                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2005

Garrick v. DiGuglielmo
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2374




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                                                             NOT PRECEDENTIAL
                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 04-2374


                                   MARK GARRICK
                                              Appellant
                                         v.

               *DAVID DIGUGLIELMO, LYNNE ABRAHAM;
        THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

                     *(Amended per Clerk’s Order of 02/22/05)


                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 00-cv-4845)
                   District Judge: Honorable James McGirr Kelly


                             Argued December 15, 2005

        Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges.

                             (Filed: December 28, 2005)

Maureen Kearney Rowley, Chief Federal Defender
Brett G. Sweitzer (Argued)
David L. McColgin
Defender Association of Philadelphia
Federal Court Division
Suite 540 West – Curtis Center
Philadelphia, Pennsylvania 19106
       Counsel for Appellant

Lynne Abraham, District Attorney
John W. Goldsborough (Argued)
Office of the District Attorney
1421 Arch Street
Philadelphia, PA 19102
      Counsel for Appellees
                                            ____

                                OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Defendant-Appellant Mark Garrick was convicted of second-degree murder in 1981

and sentenced on March 22, 1983 to life imprisonment. Presently before this Court is

Garrick’s appeal from the denial of one of his collateral attacks of that conviction and

sentence, a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The

District Court denied the petition as untimely, and Garrick acknowledges he filed six days

late under the 1-year statute of limitations period imposed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA).1 Notwithstanding that admission, we granted a

Certificate of Appealability (“COA”) on December 16, 2004 as to whether equitable tolling

should have applied to some or all of this period. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253 and will affirm.2


   1
     A jury convicted Garrick of the 1975 murder of Maurice Wilson during an
apartment robbery. Garrick’s co-defendants, in Garrick’s presence, coerced the victims to
cooperate by, among other things, holding a gun to an infant’s nose. Argument in this
matter confirmed that Garrick does not now, and has not ever, asserted actual innocence.
   2
      We pause to confirm our jurisdiction. An appeal from a denied § 2254 petition
requires a COA, 28 U.S.C. § 2253(c)(1), and where, as here, relief was denied on
procedural grounds, a COA may issue only if (1) “jurists of reason would find it
debatable whether the . . . procedural ruling” was correct, Slack v. McDaniel, 529 U.S.
473, 478 (2000), and (2) the appellant substantially shows a denied constitutional right.
28 U.S.C. § 2253(c)(2). Here, argument, briefing, and supplemental authority provided
by both parties persuade us the requirements are met, and thus jurisdiction is proper.

                                              2
                                                I.

       Garrick has pursued and exhausted direct appeals. The Superior Court affirmed his

murder conviction and life sentence on July 12, 1985, and on December 29, 1987, the

Pennsylvania Supreme Court denied permission to appeal. Comm. v. Wright and Garrick,

501 A.2d 294 (1985) (per curiam) (table), allocatur denied, Comm. v. Garrick, 541 A.2d 744

(December 29, 1987) (table).3 Almost a decade later, in December 1996, Garrick began

pursuing collateral relief, filing his first state collateral relief petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. This was ultimately dismissed

by a trial court on January 26, 1999 (after Garrick had amended his PCRA petition once and

responded to a Commonwealth motion to dismiss); the Superior Court affirmed the dismissal

and the Pennsylvania Supreme Court again denied review. Comm. v. Garrick, 752 A.2d 420

(Pa. Super. 2000) (table), allocatur denied, 758 A.2d 1196 (May 24, 2000) (table).4

       It is in this context that Garrick filed the instant petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254, on September 21, 2000. An evidentiary hearing was held

before a magistrate judge on February 8, 2002, generating a report and recommendation that

was adopted by the District Court on April 28, 1994, the date it dismissed Garrick’s petition



   3
      At the time, Garrick filed a different habeas petition alleging delays when the
Pennsylvania Supreme Court appointed counsel to assist him with his allocatur petition.
This prior habeas petition is not relevant to the petition before us today.
   4
      Garrick subsequently filed a second PCRA petition on April 9, 2004. The trial
court dismissed this second PCRA petition as untimely filed, a decision which the
Superior Court affirmed while argument in this case was pending before this Court.
Comm. v. Garrick, ___ A.2d ___ (September 12, 2005) (table).

                                                3
as untimely. Garrick admits he filed six days late under the AEDPA’s 1-year statute of

limitations, but contends exceptional circumstances warrant equitable tolling. Our review

is plenary. LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005); Merritt v. Blaine, 326 F.3d

157, 161 (3d Cir. 2003).

                                              II.

       “The [AEDPA] establishes a 1-year statute of limitations for filing a federal habeas

corpus petition.” Pace v. DiGuglielmo, ___ U.S. ___, ___, 125 S.Ct. 1807, 1808 (2005)

(citing 28 U.S.C. § 2244(d)(1)). “That limitations period is tolled, however, while ‘a

properly filed application for State post-conviction or other collateral review with respect to

the pertinent judgment or claim is pending.’” Id. (citing 28 U.S.C. § 2244(d)(2)) (emphasis

added).5

       The AEDPA’s statute of limitations is subject to equitable tolling, see, e.g., Pace, ___

U.S. at ___, 125 S.Ct. at 1814, but such tolling is reserved for exceptional circumstances.

“Generally, a litigant seeking equitable tolling 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.” Id. Our decisions do not disagree. See, e.g,, LaCava, 398

F.3d at 275 (“[m]ere excusable neglect is not sufficient”); Fahy v. Horn, 240 F.3d 239, 243-

45 (3d Cir. 2001) (a petitioner must “in some extraordinary way [have] been prevented from

asserting his or her rights” and have“exercised reasonable diligence in investigating and

   5
     The parties agree Garrick enjoyed statutory tolling while his first PCRA petition was
pending, and that, upon its denial by the Pennsylvania Supreme Court, he did not file an
application for relief with the United States Supreme Court.

                                              4
bringing [the] claims”).

       Garrick’s contentions satisfy neither element.       He argues this Circuit’s cases

discussing § 2244(d)(2) prior to the date he elected to file were sufficiently unsettled so as

to create an “exceptional circumstance” unto itself.6 We are aware of no binding authority

that supports this proposition; certainly we are cited to none. Persuasive authority appears

to be contra. See, e.g., Reed v. Mokena Sch. Dist. No. 159, 41 F.3d 1153, 1155 (7th Cir.

1994) (“The unsettled state of the law, standing alone, is not sufficient to trigger the

invocation of equitable principles.”). In any event, Garrick’s underlying premise — his

uncertainty about the governing statutory provision, § 2244(d)(2) — cannot stand: he

testified at his evidentiary hearing that he never looked up the statute in his prison law

library. In so denying himself the benefit of the plain language of § 2244(d)(2), which

requires “a properly filed application” that “is pending,” Garrick confirms his lack of

diligence and fatally undermines any claim of extraordinary circumstance. See 28 U.S.C. §

2244(d)(2) (emphasis added).

       Garrick also contends that forces beyond his control caused him to untimely file. To

be clear, the record shows no allegation that he was misled or tricked, or that anything (or

anyone) actually “stood in his way,” Pace, 125 S.Ct. at 1814, or otherwise “prevented [him]



   6
       The unsettled issue to which Garrick refers concerned whether the 90-day period for
filing a writ of certiorari to the United States Supreme Court should be excluded from the
period for filing a writ of habeas corpus. See, e.g., Kapral v. United States, 166 F.3d 565
(3d Cir. 1999). It was only in Stokes v. District Attorney of County of Philadelphia, 247
F.3d 539 (3d Cir. 2001), that this court held that AEDPA’s statute of limitations is not
tolled during the 90-day certiorari period.

                                              5
from asserting his . . . rights.” Fahy, 240 F.3d at 244. Garrick was his own hindrance: he

did not allege that he tried to obtain habeas forms during the first eight months of the

limitations period, and he admitted he had other, alternative routes available to him for

obtaining habeas forms beyond his prison library. “Had petitioner advanced his claims

within a reasonable time of their availability, he would not now be facing any time problem.”

Pace, 125 S.Ct. at 1815. In sitting on his rights for “months after his PCRA proceedings

became final before deciding to seek relief in federal court[,] . . . . [Garrick’s] lack of

diligence precludes equity’s operation.” Id. (emphasis in original). Each of Garrick’s

proffered difficulties (none of which were exceptional, as all were ministerial) could have

been anticipated or discovered, and thus timely resolved, through his exercise of reasonable

diligence. Id. Moreover, nothing prevented Garrick from filing a timely petition and then

seeking to amend or otherwise complete it as 28 U.S.C. § 2242 and Fed.R.Civ.P. 15(a) would

allow. See, e.g., Robinson v. Johnson, 313 F.3d 128, 143 (3d Cir. 2002).

      Garrick having failed to satisfy the grounds for equitable tolling, we will affirm the

denial of the petition.




                                             6
