has held that “when counsel‟s constitutionally
deficient performance deprives a defendant of an appeal that he
otherwise would have taken, the defendant has made out a
successful ineffective assistance of counsel claim entitling him
to an appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 484, 120
S.Ct. 1029, 1039 (2000). The defendant has the right to take
this appeal because the “denial of the entire judicial proceeding
itself, which a defendant wanted at the time and to which he had
a right . . . demands a presumption of prejudice. Put simply, we
cannot accord any „presumption of reliability‟ to judicial
proceedings that never took place.” Id. at 483, 120 S.Ct. at 1038
(citing Smith v. Robbins, 528 U.S. 259, 286, 120 S.Ct. 746, 764-
65 (2000)).

          A. Statute of limitations for filing a habeas
             corpus petition

       The AEDPA imposes a one-year limitation period for a
state prisoner to file a federal habeas corpus petition which
ordinarily starts to run from “the date on which the judgment
became final by the conclusion of direct review or the expiration
of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A).23 However, in Holland v. Florida, the Supreme

23
  We need not discuss the circumstances in which the one-
year period runs from a date later than the date on which a
judgment has become final inasmuch as Ross acknowledges
that the only basis on which his habeas petition could have
been timely is through the application of equitable tolling of
the running of the statute of limitations and the parties have
briefed the case addressing only that point. We do not decide

                               27
Court, confirming the construction of the AEDPA by 11 courts
of appeals, found that the AEDPA‟s one-year limitation period
is subject to equitable tolling in appropriate cases. 130 S.Ct.
2549, 2554, 2560 (2010).24

           B. Establishing that equitable tolling is
              warranted

        As summarized by the Supreme Court, “[g]enerally, a
litigant seeking equitable tolling [of the AEDPA‟s one-year
statute of limitations] bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814
(2005) (citing Irwin v. Dep‟t of Veterans Affairs, 498 U.S. 89,
96, 111 S. Ct. 453, 457-58 (1990)); see also Holland, 130 S.Ct.
at 2562; Jenkins v. Superintendent of Laurel Highlands, 705

a case by allowing equitable tolling if the habeas petition was
timely by reason of statutory tolling. See Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80, 88 (3d Cir.
2013).

24
 In reaching this conclusion, the Supreme Court reasoned that
the AEDPA‟s statute of limitations defense is not
jurisdictional, inflexibly requiring dismissal when the one-
year clock has run, and that a non-jurisdictional federal statute
of limitations is normally subject to a rebuttable presumption
in favor of equitable tolling. It further noted that equitable
principles traditionally have governed the substantive law in
habeas corpus proceedings. Holland, 130 S.Ct. at 2560-62.

                               28
F.3d 80, 89 (3d Cir. 2013); Pabon v. Mahanoy, 654 F.3d 385,
399 (3d Cir. 2011).

        As with most issues involving a court‟s exercise of
equitable powers, “[t]here are no bright lines in determining
whether equitable tolling is warranted in a given case.” Pabon,
654 F.3d at 399. In Holland, however, the Supreme Court
emphasized that in considering whether there could be equitable
tolling, courts should favor flexibility over adherence to
mechanical rules. 130 S.Ct. at 2563. In this regard, “the
particular circumstances of each petitioner must be taken into
account,” Pabon, 654 F.3d at 399, and each decision made on a
“case-by-case basis.” Holland, 130 S.Ct. at 2563 (quoting
Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324
(1964)). Thus, we must “exercise judgment in light of prior
precedent, but with awareness of the fact that specific
circumstances, often hard to predict in advance, could warrant
special treatment in an appropriate case.” Holland, 130 S.Ct. at
2563. We have held that equitable tolling is appropriate when
principles of equity would make the rigid application of a
limitation period unfair, but that a court should be sparing in its
use of the doctrine. Pabon, 654 F.3d at 399; Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999).25


25
  See also LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005)
(A court should apply equitable tolling “only in the rare
situation where [it] is demanded by sound legal principles as
well as the interests of justice.” (alteration in original));
Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002)
(“[W]e have cautioned that a statute of limitations should be

                                29
                     1. The reasonable diligence prong of an
                     equitable tolling showing

       The diligence required for equitable tolling purposes is
reasonable diligence, not maximum, extreme, or exceptional
diligence. Holland, 130 S.Ct. at 2565.26 “This obligation does
not pertain solely to the filing of the federal habeas petition,
rather it is an obligation that exists during the period appellant is
exhausting state court remedies as well.” LaCava v. Kyler, 398
F.3d 271, 277 (3d Cir. 2005) (citing Jones, 190 F.3d at 160). A
determination of whether a petitioner has exercised reasonable
diligence is made under a subjective test: it must be considered

tolled only in the rare situation where equitable tolling is
demanded by sound legal principles as well as the interests of
justice.” (quoting Jones, 195 F.3d at 159) (internal quotation
marks omitted)).
26
  See also Baldayaque v. United States, 338 F.3d 145, 153 (2d
Cir. 2003) (“The standard is not „extreme diligence‟ or
„exceptional diligence,‟ it is reasonable diligence. On
remand, the district court should ask: did the petitioner act as
diligently as reasonably could have been expected under the
circumstances?”) (emphasis in original); see also Pace, 544
U.S. at 419, 125 S.Ct. at 1815 (“Under long-established
principles, petitioner‟s lack of diligence precludes equity‟s
operation.”) (citing Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58,
and McQuiddy v. Ware, 87 U.S. 14, 20 Wall. 14, 19, 22 L.Ed.
311 (1873) (“Equity always refuses to interfere where there
has been gross laches in the prosecution of rights.” (internal
citations omitted)).

                                 30
in light of the particular circumstances of the case. See
Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (“Due
diligence does not require the maximum feasible diligence, but
it does require diligence in the circumstances.”) (emphasis
added) (internal quotation marks and citation omitted); see also
Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011) (“To
determine if a petitioner has been diligent in pursuing his
petition, courts consider the petitioner‟s overall level of care and
caution in light of his or her particular circumstances.”
(emphasis added)).

       The fact that a petitioner is proceeding pro se does not
insulate him from the “reasonable diligence” inquiry and his
lack of legal knowledge or legal training does not alone justify
equitable tolling. See Brown v. Shannon, 322 F.3d 768, 774 (3d
Cir. 2003) (equitable tolling not justified where petitioner had
one month left in limitations period in which he could have
“fil[ed] at least a basic pro se habeas petition” at the time that
petitioner‟s attorney informed him that he would not file an
appeal in state court on his behalf and could no longer
adequately represent him); see also Doe v. Menefee, 391 F.3d
147, 177 (2d Cir. 2004) (“Given that we expect pro se
petitioners to know when the limitations period expires . . . such
inadvertence on Doe‟s part cannot constitute reasonable
diligence.”).

                    2. The extraordinary circumstances
                    prong of an equitable tolling showing

      We have recognized that in some cases an attorney‟s
malfeasance, when combined with reasonable diligence on the

                                31
part of the petitioner in pursuit of his rights, may warrant
equitable tolling of the statute of limitations. Schlueter, 384
F.3d at 76-77 (citing Seitzinger v. Reading Hosp. & Med. Ctr.,
165 F.3d 236, 239 (3d Cir. 1999)); see also Nara v. Frank, 264
F.3d 310, 320-21 (3d Cir. 2001), abrogated on other grounds by
Carey v. Soffold, 536 U.S. 214, 122 S.Ct. 2134 (2002) (denial
by district court of habeas petition was vacated, with the
direction that an evidentiary hearing be held on whether the
circumstances of attorney negligence warranted equitable tolling
under the AEDPA).

       In 2010, the Supreme Court adopted this principle in
Holland when it granted equitable tolling based on egregious
attorney neglect amounting to extraordinary circumstances. In
Holland, the petitioner repeatedly had urged his attorney to take
action on his appeal, and in his communications had provided
instructions on the importance of filing a timely habeas corpus
petition. Nevertheless, the attorney ignored most of his
communications, misstated the law in the few communications
he did send the petitioner, and did not take the necessary steps to
forward his client‟s appeal or preserve his client‟s right to
appeal; moreover, the state courts denied the petitioner‟s
attempts to have new counsel assigned. Holland, 130 S.Ct. at
2555-56.

              3. The findings of historical fact in this case

      The findings of fact that the magistrate judge outlined in
his reports and recommendations that the District Court
subsequently adopted were predicated on the evidence
developed at the evidentiary hearing held before the magistrate

                                32
judge on November 3, 2011, and the state courts‟ records. As
we have indicated, such findings are subject to a deferential
clear error review. See Leeper v. United States, 756 F.2d 300,
308 (3d Cir. 1985) (“The standard of review of factual findings
does not envision an appellate court substituting its findings for
that of the district court; rather it allows only an assessment of
whether there is enough evidence on record to support such
findings, regardless of whether different inferences could be
drawn.”).

        After the evidentiary hearing to resolve factual issues
held on November 3, 2011, the District Court made a factual
determination that between the years 2004 and 2008, Ross had
continued to pursue his appeal as he testified. Although copies
of correspondence and records of phone calls for the 2004-2008
time period were not available, probably because of Ross‟s
status as a prisoner and his moves within the prison system, the
District Court concluded that Ross‟s testimony was credible.
We cannot disturb that conclusion inasmuch as Sheffield
testified that he did not remember certain events material to
Ross‟s efforts and did not remember his own office‟s
procedures. Furthermore, Sheffield confirmed that his office
sometimes refused to take inmate/client phone calls, and that he
may have lost records during an office move and/or switching of
computers. Moreover, Sheffield was unable to answer questions
concerning the appeals process from criminal convictions in
Pennsylvania.

       The District Court‟s conclusions included factual
findings that Sheffield‟s actions were confusing even to the
Common Pleas Court causing it to offer (what turned out to be)

                               33
misleading information to Ross with respect to the status of his
appeal that implied that it was being prosecuted, and that
Sheffield‟s words and actions were artful and disingenuous
throughout his representation of Ross. Thus, in January 2001,
about six months after the court assigned Sheffield to represent
him, Ross requested the court to appoint new counsel for him
but the court denied his application, explaining in its order that
Sheffield had filed a motion to be permitted to file an appeal
nunc pro tunc which the court had granted. This information
suggested to Ross that Sheffield was pursuing Ross‟s appeal
diligently. As a consequence of the court‟s action Ross felt
chastened enough to write a letter apologizing to Sheffield.

         About five months later, on May 9, 2001, after a phone
call from the court administrator, Sheffield explained in a letter
to the state court that he had been waiting for the trial transcript,
and that, although he admittedly had received that transcript, he
was “not sure of the precise date that the Court Reporter placed
the transcripts in my courthouse box.” J.A. at 272. Yet, the
docket in the Common Pleas Court reveals that the transcript
had been “lodged and filed” over a month earlier, on April 3,
2001, and that when the court on December 13, 2000, ordered it
filed, it also had ordered that an appeal nunc pro tunc “be filed
no later than 30 days following the Defense counsel‟s receipt of
the afore ordered trial transcripts.” Id. at 266. Sheffield in his
letter of May 9, 2001, in explaining his tardiness, concluded that
“[w]hile [he was] not yet ready to specifically itemize each
appellate issue, [he would] file the Notice of Appeal
immediately,” which, as stated above, he did that same day. Id.
at 272. Despite this prodding by the court, almost another full
month passed before Sheffield on June 8, 2001, visited Ross in

                                 34
prison for the first and only time during the approximately eight-
year period that he was Ross‟s counsel of record.

        Thereafter, according to the findings of the District
Court, Sheffield withdrew Ross‟s appeal (without Ross‟s
knowledge) with the intended strategy of filing post-trial
motions under the PCRA. But Sheffield never filed another
appeal or a collateral post-conviction petition on Ross‟s behalf.
Inasmuch as the state court had granted Ross 30 days to file
post-conviction motions from the date that the Superior Court
allowed the withdrawal of his appeal which turned out to be
September 4, 2001, the final date by which Sheffield should
have filed a post-conviction motion was October 4, 2001.
Sheffield, however, did not file any such motion. In analyzing
these facts for the purposes of assessing Ross‟s diligence and
determining whether there were extraordinary circumstances in
this case, the District Court concluded that “[t]he record of that
state court representation is marked by a pattern of diligent
efforts by Ross, a man of limited abilities, to preserve his
appellate rights in the face of complete inaction by his counsel.”
 Id. at 53.

       Thus, the District Court made the historical factual
determinations, after a hearing, that Ross regularly and
repeatedly had attempted to pursue his appeal through letters
and phone calls to his attorney and to the courts, and that he
attempted to pursue his appeal during the time period between
2004 and 2008. In reviewing these factual determinations for
clear error, we find none.27 As we noted in Leeper v. United

27
 The only circumstance that gives us pause in upholding the

                               35
States, “[t]he standard of review of factual findings does not
envision an appellate court substituting its findings for that of
the district court; rather it allows only an assessment of whether
there is enough evidence on record to support such findings,
regardless [of] whether different inferences could be drawn.”
756 F.2d at 308.

              4. An evaluation of Ross‟s diligence

       We next turn to the question of whether the facts in the
record, as the District Court found them to be, demonstrate that
Ross exercised due diligence while exhausting his state
remedies. This is the aspect of the District Court‟s holding that
the Commonwealth principally addresses.28 The District Court

District Court‟s findings concerning Ross‟s diligence between
2004 and 2008 in corresponding with Sheffield is that Ross‟s
correspondence prior to that period was available even though
the 2004-2008 correspondence was missing. Our point is that
it might be expected that if copies of the older correspondence
were not lost, copies of the more recent correspondence
would not have been lost. Nevertheless, our concerns over
this point are not sufficient to cause us to reject the District
Court‟s findings with respect to Ross‟s diligence between
2004 and 2008.
28
  The Commonwealth indicates that “[t]here is no explanation
why appellee chose to file his pro se PCRA in 2008 instead of
earlier in 2004 (or in 2005, 2006, or 2007, for that matter). It
is equally unclear why appellee delayed in filing his Petition
for Writ of Habeas Corpus until May 2, 2011. . . . Between

                               36
found that, despite the impediments he faced, Ross was duly
diligent in his efforts to pursue his appeal but that he was misled
as to the status of the appeal by Sheffield and by the Common
Pleas Court‟s refusal to replace his attorney and its
accompanying explanation that his attorney had obtained an
order allowing Ross to appeal nunc pro tunc. As stated above,
the reasonable diligence showing that a petitioner must make to
obtain equitable relief from the AEDPA statute of limitations is
less than a showing of extraordinary diligence. Even in a de
novo review after having accepted the District Court‟s findings
of fact, we conclude that Ross did exercise reasonable diligence
in the circumstances that he faced.           We cannot, as the
Commonwealth seems to suggest, expect Herculean efforts on
the part of a lay person who is a convicted and incarcerated
prisoner of limited cognitive abilities, and whose every attempt
to pursue his appeal has been thwarted. In the circumstances
that he faced, Ross demonstrated perseverance and diligence.

              5. An evaluation of the circumstances that Ross
faced

       Finally we consider whether or not the circumstances that
Ross faced were “extraordinary” such that the second prong of
the showing necessary to support equitable tolling has been met.

2004 and 2008, a substantial period of time, appellee appears
to have done none of these things, all of which could have
been accomplished merely by writing a letter. . . . Based upon
this record, appellee did not exercise reasonable diligence in
bringing his claim.” Appellant‟s br. at 21-22.


                                37
 A court measures the extraordinary circumstances prong
subjectively. In analyzing whether the circumstances Ross faced
were extraordinary, “the proper inquiry is not how unusual the
circumstance alleged to warrant tolling is among the universe of
prisoners, . . . but rather how severe an obstacle it is for the
prisoner endeavoring to comply with AEDPA‟s limitations
period.” Pabon, 654 F.3d at 400 (internal citations omitted)
(emphasis in original).

       In addition, for a petitioner to obtain relief there must be
a causal connection, or nexus, between the extraordinary
circumstances he faced and the petitioner‟s failure to file a
timely federal petition. See Nara, 264 F.3d at 320 (The alleged
extraordinary circumstance “must somehow have affected the
petitioner‟s ability to file a timely habeas petition.”); see also
Holland, 130 S.Ct. at 2562 (A petitioner must show that “some
extraordinary circumstance stood in his way and prevented
timely filing.” (emphasis added and internal quotation marks
omitted)).29


29
  See also Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011)
(“To secure equitable tolling, it is not enough for a party to
show that he experienced extraordinary circumstances. He
must further demonstrate that those circumstances caused him
to miss the original filing deadline.”); Spitsyn v. Moore, 345
F.3d 796, 799 (9th Cir. 2003) (“The prisoner must show that
the extraordinary circumstances were the cause of his
untimeliness.” (internal quotation marks omitted)); Valverde
v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (“The word
„prevent‟ requires the petitioner to demonstrate a causal

                                38
        In this case, the District Court found that Ross‟s efforts
were stymied by Sheffield‟s misleading statements on matters
that should have been within Sheffield‟s knowledge, the
Common Pleas Court‟s no doubt unintentionally misleading
statement implying that Sheffield was prosecuting Ross‟s
appeal, Sheffield‟s unresponsiveness and neglect of the case,
and Ross‟s limited abilities. The totality of these circumstances
makes it clear that Ross satisfied the second prong of the
showing required to justify equitable tolling of the running of
the habeas corpus statute of limitations, i.e., that extraordinary
circumstances stood in the way of Ross filing his direct appeal
to the Superior Court.

       Our result is buttressed when we consider the record as a
whole so far as it is germane to the circumstances that Ross
faced. We reiterate that Ross has a limited intellectual ability
and education, a history of poor mental health, and is an
incarcerated prisoner with limited resources at his disposal who
was moved among facilities within the prison system. These
fundamental disadvantages were exacerbated by Sheffield‟s
extreme neglect, including but not limited to his refusal to
accept Ross‟s calls,30 overall failure to communicate with Ross,

relationship between the extraordinary circumstances on
which the claim for equitable tolling rests and the lateness of
his filing, a demonstration that cannot be made if the
petitioner, acting with reasonable diligence, could have filed
on time notwithstanding the extraordinary circumstances.”).

30
 We are not suggesting that an attorney always needs to
accept his client‟s telephone calls. Rather, we are indicating

                               39
inaccurate assurances regarding the status of Ross‟s appeal on
those very limited occasions when he did communicate with
Ross, and misstatements of the law. In addition, the record
reflects that Ross made an attempt to have the Common Pleas
Court assign a new attorney to his case by filing a motion on
January 5, 2001, asking for that relief, but that the court denied
his motion in an order that implied that the court believed, albeit
incorrectly, that Sheffield was moving Ross‟s case forward.

       Furthermore, it is a matter of great significance that
shortly after the Common Pleas Court denied Ross‟s motion to
replace Sheffield as Ross‟s attorney, Sheffield, without Ross‟s
consent or even knowledge, reversed the very steps that he had
taken on Ross‟s behalf and failed to pursue Ross‟s appeal
through other means, all the while as Ross continued to make
phone calls and write asking for updates on his case. Overall, it
is clear that the circumstances that Ross faced were quite
extraordinary and, indeed, were similar to those the petitioner
faced in Holland where his attorney‟s extreme neglect
constituted extraordinary circumstances warranting the granting
of equitable tolling. Holland, 130 S.Ct. at 2564.

       Further, the nexus test is met because the extraordinary

that Sheffield‟s office‟s repeated refusal to take Ross‟s calls,
though perhaps sometimes justified by the circumstance that
Sheffield was not in his office, in the circumstances of this
case is another factor for us to consider in reviewing
Sheffield‟s conduct to the extent that it relates to the
extraordinary circumstances that Ross faced.


                                40
circumstances that Ross faced directly prevented him from
timely pursuing his state court remedies and filing a statutorily
timely habeas petition. Therefore, it is appropriate in this case
to equitably toll the running of the AEDPA‟s one-year statutory
limitation period and to grant Ross substantive relief so that he
can prosecute an appeal from his conviction and sentence in the
state courts.



                       V. CONCLUSION

        The District Court did not make a clear error following
the evidentiary hearing of November 3, 2011, in its findings
with respect to the efforts that Ross made in his attempt to
prosecute his appeal, including those efforts in the period
between 2004 and 2008. Based on those findings and the record
in this case, we are satisfied that, exercising either a deferential
or de novo standard of review, Ross was duly diligent in
prosecuting his appeal. Sheffield, however, ignored Ross‟s
efforts or misled him as to the status of his appeal. Further, after
conducting a de novo review, we agree with the District Court‟s
legal conclusion that Ross faced such extraordinary
circumstances that equitable tolling is warranted. We therefore
will affirm the District Court‟s orders granting equitable tolling
of the statute of limitations and substantive habeas corpus relief,
but we will instruct it to modify its order to the state court to
reinstate Ross‟s appeal, and, instead, to order his release within
90 days unless the Commonwealth of Pennsylvania reinstates




                                41
his appeal.31 We direct the Court to make this modification
because principles of comity and jurisdiction prohibit a district
court from ordering the reinstatement of a state court appeal:
“[A] district court‟s power to grant a writ of habeas corpus
under 28 U.S.C. § 2254 is limited on this record to directing [the
prisoner‟s] release from custody if the state fails to correct the
constitutional violation.” Barry v. Brower, 864 F.2d 294, 296
(3d Cir. 1988). Finally, we direct the Clerk of our Court to send
a copy of this opinion to the Attorney Disciplinary Board of the
Supreme Court of Pennsylvania.




31
  We recognize, however, that in this case the distinction
between ordering a state court to take certain steps and
ordering that a prisoner be released if it does not take those
steps is immaterial because we have been informed that the
Common Pleas Court has entered an order restoring Ross‟s
appellate rights and Ross has appealed to the Superior Court,
though the state courts have stayed proceedings on the appeal
pending disposition of this appeal.

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