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


3-17-2003

Brown v. Shannon
Precedential or Non-Precedential: Precedential

Docket 01-1308




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                                PRECEDENTIAL

                                         Filed March 17, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 01-1308


                      CHARLES BROWN,
                               Appellant
                                v.
 ROBERT SHANNON; 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-cv-01482)
District Judge: The Honorable Franklin S. Van Antwerpen

                  Argued: November 4, 2002
    Before: BECKER, Chief Judge, McKEE and HILL,*
                    Circuit Judges.

                   (Filed: March 17, 2003)




* The Honorable James C. Hill, United States Circuit Judge for the
Eleventh Circuit Court of Appeals, sitting by designation.
                              2


                       SALVATORE C. ADAMO (ARGUED)
                       Two Penn Center Plaza
                       Suite 200
                       Philadelphia, PA 19102-1706
                         Counsel for Appellant
                       LYNNE ABRAHAM
                       District Attorney
                       ARNOLD H. GORDON
                       First Assistant District Attorney
                       RONALD EISENBERG
                       Deputy District Attorney,
                        Law Division
                       THOMAS W. DOLGENOS
                       Chief, Federal Litigation
                       DAVID CURTIS GLEBE (ARGUED)
                       Assistant District Attorney
                       Office of the District Attorney
                       1421 Arch Street
                       Philadelphia, PA 19102-1582
                         Counsel for Appellees


                 OPINION OF THE COURT

BECKER, Chief Judge.
   Charles Brown appeals from the order of the District
Court dismissing his petition for a writ of habeas corpus as
time-barred under the applicable one-year statute of
limitation. The appeal requires us to consider under what
circumstances an attorney’s withdrawal of representation
after failing to file a federal habeas petition warrants
equitable tolling of the statutory limitation period. At issue
is whether Brown is entitled to statutory or equitable tolling
of the limitation period for the following three time periods:
(1) April 26, 1997, to July 29, 1997; (2) August 15, 1997,
to May 6, 1998; and (3) May 7, 1998, to January 11, 2000.
His petition would be timely, only if the limitation period
were tolled for all three periods. We conclude that Brown is
not entitled to equitable tolling for the period from April 26,
1997, to July 29, 1997, the period of his attorney’s putative
                                    3


abandonment of his claim. Without that period of tolling,
his petition would be untimely even if the entire period from
August 15, 1997, to January 11, 2000, were tolled.
Accordingly, we will affirm.

                                    I.
   A jury in the Court of Common Pleas of Philadelphia
County, Pennsylvania, convicted Brown of second-degree
murder, robbery, criminal conspiracy, and possession of an
instrument of crime. The trial court sentenced him to a
term of life imprisonment without the possibility of parole
and concurrent lesser terms of imprisonment. The
Pennsylvania Superior Court affirmed. See Commonwealth
v. Brown, 480 A.2d 1171 (Pa. Super. Ct. 1984). In January
1985, the Pennsylvania Supreme Court denied Brown’s
petition for allowance of appeal. See Commonwealth v.
Brown, No. 546 E.D. Alloc. Dkt. (Pa. 1984). He did not
petition the United States Supreme Court for a writ of
certiorari. He subsequently filed a pro se petition for post-
conviction relief under the Post Conviction Hearing Act, 42
Pa. C.S. §§ 9541 et seq. See Commonwealth v. Brown, 570
A.2d 585 (Pa. Super. Ct. 1989) (table) (affirming dismissal
of petition but vacating sentence imposed for the
possession of an instrument of crime); Commonwealth v.
Brown, 575 A.2d 108 (Pa. 1990) (table) (denying petition for
allowance of appeal).
  On December 24, 1996, Brown filed a second pro se
petition for state post conviction relief, this one under the
newly enacted Post Conviction Relief Act (“PCRA”), 42 Pa.
C.S. §§ 9541 et seq.1 He privately retained attorney Daniel
Silverman to represent him. The PCRA court denied this
second petition on March 26, 1997, and informed Brown of
his right to file an appeal to the Pennsylvania Superior
Court within 30 days. Brown asked Silverman to file an
appeal. By letter dated April 16, 1997, Silverman advised

1. In his brief, Brown states that the petition was filed on December 31,
1996. However, in his application for a certificate of appealability, Brown
stated that the petition was filed on December 24, 1996. The
Commonwealth agrees that the petition was filed on December 24, 1996.
                                    4


him to not pursue an appeal in state court and to pursue
federal habeas relief instead. No notice of appeal was filed.
   On July 29, 1997, Silverman informed Brown that he
was withdrawing his representation. On August 15, 1997,
Brown submitted to the trial court a pro se “Notice of
Appeal Nunc Pro Tunc,” asserting that Silverman had failed
to timely inform him that he (Silverman) would not file an
appeal from the denial of the second PCRA petition. The
trial court received the notice of appeal nunc pro tunc but
mishandled and apparently lost it; at all events the notice
was never docketed or filed.2 On May 6, 1998, after a
number of inquiries from Brown, the trial court’s “PCRA
Unit” issued a memorandum informing Brown that it had
no record of his notice of appeal nunc pro tunc and advising
him that, if he wished to continue with his request for
permission to appeal nunc pro tunc, he should file a pro se
PCRA petition.
   On May 15, 1998, Brown filed a pro se PCRA petition (his
third) requesting permission to file an appeal nunc pro tunc
from the denial of the second PCRA petition.3 The PCRA
court dismissed the petition as untimely filed. The
Pennsylvania Superior Court affirmed. See Commonwealth
v. Brown, 747 A.2d 409 (Pa. Super. Ct. 1999) (table). On
January 11, 2000, the Pennsylvania Supreme Court denied
Brown’s     petition  for   allowance     of   appeal.   See
Commonwealth v. Brown, 749 A.2d 465 (Pa. 2000) (table).
He did not petition the United States Supreme Court for a
writ of certiorari.
  On March 19, 2000, Brown filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United

2. The notice was forwarded to the “Appeals Unit” on or about August
19, 1997. There is no record of it after that. For purposes of this appeal,
we may assume in Brown’s favor that the notice was in fact mishandled
and lost.
3. The petition was actually received by the trial court on May 18, 1998.
It appears that Brown mailed it on May 15, 1998. The petition thus may
be deemed filed on May 15, 1998. See Commonwealth v. Jones, 700 A.2d
423, 426 (Pa. 1997) (“we extend the prison mailbox rule to all appeals by
pro se prisoners”). The Commonwealth does not dispute that the petition
may be deemed filed on that date.
                               5


States District Court for the Eastern District of
Pennsylvania. The Magistrate Judge to whom the petition
was referred determined that it was untimely filed and that
equitable tolling of the limitation period was not warranted.
The District Court adopted the Magistrate Judge’s findings,
dismissed the petition as time-barred, and declined to issue
a certificate of appealability. Brown timely appealed. On
March 8, 2002, a motions panel of this Court issued a
certificate of appealability on the following issues:
    (1)   Whether Brown’s notice of appeal nunc pro tunc,
          submitted but never ruled on because it was lost
          as a result of mishandling by the trial court, may
          be considered “properly filed” for purposes of 28
          U.S.C. § 2244(d)(2), see Swartz v. Meyers, 204
          F.3d 417, 421 n.3 (3d Cir. 2000), and, if the notice
          may be considered “properly filed,” when it ceased
          to be “pending”; and
    (2)   Whether appellant is entitled to equitable tolling of
          the statute of limitation for the period from May 7,
          1998, through January 11, 2000, and the period
          from April 26, 1997, through July 29, 1997. See
          Miller v. New Jersey Dep’t of Corr., 145 F.3d 616,
          618-19 (3d Cir. 1998); Seitzinger v. Reading Hosp.
          & Med. Ctr., 165 F.3d 236, 241 (3d Cir. 1999).
   The District Court had jurisdiction pursuant to 28 U.S.C.
§ 2254. This Court has jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. Our review of a decision dismissing a
habeas petition as time-barred is plenary. See Johnson v.
Hendricks, 314 F.3d 159, 161 (3d Cir. 2002).

                              II.
  Section 2244(d) of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) provides, in relevant part:
    (1) A 1-year period of limitation shall apply to an
    application for a writ of habeas corpus by a person in
    custody pursuant to the judgment of a State court. The
    limitation period shall run from the latest of —
      (A) the date on which the judgment became final by
      the conclusion of direct review or the expiration of
      the time for seeking such review;
                               6


       . . .
    (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.
28 U.S.C. § 2244(d).
    Brown’s conviction became “final” before the AEDPA
came into effect on April 24, 1996. His one-year period for
filing a habeas petition thus began running on that date.
See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). It
is not disputed that the limitation period ran without
interruption from April 24, 1996, to, but not including,
December 24, 1996 (when the second PCRA petition was
filed), a period of eight months. It is also not disputed that
the second PCRA petition was “pending” and tolled the
limitation period pursuant to § 2244(d)(2) from December
24, 1996, to April 25, 1997 (the last day for timely filing an
appeal from the denial of the petition). Thus, on April 26,
1997, Brown had four months left in which to file a habeas
petition. He did not file his petition until March 19, 2000.
   Brown makes several contentions for statutory tolling
(pursuant to § 2244(d)(2)) and equitable tolling of the
limitation period. His contentions essentially concern three
time periods: (1) April 26, 1997 (the day the second PCRA
petition ceased to be “pending”) to July 29, 1997 (the day
Silverman withdrew representation); (2) August 15, 1997
(the day the notice of appeal nunc pro tunc was submitted
to the trial court) to May 6, 1998 (the day the trial court
informed Brown it had no record of the notice of appeal
nunc pro tunc); and (3) May 7, 1998 (the day after the trial
court informed Brown it had no record of the notice of
appeal nunc pro tunc) to January 11, 2000 (the day the
Pennsylvania Supreme Court denied Brown’s petition for
allowance of appeal from the denial of the third PCRA
petition). If the limitation period were tolled for those three
periods, his habeas petition would be timely. We turn first
to Brown’s contention that the limitation period should be
equitably tolled from April 26, 1997, to July 29, 1997. He
asserts that he is entitled to equitable tolling for that period
                                   7


because attorney Silverman ineffectively failed to file an
appeal from the denial of the second PCRA petition and
then later “abandoned” him without filing a federal habeas
petition.
  After the second PCRA petition was denied, Brown asked
Silverman to file an appeal. Silverman responded by letter
dated April 16, 1997. He wrote:
     It is my strong recommendation that you not pursue
     an appeal before the Pennsylvania Superior Court. I
     believe that paying me money to pursue that appeal
     would be a [sic] inefficient use of your resources. With
     the record before it as it now stands, the Superior
     Court would almost certainly affirm Judge Sabo’s
     decision. It is my recommendation that you pursue
     your remedies in federal district court via a writ for
     petition of habeas corpus [sic]. . . . Consequently, I will
     not file a Notice of Appeal to the Superior Court,
     although you are certainly permitted to do so.
Supp. App. at 5 (emphases removed). According to Brown,
he received this letter on April 21, 1997. It appears that he
then agreed to have Silverman file a federal habeas petition
on his behalf and to forgo an appeal in state court. App.
123-24 (“Petitioner . . . alternatively advised counsel to file
a habeas corpus petition if counsel knew legal means to do
so despite the exhaustion requirement”).
  About a month later, in a letter dated May 20, 1997,
Silverman informed Brown that he had yet to read the trial
transcripts and draft a habeas petition and that he had
been unable, despite his diligent efforts, to obtain the trial
transcripts.4 Subsequently, in a letter dated July 29, 1997,

4. Brown acknowledged Silverman’s diligent efforts. He stated:
    Prior to the dismissal of the [second PCRA] petition, attempts were
    made by Mr. Silverman to obtain notes of testimony[.] Mr. Silverman
    contacted the Court of Common Pleas—Clerk of Courts, Court of
    Common Pleas—PCRA Unit, Trial Counsel, Appellate Counsel, and
    he wrote several letters to Judge Sabo, stating his desire to obtain
    the notes of testimony. All of the attempts to obtain the transcripts
    were unsuccessful.
App. 16.
                              8


Silverman informed Brown that he was unable to obtain a
complete set of the trial transcripts and was unable to
continue to properly represent him.
   “[E]quitable tolling is proper only when the ‘principles of
equity would make [the] rigid application [of a limitation
period] unfair.’ ” See Miller v. New Jersey State Dep’t of
Corr., 145 F.3d 616, 618 (3d Cir. 1998) (citation omitted).
“Generally, this will occur when the petitioner has ‘in some
extraordinary way . . . been prevented from asserting his or
her rights.’ ” Id. (citation omitted). Moreover, to be entitled
to equitable tolling, “[t]he petitioner must show that he or
she ‘exercised reasonable diligence in investigating and
bringing [the] claims.’ Mere excusable neglect is not
sufficient.” Id. at 618-19 (citations, including internal
citation, omitted); see Valverde v. Stinson, 224 F.3d 129,
134 (2d Cir. 2000) (“The word ‘prevent’ requires the
petitioner to demonstrate a causal relationship between the
extraordinary circumstances on which the claim for
equitable tolling rests and the lateness of his filing, a
demonstration that cannot be made if the petitioner, acting
with reasonable diligence, could have filed on time
notwithstanding the extraordinary circumstances. If the
person seeking equitable tolling has not exercised
reasonable diligence in attempting to file after the
extraordinary circumstances began, the link of causation
between the extraordinary circumstances and the failure to
file is broken, and the extraordinary circumstances
therefore did not prevent timely filing.”) (internal citations
and internal footnote omitted).
   We disagree with Brown insofar as he contends that he
is entitled to equitable tolling because Silverman
ineffectively failed to file an appeal from the denial of the
second PCRA petition. From the outset, Silverman was
forthright about not filing an appeal. In fact, the record
reflects that Brown agreed to pursue federal habeas relief
instead of an appeal in state court. Significantly, he could
have timely filed a pro se notice of appeal in state court
after receiving Silverman’s letter on April 21, 1997. He had
five days in which to do so. He was aware of the filing
deadline (the PCRA court had informed him of the 30-day
appeal period). Given his history of pro se filings, there is
                              9


no reason to believe that Brown could not prepare and
submit a notice of appeal, a simple one-paragraph
document, within that time. It appears that he simply
chose to not do so. Under these circumstances, equitable
tolling is not warranted. Insofar as Silverman’s advice to
pursue federal habeas relief instead of an appeal in state
court may have been unsound, his negligence in giving that
advice is an insufficient basis for equitable tolling. See Fahy
v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (“attorney error,
miscalculation, inadequate research, or other mistakes
have not been found to rise to the ‘extraordinary’
circumstances required for equitable tolling”), cert. denied
sub nom. Horn v. Fahy, 122 S. Ct. 323 (2001).
    We also disagree with Brown insofar as he contends that
he is entitled to equitable tolling because Silverman
“abandoned” him by withdrawing representation without
filing a federal habeas petition. Silverman informed Brown
that he was withdrawing because he was unable to obtain
a complete set of the trial transcripts and felt that he could
no longer properly represent Brown. Prior to withdrawing,
he had made diligent efforts to obtain the trial transcripts
and had been forthright with Brown regarding his lack of
success in obtaining them. He had also been forthright with
Brown regarding his lack of progress in drafting a habeas
petition. The record simply does not reflect that Silverman
misbehaved or acted so irresponsibly that his withdrawal
can be said to be an “extraordinary” circumstance
warranting equitable tolling.
   Neither does the case law support Brown’s position. See
Fahy, 240 F.3d at 244 (mere mistake or negligence on the
part of an attorney generally does not “rise to the
‘extraordinary’ circumstances required for equitable
tolling”); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d
236, 241 (3d Cir. 1999) (in the context of a Title VII claim,
“garden variety” attorney misbehavior does not warrant
equitable tolling); cf. United States v. Wynn, 292 F.3d 226,
230-31 (5th Cir. 2002) (equitable tolling may be warranted
where petitioner alleged he “was deceived by his attorney
into believing that a timely § 2255 motion had been filed on
his behalf”). In Seitzinger, 165 F.3d at 241-42, we held that
equitable tolling may be warranted where an attorney
                                    10


“affirmatively lied” to his client that he had filed a
complaint on her behalf. But Silverman was entirely candid
with Brown. Significantly, there was nearly one month left
in the limitation period — time enough for Brown, acting
with reasonable diligence, to prepare and file at least a
basic pro se habeas petition — at the time of Silverman’s
withdrawal.
  In sum, we conclude that Brown is not entitled to
equitable tolling for the period from April 26, 1997, to July
29, 1997. The limitation period thus ran during that period.
On July 29, 1997, Brown had a little less than one month
in which to file a habeas petition, and the limitation period
continued running.

                                   III.
   Brown’s other contentions concern the period from
August 15, 1997, to January 11, 2000. Essentially, he
contends that: (1) the notice of appeal nunc pro tunc was
“properly filed” and tolled the limitation period pursuant to
§ 2244(d)(2) while it was “pending” from August 15, 1997,
to May 6, 1998; and (2) he is entitled to equitable tolling for
the period from May 7, 1998, to January 11, 2000. Though
we do make several observations in the margin about the
ramifications of these arguments, we do not address them;
Brown’s habeas petition would be untimely even if the
limitation period were tolled for both those periods.5 As
                                                 (Text continued on page 12)

5. Brown’s first contention presents a novel issue: whether the notice of
appeal nunc pro tunc may be deemed “properly filed” within the meaning
of § 2244(d)(2). See Swartz v. Meyers, 204 F.3d 417, 421 n.3 & 7 (3d Cir.
2000). To determine whether a petition is “properly filed,” a federal court
“must look to state law governing when a petition for collateral relief is
properly filed.” Fahy, 240 F.3d at 243. Pertinently, § 9542 of the PCRA
provides:
    This subchapter provides for an action by which persons convicted
    of crimes they did not commit and persons serving illegal sentences
    may obtain collateral relief. The action established in this
    subchapter shall be the sole means of obtaining collateral relief and
    encompasses all other common law and statutory remedies for the
    same purpose that exist when this subchapter takes effect,
    including habeas corpus and coram nobis.
                                    11


42 Pa. C.S. § 9542. This section “set[s] forth the exclusivity of the PCRA
as the means for collaterally attacking criminal convictions[.]”
Commonwealth v. Eller, 807 A.2d 838, 842 (Pa. 2002). Post-conviction
claims seeking the restoration of appellate rights based on ineffective
assistance of counsel are subject to this exclusivity provision; they must
be raised in a PCRA petition. See Commonwealth v. Lantzy, 736 A.2d
564, 569-70 (Pa. 1999); Commonwealth of Pennsylvania v. Fairiror, 809
A.2d 396, 397 (Pa. Super. Ct. 2002) (Lantzy applies to “all requests for
reinstatement of appellate rights, including PCRA appellate rights”).
Importantly, that is so “irrespective of whether [an] appellant sought
extra-PCRA review before or after the decision in Lantzy was
announced.” Eller, 807 A.2d at 842-43 (“application of Lantzy to
petitioners who sought nunc pro tunc relief before that case was decided
does not operate in an unlawfully retroactive fashion”).

   Pennsylvania law thus did not (and does not) recognize extra-PCRA
petitions like Brown’s notice of appeal nunc pro tunc. Because such
petitions are improperly filed as a matter of state law, it seems doubtful
that they may be deemed “properly filed” within the meaning of
§ 2244(d)(2). See Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000)
(“the filing of creative, unrecognized motions for leave to appeal” does not
trigger tolling pursuant to § 2244(d)(2)); cf. Gibson v. Klinger, 232 F.3d
799, 806-808 (10th Cir. 2000) (application for leave to appeal out of time
authorized under state law and filed in accordance with state procedural
rules triggered tolling pursuant to § 2244(d)(2)). In this regard, it is
significant that § 2244(d)(2)’s “tolling rule is designed to protect the
principles of ‘comity, finality, and federalism,’ by promoting ‘the
exhaustion of state remedies while respecting the interest in the finality
of state court judgments.’ ” Carey v. Saffold, 122 S. Ct. 2134, 2139
(2002) (citation omitted). Indeed, “it is the State’s interests that the
tolling provision seeks to protect[.]” Id. at 2139-40. Permitting petitions
not recognized under state law and improperly filed as a matter of state
law to toll the limitation period would not seem to promote exhaustion
in the manner contemplated by the AEDPA. See Adeline, 206 F.3d at 253
(the filing of motions not recognized under state law “is not the sort of
‘exhaustion’ that [ ] the AEDPA Congress . . . had in mind”); see also
O’Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999) (“there is nothing in
the exhaustion doctrine requiring federal courts to ignore a state law or
rule providing that a given procedure is not available”). Moreover, such
permissiveness might seem to disrespect the state’s decision regarding
the proper procedures for challenging state court judgments. Cf. Lovasz
v. Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998) (“if a state allows
petitioners to file second or subsequent petitions for post-conviction
                                   12


noted supra, on July 29, 1997, there was less than one
month left in the limitation period. If the limitation period
ran from July 29, 1997, to August 14, 1997, and then was
tolled for the entire period from August 15, 1997, to
January 11, 2000, there would have been approximately 10
days left in the limitation period on January 12, 2000.
Brown did not file his petition until March 19, 2000.

                                   IV.
  To summarize, Brown’s habeas petition was filed beyond
the AEDPA’s one-year statute of limitation. He failed to
show that he is entitled to statutory or equitable tolling of
the limitation period as would render his petition timely.
Accordingly, we will affirm the District Court’s order
dismissing his petition as time-barred.

A True Copy:
        Teste:

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

relief, federal courts should not undermine the state’s decision by
refusing to toll the one-year period of limitation . . . where a second or
subsequent petition is pending in the state court system”).
   With respect to Brown’s second contention, we note that his third
PCRA petition was dismissed by the Pennsylvania courts as untimely
filed. In Fahy, we held that a PCRA petition which the Pennsylvania
Supreme Court had “specifically ruled” was untimely filed and thus was
“not properly filed as a matter of state law” may not be deemed “properly
filed” within the meaning of § 2244(d)(2). Fahy, 240 F.3d at 243-44;
Morris v. Horn, 187 F.3d 333, 342 (3d Cir. 1999). We would note,
though, that two of our sister courts have held that an untimely petition
for state post-conviction relief may be deemed “properly filed” if the
state’s statute of limitations contains exceptions that require the state
court to examine the merits of the petition to determine whether any of
the exceptions apply before dismissing it as untimely. See Dictado v.
Ducharme, 244 F.3d. 724, 727-28 (9th Cir. 2001); Smith v. Ward, 209
F.3d 383, 385 (5th Cir. 2000). The United States Supreme Court
declined to address this question in Artuz v. Bennett, 531 U.S. 4, 8 n.2
(2000).
