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


4-12-2005

Harris v. Vaughn
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3345




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-3345


                                    EARL HARRIS,

                                            Appellant

                                             v.

                        DONALD VAUGHN; THE DISTRICT
                         ATTORNEY OF THE COUNTY OF
                        PHILADELPHIA; THE ATTORNEY
                          GENERAL OF THE STATE OF
                              PENNSYLVANIA




                   On Appeal From the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. Civ. No. 00-6083)
                  District Judge: The Honorable Eduardo C. Robreno


                                Argued January 14, 2005

                Before: SCIRICA, Chief Judge, ROTH, Circuit Judges,
                         and IRENAS,* Senior District Judge.

                                 (Filed: April 12, 2005)




   *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
Robert Little, Esquire (Argued)
515 Valley Street
Suite 170
Maplewood, NJ 07040

              Counsel for Appellant

John W. Goldsborough (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney, Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102

              Counsel for Appellees



                                         OPINION



IRENAS, Senior United States District Judge.


       Earl Harris (“Harris”) is currently serving a life sentence in Pennsylvania state

prison. Presently before the Court is Harris’s appeal of the District Court of the Eastern

District of Pennsylvania’s dismissal of his habeas petition. For the reasons set herein, we

affirm the District Court’s dismissal.

                                             2
I.A.   After a bench trial before the Court of Common Pleas of Philadelphia County in

September, 1992, Harris was convicted of second-degree murder, aggravated assault, two

counts of robbery, criminal conspiracy, and possessing an instrument of crime. His post-

verdict motions were denied. The Superior Court affirmed the convictions on a direct

appeal challenging the sufficiency and weight of the evidence. Pennsylvania v. Harris,

669 A.2d 409 (Pa. Super. Sept. 26, 1995) (table). Harris did not file an allocatur petition

in the Supreme Court of Pennsylvania. Therefore, the judgment became final on October

26, 1995, thirty days after the Superior Court affirmed the convictions. See P A. R. A PP. P.

903(a) (notice of appeal must be filed within thirty days).




                                             B.

       On April 24, 1996, Congress passed the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), which instituted a set time frame in which state prisoners could file for

habeas relief. Under AEDPA, a prisoner has one year from the date of the final

disposition of his case in state court to file a habeas petition. 28 U.S.C. § 2244(d)(1). The

statutory window to file may be tolled while a prisoner is seeking post-conviction relief or

collateral review through the state courts. 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



                                              3
period of limitation under this subsection.”).

       Recognizing the potential for harsh and unjust results in cases where the final

disposition of the conviction occurred before the passage of AEDPA, the Third Circuit,

like other circuits, has fashioned a special rule. For those prisoners whose convictions

were finalized prior to the passage of AEDPA, the one year window would run from

AEDPA’s effective date, April 24, 1996. See Miller v. New Jersey State Dep’t of

Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998); see also Lindh v. Murphy, 96 F.3d 856,

866 (7th Cir. 1996), rev’d on other grounds, 521 U.S. 320 (1997).

       Interestingly, although § 2244(d) defines with some precision when the one year

period of limitation commences or when it is tolled, it does not define what kind of

submission to the District Court constitutes “an application for a writ of habeas corpus”

which would stop the limitation period from continuing to run. The core of the

Respondents’ argument is that mere receipt of an application by a District Court Clerk is

not “an application” which would stop the one year clock. Rather, Respondents assert that

such an application must be properly filed before measuring whether the limitation period

has been exceeded.




                                             C.

       The final disposition of Harris’s criminal conviction was prior to AEDPA’s

effective date. Therefore, the statutory window for Harris would remain open, absent any



                                                 4
tolling, until April 23, 1997.

         On January 3, 1997, Harris tolled the limitation by filing for post-conviction relief

under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541. On

this date 254 days had already elapsed since April 24, 1996, AEDPA’s effective date.

The PCRA court denied his petition on the merits, and the Superior Court affirmed on

June 1, 1999. On December 2, 1999, the Pennsylvania Supreme Court denied allowance

of appeal. Harris had ninety days to apply to the Supreme Court for a writ of certiorari.

28 U.S.C. § 1257; S UP. C T. R. 13. He made no such application, and the judgment

dismissing his PCRA petition became final on March 1, 2000, at which time the one year

limitation period to file a federal habeas petition had 111 days remaining and would

expire on June 20, 2000. Cf. Kapral v. United States, 166 F.3d 565, 571-75 (3d Cir.

1999).




                                               D.

         On December 1, 2000, more than five months after the one year AEDPA limitation

period had expired, the District Court for the Eastern District of Pennsylvania received

Harris’s petition for writ of habeas corpus (the “Petition”). The habeas petition, filed

pursuant to 28 U.S.C. § 2254, focused mainly on claims of ineffective assistance of

counsel. Harris claimed that his counsel was ineffective in failing to litigate a motion to

suppress his confession; failing to conduct a full and effective cross examination of the



                                               5
    Commonwealth’s witnesses; and failing to investigate and interview someone who was in

    the vicinity of the crime scene when the crime occurred. On December 19, 2000, the

    district court ordered Harris to pay the filing fee 1 or submit an application to proceed in

    forma pauperis (“IFP”) within thirty days. Neither had been submitted with the Petition.

    The district court did not review the Petition for timeliness at that juncture.2 Harris did

    not comply with the Order, and with no payment or IFP application, the district court

    dismissed the Petition without prejudice on January 31, 2001.

             Harris moved for a “reversal of order to dismiss” on March 2, 2001. He alleged

    that he had tried to comply with the Order on January 15, 2001 by filling out a cash slip in

    the amount of $5.00, payable to the Clerk of the Court, and handing it over to a prison

    official, who then delivered the cash slip to the business manager. Without checking his

    prison account balance, Harris assumed that the cash slip was processed and the filing fee

    was paid. On January 24, 2001, the cash slip was returned to Harris because his account

    did not have sufficient funds.

             The record does not indicate, nor does Harris allege, that an application to proceed

    IFP was filed after it was determined that there were insufficient funds to pay the filing

    fee. Moreover, Harris does not claim to have obtained a cash slip for the filing fee on a

    later occasion. Instead, after a month had passed, he filed the above-mentioned motion

       1
1          The filing fee is $5.00. 28 U.S.C. § 1914(a).
       2
1        Indeed, it was not until Respondent answered the Petition on June 19, 2002, that the
2   issue of timeliness was raised.

                                                   6
for a reversal of the Order of January 31, 2001. When filing the motion for reversal,

Harris did not include an application to proceed IFP, nor did he include the filing fee.

District Court Judge Eduardo Robreno denied the motion for reversal on March 23, 2001,

because the court had yet to receive either the filing fee or an IFP application. A month

later, on April 23, 2001, Harris filed a notice of appeal.3

       By Order dated March 28, 2002, the Court of Appeals dismissed Harris’s appeal

for lack of appellate jurisdiction because the district court’s dismissal was without

prejudice and thus was not a final order. The Court of Appeals panel further noted that if

Harris wished to proceed with his Petition, he should file a motion to proceed IFP in the

District Court or pay the filing fee.

       On April 24, 2002, the filing fee was paid. By Order dated April 29, 2002, and

entered May 1, 2002, the case was ordered to be marked “reopened” by the Clerk of the

District Court. The file was sent to Magistrate Judge James Mellinson for Report and

Recommendation (“R&R”). Judge Mellinson ordered the Commonwealth to respond to

the Petition on May 9, 2002.

       By letter dated May 10, 2002, Harris moved to amend the Petition to include two

additional claims. On May 29, 2002, the district court ordered the Commonwealth to

respond to the motion to amend. On June 19, 2002, the Commonwealth submitted a




   3
    The docket indicates that Harris filed an application to proceed IFP with his notice of
appeal. His application was granted by Order dated May 24, 2001.

                                              7
response to both the Petition and the motion to amend, in which it argued that the Petition

was time-barred.4 Judge Mellinson issued the R&R on June 28, 2002, in which he denied

the Petition with prejudice for untimeliness.5

       Harris’s motion objecting to the R&R was entered on July 17, 2002. It was in this

motion that Harris responded to the issue of timeliness for the first time. Harris claimed

that he handed his Petition to a prison official, Gary Rockafella, on December 10, 1999.6

To explain why the district court did not receive a copy of the Petition until December 1,

2000, almost a year later, Harris alleges that Mr. Rockafella delayed in mailing the

Petition until November, 2000, at which time he forged Harris’s signature and dated it

November 28, 2000.7 Harris seemed to be seeking an earlier “deemed” filing date,



   4
     The record indicates that this point marks the first occasion that the issue of the
Petition’s timeliness under AEDPA was raised.
   5
    The R&R rested on two main points: (1) when Harris’s PCRA round of appeals
ended, Harris had five months remaining to file a habeas petition, yet he waited almost a
year before filing; and (2) Harris failed to pay his filing fee for seventeen months from the
time he filed the habeas petition.
   6
    A December 10, 1999, filing date might well be premature as the Pennsylvania
Supreme Court had denied review of the PCRA judgment only eight days earlier, and his
time to seek review by the United States Supreme Court still had seventy-two days
remaining. Thus, his limitation period for seeking federal habeas review was still tolled.
   7
     Harris claims that due to the large size of the envelope, he was unable to place his
Petition in the mailbox and so he handed it to Mr. Rockafella for mailing. Mr.
Rockafella, according to Harris, was to mail the Petition when he left the housing unit on
his lunch break. Harris also claims that he signed his Petition on December 10, 1999 and
that the signature on the Petition received by the Court “is not that of petitioner.” (Mot.
to Object to Magistrate’s R&R, at p.1.).

                                              8
possibly pursuant to the “mailbox rule” 8 or under equitable tolling.9 Respondents contend

that they “recently inquired of the prison” and learned that there is no record or log of

Harris handing the Petition to his counselor nor any “cash slip” request for postage during

that time period. Respondents state that “Graterford prisoners know to submit their mail

to the mail room with a cash slip attached so that an official record may be made of the

mail, and so that the postage may be deducted from their accounts.” (Resp’t Brief, at

p.14, n. 2.)

       On July 30, 2002, Judge Robreno approved and adopted the R&R, despite Harris’s

objections. The Petition was dismissed with prejudice and a certificate of appealability

(“COA”) was not issued. Harris filed, pro se, a notice of appeal on August 23, 2002.

       On April 28, 2003 the Court of Appeals issued an order granting the request for a

COA. The COA directed the parties to specifically address: “(1) whether the petition



   8
    The mailbox rule accepts the date that the prisoner delivers his legal filing to prison
authorities for mailing as the date of filing. See Houston v. Lack, 487 U.S. 266, 275
(1988) (case involving prisoner filing a notice of appeal); see also F ED. R. A PP. P. 4(c);
R. G OVERNING S ECTION 2254 C ASES 3(d).
   9
     Equitable tolling may be employed in cases where a pro se litigant has been
“trapped” by harsh formalities, i.e. “when the principles of equity would make the right
application of a limitation period unfair.” Miller v. New Jersey State Dep’t of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Equitable tolling is only appropriate
where the petitioner has been diligent in pursuing his claim, but due to extraordinary
circumstances, he has been unable to meet the limitations statute. For example, equitable
tolling has been applied in situations where the delay was caused by judicial actions or
omissions, government interference, mental incompetence, lack of notice, or actual
innocence of the petitioner. Equitable tolling is not available to the petitioner who
neglects his case or ignores his window of opportunity.

                                              9
should be deemed ‘filed’ on December 10, 1999, the date Petitioner claims he submitted

the petition to a prison official; November 28, 2000, the date on the petition; or on April

24, 2002, the date Petitioner paid his filing fee . . . .; and (2) if the petition should not be

deemed filed on December 10, 1999, then should the limitations period be equitably

tolled from December 10, 1999 to November 28, 2000, . . . .”




                                               II.

                                               A.

        Assuming, without holding, that some combination of equitable tolling and the

mailbox rule could apply to revert the effective receipt of the Petition by the Court back

to a date within the AEDPA window,10 the Court must still consider whether (i) the mere

fact of receipt by the clerk of a habeas petition within the one year time limit satisfies 28

U.S.C. § 2244(d) or (ii) an order granting IFP status or the filing fee itself must

accompany a habeas petition in order for that petition to be deemed filed for purposes of

computing the one year limitation.

        Rule 3(a) of the Rules Governing Section 2254 Cases (“Section 2254 Rules”)11

   10
      Defendants vigorously argue that neither the mailbox rule nor equitable tolling apply
to this case.
   11
      Unless otherwise noted, all references to Section 2254 Rules shall be to the Rules
which existed prior to December 1, 2004, when significant amendments became effective.
 As now in force Rule 3(a) only requires that the petitioner submit the petition with either
the filing fee or an application for IFP status and Rule 3(b) requires the District Court
Clerk to file the petition even if it is in improper form (under the new version of Rule 2)

                                               10
provides that a habeas petition must “also be accompanied by the filing fee prescribed by

law unless the petitioner applies for and is given leave to prosecute the petition in forma

pauperis.” The clerk of court is told in Rule 3(b) that “[u]pon receipt of the petition and

the filing fee, or an order granting leave. . .to proceed in forma pauperis, . . .the clerk of

the district court shall file the petition and enter it on the docket in his office.”

       The Section 2254 Rules might be read to require that Harris’s Petition should not

be deemed filed for purposes of computing the one year limitation period until the clerk’s

office receives both the petition and either the filing fee or an approved IFP application.

However, the adoption of such a literal reading of those Rules might not fairly take into

account the practical difficulties facing a prisoner conducting pro se litigation. See

Houston v. Lack, 487 U.S. at 270-75 (interpreting the rules in a light favorable to pro se

prisoners by applying the “mailbox rule” for determining the date of filing); cf. F ED. R.

C IV. P. 1 (the rules should be interpreted “and administered to secure the just, speedy and

inexpensive determination of every action”).




and even if not accompanied by a filing fee or IFP application. See Advisory Committee
Notes to 2004 Amendments. Thus, the significance of the payment of the filing fee or the
submission of an IFP application in determining when a habeas petition is timely filed for
the purpose of computing the one year AEDPA limitation period may not be the same as
it was prior to December 1, 2004. Rule 3(c), as amended, states that “the time for filing a
petition is governed by 28 U.S.C. § 2244(d),” and Rule 3(d), as amended, generally
implements the “mailbox rule” to determine the date of filing. However, nothing in the
new Rules specifically deals with the effect on § 2244(d) of a petition filed under Rule
3(b) which is not in proper form or not accompanied by a filing fee or an IFP application,
although the Advisory Committee Notes do refer to various cases which permit equitable
tolling.

                                               11
       Indeed, the Clerk of the Eastern District of Pennsylvania did not strictly apply Rule

3 of the Section 2254 Rules. When Harris’s Petition was received by the Clerk on

December 1, 2000, it was filed and entered on the docket. Twenty days later the Court

sent Petitioner a Notice and Order advising him that if he did not pay the filing fee or

apply for IFP status within 30 days, his case would be dismissed without prejudice. On

January 31, 2001, after the Notice and Order was ignored, the case was in fact dismissed.

       Other courts have declined to literally apply the concept of “filing” in the pre-

December 1, 2004, version of Rule 3(b) to the determination of whether a habeas

petitioner has met the one year limitation period in § 2244(d). In Jones v. Betrand, 171

F.3d 499 (7th Cir. 1999), the Seventh Circuit faced the issue of timeliness in the context

of a truly incomplete habeas petition, one that did not include payment or an IFP

application within the statutory window. Jones, the petitioner mailed his pro se petition

with prison officials (by placing it in a prison mailbox) on April 23, 1997, which was his

last day to file before the statute of limitations ran. Shortly thereafter, Jones was advised

that he failed to include the fee or an IFP application. Within two weeks, on May 7,

1997, the clerk’s office received Jones’s filing fee, along with an application to proceed

IFP. The district court found that the filing date was the day the fee was received, May 7,

1997. The district court dismissed the petition as untimely despite the fact that it arrived

prior to the close of the statute of limitations, because it was not “filed” until after the

petitioner’s window to file closed on April 23, 1997. Id. at 500.

       The Seventh Circuit reversed, finding that, notwithstanding the filing provisions of

                                               12
Rule 3(b) of the Section 2254 Rules, “for statute of limitations purposes, an inmate’s

petition for habeas relief need not be accompanied by the required filing fee or IFP

application, so long as one or the other is sent within a reasonable time after the petition

and there is no evidence of bad faith on Petitioner’s part.” Id. at 502; see also Spotville v.

Cain, 149 F.3d 374, 375 (5th Cir. 1998);12 United States v. Williams, 37 F. Supp 2d 1048

(N.D. Ill. 1998); Bailey v. Gilmore, 5 F. Supp. 2d 587, 589 (N.D. Ill. 1998); Cardenas v.

DeTella, No. 97-3005, 1998 WL 708858 (N.D. Ill. Sept. 24, 1998); Washington v.

Gramley, No. 97-3270, 1998 WL 171827, at *3 (N.D. Ill. Apr. 10, 1998); cf. United

States v. Gilmore, 987 F. Supp. 677 (N.D. Ill. 1997) (habeas petition dismissed for bad

faith in failure to include filing fee with petition where prison account showed ability to

pay).

                                            B.

              We hold that under the version of Rule 3(b) in effect when this case arose,

the date of filing for statute of limitations purposes is the date that the habeas petition is

received by the court or by the appropriate prison official (if the mailbox rule applies),


   12
       Later, in Cousin v. Lensing, 310 F.3d 843 (5th Cir. 2002), the Fifth Circuit limited
its holding in Spotville. The Fifth Circuit found that prisoners represented by counsel
could exercise control over their legal documents and therefore should not be afforded the
same degree of leniency as pro se prisoners and should not benefit from the mailbox rule.
The Fifth Circuit held that the rule set forth in Spotville, that “‘[t]he timeliness of [a]
petition for purposes of application of the effective date of the AEDPA depends, not on a
fee payment, but on when [the petitioner] delivered his papers to prison authorities for
filing,’” will not apply to “prisoner litigants who are represented by counsel.” Id. at 847
(quoting Spotville, 149 F.3d at 376). Spotville remains viable, however, as applied to pro
se litigants.

                                              13
regardless of whether payment or an IFP application is attached, as long as either follows

within a reasonable time and there is no evidence of bad faith.

        What constitutes a reasonable time will vary, thus requiring individual

consideration of each case. In Jones, a two week delay was deemed reasonable. 171 F.3d

at 499. In Cardenas, the court implicitly found the submission of the filing fee to be

within a reasonable time, because it was submitted within the time period ordered by the

court. 1998 WL 708858, at *3. Here, the fee went unpaid from December, 2000, the date

the Petition was actually received by the Court, until April 24, 2002, the date the filing fee

was paid. No IFP application was ever filed. We find in light of the circumstances

surrounding the delay, the gap between the court’s receipt of the Petition and its receipt of

the fee is unreasonable.

        Harris was on notice that a filing fee or an IFP application was required at the time

he completed his application. The pre-printed standard habeas application form which

Harris used included an advisement that the petition would be filed only after payment

was received: “Upon receipt of a fee of $5.00, your petition will be filed if it is in proper

order.” The standard form also outlines how to seek permission to proceed IFP.

        Harris was again informed of the filing requirements shortly after December 19,

2000, when he received the court Order directing him to pay the filing fee or submit an

IFP application within 30 days.13 Harris was put on notice not only by the language in the


   13
    Harris did receive a copy of the Order, as he stated in a later motion that he tried to
comply with it. His copy was somehow mislaid at a later time, because sometime in May

                                             14
body of the Order, but also by the language in the area at the end of the Order. There is a

section following the text of the Order that the petitioner can tear off and return to the

court. The petitioner can indicate in that area either: “I want my motion to PROCEED.

Enclosed is five dollars (or an in forma pauperis application).” -or- “I wish my motion be

WITHDRAWN.” There is a line below the two options for the petitioner to sign. Harris

received this court-provided form with the Order of December 19, 2000, but did not

utilize it.

        Harris allegedly filled out a cash slip on January 15, 2001, but when he learned

that he did not have sufficient funds, he did nothing further to comply with the Order.

Harris waited another month before filing a motion for reversal, but then did not submit

payment or an IFP application with that motion. Harris continued to object and appeal

the dismissal of his Petition for more than a year before he finally paid the filing fee.

        At each stage, Harris was notified that his case would be re-opened if he paid the

fee or submitted an IFP application. And yet, he made minimal, if any, efforts to either

complete the IFP application or to pay the filing fee. This is not a case where the

intervention of the courts or the prison prevented Harris from complying with the statute

and the court orders. Rather, Harris knew of the requirements and was far less than




2002, Harris advised the District Court that he did not have a copy of the December 19,
2000 Order. On May 9, 2002, the Magistrate Judge ordered the Clerk of the Court to
provide Petitioner with a copy of the Order.

                                              15
diligent in complying with the rules.14

                                            IV.

        For the reasons set forth above, under the provisions of Rule 3 of the Section 2254

Rules, as they existed prior to December 1, 2004, the District Court’s dismissal of his §

2254 Petition for failure to timely pay the filing fee is hereby affirmed. The Court makes

no determination of the impact of the recent amendments to Rule 3 on the holding in this

case.




   14
     Respondents raise the issue of bad faith in their papers, but it need not be addressed
because, under these circumstances, the delay has already been determined to be
unreasonable. Cf. Barnes v. Briley, 294 F. Supp. 2d 931 (N.D. Ill. 2003) (interpreting the
Jones condition that there be no evidence of bad faith when determining that a petition
lacking an IFP application or the filing fee is timely).


                                             16
