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


9-14-2004

Schlueter v. Varner
Precedential or Non-Precedential: Precedential

Docket No. 03-3928




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Recommended Citation
"Schlueter v. Varner" (2004). 2004 Decisions. Paper 280.
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                   PRECEDENTIAL            Duane Morris LLP
                                           1650 Market Street
    UNITED STATES COURT OF                 One Liberty Place, 37th Floor
           APPEALS                         Philadelphia, PA 19103-7396
     FOR THE THIRD CIRCUIT
                                              Attorneys for Appellant

             No. 03-3928                   John M. Morganelli (argued)
                                           District Attorney
                                           Northampton County Government
  PAUL GEORGE SCHLUETER, III,              Center
                                           669 Washington Street
                           Appellant       Easton, PA 18042

                   v.                         Attorney for Appellees

  BENJAMIN VARNER; DISTRICT
   ATTORNEY NORTHAMPTON                          OPINION OF THE COURT
          COUNTY;
  ATTORNEY GENERAL OF THE
   STATE OF PENNSYLVANIA                   GREENBERG, Circuit Judge.
                                                   Paul George Schlueter, III, is a
                                           Pennsylvania inmate serving a sentence
  On Appeal From the United States
                                           of life in prison for first degree murder.
             District Court
                                           He appeals from an order of the district
For the Eastern District of Pennsylvania
                                           court entered September 3, 2003,
     (D.C. Civil No. 00-cv-05179)
                                           dismissing his petition for a writ of
            District Judge:
                                           habeas corpus on the ground that the
       Honorable Anita B. Brody
                                           applicable one-year period of limitation
                                           barred the petition. For the reasons that
                                           follow, we will affirm the district court’s
         Argued June 25, 2004
                                           order.
   Before: AMBRO, BECKER, and
    GREENBERG, Circuit Judges.
                                                      I. BACKGROUND
      (Filed: September 14, 2004)
                                                 In 1985, Schlueter was arrested
                                           and charged in Northampton County,
Michael M. Mustokoff
                                           Pennsylvania, with the criminal
Stephen A. Mallozzi (argued)
                                           homicide of Carol Ann Bonney. The
Cindy D. Hinkle
Northampton County Public defender’s            that there were no appealable issues that
office assigned part-time public                could reduce his degree of guilt.
defenders George Blasco and Lorenzo             Accordingly, Schlueter decided to forego
Crowe to represent Schlueter and the            a direct appeal. Blasco died about one
district attorney assigned James                year later on May 26, 1988. Schlueter
Narlesky, a part-time assistant district        contends that his attorneys’ parole advice
attorney to prosecute the case. Relying         was erroneous as he never will be
on his attorneys’ advice, Schlueter             eligible for parole. Apparently in part
entered a plea of nolo contendere to a          because of having found out his actual
charge of open degree homicide.1 The            parole situation, on August 16, 1988,
trial court subsequently conducted a            Schlueter contacted Crowe requesting
hearing to determine Schlueter’s degree         information for the purpose of pursuing
of guilt at which Schlueter presented a         state post-conviction review. Crowe,
diminished capacity defense based on his        however, did not respond to Schlueter’s
level of intoxication and drug use on the
night of the homicide. The trial court
found Schlueter guilty of murder in the         In a letter to Crowe dated August 16,
first degree and sentenced him to life in       1988, Schlueter stated that he was
prison on May 5, 1987.                          advised that he would be eligible for
                                                parole in 20 years. Crowe, however,
       Following his conviction,                stated in an affidavit in 1998 that Blasco
Schlueter met with his attorneys to             informed Schlueter that he would be
discuss whether to pursue a direct              eligible for parole in 15 years. On the
appeal. Blasco and Crowe advised                other hand, Schlueter stated in an
Schlueter that he would be eligible for         affidavit in 1998 that Blasco informed
parole in approximately 20 years2 and           him that he would be eligible for parole
                                                after 14 years. In denying Schlueter’s
      1
        Schlueter earlier had pleaded           petition for post-conviction relief, the
nolo contendere when represented by             trial court found as a fact that Schlueter
different attorneys from the public             was advised that he would be eligible for
defender’s office but with the court’s          parole after serving 20 years. See
permission had withdrawn that plea.             Commonwealth v. Schlueter, No. 0201-
Consequently, we are concerned with             1986 at 2 (Northampton County, Pa. Ct.
events following his second nolo                Com. Pl., Crim. Div., Dec. 30, 1998,
contendere plea.                                app. at 415). Schlueter indicates in his
                                                brief on this appeal that “[f]or purposes
      2
        Schlueter correctly acknowledges        of these habeas proceedings, the term of
that the record contains conflicting            eligibility is irrelevant since [he] was and
information regarding the parole advice         is never eligible for parole.” Appellant’s
he received. Appellant’s br. at 12 n.11.        br. at 12.

                                            2
request.                                          By letter dated November 10, 1996,
                                                  Schlueter informed Lauer of the deadline
        Meanwhile, in March 1988, the             and asked him to file a timely PCRA
victim’s family initiated a wrongful              petition. Lauer replied by letter dated
death action against Schlueter, who               December 2, 1996, that he was “well
initially represented himself in the civil        aware” of the deadline and would file a
proceedings. Based on Schlueter’s                 petition “before year’s end.” App. at
criminal conviction, the trial court              783. By letter dated December 13, 1996,
entered a directed verdict against him.           Lauer also informed Schlueter’s parents
In June 1994 Schlueter’s parents retained         that he was anticipating filing a PCRA
attorney Philip Lauer of Easton,                  petition “prior to the end of this year.”
Northampton County, to represent their            App. at 790. Nevertheless, Lauer did not
son in his civil appeal from the judgment         file a PCRA petition and did not
against him and to explore possible               communicate further with Schlueter or
challenges to his conviction under                his parents. On March 18, 1997, the
Pennsylvania’s Post Conviction Relief             Clerk of the Northampton County Court
Act (“PCRA”). Lauer advised Schlueter             of Common Pleas advised Schlueter in
to postpone pursuing PCRA remedies                response to his inquiry that no one had
until the conclusion of the civil                 filed a PCRA petition on his behalf.
proceedings. The Superior Court
affirmed the judgment against Schlueter                   On May 27, 1997, the Schlueters
on his civil appeal and his civil appellate       retained his current attorneys’ law firm
proceedings were terminated                       to explore the possibility of filing a
unsuccessfully when the Pennsylvania              PCRA petition. After repeated attempts,
Supreme Court denied his petition for             the new attorneys retrieved Schlueter’s
allowance of appeal on November 28,               files from Lauer on October 2, 1997.
1994.                                             Upon reviewing the files, they
                                                  discovered that they did not include
        Two years later, prior to Schlueter       certain files from the Public Defender’s
filing a PCRA petition, he and his                Office. At Schlueter’s new attorneys’
parents learned that the Pennsylvania             request, the Public Defender’s Office
legislature had amended the PCRA to               located Schlueter’s files and arranged for
prescribe a filing deadline of January 16,        them to review the files and to interview
1997, in older cases such as Schlueter’s.3        Crowe on December 9, 1997. During
                                                  the interview with Crowe, they learned
                                                  that George Blasco and Assistant District
       3
       See Commonwealth v. Fenati,
748 A.2d 205, 207 (Pa. 2000) (holding
that PCRA petition filed on January 16,           the PCRA amendments effective January
1997, was timely filed within one year of         16, 1996).

                                              3
Attorney Narlesky had been “civil law             pro tunc, arguing that the court should
partners” in Easton prior to Blasco’s             restore his right to a direct appeal due to
death.4                                           his trial attorneys’ erroneous parole
                                                  advice. After conducting a hearing, the
        Relying on this information, his          PCRA court dismissed the PCRA
attorneys filed a PCRA petition on                petition as untimely and, in the same
Schlueter’s behalf on February 2, 1998,           opinion, denied Schlueter’s motion to
alleging a conflict of interest arising           restore his right to appeal nunc pro tunc
from the Blasco/Narlesky civil law                because Schlueter had “knowingly and
practice. Recognizing the apparent                voluntarily waived his appellate rights.”
untimeliness of their PCRA petition,              App. at 436. On appeal, the
they attempted to invoke a statutory              Pennsylvania Superior Court affirmed
exception to the PCRA’s period of                 the dismissal of Schlueter’s PCRA
limitation by arguing that the facts of the       petition as untimely without mentioning
Blasco/Narlesky arrangement had been              his motion to restore his right to file a
unknown and could not have been                   direct appeal from his conviction nunc
ascertained through the exercise of due           pro tunc.6 The Pennsylvania Supreme
diligence.5 They subsequently reviewed            Court denied Schlueter’s petition for
court records and filings and learned that        allowance of appeal without explanation
Blasco and Narlesky practiced and                 on August 28, 2000.
shared fees in civil cases, together
owned and shared their office space, and                  Through his attorneys, Schlueter
shared operating expenses and                     filed a federal habeas corpus petition in
personnel.                                        the district court on October 12, 2000.7

       On June 22, 1998, more than 11                    6
years after he was convicted and while                   Of course, the judgment of
his PCRA petition was pending,                    affirmance upheld the denial of the
Schlueter filed a motion seeking                  motion to appeal nunc pro tunc.
restoration of his appellate rights nunc                 7
                                                          In his federal habeas corpus
                                                  petition, Schlueter articulated the
       4
        The respondents deny that Blasco          following claims for relief: (1) his plea
and Narlesky were partners and state              was involuntary and unintelligent due to
they merely were part of an office                an actual conflict of interest between
sharing arrangement. For purposes of              Blasco and Narlesky; (2) his trial
this appeal we will assume that they              attorneys’ erroneous parole advice
were partners.                                    denied him the right to file a direct
                                                  appeal; (3) his trial attorneys rendered
       5
       See 42 Pa. Cons. Stat. Ann.                ineffective assistance due to the conflict
§ 9545(b)(1)(ii) (West 1998).                     of interest between Blasco and Narlesky;

                                              4
The respondents moved to dismiss the             U.S.C. §§ 1291 and 2253. We exercise
habeas petition as barred by the                 plenary review over the district court’s
applicable one-year period of limitation.        order dismissing Schlueter’s habeas
The case was referred to the chief               petition as time barred. See Douglas v.
magistrate judge who rejected                    Horn, 359 F.3d 257, 259 (3d Cir. 2004).
Schlueter’s arguments for equitable and
statutory tolling, and recommended                      B. One-Year Period of Limitation
dismissing the habeas petition as
untimely. After hearing oral argument,                   In the Antiterrorism and Effective
the district court adopted the chief             Death Penalty Act of 1996 (“AEDPA”)
magistrate judge’s report and                    Congress prescribed a one-year period of
recommendation and dismissed                     limitation for the filing of federal habeas
Schlueter’s habeas petition as untimely.         corpus petitions by state prisoners. See
The court, however, granted a certificate        Douglas, 359 F.3d at 261. Effective
of appealability on the issue of equitable       April 24, 1996, the AEDPA provides in
tolling. The district court subsequently         relevant part:
“amplified” the certificate of
appealability to include the statutory                  A 1-year period of
tolling issues as well.                                 limitation shall apply to an
                                                        application for a writ of
       Schlueter has filed a timely                     habeas corpus by a person
appeal.                                                 in custody pursuant to the
                                                        judgment of a State court.
                                                        The limitation period shall
                                                        run from the latest of—
           II. DISCUSSION
                                                        (A) the date on which the
      A. Jurisdiction and Standard of                   judgment became final by
Review                                                  the conclusion of direct
                                                        review or the expiration of
      The district court had jurisdiction               the time for seeking such
pursuant to 28 U.S.C. §§ 2241 and 2254                  review; [or]
and our jurisdiction is based on 28
                                                                   . . . .

and (4) the Pennsylvania courts denied                  (D) the date on which the
his right to due process by refusing to                 factual predicate of the
allow him to present evidence supporting                claim or claims presented
the merits of his conflict of interest                  could have been
claim.                                                  discovered through the

                                             5
      exercise of due diligence.               F.3d 936, 940 (7th Cir. 2004) (quoting
                                               Wims v. United States, 225 F.3d 186,
28 U.S.C. § 2244(d)(1).8                       190 n.4 (2d Cir. 2000)). Section
                                               2244(d)(1)(D) provides a petitioner with
       We first determine the date on          a later accrual date than
which the one-year period began                section 2244(d)(1)(A) only “if vital facts
running. Ordinarily under                      could not have been known.” Owens,
section 2244(d)(1)(A), Schlueter’s one-        235 F.3d at 359.
year period of limitation would have
begun running on April 24, 1996,                       We are convinced that if
because his conviction became final well       Schlueter had exercised due diligence,
before the effective date of the AEDPA.        he could have discovered the
See Burns v. Morton, 134 F.3d 109, 111         Blasco/Narlesky arrangement long
(3d Cir. 1998) (allowing a one-year            before the AEDPA became effective.
grace period to petitioners whose              Lauer testified at the PCRA hearing that
convictions became final prior to the          it was common knowledge in the legal
enactment of the AEDPA). Schlueter             community in Northampton County that
asserts, however, that the one-year            Blasco and Narlesky shared office space.
period began running under                     Lauer also testified that he personally
section 2244(d)(1)(D) on December 9,           was aware of the arrangement when he
1997, the date on which his current            represented Schlueter in 1994. Indeed,
attorneys discovered the Blasco/Narlesky       in our view, it is inconceivable that
arrangement. Appellant’s br. at 51-53.         Blasco and Narlesky could have hidden
                                               their arrangement from the relatively
       By its language, the one-year           small legal community or the public in
period of limitation commences under           Northampton County.9
section 2244(d)(1)(D) when the factual
predicate of a claim could have been
discovered through the exercise of due
diligence, not when it actually was                   9
                                                       We are not suggesting that they
discovered. See Owens v. Boyd, 235             attempted to hide their arrangement or
F.3d 356, 359 (7th Cir. 2000). Due             believed that they had any reason to do
diligence does not require “the maximum        so during the time of their association.
feasible diligence,” but it does require       Nevertheless, it must be acknowledged
reasonable diligence in the                    that not every attorney in Northampton
circumstances. Moore v. Knight, 368            County was aware of the depth and
                                               circumstances of the Blasco/Narlesky
                                               arrangement as Crowe indicated to
      8
      The omitted subsections are not          Schlueter’s current attorneys that he was
germane in this case.                          not.

                                           6
        Moreover, Schlueter’s current             November 28, 1994, when the
attorneys learned of the arrangement              Pennsylvania Supreme Court refused to
simply by interviewing Crowe who, with            allow him to appeal.
Blasco, represented Schlueter in the
criminal proceedings. Certainly, if he                   Overall, we are satisfied that
had exercised due diligence, Schlueter            through the exercise of due diligence,
would have had Crowe interviewed                  Schlueter could have learned the factual
many years before December 9, 1997, as            predicate of his conflict of interest claim
it is apparent in view of his incarceration       well before April 24, 1996. Therefore,
that Schlueter had every incentive to             the one-year period of limitation began
have Crowe, his surviving trial attorney,         running under section 2244(d)(1)(A) on
interviewed. After all, as early as               April 24, 1996. Inasmuch as Schlueter
August 16, 1988, he had written Crowe             filed his federal habeas corpus petition
requesting information for the purpose            four and one-half years later on October
of pursuing state post-conviction review.         12, 2000, in the absence of tolling of the
We also point out that the factual basis          one-year period of limitation, his habeas
for the claim of impropriety based on the         corpus petition was untimely.
Blasco/Narlesky arrangement was hardly
obscure for, after interviewing Crowe                     In reaching our result, we
and discovering the Blasco/Narlesky               recognize that Schlueter is and has been
arrangement, Schlueter’s current                  incarcerated for many years and that
attorneys learned the details of the              physical confinement can limit a
arrangement merely by reviewing court             litigant’s ability to exercise due
records and filings, all of which were            diligence. See Moore v. Knight, 368
matters of public record. Appellant’s br.         F.3d at 940. We observe from the record
at 24.                                            and references in Schlueter’s brief,
                                                  however, that Schlueter’s parents have
        We realize that Lauer advised             been involved actively in their son’s case
Schlueter to postpone pursuing PCRA               for several years. Thus, Schlueter,
review until the civil proceedings were           unlike many other incarcerated litigants,
concluded. But by the time that his               has enjoyed the benefit of his family’s
parents retained Lauer almost six years           assistance, involvement and resources.
had elapsed since the time that Schlueter         We also point out that Schlueter’s
first contemplated bringing post-                 parents must be well educated as they
conviction review proceedings. Clearly,           both are referred to as “Doctor” in the
in allowing this time to pass Schlueter           record in this case. Therefore,
was not diligent. Moreover, Lauer’s               Schlueter’s incarceration does not
advice, at most, could have delayed               change our view that if he had exercised
Schlueter for only about five months              due diligence he would have discovered
from Lauer’s retention in June 1994 until         the facts supporting his PCRA claims

                                              7
before April 24, 1996.                                   The one-year period should be
                                                 equitably tolled “only in the rare
C. Tolling of the One-Year Period of             situation where equitable tolling is
Limitation                                       demanded by sound legal principles as
                                                 well as the interests of justice.” Jones v.
        The AEDPA’s one-year period of           Morton, 195 F.3d 153, 159 (3d Cir.
limitation is not an absolute limit.             1999). Equitable tolling is appropriate:
See Douglas, 359 F.3d at 261. Rather, it
is subject to two possible tolling                      only when the principles of
exceptions both of which Schlueter                      equity would make the
advances: (1) statutory tolling under 28                rigid application of a
U.S.C. § 2244(d)(2) while a properly                    limitation period unfair.
filed application for post-conviction                   Generally, this will occur
review is pending in the state courts; and              when the petitioner has in
(2) equitable tolling. See Merritt v.                   some extraordinary way
Blaine, 326 F.3d 157, 161 (3d Cir.                      been prevented from
2003). We examine first the period of                   asserting his or her rights.
time from April 24, 1996, the date on                   The petitioner must show
which the one-year period began to run,                 that he or she exercised
through December 9, 1997, the date on                   reasonable diligence in
which Schlueter’s current attorneys                     investigating and bringing
discovered the Blasco/Narlesky                          the claims.
arrangement, to determine whether there
                                                 Miller v. New Jersey State Dep’t of
should be equitable tolling during any
                                                 Corr., 145 F.3d 616, 618-19 (3d Cir.
portion of this period.10
                                                 1998) (internal citations and alterations
                                                 omitted).
       10
         It is undisputed that the period                Schlueter bases his equitable
of time from April 24, 1996, through             tolling argument on what he
February 2, 1998, cannot be tolled               characterizes as attorney malfeasance.
statutorily under section 2244(d)(2) as          Specifically, he argues that the delay in
Schlueter did not file any application of        filing his PCRA petition (and by
any kind in the state courts from April          extension his federal habeas corpus
24, 1996, until February 2, 1998, and he         petition) was due to Lauer’s misconduct
had not filed any application earlier that       in affirmatively misrepresenting that he
was pending during that period. In               would file a timely PCRA petition on
addition, Schlueter concedes that the            Schlueter’s behalf. In this regard we
one-year period was running from                 point out that if Lauer had filed the
December 9, 1997, until February 2,              PCRA petition by the state deadline of
1998. Appellant’s br. at 62.                     January 16, 1997, there would have been

                                             8
a period of tolling under section                 misrepresented to his client that he
2244(d)(2). In addition, Schlueter                already had filed a timely complaint and
contends that Blasco and Narleskys’               by the time the client discovered that her
alleged misconduct in not disclosing              attorney had not done so the period of
their arrangement compounded the                  limitations had expired. Here, in
unfair effect of Lauer’s failure to file a        December 1996, Lauer informed
PCRA petition after representing that he          Schlueter and his parents that he
would do so.                                      anticipated filing a PCRA petition before
                                                  the end of the year. When the year
        Generally, in a non-capital case
                                                  ended, Schlueter could have learned, as
such as Schlueter’s, attorney error is not
                                                  he did later, that Lauer had not filed a
a sufficient basis for equitable tolling of
                                                  PCRA petition. If he had done so he still
the AEDPA’s one-year period of
                                                  would have had a small window of time
limitation. See Johnson v. Hendricks,
                                                  in which to file a pro se petition and save
314 F.3d 159, 163 (3d Cir. 2002).
                                                  his PCRA claims from dismissal as
Nevertheless, we have held, albeit
                                                  untimely. Thus, his situation differs
outside the habeas context, that there are
                                                  sharply from that of the Seitzinger
“narrow circumstances in which the
                                                  plaintiff who was misled by what the
misbehavior of an attorney may merit”
                                                  attorney said he had done, not by what
equitable tolling. Seitzinger v. Reading
                                                  he said he would do.
Hosp. & Med. Ctr., 165 F.3d 236, 239
(3d Cir. 1999). Seitzinger involved a                      Moreover, it is apparent that
Title VII plaintiff who asked her attorney        Schlueter was fully aware of his PCRA
prior to the expiration of an applicable          rights in 1994 when he retained Lauer.11
90-day period of limitations if he had            Schlueter knew that Lauer had done
filed a complaint on her behalf. Id. at           little, if anything, to pursue PCRA relief
238. The attorney falsely stated that he          for more than two years.
had done so whereas, in fact, he did not          Notwithstanding this knowledge, neither
file a complaint until one day after the          Schlueter nor his parents took
limitations period expired. Id. We held
that the attorney’s affirmative
                                                         11
misrepresentation to his client, coupled                   The record reflects that
with the plaintiff’s extreme diligence in         Schlueter actually knew of his right to
pursuing her claim and the absence of             pursue state post-conviction review as
prejudice to the defendant, “created a            early as August 16, 1988, when he wrote
situation appropriate for tolling.” Id. at        to Crowe requesting information for that
242.                                              purpose. Crowe declined to respond
                                                  because he no longer represented
       We find that the material facts of         Schlueter. Schlueter apparently took no
Seitzinger are distinguishable from those         further steps to challenge his conviction
presented here. In Seitzinger, counsel            until he retained Lauer in 1994.

                                              9
affirmative steps to ensure the timely            Moore, 345 F.3d 796 (9th Cir. 2003), and
filing of a PCRA petition until Schlueter         Baldayaque v. United States, 338 F.3d
wrote his November 10, 1996 letter to             145 (2d Cir. 2003), for the proposition
Lauer advising him of the PCRA                    that attorney malfeasance constitutes an
deadline and asking him to file a timely          extraordinary circumstance sufficient to
petition. Then after the end of 1996              warrant equitable tolling of the one-year
Schlueter did not attempt to ascertain            period of limitation. As these cases
from Lauer prior to the January 16, 1997          amply demonstrate, however, a finding
deadline of which he was well aware               that attorney malfeasance is an
whether Lauer, in fact, had filed a PCRA          extraordinary circumstance, without
petition. We also find it significant that        more, is not sufficient to warrant
the period of limitations at issue in             equitable tolling. Spitsyn holds that
Seitzinger was a brief 90 days and that           egregious attorney misconduct may
the attorney filed the complaint only one         justify equitable tolling, but also requires
day late. Thus, the attorney’s                    district courts to examine the petitioner’s
misconduct warranted equitably tolling            due diligence in pursuing the matter
one day of a short period of limitations.         under the specific circumstances he
Here, the AEDPA’s limitation period is            faced. Spitsyn, 345 F.3d at 802.
one year, and did not begin to run until          Likewise, Baldayaque holds that “an
April 24, 1996, nearly nine years after           attorney’s conduct, if it is sufficiently
Schlueter’s conviction became final in            egregious, may constitute the sort of
1987. Schlueter did not initiate state            ‘extraordinary circumstances’ that would
post-conviction proceedings until 1998            justify the application of equitable
and did not pursue federal habeas corpus          tolling.” Baldayaque, 338 F.3d at 152-
relief until 2000 even though he had              53. Baldayaque, however, expressly
been convicted in 1987. The                       states that the presence of extraordinary
circumstances in Schlueter’s case simply          circumstances “is not enough” – a
do not warrant the application of                 petitioner “must also show that he acted
equitable tolling after such lengthy              with reasonable diligence, and that the
periods of time had elapsed following             extraordinary circumstances caused his
his conviction before he sought state and         petition to be untimely.” Id. at 153
federal relief.12                                 (citation omitted). In other words,
                                                  neither Spitsyn nor Baldayaque holds
       Schlueter also relies on Spitsyn v.
                                                  that attorney malfeasance, standing
                                                  alone, warrants equitable tolling.13
       12
        Inasmuch as we are not allowing
any period of equitable tolling we have
                                                         13
no need to engage in an intricate                          We acknowledge Schlueter’s
counting process computing the                    reliance on Boyd v. Myers, Civ. A. No.
hypothetical possible tolling period.             97-7160, 1998 U.S. Dist. LEXIS 20253

                                             10
        For these reasons, we conclude            until December 9, 1997, or during any
that the circumstances presented in               portion thereof. We conclude, therefore,
Schlueter’s case do not warrant equitable         that the AEDPA’s one-year period of
tolling. We are convinced that if                 limitation expired before Schlueter filed
Schlueter had exercised reasonable                his PCRA petition, his motion to
diligence, he could have brought his              reinstate his direct appeal nunc pro tunc,
claims in a timely fashion, Lauer’s               or his federal habeas corpus petition.15
alleged misconduct notwithstanding.14
                                                         In view of our disposition we
Accordingly, we cannot equitably toll
                                                  address only briefly Schlueter’s
the period of time from April 24, 1996,
                                                  arguments for equitable or statutory
                                                  tolling while either his PCRA petition or
(E.D. Pa. Dec. 21, 1998), in which the            his motion to reinstate his direct appeal
district court applied equitable tolling          nunc pro tunc was pending in the state
where the petitioner’s attorney promised          courts. We do note that Merritt v.
to file a timely federal habeas petition,         Blaine, 326 F.3d at 161-65, forecloses
but filed it five months late. Quite aside        Schlueter’s argument for statutory tolling
from the circumstance that Boyd is not            during the time his untimely PCRA
precedential, we find the case unhelpful          petition was pending as it holds that a
to our current analysis as the district           federal habeas court for purposes of
court issued the opinion in 1998 before
we had provided much guidance on the
                                                         15
subject of equitable tolling in the habeas                  We disagree with the dissent’s
context. Consequently, the equitable              position that we should remand to the
tolling standard utilized in Boyd                 district court to consider whether
arguably does not comport with our                Schlueter exercised reasonable diligence.
more recent pronouncements requiring a            Dissenting opinion at 7. The magistrate
habeas petitioner to demonstrate that he          judge concluded that “the delay in
was “prevented in an extraordinary way            learning of an office sharing relationship
from asserting his rights.” Johnson, 314          between the prosecutor and defense
F.3d at 163.                                      counsel did not demonstrate the exercise
                                                  of due diligence.” App. at 15 n.1. The
       14
        Our opinion should not be                 issue of Schlueter’s diligence also was
misread to condone or excuse Lauer’s              raised at oral argument before the district
conduct. To the contrary we                       judge. The district judge subsequently
acknowledge that arguably Lauer’s                 approved and adopted the magistrate
conduct was unacceptable and fell below           judge’s report and recommendation.
professional standards. On the other              Because the district court already has
hand, fairness to Lauer requires that we          ruled that Schlueter did not exercise
point out that he could not find what he          reasonable diligence, a remand would be
regarded was a basis for a PCRA claim.            pointless.

                                             11
section 2244(d)(2) defers to a state               untimely and there was no basis to
court’s ruling dismissing a PCRA                   circumvent the time bar and not because
petition as untimely.16 Accordingly it is          Schlueter could not have demonstrated
clear that his untimely state PCRA claim           that there had been a reversible error in
cannot possibly help him.                          the trial proceedings so that an appeal
                                                   would have been futile. We decline to
         We also reject his claim that
                                                   adopt a construction of the AEDPA that
somehow filing his motion to restore his
                                                   permits a petition for habeas corpus to be
appellate rights on June 22, 1998, more
                                                   deemed timely on the basis of section
than one year after the AEDPA period of
                                                   2244(d)(2) providing for tolling for
limitations had run, should lead to
                                                   “properly filed application[s] for state
statutory tolling on the basis that the
                                                   post-conviction . . . review” merely
motion was a “properly filed”
                                                   because the petitioner unsuccessfully has
application for post-conviction review
                                                   sought the right to appeal nunc pro tunc
under section 2244(d)(2). While he
                                                   years after his unexercised right to file a
predicates this argument on the theory
                                                   timely direct appeal has expired. See
that his motion was denied “on the
                                                   Douglas, 359 F.3d at 261-63.
merits,” appellant’s br. at 46, inasmuch
as the state court pointed out that                         Finally we recognize that the
Schlueter had “knowingly and                       dissent contends that there is a strong
voluntarily waived his appellate rights,”          argument for equitable tolling predicated
it is clear that the appeal was not                on various Pennsylvania state appellate
permitted because it would have been               decisions based on Schlueter’s filing of
                                                   the PCRA petition and his motion to
                                                   reinstate his direct appeal nunc pro tunc.
       16
         Schlueter contends that we                Dissenting opinion at 3-4 n.2. This point
“wrongly decided” Merritt v. Blaine,               is critical in the dissent’s analysis as it
appellant’s br. at 54, but this panel              points out that equitable tolling during
cannot entertain that argument. We also            the period from April 24, 1996, until
note that even if we held that the one-            December 9, 1997, “saves Schlueter’s
year period of limitation began running            claim only if we also toll pending
under section 2244(d)(1)(D) on                     resolution of the state-court
December 9, 1997, in view of Merritt v.            proceedings.” Id. We need not discuss
Blaine there would not have been                   these state decisions as he pursued both
statutory tolling of the one-year period of        forms of relief after the AEDPA period
limitation governing Schlueter’s federal           of limitations already had run.
habeas corpus action while his PCRA
petition was pending. Thus, inasmuch as
he commenced his federal action on                           III. CONCLUSION
October 12, 2000, it would have been
untimely.                                                 For the foregoing reasons, we

                                              12
conclude that the district court properly                Schlueter v. Varner, et al
dismissed Schlueter’s habeas corpus
                                                                No. 03-3928
petition as time barred by the one-year
period of limitation. Accordingly, we
will affirm the district court’s order
entered September 3, 2003.
                                                 Ambro, Circuit Judge, Dissenting
                                                         It is an underlying assumption of
                                                 our legal system that attorneys actively
                                                 pursue the best interests of their clients.
                                                 All too often, attorneys make mistakes.
                                                 The sad reality is that there are not
                                                 enough willing defense attorneys to
                                                 represent competently the interests of the
                                                 many criminal defendants who cycle
                                                 through the courts. And thus,
                                                 necessarily, we afford substantial leeway
                                                 to attorneys when it comes to “mere
                                                 ‘attorney error.’” Roe v. Flores-Ortega,
                                                 528 U.S. 470, 482 (2000).
                                                        But the distinction between
                                                 mistake and malfeasance is profound.
                                                 There can be little semblance of justice
                                                 when an attorney assigned to protect a
                                                 defendant ignores a blatant conflict of
                                                 interest, and another counsel does
                                                 nothing while promising more than once
                                                 to protect the defendant’s rights. If the
                                                 facts are as Paul Schlueter has portrayed
                                                 them, his trial counsel (George Blasco)
                                                 disregarded his civil law partnership
                                                 with the prosecutor (James Narlesky),
                                                 and his appellate counsel (Philip Lauer)
                                                 affirmatively misrepresented that he
                                                 would timely file a petition for relief in
                                                 order to forestall the inevitable
                                                 accounting for his long-promised and




                                            13
paid-for legal services.17 Irony becomes            if the limitations period was tolled.
Kafkaesque when the latter act of
                                                            The AEDPA filing deadline is
malfeasance shelters from review the
                                                    subject to equitable tolling “when the
former act of malfeasance.
                                                    principles of equity would make the rigid
        I cannot in good conscience bury            application of a limitation period unfair.”
Schlueter’s case before it sees the light           Miller v. N.J. State Dep’t of Corr., 145
of day. AEDPA confers on federal                    F.3d 616, 618 (3d Cir. 1998) (internal
courts the authority equitably to toll its          quotation omitted). While this principle
limitations period in the interest of               on its face is broad, it is to be applied
justice. If any case is ripe for exercise of        sparingly. Equitable tolling is
that power, this one is. Accordingly, I             appropriate when “the petitioner has in
respectfully dissent.                               some extraordinary way been prevented
                                                    from asserting his or her rights. The
            *   *    *   *    *
                                                    petitioner must show that he or she
       As the majority explained,                   exercised reasonable diligence in
Schlueter’s habeas petition would                   investigating and bringing the claims.”
ordinarily have been due on April 23,               Id. at 618–19 (internal quotations
1997. See Douglas v. Horn, 359 F.3d                 omitted); see also Jones v. Morton, 195
257, 261 (3d Cir. 2004). He did not file            F.3d 153, 159 (3d Cir. 1999).
his petition, however, until October 12,
                                                            We have concluded, as a general
2000. Thus the petition was timely only
                                                    matter, that attorney error is not so
                                                    “extraordinary” as to justify equitable
       17
         At the very least, I would                 tolling. See, e.g., Johnson v. Hendricks,
remand for a determination by the                   314 F.3d 159, 163 (3d Cir. 2002). This
District Court whether Lauer, reputed to            rule makes sense, as attorney error is
be well qualified, did in fact                      normally attributed to the client. See,
affirmatively mislead his client. See, e.g.,        e.g., United States v. Boyle, 469 U.S.
United States v. Wynn, 292 F.3d 226,                241, 250 (1985). But it does not follow
230 (5th Cir. 2002) (remanding for                  that tolling based on deception of the
hearing to determine whether defendant              kind alleged by Schlueter in this case is
was obligated to undertake further                  also foreclosed.
inquiry upon receipt of a letter from the                  Schlueter and his parents wrote to
court stating that no petition under the            and called Lauer on many occasions over
Anti-Terrorism and Effective Death                  a period of several months. He falsely
Penalty Act (“AEDPA”) had been filed,               assured them that he was preparing a
when attorney allegedly told the                    PCRA petition and would timely file.
defendant’s father that no record of his            But he made no such preparations.
filing existed because the petition was             After allowing the deadline to pass, he
filed directly with the judge).

                                               14
ceased all communication with the                   370 U.S. 626, 634 (1962) (“[E]ach party
Schlueters. He did not return their many            is deemed bound by the acts of his
phone calls or letters, nor did he timely           lawyer-agent . . . .”).
return Schlueter’s files despite repeated
                                                            But it is a fundamental principle
requests from Schlueter and his new
                                                    of agency law that the knowledge of an
counsel. Lauer’s intentional
                                                    agent is not attributed to the principal
abandonment of Schlueter’s case cannot
                                                    when the agent is acting in a manner
plausibly be labeled “error.” His
                                                    adverse to the interests of the principal.
behavior, I believe, was sufficiently
                                                    Restatement (Third) of Agency § 5.04
egregious to bring it “within the narrow
                                                    (Tentative Draft No. 4 2003) (“Notice is
line of cases in which lawyer misconduct
                                                    not imputed to the principal of a fact that
justifies equitable tolling.” Seitzinger v.
                                                    an agent knows or has reason to know if
Reading Hosp. & Med. Ctr., 165 F.3d
                                                    the agent acts adversely to the principal
236, 238 (3d Cir. 1999).
                                                    in a transaction or matter for the agent’s
        The law of agency provides a                own purposes . . . .”). Mere attorney
useful framework for understanding the              error does not constitute an
distinction between error and                       “extraordinary circumstance” because a
misconduct. See Baldayaque v. United                circumstance, to be extraordinary, must
States, 338 F.3d 145, 154 (2d Cir. 2003)            be beyond the prisoner’s control. Harris
(Jacobs, J., concurring). Ordinarily,               v. Hutchinson, 209 F.3d 325, 330 (4th
“[a]ttorney ignorance or inadvertence”              Cir. 2000). Thus, we have explained, a
does not excuse a petitioner’s non-                 client who relies on the faulty advice of
compliance with AEDPA, because “the                 his lawyer has not encountered an
attorney is the petitioner’s agent when             obstacle to filing that is external to his
acting, or failing to act, in furtherance of        conduct. Johnson, 314 F.3d at 162–63.
the litigation.” Coleman v. Thompson,               Conversely, when, as here, an attorney
501 U.S. 722, 753 (1991) (rejecting                 ceases altogether to serve the interests of
attorney error as “cause” for                       his client, the law of agency is clear that
procedurally defaulted habeas claims);              the attorney acts alone.
see also McCarthy v. Recordex Serv.,
                                                            This central tenet—that attorney
Inc., 80 F.3d 842, 853 (3d Cir. 1996) (“It
                                                    malfeasance should not be attributed to
is, of course, beyond cavil that the
                                                    the client—paves any number of parallel
attorney-client relationship is an
                                                    paths to tolling in this case. We might
agent-principal relationship.”). We
                                                    conclude that Schlueter, had Lauer not
assume, for better or worse, that a lawyer
                                                    represented that he was acting on the
is acting as the petitioner’s agent, and the
                                                    case, would timely have filed a petition
petitioner therefore “bear[s] the risk of
                                                    under Pennsylvania’s Post-Conviction
attorney error.” Coleman, 501 U.S. at
                                                    Relief Act (“PCRA”), 42 Pa. Cons. Stat.
752–53; cf. Link v. Wabash R.R. Co.,
                                                    Ann. § 9541, et seq., prior to the

                                               15
deadline that would have presented
Blasco’s clear conflict as trial counsel.
Thus we might equitably toll the statute           pending shall not be counted toward any
from April 24, 1996, the day it began to           period of limitation under this
run, to December 9, 1997, the day that             subsection.” But neither the PCRA
Schlueter’s new counsel was put on                 petition nor the nunc pro tunc petition
notice of the relationship between Blasco          was “properly filed” for the purposes of
and Narlesky.18 We might hold that                 Pennsylvania law. Our Court has stated
                                                   that “an untimely PCRA petition does
                                                   not toll the statute of limitations for a
       18
          Tolling for this minimum                 federal habeas corpus petition.” Merritt
duration saves Schlueter’s claim only if           v. Blaine, 326 F.3d 157, 165 (3d Cir.
we also toll pending resolution of the             2003). Nor is statutory tolling available
state-court proceedings. The analysis is           based on the nunc pro tunc petition,
complex, but it can be summarized as               notwithstanding our recent decision in
follows.                                           Douglas v. Horn, 359 F.3d 257, 263
        On February 3, 1998, Schleuter             n.11 (3d Cir. 2004). Douglas suggested
filed a petition for post-conviction relief        that statutory tolling might apply to nunc
under PCRA. He argued that his PCRA                pro tunc petitions filed before the
petition should be deemed timely                   Pennsylvania Supreme Court’s decision
because the delay in filing was based on           in Commonwealth v. Lantzy, 736 A.2d
ineffective assistance of counsel retained         564 (Pa. 1999), which reversed a series
to file the petition. In June 1998 he              of decisions by Pennsylvania lower
separately filed a petition to appeal nunc         courts indicating that nunc pro tunc
pro tunc. The PCRA Court denied the                petitions were compatible with PCRA
PCRA petition as untimely and rejected             under appropriate circumstances. See,
Schlueter’s request for an appeal nunc             e.g., Commonwealth v. Hall, 713 A.2d
pro tunc. On October 22, 1999, the                 650, 653 (Pa. Super. 1998), rev’d in
Pennsylvania Superior Court affirmed.              part, vacated in part, 771 A.2d 1232
Schleuter’s subsequent petition for                (Pa. 2001). But in Commonwealth v.
allowance of an appeal was denied by               Eller, 807 A.2d 838 (Pa. 2002), the
the Pennsylvania Supreme Court on                  Pennsylvania Supreme Court held that
August 28, 2000.                                   Lantzy did not announce a new rule and
        I note first that statutory tolling        thus applies retroactively. Therefore,
will not save Schlueter’s claim. 28                though Schlueter’s nunc pro tunc
U.S.C. § 2244(d)(2) provides that “[t]he           petition was filed more than a year
time during which a properly filed                 before Lantzy was decided, it was not
application for State post-conviction or           properly filed for the purposes of
other collateral review with respect to            Pennsylvania law.
the pertinent judgment or claim is                         Although I would not statutorily

                                              16
                                                  equity requires us to toll the statute to the
                                                  day that Schlueter’s habeus petition was
toll the AEDPA limitations period under           finally filed. Or we might even conclude
§ 2244(d)(2), a strong argument exists            that Schlueter falls within the ambit of
for equitable tolling based on Schlueter’s        § 2244(d)(1)(D), because the conflict of
good-faith efforts to avail himself of            interest, though discoverable by Lauer
state post-conviction relief. In Merritt,         based on his alleged knowledge of
326 F.3d at 170 n.10, we preserved the            Blasco and Narlesky’s office sharing
possibility that equitable tolling may be         arrangement, was not reasonably
appropriate where, as here, a PCRA                ascertainable by an incarcerated inmate
petition is late based on newly                   who was forestalled from pursuing his
discovered facts of a “legitimate” nature.        case by the false assurances of a third
Id. (“Undoubtedly, there will be other            party.19
habeas petitioners who find themselves
in similar situations where their need to         decided, several post-Lantzy en banc
exhaust state remedies will create a              opinions of the Superior Court (which
tension with the one-year statute of              would later be overruled by Eller) held
limitations in AEDPA. . . . The federal           that it would not apply retroactively.
courts should seek ways to ameliorate             See, e.g., Commonwealth v. Garcia, 749
the consequences for these petitioners in         A.2d 928, 933 (Pa. Super. Ct. 2000) (en
appropriate cases.”). This may be the             banc), rev’d, 811A.2d 994 (Pa. 2002);
special case that panel had in mind.              Commonwealth v. Hitchcock, 749 A.2d
        The argument for equitable tolling        935, 939-40 (Pa. Super. Ct. 2000) (en
based on Schlueter’s nunc pro                     banc).
tunc petition is even stronger. The
                                                         19
Pennsylvania Superior Court’s decision                     The majority is “convinced that
in Hall, 713 A.2d at 653, announcing              if Schlueter had exercised due diligence,
that nunc pro tunc petitions were                 he could have discovered the
permissible under appropriate                     Blasco/Narlesky arrangement long
circumstances despite the language of             before the AEDPA became effective.”
PCRA, was issued on June 3, 1998.                 But this task would have been harder
Based on that decision, Schlueter’s               than it sounds. While various
counsel concluded that Schlueter was              individuals were aware of the office
eligible for nunc pro tunc relief and             sharing arrangement, few (if any) knew
would therefore be obligated to pursue it         the extent of the relationship between the
under AEDPA in order to exhaust state             two attorneys. The evidence strongly
remedies. He similarly relied on                  suggests that Narlesky affirmatively
Pennsylvania case law when he appealed            concealed the relationship. According to
the PCRA court’s decision in December             Schlueter, Narlesky went so far as to
1998; although Lantzy had by then been            misrepresent to the PCRA court the

                                             17
        Other courts have applied                  extraordinary circumstance’ beyond
equitable tolling under circumstances              petitioner’s control that could warrant
like these. In Baldayaque, 338 F.3d at             equitable tolling of the statute of
152, for example, an attorney failed               limitations.”); cf. Doherty v. Teamsters
timely to file a § 2255 motion requested           Pension Trust Fund of Phila. & Vicinity,
by his client and made inadequate efforts          16 F.3d 1386 (3d Cir. 1994) (tolling
to communicate with him. The Second                based on the death of the petitioner’s
Circuit held that the attorney, “[b]y              attorney).
refusing to do what was requested by his
                                                           In our Circuit, the principal case
client on such a fundamental matter, . . .
                                                   on point is Seitzinger. It involved a Title
violated a basic duty of an attorney to his
                                                   VII claim, though we have since applied
client.” His actions, the Court
                                                   its reasoning to habeas cases. See, e.g.,
continued, “were far enough outside the
                                                   Brown v. Shannon, 322 F.3d 768, 774
range of behavior that reasonably could
                                                   (3d Cir. 2003). The Supreme Court has
be expected by a client that they may be
                                                   cautioned that in the Title VII context
considered ‘extraordinary’” and thereby
                                                   “the principles of equitable tolling . . . do
“justify the application of equitable
                                                   not extend to what is at best a garden
tolling to the one-year limitations period
                                                   variety claim of excusable neglect.”
of AEDPA.” Id. at 152–53. See also
                                                   Irwin v. Dep’t Veteran Affairs, 498 U.S.
Spitsyn v. Moore, 345 F.3d 796, 798 (9th
                                                   89, 96 (1990). Our task in Seitzinger
Cir. 2003) (“Based upon the unique facts
                                                   was to decide whether misconduct by the
of this case, where an attorney was
                                                   plaintiff’s attorney was merely “garden
retained to prepare and file a petition,
                                                   variety” or, rather, was something more
failed to do so, and disregarded requests
                                                   egregious. The plaintiff alleged that she
to return the files pertaining to
                                                   repeatedly asked her attorney whether he
petitioner’s case until well after the date
                                                   had filed a complaint, and each time he
the petition was due, we agree that
                                                   misrepresented to her that he had. Under
equitable tolling of the deadline is
                                                   these circumstances, we concluded that
appropriate.”); United States v. Wynn,
                                                   equitable tolling was appropriate.
292 F.3d 226, 230 (5th Cir. 2002)
                                                   Seitzinger, 165 F.3d at 241.
(“Wynn’s allegation that he was
deceived by his attorney into believing                    Of course, Seitzinger also requires
that a timely § 2255 motion had been               that the client be “reasonably diligent” in
filed on his behalf presents a ‘rare and           pursuing his or her claims. But the facts
                                                   of Seitzinger leave little doubt that
                                                   Schlueter has met that burden. In
character of his partnership with Blasco.          concluding that the plaintiff in Seitzinger
The conflict was particularly difficult to         was diligent, we emphasized that she: (1)
discover because Blasco’s death in 1988            hired an attorney to file her civil
dissolved that partnership.                        complaint; (2) “contacted him before the

                                              18
filing deadline, which she knew about in          1997, he should have ascertained
broad terms, to ensure that he had filed          whether Lauer had indeed filed as
the complaint”; and (3) repeatedly called         promised. Never mind that Lauer had
him in order to obtain a copy of the              ceased to return phone calls on
complaint and monitor the status of her           Schlueter’s behalf. Never mind that
case. Id. at 241. All of these factors are        when the Schlueters, having received no
true in Schlueter’s case as well. In fact,        word from Lauer for months, inquired
Schlueter and his family were, if                 with the clerk’s office whether a petition
anything, more diligent. They apprised            had been filed, it was nearly forty days
their attorney of the precise filing              before they received a response.
deadline (whereas Seitzinger was aware,           Schlueter, says the majority, might have
“in broad terms,” that a deadline existed)        done more.
with ample time to prepare a petition. In
                                                         This, I suppose, is theoretically
addition to their phone calls, the
                                                  true. But it blinks reality to suggest that
Schlueters wrote several letters seeking
                                                  Schlueter might have retained substitute
to ensure that the PCRA petition would
                                                  counsel willing to prepare a petition
be filed prior to the deadline. And they
                                                  within the two short weeks between the
received written assurances that a
                                                  end of 1996 and the PCRA filing
petition would timely be filed.
                                                  deadline. Still, he might have filed his
        Once the deadline had passed, the         own PCRA petition pro se, just in case.
Schlueters did everything that could              That would have been supremely
reasonably be expected of them. When              diligent.
their phone calls from Lauer were not
                                                          But supreme diligence is not
returned, they wrote to the clerk’s office
                                                  required. On the contrary, the standard
directly. That office did not respond
                                                  is a relatively modest one. Schlueter’s
until March 18, 1997. The time between
                                                  diligence need only have been
the Schlueters’ discovery of Lauer’s
                                                  reasonable under the circumstances. Cf.
failure to file and their retaining new
                                                  Baldayaque, 338 F.3d at 153 (“The
counsel was just over two months. After
                                                  standard is not ‘extreme diligence’ or
that, matters were largely out of
                                                  ‘exceptional diligence,’ it is reasonable
Schlueter and his counsel’s hands.
                                                  diligence.”) (emphasis in text). I believe
Lauer simply did not turn over the files
                                                  that Schlueter’s protracted efforts
for many months.
                                                  handily qualify. But if the majority is
       The majority dismisses                     not convinced, it seems to me better to
Schlueter’s efforts as inadequate. They           remand for the District Court to consider
suggest that he was not entitled to rely          this issue in the first instance rather than
on the two written assurances by the              dismiss outright his habeus petition. See
attorney whom he had hired to pursue              id.
his case; rather, on New Year’s Day of

                                             19
         Still, the majority insists,
Seitzinger is distinguishable. If that is
so, it is because the urgency of tolling is
far stronger in Schlueter’s case. The
attorney in Seitzinger nearly cost his
client the right to seek recovery for
gender and age discrimination by her
employer. But the stakes in this case are
far higher—life imprisonment without
the possibility of parole.
        The gravity of Schlueter’s
situation is self-evident. “Dismissal of a
first habeas petition is a particularly
serious matter, for that dismissal denies
the petitioner the protections of the Great
Writ entirely, risking injury to an
important interest in human liberty.”
Lonchar v. Thomas, 517 U.S. 314, 324
(1996) (emphasis omitted). The majority
declines to exercise its power to rectify a
fundamental inequity—that Schlueter’s
appellate counsel, rather than assisting
him in obtaining the relief he was
retained to pursue, crippled Schlueter’s
diligent efforts timely to obtain post-
conviction relief for the tainted
representation he received from his
defense attorney at trial. Thus no court
will ever pass on the merits of his habeas
claim. Because I believe that under
these circumstances “the principles of
equity . . . make the rigid application of
[the AEDPA] limitation period unfair,”
Miller, 145 F.3d at 618 (internal
quotations omitted), I respectfully
dissent.




                                              20
