                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

Merritt v. Blaine
Precedential or Non-Precedential: Precedential

Docket 01-2455




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                          PRECEDENTIAL

                                    Filed April 16, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 01-2455


                MARVON MERRITT,
              a/k/a MERRIT MONROE
                         v.
    CONNER BLAINE; THE DISTRICT ATTORNEY
OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY
   GENERAL OF THE STATE OF PENNSYLVANIA
                  Marvon Merritt,
                            Appellant

   On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
              (D.C. Civil No. 00-cv-02338)
         District Judge: Hon. John P. Fullam

             Argued December 20, 2002
Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

               (Filed: April 16, 2003)

                  Jane Elizabeth Lee (Argued)
                  Portland, Maine 04101
                    Attorney for Appellant
                              2


                       Robert M. Falin (Argued)
                        Assistant District Attorney
                       Thomas W. Dolgenos
                        Chief, Federal Litigation
                       Ronald Eisenberg
                        Deputy District Attorney
                       Arnold H. Gordon
                        First Assistant District Attorney
                       Lynne Abraham
                        District Attorney
                       Philadelphia, PA 19102-1582
                         Attorneys for Appellees


                 OPINION OF THE COURT

SLOVITER, Circuit Judge:
  Marvon Merritt appeals from the order of the District
Court dismissing his petition for habeas corpus as time-
barred under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). Merritt v. Blaine, No. 00-2338 (E.D.
Pa. May 29, 2001). Merritt argues that the District Court
erred by not tolling the statute of limitations for his federal
habeas corpus petition during the period of time he was
pursuing post-conviction relief in state court under the
Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat.
Ann. §§ 9541-9546 (1998) (PCRA). This court granted
Merritt’s request for a certificate of appealability with
respect to two issues:
    (1) whether the invocation in a state application for
    post-conviction relief of a statutory exception to the
    state’s timeliness requirement renders the application
    “properly filed” within the meaning of 28 U.S.C.
    § 2244(d)(2); and (2) whether appellant has established
    “extraordinary circumstances” warranting the equitable
    tolling of that limitations period.
Merritt v. Blaine, No. 01-2455 (3d Cir. May 20, 2002). We
hold that an untimely application for state post-conviction
relief by a petitioner, who sought but was denied
application of a statutory exception to the PCRA’s time bar,
                              3


is not “properly filed” under 28 U.S.C. § 2244(d)(2). We also
agree with the District Court’s rejection of Merritt’s request
for equitable tolling of the statute of limitations. Therefore,
we will affirm.

                              I.

        FACTS AND PROCEDURAL BACKGROUND
  Merritt was convicted of murder of the second degree,
robbery, criminal conspiracy and possession of the
instrument of a crime for his participation in the fatal
shooting of George Dunbar in Philadelphia, Pennsylvania.
Dunbar was killed when Merritt and his co-conspirator
Ronald Baxter sought to rob Dunbar at his home. After
Merritt brandished a gun, Dunbar took out a gun and fired
two shots. Dunbar and Merritt struggled, while Baxter and
Robert Wells, who was present, also fought. It was the
Commonwealth’s position that Merritt shot Dunbar after
Dunbar fell to the floor. Baxter was shot in the leg.
  At trial, Merritt presented as his defense that the state’s
witness, Wells, shot both Dunbar and Baxter. As stated,
the jury convicted Merritt. The Superior Court of
Pennsylvania affirmed Merritt’s conviction and sentence on
October 9, 1986, Commonwealth v. Merritt, 361 Pa. Super.
636, 517 A.2d 1365 (1986) (table), and the Supreme Court
of Pennsylvania denied Merritt’s petition for allowance of
appeal on July 7, 1987. Commonwealth v. Merritt, 516 Pa.
639, 533 A.2d 711 (1987) (table).
   Merritt filed his first post-conviction review petition in
state court on June 21, 1988, pursuant to the PCRA. After
appointing counsel and allowing an amended petition, the
PCRA court denied relief on November 9, 1993. The denial
was affirmed by the Pennsylvania Superior Court on
January 17, 1995, Commonwealth v. Monroe (a name
Merritt also used), 442 Pa. Super. 659, 660 A.2d 123 (1995)
(table), and the Pennsylvania Supreme Court denied
allowance of appeal on November 8, 1995, Commonwealth
v. Monroe, 542 Pa. 663, 668 A.2d 1127 (1995) (table).
  On December 20, 1996, Merritt filed a second pro se
                                     4


PCRA petition in state court. Merritt alleged that he had
recently learned of a new technology, the Scanning Electron
Microscope (SEM), that was not available at the time of his
trial. He alleged that SEM could be used to determine if the
bullet that killed Dunbar and the bullet that wounded
Baxter came from the same gun. Merritt argued that
identifying the source of the bullets was essential to his
defense at trial that Wells shot both Dunbar and Baxter,
while the state argued at trial that Dunbar and Baxter were
shot by different persons. Merritt asked the PCRA court to
order a SEM analysis of the bullets.1
  The PCRA court appointed counsel for Merritt. Counsel
requested, and the court granted, additional time to file an
amended petition. However, before the amended petition
was filed, the PCRA court denied Merritt’s pro se PCRA
petition without a hearing.2 Commonwealth v. Monroe, Nos.
1736-39 (Phila. Co. Ct. C.P. August 12, 1997) (order
dismissing second PCRA petition); Commonwealth v.
Monroe, Super. Ct. No. 3909 Phila. 1997 (Phila. Co. Ct. C.P.
April 12, 1998) (opinion dismissing second PCRA petition).
The court denied the petition both on the merits and
because it was untimely.
   On the merits, the court held that (1) Merritt failed to
establish in sufficient form and substance the facts stated
in support of his grounds for relief; (2) Merritt neither
alleged nor established that SEM results constitute such
scientifically adduced evidence as is qualified as admissible
at trial; (3) the issue of the sufficiency of the evidence to
support Merritt’s convictions had been previously litigated
and “is presently waived”; (4) Merritt failed to present
evidence sufficient to establish a strong prima facie
showing that a miscarriage of justice may have occurred;
and, in addition, Merritt’s ineffective assistance of counsel
claims failed because the SEM analysis would have been
cumulative and therefore did not affect the outcome of the

1. Merritt also alleged ineffective assistance of counsel based on his prior
counsel’s failure to examine or to request an examination of the bullets
with an Electron Microscope.
2. Merritt does not assert as error that the PCRA court failed to wait
until the amended petition was filed.
                              5


trial and because counsel cannot be held ineffective for
failure to predict future technological changes found to be
acceptable devices to produce reliable ballistics evidence.
Commonwealth v. Monroe, Nos. 1736-39, order at 3-6
(Phila. Co. Ct. C.P. August 12, 1997). The court held
alternatively that the petition was untimely filed under 42
Pa. Cons. Stat. Ann. § 9545(b)(1) because it was not filed
within a year of the date Merritt’s conviction became final
and “none of the exceptions [to the PCRA’s timeliness
requirements] to be found in § 9545(b)(1)(i)(ii)(iii) were
alleged or proven. . . .” Commonwealth v. Monroe, Nos.
1736-39, order at 7 (Phila. Co. Ct. C.P. August 12, 1997).
   On October 12, 1999, the Pennsylvania Superior Court
affirmed the dismissal of the petition because it was time-
barred, holding that Merritt failed to allege or prove any of
the applicable exceptions under 42 Pa. Cons. Stat. Ann.
§ 9545(b)(1). Commonwealth v. Monroe, No. 3909 Phila.
1997, slip op. at 4 (Pa. Super. Oct. 12, 1999). The Supreme
Court of Pennsylvania denied allowance of appeal on
February 24, 2000.
   On May 5, 2000, Merritt filed this petition for a writ of
habeas corpus in the United States District Court for the
Eastern District of Pennsylvania. He argued that the state
court’s refusal to order the SEM analysis denied his rights
to due process, equal protection and effective assistance of
counsel. The Magistrate Judge recommended denial of
Merritt’s petition as time-barred. The Magistrate Judge
recognized that 28 U.S.C. § 2244(d)(2) tolls AEDPA’s statute
of limitations while any “properly filed” application for state
post-conviction relief is pending, but reasoned that because
the state court had found Merritt’s second PCRA petition to
be untimely, it was “not properly filed and it cannot serve
to statutorily toll the habeas period of limitations.” App. at
9. The Magistrate Judge also found that Merritt was not
eligible for equitable relief from AEDPA’s statute of
limitations because Merritt failed to demonstrate the
“extraordinary circumstances” necessary for equitable
tolling.
  The District Court adopted and approved the Magistrate
Judge’s report and recommendation. Merritt v. Blaine, No.
00-2338 (E.D. Pa. May 29, 2001). Merritt filed a Notice of
                              6


Appeal on June 6, 2001, and we granted the certificate of
appealability. We consider first whether Merritt’s second
PCRA application was “properly filed” under 28 U.S.C.
§ 2244(d)(2) and, if not, whether he is entitled to equitable
tolling of the habeas corpus statute of limitations.

                             II.

                        DISCUSSION
A.   Jurisdiction and Standard of Review
   Merritt filed his petition for habeas corpus under 28
U.S.C. § 2254. The District Court exercised jurisdiction over
the petition under 28 U.S.C. § 2254(a). We have jurisdiction
over the District Court’s final order dismissing the petition
as untimely pursuant to 28 U.S.C. §§ 1291 and 2253. “We
have plenary review over statute of limitations issues.” Nara
v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
B.   AEDPA’s Statute of Limitations
   AEDPA imposes a one-year statute of limitations on
applications for a writ of habeas corpus. 28 U.S.C.
§ 2244(d)(1). Under 28 U.S.C. § 2244(d)(1)(A), the statute of
limitations begins 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.” In this
case, Merritt’s conviction became final prior to the
enactment of AEDPA. By its terms, AEDPA became effective
on April 24, 1996. Therefore, the statute of limitations for
Merritt’s habeas petition did not begin to run until April 24,
1996. We “implied from the statute a one-year grace period
for those petitioners whose convictions became final before
the effective date of AEDPA. . . .” Nara, 264 F.3d at 315; see
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (“we hold
that habeas petitions filed on or before April 23, 1997, may
not be dismissed for failure to comply with § 2244(d)(1)’s
time limit”). However, Merritt did not file his habeas corpus
petition until May 5, 2000, more than three years after the
expiration of the statute of limitations.
  The statute of limitations for federal habeas corpus
petitions is subject to two tolling exceptions: (1) statutory
                              7


tolling during the time a “properly filed” application for
state post-conviction review is pending in state court and
(2) equitable tolling, a judicially crafted exception. Jones v.
Morton, 195 F.3d 153, 158 (3d Cir. 1999).
C.   “Properly Filed”      Application    for   State    Post-
     Conviction Relief
   AEDPA expressly provides that its one-year limitation is
tolled for the “time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2). Merritt’s second PCRA petition was
pending in state court from December 20, 1996 through
February 24, 2000. Therefore, if Merritt’s second PCRA
petition were “properly filed,” the statute of limitations for
his habeas petition would have been tolled from December
20, 1996, the date his second PCRA petition was filed in
state court, through February 24, 2000, and his habeas
corpus petition, filed on May 5, 2000, would be timely.
  However, to fall within the AEDPA tolling provision, the
petition for state post-conviction review must have been
both pending and “properly filed.” Fahy v. Horn, 240 F.3d
239, 243 (3d Cir.), cert. denied, Horn v. Fahy, 534 U.S. 944
(2001). There is no question that Merritt’s second PCRA
petition was pending. The principal issue on this appeal is
whether it was “properly filed.”
    The Supreme Court has stated that “an application is
‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing
filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in
original). This compliance requirement includes rules
governing the “form of the document” and “the time limits
upon its delivery.” Id.; see also Fahy, 240 F.3d at 243 (a
“properly filed” application must be “ ‘submitted according
to the state’s procedural requirements, such as the rules
governing the time and place of filing.’ ”) (citation omitted).
  Merritt failed to file his second PCRA petition in
accordance with the timeliness requirements of 42 Pa.
Cons. Stat. Ann. § 9545(b)(1). However, the PCRA includes
statutory exceptions to its time bar that apply when:
                                   8


     (i) the failure to raise the claim previously was               the
     result of interference by government officials with             the
     presentation of the claim in violation of                       the
     Constitution or laws of this Commonwealth or                    the
     Constitution or laws of the United States;
     (ii) the facts upon which the claim is predicated were
     unknown to the petitioner and could not have been
     ascertained by the exercise of due diligence; or
     (iii) the right asserted is a constitutional right that was
     recognized by the Supreme Court of the United States
     or the Supreme Court of Pennsylvania after the time
     period provided in this section and has been held by
     that court to apply retroactively.
42 Pa. Cons. Stat. Ann. §§ 9545(b)(1)(i)-(iii).
  Merritt does not contend that he falls within
subparagraph (i) or (iii) above. Instead, Merritt alleges that
in the PCRA court he asserted the exception for unknown
facts.3 He contended there, and contends here, that the
newly available SEM technology will allow him to support
his defense by determining the previously unknown fact
whether the bullets shot at Dunbar and Baxter came from
the same gun.
   The PCRA court refused to apply the statutory exception
and held Merritt’s PCRA petition untimely. Commonwealth
v. Monroe, Nos. 1736-39 (Phila. Co. Ct. C.P. August 12,
1997); Commonwealth v. Monroe, Super. Ct. No. 3909 Phila.
1997 (Phila. Co. Ct. C.P. April 12, 1998). The Superior
Court of Pennsylvania affirmed, finding that Merritt failed
to allege or prove any of the statutory exceptions to the
PCRA’s time bar. Commonwealth v. Monroe, No. 3909 Phila.
1997 (Pa. Super. Oct. 12, 1999). Merritt does not challenge
the state court’s ruling. Rather, he contends that even if his
PCRA petition was properly dismissed as untimely, it was
still “properly filed” under the requirements of AEDPA.
Although an untimely state petition is generally not

3. Merritt only argued that he required SEM testing to ascertain the fact
whether both the bullet that killed Dunbar and the bullet that wounded
Baxter came from the same gun. The Commonwealth has not argued
before us that Merritt’s argument does not fit within subsection (ii).
                                     9


“properly filed,” Merritt argues that an untimely application
is “properly filed” if the applicant asserted a statutory
exception to the statute of limitations of a state post-
conviction relief statute.
  As a preliminary matter, we must consider whether
Merritt’s request that the District Court direct SEM analysis
of the bullet evidence is moot. In response to our raising
the issue, we learned at oral argument that neither Merritt
nor the Commonwealth had attempted to ascertain whether
the bullets at issue were even available for examination. We
directed the Commonwealth to investigate the location and
status of the bullets and report back to us. The
Commonwealth notified this court by letter that the Clerk of
Quarter Sessions possesses one of the bullets in question,
held under property receipt number 616303. Merritt’s
counsel asserted in response that the located bullet was the
one removed from Dunbar. It is unknown whether the
bullet removed from Baxter’s leg still exists, and it has not
been located to date.
   Given the uncertain status of the evidence, Merritt’s
invocation of the PCRA’s statutory exception for new
evidence may have been groundless. If the parties can
locate only one of the bullets, a SEM analysis could not
compare the two bullets as Merritt requested.4 It is
important that petitioners and counsel, as well as the
Commonwealth, heed the lesson learned from our
experience in this case and ascertain the existence of any
allegedly new evidence before filing a petition for habeas
corpus on that basis. This will avoid unnecessary and
wasteful expense to the parties and the courts and ensure
that viable relief is available should petitioner prevail.
  Despite the above concerns, we will not deem Merritt’s
habeas corpus petition moot because he raised additional,
unrelated claims in his habeas petition. If we were to reach
these other claims, primarily asserting ineffective assistance
of counsel, they are not moot because they do not depend

4. In his response letter, Merritt’s counsel argued that it may be possible,
using the SEM technology, to compare the located bullet with
pentascopic photographs taken of the bullets at trial. This assertion was
given without support and is speculative.
                                  10


on the availability of the bullet evidence or a SEM analysis.
Therefore, we proceed on the assumption that Merritt’s
habeas corpus petition is not moot and consider whether
his second PCRA petition for state post-conviction relief was
“properly filed” under AEDPA.
  When determining if a state petition is “properly filed,” we
must focus on the “state law governing when a petition for
collateral relief is properly filed.” Fahy, 240 F.3d at 243. In
Fahy, we held that a PCRA petition that was dismissed by
the state court as time-barred was not “properly filed”
under AEDPA. Id. at 244. Relying on the state court’s
dismissal of the petitioner’s PCRA action as untimely, we
held that we were bound by the Pennsylvania Supreme
Court’s ruling that the “PCRA petition was not properly filed
as a matter of state law.” Id.5
   Merritt attempts to distinguish Fahy by arguing that
here, unlike in Fahy, Merritt alleged in his PCRA petition
that it was timely under one of the PCRA’s statutory
exceptions to the statute of limitations. He argues that a
state petition, even if found untimely by a state court, may
nevertheless be “properly filed” under 28 U.S.C. § 2244(d)(2)
if the state statute provides statutory exceptions to the time
limit for filing.
   In order to prevail on this argument, Merritt must have
alleged one of the exceptions to the PCRA’s statute of
limitations in the state court. The Pennsylvania statutory
exception on which Merritt seeks to rely is the one for the
situation where “the facts upon which the claim is
predicated were unknown to the petitioner and could not
have been ascertained by the exercise of due diligence.” 42
Pa. Cons. Stat. Ann. § 9545(b)(1)(ii). In its order, the PCRA
court stated that “none of the exceptions to be found in
§ 9545(b)(1)(i)(ii)(iii) were alleged or proven here.”
Commonwealth v. Monroe, Nos. 1736-39, order at 7 (Phila.
Co. Ct. C.P. August 12, 1997) (emphasis added); see also
Commonwealth v. Monroe, No. 3909 Phila. 1997, slip op. at
4 (Pa. Super. Oct. 12, 1999) (“[Merritt] has not alleged that
the petition is based on facts not previously known which

5. Although we held that Fahy was not entitled to statutory tolling, we
granted him equitable tolling, primarily because it was a capital case.
                              11


could not have been ascertained earlier by exercising due
diligence.”).
   Merritt’s second PCRA petition was filed pro se. Under
Pennsylvania law, we must read a pro se PCRA petition
liberally. See Commonwealth v. Murray, 481 Pa. 201, 205,
392 A.2d 317, 319 (1978) (“prison-drawn pro se PCHA
petitions    must    be    read    with   liberality”)   (citing
Commonwealth v. Fox, 448 Pa. 491, 295 A.2d 285 (1972));
Commonwealth v. Garrison, 303 Pa. Super. 555, 557, 450
A.2d 65, 66 (1982) (same). Although Merritt did not
specifically cite the exception in 42 Pa. Cons. Stat. Ann.
§ 9545(b)(1)(ii), he clearly made claims for relief in his
petition based on the newly discovered evidence exception.
For example, Merritt claimed he was eligible for relief
because of “[t]he unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and that would have affected the outcome the trial
if it had been introduced.” App. at 16. He also alleged that,
“[t]he use of an Electron Microscope in Ballistic Science is
advanced technology that was unavailable at the time of the
defendant’s trial.” App. at 20. Despite Merritt’s failure to
directly address the issue of the timeliness of his petition or
invoke the relevant statutory provision, he sought relief
provided by the exception and alleged facts to meet its
requirements. Reading his pro se petition liberally, we
conclude that he alleged a claim for relief based on the
availability of newly discovered evidence.
   We proceed therefore to consider whether Merritt’s case
can be distinguished from the Supreme Court’s discussion
in Artuz and our prior holding in Fahy. In Artuz, the
Supreme Court held that “an application is ‘properly filed’
when its delivery and acceptance are in compliance with
the applicable laws and rules governing filings,” including
“the time limits upon its delivery.” Artuz, 531 U.S. at 8.
Although that language appears to be sweeping, Merritt
notes that the Supreme Court expressly stated that it
“express[ed] no view on the question whether the existence
of certain exceptions to a timely filing requirement can
prevent a late application from being considered improperly
filed.” Id. at 8 n.2. The reserved question is, of course, the
issue before us.
                              12


  The Court of Appeals for the Ninth Circuit has held that,
    if a state’s rule governing the timely commencement of
    state post conviction relief petitions contains
    exceptions that require a state court to examine the
    merits of a petition before it is dismissed, the petition,
    even if untimely, should be regarded as properly filed
    [under AEDPA].
Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.
2001)(emphasis added); see also Smith v. Ward, 209 F.3d
383, 385 (5th Cir. 2000) (holding that an untimely petition
for state post-conviction relief was “properly filed” because
the statute’s exceptions to its timeliness requirements
prevented the statute from imposing an “absolute bar to
filing”).
   These decisions stem from the Supreme Court’s analysis
in Artuz, where it rejected the State’s argument that the
presence of procedurally barred claims rendered the state
application improperly filed under AEDPA. Instead, the
Artuz Court held that the state application was “properly
filed” because the state provisions barring claims that had
been previously decided or had not been raised on direct
appeal did not “set forth a condition to filing, as opposed to
a condition to obtaining relief.” 531 U.S. at 11. It was this
distinction — between conditions to filing and conditions to
obtaining relief — that was the basis for the Ninth Circuit’s
decision in Dictado. Although Dictado’s petition was
successive, the state statute allowed a state court to
consider a successive petition if it contained claims not
raised in previous petitions or if it showed good cause for
failure to raise the claim before. The court held that the
statute governing successive state petitions is a condition to
obtaining relief, not a condition to filing and under Artuz, a
successive petition is “properly filed” under AEDPA.
Dictado, 244 F.3d at 727. The Dictado court also held that
because the statute of limitations for state post-conviction
relief was not an “absolute bar to filing,” satisfaction of one
of the statutory exceptions to the statute of limitations was
a condition to obtaining relief. Dictado, 244 F.3d at 728. In
essence, the Ninth Circuit reasoned that the state court’s
analysis of whether a petition is timely under one of the
statutory exceptions entailed an analysis of the merits of
                                  13


the petition. It followed that when such an exception is
asserted, an untimely state petition may still be considered
“properly filed” under AEDPA. Id.6
  We need not decide whether we would find the Ninth
Circuit’s analysis persuasive because we are bound by our
prior holding in Fahy. We held in Fahy that an untimely
PCRA petition does not toll the statute of limitations for a
federal habeas corpus petition. 240 F.3d at 244. Although
the petitioner in Fahy did not assert any of the PCRA’s
statutory exceptions to its timeliness rule, such as the
newly discovered evidence exception, we do not find that
distinction dispositive. In Fahy, we noted that when
applying AEDPA, “we must look to state law governing
when a petition for collateral relief is properly filed” and
“defer to a state’s highest court when it rules on an issue.”
Id. at 243-44. Consequently, just as in Fahy, we must defer
to the state court’s holding that Merritt’s PCRA petition was
untimely and it follows that it was not “properly filed”
under AEDPA.
   Our conclusion finds support in the Supreme Court’s
recent holding in Carey v. Saffold, 536 U.S. 214, 122 S. Ct.
2134 (2002). In Carey, the Court considered whether the
“reasonable” timeliness standard of California’s state post-
conviction relief statute tolled AEDPA’s statute of
limitations. Under California’s unique procedure, a
petitioner who sought to appeal the dismissal of a state
petition must file a second, original petition in a higher
state court within a reasonable period of time. The Supreme
Court stated that AEDPA’s statute of limitations would not

6. Merritt also cites Nara v. Frank, 264 F.3d 310 (3d Cir. 2001), to
support his claim. In Nara, we held that a petitioner’s nunc pro tunc
motion in state court to withdraw his earlier guilty plea was “properly
filed” under AEDPA. Id. at 316. It is significant that in Nara the
petitioner filed his nunc pro tunc motion (motion to withdraw his guilty
plea) at what may reasonably have been considered the suggestion of the
Superior Court. The PCRA court denied Nara’s nunc pro tunc motion for
substantive reasons (i.e., because he gave no compelling reason why he
waited 12 years to ask to withdraw his plea), rather than because of
failure to comply with the state’s filing rules. Therefore, as Merritt
concedes, “Nara did not decide the question presented here. . . .”
Petitioner’s Br. at 34.
                                  14


be tolled while the question of unreasonable delay was
pending before the state court if the petition was ultimately
found untimely. Id. at 2141. The Supreme Court did not
adopt the argument Merritt makes here that a timeliness
analysis involving the merits equates with a “condition to
obtaining relief ” under Artuz. Instead, the Court stated:
      If the California Supreme Court had clearly ruled that
      [petitioner’s] 4 1/2-month delay was unreasonable,
      that would be the end of the matter, regardless of
      whether it also addressed the merits of the claim, or
      whether its timeliness ruling was entangled with the
      merits.
Id.
   This     language      undercuts     Merritt’s   suggested
interpretation of “properly filed.” The California statute of
limitations for state post-conviction petitions at issue in
Carey was not an absolute bar and required an analysis by
the state court. Nonetheless, the Supreme Court stated that
even when the state court considered the merits of the
underlying state claim as well as its timeliness, if the
petitioner’s delay in filing the state petition was ultimately
found to have been unreasonable it would not toll the
AEDPA statute of limitations. An untimely petition does not
toll AEDPA’s statute of limitations. Carey, 122 S. Ct. at
2141.
  Our reading of Carey is supported by the Seventh
Circuit’s recent decision in Brooks v. Walls, 301 F.3d 839,
841 (7th Cir. 2002), petition for cert. filed, No. 02-7612 (U.S.
Nov. 20, 2002), stating:
      Saffold tells us (ending any ambiguity left by Artuz)
      that to be properly filed an application for collateral
      review in state court must satisfy the state’s timeliness
      requirements. This means that decisions such as Nara
      v. Frank, 264 F.3d 310 (3d Cir. 2001);[7] Smith v. Ward,

7. The Seventh Circuit may not have realized that, as we noted in Nara,
we had been advised by the petitioner that the Pennsylvania courts had
a practice to accept motions to withdraw guilty pleas nunc pro tunc, as
they did Nara’s. It was only after considering Nara’s motion did the
                                   15


     209 F.3d 383 (5th Cir. 2000); Emerson v. Johnson, 243
     F.3d 931 (5th Cir. 2001), and Dictado v. Ducharme,
     244 F.3d 724 (9th Cir. 2001), to the extent they hold
     that petitions untimely under state rules nonetheless
     may be deemed properly filed, were wrongly decided.
Similarly, we hold that we are bound by the state court’s
finding that Merritt’s second PCRA petition was untimely.
Therefore, we affirm the District Court’s order holding that
Merritt’s second PCRA petition was not “properly filed.”
   With all due respect to our dissenting colleague, even a
brief reading of the above will demonstrate that it is simply
wrong to state that our ruling departs from our precedent
in Fahy and that we hold that a federal petition may be
viewed as improperly filed regardless of the determination
of the state court. As is evident from the above, nothing
could be farther from the holding and language of this
opinion.
  The dissent’s position stems from its interpretation of the
sentence in Fahy where we stated, “[h]ere the Pennsylvania
Supreme Court has specifically ruled that Fahy’s petition
was not properly filed as a matter of state law.” Fahy, 240
F.3d at 244. The dissent interprets that sentence to mean
that the Pennsylvania Supreme Court stated in its Fahy
opinion that Fahy’s PCRA petition was not “properly filed.”
One searches the Pennsylvania Supreme Court’s opinion in
Fahy in vain to find such language. See Commonwealth v.
Fahy, 737 A.2d 214 (Pa. 1999). The dissent does not point
to any page in the opinion nor have we found any such
statement in the Pennsylvania Supreme Court’s Fahy
opinion. It is not reasonable to assume that the
Pennsylvania court would have so stated because the
language “properly filed” comes from a federal law, i.e., a

Pennsylvania court deny Nara’s motion because he failed to give a
compelling reason why he waited 12 years to ask to withdraw his guilty
plea. See Nara, 264 F.3d at 313. The Pennsylvania court’s reason for
denying Nara’s motion appears to have been based on the merits of the
motion to withdraw the guilty plea rather than its failure to comply with
the state’s time requirements for filing a PCRA petition. After Carey,
Nara would be analyzed differently.
                             16


provision of AEDPA, and not from Pennsylvania’s PCRA
statute.
    As we stated above, AEDPA provides that the one-year
period of limitation shall not run during “[t]he time during
which a properly filed application for State post-conviction
. . . review . . . is pending.” 28 U.S.C. § 2244 (d)(2)
(emphasis added). We are not persuaded by the dissent’s
contention that if “untimely” and “improperly filed” are
coterminous, “Congress would have said ‘timely filed’ rather
than ‘properly filed’ in § 2244(d)(2).” Dis. Op. at 26-27. The
“properly filed” phrase encompasses more than timeliness.
The Supreme Court stated in Artuz, “an application is
‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing
filings,” including “the time limits upon its delivery.” 531
U.S. at 8.
  Our opinion in Fahy holds that we must look to state law
to determine whether the state petition is “properly filed.”
240 F.3d at 243. But it is federal law that sends us to the
state court. We need not read that into our Fahy opinion,
because the opinion so states explicitly: “Fahy is correct
that in applying a federal statute we must construe its
terms as a matter of federal law. . . . Therefore, to apply
this statute [AEDPA] as a matter of federal law we must
look to state law governing when a petition for collateral
relief is properly filed.” Id. The Pennsylvania Supreme Court
ruled     that   Fahy’s      state   petition  was   untimely.
Commonwealth v. Fahy, 737 A.2d at 220, 224. Therefore,
and with this procedural background, the Third Circuit
panel stated, “the Pennsylvania Supreme Court has
specifically ruled that Fahy’s PCRA petition was not
properly filed as a matter of state law,” Fahy, 240 F.3d at
244, the sentence on which the dissent hinges. Had we
stated, “the Pennsylvania Supreme Court has specifically
ruled that Fahy’s PCRA petition was untimely as a matter of
state law,” there would be nothing on which the dissent
could be based. But the fact is that timeliness of the PCRA
petition was the issue before the Pennsylvania Supreme
Court and that was the issue that court decided. Its
decision that the petition was untimely was the predicate
for Fahy’s holding that the petition was not “properly filed”
                             17


under AEDPA. Rather than being inconsistent with our
decision in Fahy, this decision follows precisely the same
path. The Pennsylvania Superior Court rejected Merritt’s
contention that his PCRA petition was timely, and we
therefore hold that it was not “properly filed” for purposes
of AEDPA.
   Our difference with the dissent is more than a semantic
one. The dissent includes two sentences that we believe are
inconsistent with our requirement of deference to the state
court’s decision. The dissent states “a state court
determination that a petition was untimely filed does not
lead automatically to the conclusion that it was improperly
filed for the purposes of § 2244(d)(2),” Dis. Op. at 27, and
again, “a state court determination that a petition is
untimely does not suffice to establish as a matter of state
law that it is also improperly filed.” Id. at 28. But the
Supreme Court in Carey said precisely the opposite when it
stated, in language quoted above, “[i]f the California
Supreme Court had clearly ruled that Saffold’s 4 ½-month
delay was ‘unreasonable,’ that would be the end of the
matter . . .” 122 S. Ct. at 2141. “Unreasonable” under
California law is comparable to “untimely” under
Pennsylvania law. Although the dissent disagrees, we read
the decision as holding that if a state’s Supreme Court has
determined that a petition was not timely, then we must
hold that it was not properly filed.
   Finally, the dissent’s proposed disposition is directly
counter to our responsibility to give deference to the state
court’s determination of the timeliness of the state PCRA
petition. The dissent “would remand this case to the district
court for a determination whether under Pennsylvania law
Merritt’s state petition was properly filed.” Dis. Op. at 30.
However, as we stated above, the Pennsylvania Superior
Court (the highest Pennsylvania court to have ruled on the
matter) has already expressly rejected the one ground on
which Merritt claims his PCRA petition was timely, i.e., that
it fell within the state exception for petitions claiming new
evidence. The Pennsylvania court stated, “[w]e have
reviewed these exceptions [in PCRA § 9545] in light of the
allegations of the petition and conclude that none of the
exceptions is applicable to this proceeding.” Commonwealth
                                    18


v. Monroe, No. 3909 Phila. 1997, slip op. at 4 (Pa. Super.
Oct. 12, 1999).8 Once the Pennsylvania court has so
decided, it would be an undue interference for a federal
district court to decide otherwise.
  It follows that nothing in the dissent causes us to revise
our disposition to affirm.
D.   Equitable Tolling
   This court has held that the AEDPA statute of limitations
is subject to the doctrine of equitable tolling. Fahy, 240
F.3d at 244. Equitable tolling is available “ ‘only when the
principle of equity would make the rigid application of a
limitation period unfair.’ ” Id. (quoting Miller v. New Jersey
Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)). In Fahy,
we restated the two general requirements for equitable
tolling: (1) that “the petitioner has in some extraordinary
way been prevented from asserting his or her rights;” and
(2) that the petitioner has shown that “he or she exercised
reasonable diligence in investigating and bringing [the]
claims.” Id.
   Merritt argues that the statute of limitations for his
habeas petition should be equitably tolled, and relies on the
finding of the Magistrate Judge that Merritt “acted diligently
and reasonably when he filed his second PCRA petition
rather than filing a habeas petition.” App. at 11 (Magistrate
Judge’s Report & Recommendation). The Magistrate Judge
remarked that both Merritt and Fahy “filed second or
successive PCRA petitions at a time when ‘Pennsylvania law
was unclear on the operation of the new PCRA time limit.’ ”
App. at 10 (quoting Fahy, 240 F.3d at 245) (footnotes
omitted).9

8. Indeed, Fahy had also argued unsuccessfully that his PCRA petition
was timely because he invoked one of the exceptions to the PCRA
timeliness requirement (albeit a different exception than Merritt invoked).
The Pennsylvania Supreme Court rejected Fahy’s argument, and we held
it was not “properly filed.”
9. We note that the Magistrate Judge also stated that Merritt had not
provided evidence to support his claim that he could not have learned of
the existence of SEM technology before November 1996. She stated:
                                  19


   Like the present case, Fahy dealt with the timeliness of
a habeas corpus petition where the petitioner’s state post-
conviction petition was dismissed in state court as
untimely. We recognized that in 1997, when Fahy’s PCRA
petition was filed, the newly established PCRA time limit
was “unclear” and “inhibitively opaque.” Fahy, 240 F.3d at
245. Indeed, we stated that based on that uncertainty,
Fahy “reasonably believed that the state petition was
properly filed.” Id. at 244. However, as the Magistrate Judge
recognized in this case, in Fahy we “did not hold that this
lack of clarity in Pennsylvania law constituted extraordinary
circumstances.” App. at 11. In fact, we stated that “[i]n
non-capital      cases,   attorney    error,   miscalculation,
inadequate research, or other mistakes have not been
found to rise to the ‘extraordinary’ circumstances required
for equitable tolling.” 240 F.3d at 244. Instead of finding
extraordinary circumstances, we based our decision to
apply equitable tolling in Fahy on the accepted principle
that “death is different.” Id. at 244. We stated that “[i]f the
limitation period is not tolled in this case, Fahy will be
denied all federal review of his claims.” Id. at 245; see also
Banks v. Horn, 271 F.3d 527, 534-35 (3d Cir. 2001), rev’d
on other grounds, Horn v. Banks, 536 U.S. 266, 122 S.Ct.
2147 (2002).
  This case is similar to Fahy. In 1996, when Merritt filed
his second pro se PCRA petition, the operation of the PCRA
statute of limitations was uncertain, and it was not
unreasonable (indeed it was appropriate) for Merritt to have

    there is evidence in the record that SEM technology existed well
    before the petitioner learned of it by watching a television program
    in November 1996. In his memorandum of law, the petitioner cites
    to a chapter on SEM in a 1981 book titled Scientific and Expert
    Evidence. Further, the petitioner has attached a copy of Chapter 29
    of this book to his memorandum of law. That chapter clearly
    indicates that SEM technology existed as early as 1971 and its use
    in forensic science was being considered in the 1970’s. Thus, it is
    not clear that petitioner exercised due diligence in learning of the
    existence of SEM technology.
App. at 7 n.5.
                                   20


believed he was required to exhaust his state remedies by
filing a second PCRA petition prior to filing a habeas
petition in federal court. Although the Magistrate Judge
was aware of the comparability, she did not recommend
equitable tolling for Merritt because she stated that, unlike
Fahy, Merritt does not face the death penalty. The fact that
Fahy was a death penalty case was the dispositive factor in
that case, as we stated that, “[i]n a capital case . . . the
consequences of error are terminal, and we therefore pay
particular attention to whether principles of ‘equity would
make the rigid application of a limitation period unfair’
. . . .” Fahy, 240 F.3d at 245 (citation omitted). We then
concluded, “[b]ecause the consequences are so grave and
the applicable law is so confounding and unsettled, we
must allow less than ‘extraordinary’ circumstances to
trigger equitable tolling of the AEDPA’s statute of
limitations. . . .” Id. (emphasis added).
   In Fahy, we clearly limited the lower bar that we
established for equitable tolling to capital cases, and Merritt
is not in that position. Although Merritt faces the grave
penalty of mandatory life sentence without the possibility of
parole, we cannot apply the rationale of Fahy to Merritt’s
situation without violating our tradition of avoiding intra-
circuit conflict of precedent.10

10. See 3d Cir. I.O.P. 9.1. Undoubtedly, there will be other habeas
petitioners who find themselves in similar situations where their need to
exhaust state remedies will create a tension with the one-year statute of
limitations in AEDPA. Some of these petitioners may have simply been
neglectful of their responsibility to exhaust at the outset, but others,
such as those who have legitimate grounds to claim discovery of new
evidence, may not have had that opportunity. The federal courts should
seek ways to ameliorate the consequences for these petitioners in
appropriate cases.
  Thus, for example, when petitioners have filed habeas actions in
federal court before they have fully exhausted their state remedies, many
federal courts have suggested that the federal action should be stayed to
give the petitioners an opportunity to file their state action because an
outright dismissal, even if without prejudice, could jeopardize the
timeliness of a collateral attack. See, e.g., Palmer v. Carlton, 276 F.3d
777 (6th Cir. 2002) (approving Second Circuit approach of granting a
stay with time limits upon the petitioner to bring his claims); Zarvela v.
                                    21


  Nor do we see any reason under the facts of this case to
decide whether to apply equitable tolling, which Merritt
seeks to invoke based on the uncertainty of Pennsylvania
law regarding its time bar. Pennsylvania law as to the time
bar of the PCRA became clear with the decisions of the
Pennsylvania Superior Court in Commonwealth v. Alcorn,
703 A.2d 1054 (Pa. Super. Ct. 1997), and Commonwealth v.
Conway, 706 A.2d 1243 (Pa. Super. Ct. 1997). Merritt did
not act promptly thereafter to file his petition for habeas
corpus in federal court. Instead, he waited more than two
years, filing his petition on May 5, 2000. Accordingly, we
agree with the District Court that there is no basis to find
Merritt’s habeas petition timely, either under the statute or
under the doctrine of equitable estoppel.

                                    III.

                             CONCLUSION
  Based on the foregoing analysis, we will affirm the order
of the District Court, entered May 30, 2001, dismissing
Merritt’s petition for a writ of habeas corpus as untimely.

Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 534 U.S. 1015 (2001) (holding
district court should have stayed habeas petition and only dismissed
unexhausted claims where complete dismissal jeopardized the timeliness
of collateral attack); Calderon v. United States Dist. Court, 134 F.3d 981
(9th Cir. 1998) (denying state’s challenge to district court order holding
habeas petition in abeyance while petitioner exhausted claims in state
court); Neverson v. Bissonnette, 261 F.3d 120, 126 n.3 (1st Cir. 2001)
(noting that post-AEDPA, it may be appropriate to stay a habeas corpus
petition until state remedies are exhausted); Freeman v. Page, 208 F.3d
572, 577 (7th Cir.), cert. denied, 531 U.S. 946 (2000) (noting that
dismissal of habeas corpus petition is not proper when it would
jeopardize the timeliness of a collateral attack). These opinions often cite
the concurrence of Justice Stevens, joined by Justice Souter, suggesting
this approach in Duncan v. Walker, 533 U.S. 167, 182-83 (2001) (a non-
capital case). Because Merritt chose to file his petition in state court
rather than in federal court when he had to make a choice, this
procedure would be inapplicable.
                                22


ROSENN, Circuit Judge, dissenting:
   The majority’s ruling departs from our precedent in Fahy
v. Horn, 240 F.3d 239 (3d Cir. 2001), in enunciating a
federal rule that all untimely filed state petitions are per se
filed improperly for the purposes of 28 U.S.C. § 2244(d)(2).
The majority so holds regardless of whether or not the state
court makes this determination and whether the petitioner
has a colorable argument that his or her state post-
conviction petition fits into a valid exception to the state
statute of limitations. The majority is also in conflict with
the well-reasoned opinions of the Fifth and Ninth Circuit
Courts of Appeal. See Smith v. Ward, 209 F.3d 383 (5th Cir.
2000); Dictato v. Ducharme, 244 F.3d 724 (2001). Moreover,
the majority’s approach is not compelled by Supreme Court
precedent in Artuz v. Bennett, 531 U.S. 4 (2000) or Carey
v. Saffold, 122 S. Ct. 2134 (2002). Finally, the majority
opinion undermines well-established principles of comity
emphasized by the Supreme Court in Carey. I, therefore,
respectfully dissent.

                                 I.
   AEDPA imposes a one-year statute of limitations on
applications for a writ of habeas corpus by a person in
custody pursuant to the judgment of a state court. See 28
U.S.C. § 2244(d)(1).1 This subsection contains a tolling
provision during the pendency of a properly filed
application for state post-conviction review. See 28 U.S.C.
§ 2244(d)(2) (“The time during which a properly filed
application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of
limitation under this subsection.”). Merritt’s habeas petition
was filed after April 23, 1997. Thus, his claim is time-
barred unless § 2244(d)(1)’s one-year statute of limitations
was tolled. The current dispute hinges on whether an
untimely claim for state post-conviction review can
nevertheless have been a “properly filed application” for the

1. A prisoner with a state conviction that became final prior to the
enactment of AEDPA had until April 24, 1997 to file a federal habeas
corpus petition. See Smith, 209 F.3d at 384.
                                23


purposes of     tolling   the   statute   of   limitations   under
§ 2244(d)(2).
   The Supreme Court has given some guidance on this
question. An application is “filed” when it is delivered to,
and accepted by, the appropriate court officer for placement
into the official record. See Artuz, 531 U.S. at 8. An
application is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws and
rules governing filings. Id. These usually prescribe, for
example, the form of the document, the time limits upon its
delivery, the court and office in which it must be lodged,
and the requisite filing fee. Id. The question of whether an
application has been “properly filed” is “quite separate”
from the question of whether the claims contained in the
application are meritorious and free of procedural bar. Id.
at 9. Artuz held that untimely filing and improper filing
were interrelated, but declined to state that they were
coterminous.
   As the majority acknowledges, the Supreme Court in
Artuz expressly reserved the central question presented
here, namely whether the existence of certain exceptions to
a timely filing requirement can prevent a late application
from being considered improperly filed. Id. at 8 n.2 (“We
express no view on the question whether the existence of
certain exceptions to a timely filing requirement can
prevent a late application from being considered improperly
filed. See, e.g., Smith v. Ward, 209 F.3d 383, 385 (CA5
2000).”).
   The majority’s choice of law analysis is inconsistent with
our holding in Fahy. The majority enunciates a federal per
se rule that an untimely state petition can never meet
§ 2244(d)(2)’s requirement of “properly filed,” regardless of
state law or state court findings of fact. See Majority op. at
14 (“An untimely petition does not toll AEDPA’s statute of
limitations”). In contrast, the Court stated in Fahy that:
    Fahy argues that we must decide whether his state
    PCRA petition was “properly filed” as a matter of
    federal law and that the state court’s determination of
    this issue is not binding on us. Fahy is correct that in
    applying a federal statute we must construe its terms
                                   24


     as a matter of federal law. However, the AEDPA
     explicitly directs us to toll the statute of limitations
     only when a collateral petition for state relief was
     “submitted according to the state’s procedural
     requirements, such as the rules governing the time and
     place of filing.” Morris, 187 F.3d at 338. Therefore, to
     apply this statute as a matter of federal law we must
     look to state law governing when a petition for collateral
     relief is properly filed. The AEDPA requires us to
     interpret state law as we do when sitting in diversity
     cases, and we therefore must defer to a state’s highest
     court when it rules on an issue. Here the Pennsylvania
     Supreme Court has specifically ruled that Fahy’s PCRA
     petition was not properly filed as a matter of state law.
Fahy, 240 F.3d at 243-44 (emphasis added). Fahy requires
this Court to decide as a matter of state law whether the
petition was properly filed before coming to a conclusion as
to whether the statute of limitations is tolled under
§ 2244(d)(2). To create a federal per se rule that untimely
filing always equals improper filing deprives the
Commonwealth of Pennsylvania of the ability to determine
what constitutes proper filing.
   Although the Fahy court ultimately held that under state
law Fahy’s petition was not properly filed, Merritt presents
a much stronger case for proper filing. The Pennsylvania
courts held that Merritt’s claim was untimely filed, but did
not specifically hold that it was improperly filed. In
contrast, Fahy specifically states that the Pennsylvania
Supreme Court found that Fahy’s claim was improperly
filed. Fahy, 240 F.3d at 244 (“Here the Pennsylvania
Supreme Court has specifically ruled that Fahy’s petition
was not properly filed as a matter of state law”).2

2. The majority implies that this Court made a misstatement in Fahy
when it held that “the Pennsylvania Supreme Court has specifically ruled
that Fahy’s petition was not properly filed as a matter of state law.”
Fahy, 240 F.3d at 244 (emphasis added). The majority looks to the
underlying Pennsylvania state court opinion to challenge the basis for
this Court’s reading of Pennsylvania law and the state court’s application
of Pennsylvania law to the facts of that case. See Majority Op. at 16. In
my view, this question has already been adjudicated by this Court and
                                    25


  Two of the other three Courts of Appeals that have
considered the question reserved in Artuz have ruled that
untimely filed petitions can nevertheless be properly filed if
the state courts rule that the petitioner had a colorable
argument that the petition fits within a recognized
exception to the statute of limitations.
   In Smith, the Fifth Circuit Court of Appeals held that a
petition is properly filed, even if eventually dismissed as
untimely, when the state statute governing timely filings
contains certain exceptions. See Smith, 209 F.3d at 385.
The court reasoned that the state statute “does not impose
an absolute bar to filing; instead it limits the state court’s
ability to grant relief.” Id. Smith drew the line between a
condition to filing and a condition to relief at the point
when the court accorded the petition “some level of judicial
review.” See id. at 384 (emphasis in original) (citing Villegas
v. Johnson, 184 F.3d 467, 470 n.2 (5th Cir. 1999)).3
  Likewise, the Ninth Circuit Court of Appeals has ruled
that “if a state’s rule governing the timely commencement

we are bound by the holding of the Fahy court with respect to the
meaning of the underlying opinion. See 3d Cir. Internal Operating
Procedures Rule 9.1 (“It is the tradition of this court that the holding of
a panel in a precedential opinion is binding on subsequent panels.”).
  Moreover, whatever factors Fahy took into account in reaching this
interpretation of the state law question of whether Fahy’s petition was
properly filed, the Fahy panel looked to Pennsylvania law, not federal
law, to answer the question. See Fahy, 240 F.3d at 243-44 (“. . . to apply
this statute as a matter of federal law we must look to state law
governing when a petition for collateral relief is properly filed. The
AEDPA requires us to interpret state law as we do when sitting in
diversity cases, as we therefore must defer to a state’s highest court
when it rules on an issue.”).
3. In Villegas, the Court of Appeals held that § 2244(d)(2) should be
interpreted in light of principles of statutory construction and in light of
concerns regarding comity and exhaustion. See Villegas, 184 F.3d at
470. Thus, a state habeas petition is properly filed when it conforms
with a state’s applicable procedural filing requirements — i.e., those
prerequisites that must be satisfied before a state court will allow a
petition to be filed and accorded some level of judicial review. See id. at
470 n.2.
                               26


of state post-conviction relief petitions contains exceptions
that require a state court to examine the merits of a
petition before it is dismissed, the petition, even if untimely,
should be regarded as ‘timely filed.’ ” Dictado, 244 F.3d at
727-28. The Ninth Circuit reasoned that the statute is
properly regarded as a “condition to obtaining relief ” rather
than a “condition to filing.” Id. at 728 (citing Artuz).
   Recently, the Seventh Circuit Court of Appeals also
considered this question and reached an opposite
conclusion. In Brooks v. Walls, 301 F.3d 839 (7th Cir.
2002), the court ruled that the Supreme Court had
overruled Smith and Dictato and resolved the question left
open in Artuz. Like the majority today, the Brooks court
pointed to Carey v. Saffolk, 122 S. Ct. 2134 (2002), in
support of its federal per se rule. Carey involved the
question of whether California’s unique “reasonable
timeliness” standard tolled AEDPA’s statute of limitations.
The United States Supreme Court held that AEDPA’s
statute of limitations would not be tolled while the question
of unreasonable delay was pending before the state court if
the petition was ultimately found to be unreasonable. See
Carey, 122 S. Ct. at 2141 (“If the California Supreme Court
had clearly ruled that Saffold’s 4 ½-month delay was
‘unreasonable,’ that would be the end of the matter,
regardless of whether it also addressed the merits of the
claim, or whether its timeliness ruling was ‘entangled’ with
the merits”) (emphasis added). Interpreting this passage,
Brooks concluded that “[Carey v.] Saffold tells us (ending
any ambiguity left by Artuz) that to be properly filed an
application for state collateral review in state court must
satisfy the state’s timeliness requirements.” Brooks, 301
F.3d at 841; Majority op. at 14.
    In my view, Carey’s holding is narrower than this. Carey
holds that state habeas petitioners who unreasonably delay
filing a state collateral petition will not obtain the benefit of
the tolling provisions of the AEDPA. Carey does not make
the much broader claim that the majority here makes that
“[a]n untimely petition does not toll AEDPA’s statute of
limitations.” Majority op. at 14.
   “Untimely,” “unreasonable,” and “improperly filed” are not
all synonymous. If they were, Congress would have said
                              27


“timely filed” rather than “properly filed” in § 2244(d)(2).
“Timely” is defined as “done or occurring at a suitable time”
and “improper” is defined as “not accordant with fact,
truth, or right procedure.” Webster’s Third New Int’l
Dictionary Unabridged 2395 (1993); id. at 1137. The
Supreme Court determined in Carey that when a California
court finds that a state petition was unreasonably delayed
under California law, it was therefore never “pending” for
AEDPA law purposes. It does not follow that Carey sought
to resolve — without saying so — the question of whether
all untimely filed petitions are per se improperly filed as a
matter of federal law. Carey reasonably or plausibly cannot
be read to overrule not only Smith and Dictato, but also
Fahy’s choice of law analysis. It is paradoxical to suggest
that Carey overruled Fahy on the choice of law question
because the Carey opinion is an intricate exegesis of a
unique California state law that based its outcome on
comity grounds.
   If “untimely filed” and “improperly filed” are not
coterminous, a state court determination that a petition
was untimely filed does not lead automatically to the
conclusion that it was improperly filed for the purposes of
§ 2244(d)(2). The majority opinion depends on the following
syllogism: (1) All untimely petitions are improper; (2) This
petition was untimely; (3) Therefore, this petition is
improper. If one accepts the first premise, the other steps
follow ineluctably, but the first step is in conflict with Fahy.
For instance, the majority states that: “Consequently, just
as in Fahy, we must defer to the state court’s holding that
Merritt’s PCRA petition was untimely and it follows that it
was not ‘properly filed’ under AEDPA.” Majority op. at 13.
This syllogism is also apparent in the majority’s statement
that “. . . we hold that we are bound by the state court’s
finding that Merritt’s second PCRA petition was untimely.
Therefore, we affirm the District Court’s order holding that
Merritt’s second PCRA petition was not ‘properly filed.’ ”
Majority op. at 15. However, Fahy states that the
Pennsylvania Supreme Court found that the petition was
improperly filed, not just untimely filed. Fahy, 240 F.3d at
244. Unless untimely filing is per se improper as a matter
of federal law (as the majority today holds), Fahy holds that
state law should govern the question of whether the petition
                             28


was properly filed even after a determination that it was
untimely. Fahy did not hold that “untimely” and “improper”
were coterminous.
   Fahy requires that we defer to the state court’s
conclusions both with regard to untimely filing and
improper     filing  separately.    Thus,   a    state  court
determination that a petition is untimely does not suffice to
establish as a matter of state law that it is also improperly
filed. To conclude that a petition was not properly filed, we
must either: (1) conclude that the state court determined as
a question of fact that the petition was improperly filed and
not just untimely filed; or (2) look to state law rather than
federal law to answer the question of whether timely filing
and proper filing should be equated for the purposes of
§ 2244(d)(2). In contrast, the majority opinion bypasses the
question of how Pennsylvania law would interpret the
proper filing requirement and instead creates a federal per
se rule that untimely filing is categorically improper. In
doing so, the majority ignores all notions of comity.
  In Carey, the Supreme Court made it clear that its main
interest was in promoting principles of comity. As Justice
Breyer wrote for the majority:
    The exhaustion requirement serves AEDPA’s goal of
    promoting “comity, finality, and federalism” by giving
    state courts “the first opportunity to review [the]
    claim,” and to “correct” any “constitutional violation in
    the first instance.” And AEDPA’s limitations period —
    with its accompanying tolling provision — ensures the
    achievement of this goal because it “promotes the
    exhaustion of state remedies while respecting the
    interest in the finality of state court judgments.”
Carey, 122 S. Ct. at 2138 (internal citations omitted). The
majority opinion undermines this strong policy because it
encourages habeas petitioners with colorable arguments
that they have an unexpired state collateral claim to file a
federal habeas claim, rather than pursue a non-frivolous
state collateral claim, for fear of being barred by AEDPA’s
statute of limitations.
  The principles of comity that were an important
consideration in Carey favor Merritt’s interpretation of
                               29


“properly filed” and the ruling in Fahy, rather than the
approach taken by the majority. As Chief Judge Becker
explained in Lovasz v. Vaughn, 134 F.3d 146 (3d Cir.
1998), “[p]rinciples of comity inform our decision . . . and
a federal court should not find a state prisoner’s claims
procedurally barred from federal habeas review unless state
law ‘clearly foreclose[s]’ review of the claims.” See id. at 148.
This admonition ensures that states have “the first
opportunity to address and correct alleged violations of
state prisoner’s federal rights.” See id.
   In enacting AEDPA, Congress aimed to reduce federal
intrusions into state criminal proceedings. See id. The rule
in Fahy advances this goal by permitting the state courts to
determine as a matter of fact and law whether an
application for post-conviction comports with state law,
rather than insisting that a federal habeas claim must be
filed despite a plausible state claim in order to avoid
running afoul of § 2244(d)(1). To rule otherwise usurps the
power of the state court to adjudicate claims that arguably
fit within a recognized exception to a statute of limitations
and undermine the policy principle underlying Carey.
    When a petitioner makes a colorable argument that his
claim fits into a recognized exception to a time limit for
filing, such that the state court must examine the petition
before dismissing it to determine whether the exception
applies, the state court should be empowered to find as a
fact that the claim fits and determine as a matter of law
that fitting within the exception is a “condition to obtaining
relief ” and not a “condition to filing.” Cf. Artuz, 531 U.S. at
11; Dictado, 244 F.3d at 727; Smith, 209 F.3d at 385.
Comity requires nothing less. Contrary to the view of the
majority opinion at 18, our proposed disposition is in
keeping with our responsibility as stated in Fahy to defer to
the state courts’ determination whether the filing was
“proper.”
  I agree with the majority that under the liberal pleadings
standards customarily afforded to pro se petitioners, the
Magistrate Judge erred in concluding that Merritt did not
claim that his petition falls within a recognized exception to
                                  30


Pennsylvania’s statute of limitations for post-conviction
petitions. Majority op. at 11.4

                                  II.
  Accordingly, for the reasons set forth above, I would
remand this case to the district court for a determination
whether under Pennsylvania law Merritt’s state petition was
properly filed.

A True Copy:
        Teste:

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




4. I agree with the majority that equitable tolling does not apply here.
Majority op. at 18.
