                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2007

McAleese v. Brennan
Precedential or Non-Precedential: Precedential

Docket No. 04-1439




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-1439


                   FRANK G. MCALEESE,

                                               Appellant

                              v.

    EDWARD T. BRENNAN, SUPERINTENDENT;
PENNSYLVANIA BOARD OF PROBATION AND PAROLE


       On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                   (D.C. Civ. No. 02-02893)
       District Judge: Honorable Thomas N. O’Neill, Jr.


          Submitted under Third Circuit LAR 34.1(a)
                       March 16, 2007

             BEFORE: FUENTES, GREENBERG
                and LOURIE*, Circuit Judges

                    (Filed: April 27, 2007)




*Honorable Alan D. Lourie, United States Circuit Judge for the
Federal Circuit, sitting by designation.

                               1
Mary Gibbons
600 Mule Road, #16
Holiday Plaza III
Toms River, NJ 08757

   Attorney for Appellant

Thomas W. Corbett, Jr.
Attorney General
Calvin R. Koons
Senior Deputy Attorney General
John G. Knorr, III
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of the Attorney General
Appellate Litigation Section
15th Fl., Strawberry Square
Harrisburg, Pa. 17120

   Attorneys for Appellees


                  OPINION OF THE COURT


GREENBERG, Circuit Judge.

                      I. INTRODUCTION

         This matter comes on before the court on an appeal
from an order entered on October 22, 2003, by the district court
approving and adopting a magistrate judge’s report and
recommendation and denying as untimely Frank G. McAleese’s
petition for a writ of habeas corpus that he filed on March 2,
1998. In his petition, McAleese, a state prisoner currently
confined at the State Correctional Institution at Albion,




                                2
Pennsylvania,1 challenges the September 2, 1995 decision of the
Pennsylvania Board of Probation and Parole (“PBPP”) 2 denying
him parole and requiring that he participate in a sex offender
treatment program. We are not concerned, however, with the
merits of the PBPP decision as we granted a certificate of
appealability solely on the question of “whether the District
Court erred in dismissing [McAleese’s] habeas corpus petition as
untimely.” The gravamen of McAleese’s argument is that the
PBPP’s failure to turn over documents opposing his release that
the Philadelphia District Attorney and a supervising judge of the
Philadelphia County Court of Common Pleas submitted to it
tolled the limitations period under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) to such an
extent that his petition was timely. As a matter of convenience,
we refer to the documents as if the district attorney submitted all
of them. For the reasons that follow, we will affirm the order of
the district court.




           II. FACTS AND PROCEDURAL HISTORY

         In 1983, after a Philadelphia County jury found
McAleese guilty of third-degree murder for killing his ex-wife
and for possession of an instrument of a crime,3 the state trial
court sentenced him to consecutive custodial terms of ten to
twenty years and two and one half to five years, respectively, on
the convictions. Following his sentencing McAleese
unsuccessfully pursued direct appeals and post-conviction relief.



       1
        McAleese is scheduled for release in December 2007, at which
time he will have served his full 25-year sentence.
       2
        In addition to the PBPP, McAleese brings this habeas corpus
action against the correctional institution’s superintendent, Edward T.
Brennan.
       3
       We need not recite the details of the crime. We did so, however,
in McAleese v. Mazurkiewicz, 1 F.3d 159 (3d Cir. 1993), a case in
which McAleese sought relief from the conviction and sentence.

                                  3
          In 1995, after twelve and one half years of
incarceration, McAleese became eligible for parole. McAleese
contends that on March 6, 1995, the institution staff
recommended that the PBPP grant him parole and release him to
a halfway house, predicating its recommendation on his
exemplary prison record and his completion of various prison
programs. On March 27, 1995, however, the institution staff
advised McAleese that the district attorney who had prosecuted
the case had submitted correspondence opposing his release to a
halfway house. McAleese alleges that, based on that
correspondence, which he was unable to obtain either at that
time and, as will be seen, for some years thereafter, the
institution rescinded the favorable parole recommendation.

         Nevertheless, the PBPP conducted a hearing on
McAleese’s case on July 12, 1995. On September 2, 1995, the
PBPP advised McAleese that it was denying him parole and that
it would not reconsider a parole application from him until July
2000. According to the PBPP, it denied McAleese parole for the
following reasons: poor prison adjustment, habitual offender,
assaultive instant offense, highly assaultive behavior potential,
victim injury, weapon involved in the commission of the offense,
need for counseling, and unfavorable recommendation from the
Pennsylvania Department of Corrections (“DOC”). The PBPP
also advised McAleese that it was requiring him to participate in
a sex offender program.

          Thereafter, McAleese began challenging his parole
denial and the requirement that he participate in a sex offender
program. As early as September 11, 1995 (a little more than one
week after the parole denial), he notified the DOC that he
believed that there was no “factual basis whatsoever” for the
parole denial which he believed was a retaliatory act for his
failure to cooperate with the district attorney in the 1986 murder
prosecution of a fellow inmate, Wilfredo Santiago, who was
charged with murdering a Philadelphia police officer.4 App. at

       4
         Commonwealth v. Santiago, 822 A.2d 716 (Pa. Super. Ct.
2003), sets forth the history of the Santiago case until the time of that
opinion.

                                   4
358. At that time he reiterated his request for disclosure of the
correspondence the district attorney sent to the PBPP.
Moreover, he began sending letters to the PBPP objecting to
having to participate in the sex offender program.

          Inasmuch as he was unsuccessful in his efforts to avoid
the direction to participate in the sex offender program and to
obtain the correspondence opposing his parole, McAleese
obtained counsel who for the next several years sent requests to
the PBPP, the DOC, and the district attorney seeking release of
the district attorney’s letters. All three agencies, however,
rejected these requests. The DOC told his counsel that the
records are not “public records” within the meaning of
Pennsylvania’s Right-to-Know Act, and, in any event, it could
not locate the requested records. Id. at 101. The PBPP indicated
that the information McAleese sought was “privileged,” app. at
366, a response similar to that of the district attorney who cited
“confidentiality protections” in refusing to disclose the letters,
id. at 378.

            On March 2, 1998, about two and one half years after
the PBPP denied him parole, McAleese filed a pro se habeas
corpus petition pursuant to 28 U.S.C. § 2254 in the United States
District Court for the Western District of Pennsylvania. The
petition challenged the PBPP’s denial of his parole application
and its requirement that he participate in the sex offender
program, contending that the determination and direction were
arbitrary, capricious, and in violation of his equal protection and
due process rights. McAleese alleged that the PBPP’s purported
reasons for the decisions were pretextual and its real reasons
were that it (1) was retaliating against him at the insistence of the
district attorney for his refusal to testify helpfully for the
prosecution in the original Santiago murder trial, and (2) was
trying to coerce him to change his testimony for Santiago’s
pending retrial.5 Respondents answered, asserting the procedural


       5
        According to McAleese, while he was awaiting sentencing in
1983, the police asked him to sign a statement indicating that Santiago
had confessed his guilt to him. McAleese also asserts that the police
urged him to testify against Santiago. McAleese refused both requests,

                                  5
contentions that the petition was time-barred and McAleese
failed to exhaust his administrative remedies and the substantive
contention that the petition was without merit.

         The magistrate judge issued a report and
recommendation, recommending that the court dismiss the
petition for failure to exhaust administrative remedies. On May
17, 1999, the district court approved and adopted the report and
recommendation and thus dismissed the petition on the ground
that McAleese had not exhausted his state remedies before
seeking relief in the district court. On McAleese’s appeal,
however, we vacated that dismissal after we decided Coady v.
Vaughn, 251 F.3d 480 (3d Cir. 2001),6 because McAleese’s
claims were not subject to state judicial review in Pennsylvania
and thus he had no remedies to exhaust. See McAleese v.
Brennan, No. 99-3468 (3d Cir. Nov. 21, 2001) (unpublished).
We did not express an opinion on the timeliness issue, stating:

                [W]hether McAleese’s petition is
                time-barred is a matter best
                addressed in the first instance by the
                District Court, which has yet to reach
                this question. Assuming arguendo
                that AEDPA’s one year statute of
                limitations applies to McAleese’s
                petition, McAleese has provided


reported the alleged conduct of the police to counsel and the press, and
testified at Santiago’s trial that Santiago did not confess anything to him.
The jury convicted Santiago at the trial but on appeal he obtained a
reversal and the resulting retrial was pending at the time of McAleese’s
1995 parole hearing. According to McAleese, the district attorney’s
office needed his testimony at Santiago’s retrial and wanted him to
remain in prison to coerce him into testifying.
        6
         In Coady, after certification of the issue to the Pennsylvania
Supreme Court and the receipt of that court’s opinion, we stated that
under Pennsylvania law there were no available state-court remedies to
exhaust challenging discretionary parole denial, and thus a prisoner may
file a habeas corpus petition in a federal court challenging the denial
without exhausting state remedies. Coady, 251 F.3d at 488-89.

                                     6
              reasons for equitable tolling which
              are not self-evidently meritless and
              which turn on factual determinations
              which should be made by the District
              Court.

              ...

              We express no opinion concerning
              whether the statute of limitations
              applies in this case, or, if it does,
              whether it bars McAleese’s petition.

Id. at 4-5. Accordingly, we remanded the case to the district
court, which transferred it to the Eastern District of
Pennsylvania. While the judicial proceedings were pending, the
PBPP on August 8, 2000, and October 30, 2001, again denied
McAleese parole, explaining that he showed no remorse for his
commission of the crime and presented a continued danger to the
community. McAleese has not challenged these denials in
separate habeas corpus proceedings.

          On May 30, 2002, the district court in the Eastern
District ordered McAleese to complete that court’s forms for
filing a habeas corpus petition pursuant to section 2254, and
McAleese did so on June 20, 2002, restating the claims that he
had made in the Western District. Respondents answered that
the PBPP’s actions were not retaliatory, and that the PBPP was
not attempting to coerce him to testify in the Santiago case.
They further contended that the court should dismiss McAleese’s
petition because it was time-barred and because he failed to
exhaust his remedies with respect to some of the claims.

          Significantly, in respondents’ answer to the petition,
they disclosed the correspondence from the district attorney that
they previously withheld. Thus, they produced four separate
letters opposing McAleese’s release:

•       A letter dated February 23, 1995, from the district
        attorney to the superintendent of the DOC institution

                                7
           opposing any pre-release programming for McAleese.

•          A letter dated February 28, 1995, from Hon. Legrome
           D. Davis, then the supervising judge of the Philadelphia
           County Court of Common Pleas, to the PBPP at the
           recommendation of the district attorney opposing
           parole.

•          A letter dated April 12, 1995, from the district attorney
           to the PBPP indicating that the district attorney’s office
           is “most strenuously opposed for any parole
           consideration for this brutal murder.”

•          A letter dated August 16, 2000, from the district
           attorney to the PBPP indicating that the district
           attorney’s office “cannot overstate [its] satisfaction with
           the Board’s action.” The letter goes on to provide
           additional allegations that it wanted to be included in
           McAleese’s file, including that he had filed a civil
           action 7 against the district attorney’s office and an
           assistant district attorney and that he had authored an
           anonymous letter purporting to be from a Philadelphia
           police officer.

          Upon review of the materials submitted, the magistrate
judge recommended that the court dismiss the petition as
untimely. The magistrate judge concluded that because direct
review of McAleese’s conviction ended before the AEDPA’s
effective date, he had one year from its effective date, i.e., until
April 23, 1997, to file his petition. However, McAleese did not
file his petition until March 2, 1998. The magistrate judge
further concluded that subsection (D) of section 2244(d)(1)
extending the time for the filing of a petition for habeas corpus
for one year after a petitioner knows or should know of the
factual predicate for his claims, did not extend the filing deadline
beyond April 23, 1997, because McAleese was cognizant of the
“factual predicate” of his claims on the day that the PBPP denied

       7
        The complaint in the civil action, which includes the PBPP as
a defendant, is attached to the letter.

                                   8
him parole, September 2, 1995. Additionally, the magistrate
judge found that McAleese had failed to present any evidence to
justify equitable tolling of the statute of limitations, and that
there was no basis for the court to toll the statute of limitations
by reason of the subsequent denials of parole as they did not
amount to “continuing violations” of McAleese’s rights. On
October 22, 2003, the district court entered an order approving
and adopting the magistrate judge’s report and recommendation,
and, accordingly, dismissing the petition as being untimely.

          On January 30, 2004, the district court entered an order
permitting McAleese to file an appeal nunc pro tunc which
McAleese did within the permitted period on February 18, 2004.
As we indicated at the outset of this opinion, we granted a
certificate of appealabilty on August 31, 2004, “with regard to
the question whether the District Court erred in dismissing
[McAleese’s] habeas corpus petition as untimely,” and we now
resolve that issue.8




      III. JURISDICTION AND STANDARD OF REVIEW

            The district court had jurisdiction under 28 U.S.C. §

        8
         “A certificate of appealabilty may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. 2253(c)(2). The question of whether a petition is timely
relates to a procedural issue, not a constitutional right, and thus a
petitioner is not entitled to a certificate of appealability on an appeal
from the denial of a petition on timeliness grounds unless he makes a
preliminary showing with respect to the two requirements for a petition
that Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 1604
(2000), set forth. In Slack, the Court concluded that “[w]hen the district
court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists
of reason would find it debatable whether the petitioner states a valid
claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its
procedural ruling.” Id. at 484, 120 S.Ct. at 1604.

                                     9
2254. Upon our issuance of a certificate of appealabilty, we
obtained jurisdiction over this appeal under 28 U.S.C. §§ 1291
and 2253. Our review of the order denying the habeas corpus
petition in this case as time-barred is plenary. See Douglas v.
Horn, 359 F.3d 257, 259 (3d Cir. 2004).




                        IV. DISCUSSION

          McAleese makes three arguments on this appeal. First,
he argues that the “factual predicate” of his claims under section
2244(d)(1)(D) is the disclosure of the content of the district
attorney’s correspondence, not the denial of the parole, and thus
the limitations period did not begin to run until its disclosure in
2002 in the answer to his June 20, 2002 restated petition filed in
the Eastern District on its forms. If he is correct on this point,
his petition surely could not have been late as he filed it before
the disclosure. Second, he argues that even if the denial of the
parole is the “factual predicate” triggering the running of the
statute of limitations, the time of the last of three parole denials
in 2001 is the appropriate date at which to look for the purposes
of application of the AEDPA’s limitations period because the
PBPP continued to receive additional correspondence from the
district attorney up until that time. Thus, he views this case as
involving a “continuing violation” of his rights. Third,
McAleese argues that we should equitably toll the limitations
period because for seven years the district attorney, the PBPP
and the DOC did not divulge the documents that he sought. For
the reasons that follow, we will affirm the decision of the district
court to dismiss the petition as untimely.

         A.   Factual predicate

         Under the AEDPA there is a one-year limitations period
in which a person in custody pursuant to a state-court judgment
may file an application for a writ of habeas corpus. 28 U.S.C. §
2244(d)(1). The period begins to run from the latest of: (A) the
date on which the state-court judgment pursuant to which he is
in custody becomes final; (B) the date on which an

                                  10
unconstitutional impediment to filing the application is removed;
(C) the date on which the Supreme Court recognizes a new
constitutional right asserted in the application (so long as the
right is retroactively applicable to cases on collateral review);
and (D) “the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.” Id. Additionally, if direct review of
a criminal conviction, or in this case a decision with respect to
parole, ended before the AEDPA’s effective date of April 24,
1996, a prisoner has a one-year grace period after the effective
date to file a habeas corpus petition, i.e., until April 23, 1997.
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).

          In this case, McAleese is challenging the 1995 parole
denial and thus section 2244(d)(1) and the one-year grace period,
which expired on April 23, 1997, were applicable to his
petition.9 McAleese, however, filed his petition on March 2,


       9
         We seem not to have determined whether a habeas corpus
petition challenging the denial of parole by a parole board is subject to
section 2244(d)(1)’s timeliness requirements. McAleese, however, has
not claimed that it is not applicable and inasmuch as the district court
and the parties on this appeal have treated it as applicable we will as
well. In any event, we note that most courts of appeals that have
addressed the issue have held that a petition challenging an
administrative decision regarding parole or imposing discipline is subject
to section 2244(d)(1) because the limitations period applies to all habeas
corpus petitions filed by persons “in custody pursuant to the judgment
of a State court,” 28 U.S.C. § 2244(d)(1). See Shelby v. Bartlett, 391
F.3d 1061, 1062 (9th Cir. 2004); Wade v. Robinson, 327 F.3d 328, 331-
32 (4th Cir. 2003); Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 280
(2d Cir. 2003); Kimbrell v. Cockrell, 311 F.3d 361, 363 (5th Cir. 2002).
But see Cox v. McBride, 279 F.3d 492, 493 (7th Cir. 2002) (holding that
prisoner’s petition challenging additional two years on prisoner’s
original sentence as a result of the decision of the prison disciplinary
board is not subject to section 2244(d)(1)). According to the majority of
the courts of appeals, so long as the petitioner is in custody pursuant to
a state-court judgment, all challenges to subsequent administrative
decisions relating to his custody must comply with the limitations period
under section 2244. This conclusion seems reasonable, at least with
respect to a decision denying parole, as that decision is not a

                                   11
1998, and thus his petition appears to be untimely. McAleese
attempts to save his petition by arguing that he did not discover
the “factual predicate” of his claims until 2002 when
respondents disclosed the correspondence from the district
attorney to the PBPP. Accordingly, in his view, his petition was
timely because of the application of section 2244(d)(1)(D). The
magistrate judge rejected the argument, stating, “[i]n this case,
the limitations period would arguably run from the date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due
diligence, which would be the date that Petitioner was denied
probation 10 on September 2, 1995.” App. at 11. The district
court approved and adopted that holding.

         McAleese argues that the magistrate judge and district
court erred because the denial of parole in 1995 was not the
“factual predicate” of his claims, but rather, “[t]he factual
predicate which [he] was required to diligently act to discover
was, in fact, the content of the [district attorney’s]
correspondence and the PBPP’s reliance thereon, not merely the
existence of such correspondence,” and “[t]he legal event of the
parole denial and the fact that [he] was aware that something had
been submitted that was withheld from him, simply triggered his
diligent effort to obtain that material.” 11 Appellant’s br. at 18-
19. We disagree with him for the following reasons.

         In order to determine the “factual predicate of the claim
or claims presented” for purposes of section 2244(d)(1)(D), we
first must identify McAleese’s claims. He asserts four grounds
that he believes constitute an “unconstitutional execution of [his]
sentence,” app. at 18, but, boiled to their essence, his claims are



determination placing a petitioner in custody. Rather, it merely does not
terminate the petitioner’s custody pursuant to earlier proceedings.
       10
            The magistrate judge obviously meant parole, not probation.
       11
         Respondents do not contend that McAleese did not exercise due
diligence in an effort to obtain the material. Thus, we will assume that
he did so.

                                    12
two-fold. First, he believes that the PBPP unjustifiably denied
him parole because his testimony was unfavorable to the
prosecution in the Santiago murder case and the district attorney
was trying to deter him from testifying in the same way at
Santiago’s retrial. Second, he believes that the requirement that
he participate in a sex offender program even though he had not
committed a sex offense was unjustified and was intended to
foreclose his opportunity for parole because completion of the
program would be impossible.12

          Having defined the contours of McAleese’s claims, we
set forth their “factual predicate” as 2244(d)(1)(D) uses that
term. Though the AEDPA does not define “factual predicate,”
we have held that “[s]ection 2244(d)(1)(D) provides a petitioner
with a later accrual date than section 2244(d)(1)(A) only if vital
facts could not have been known.” Schlueter v. Varner, 384 F.3d
69, 74 (3d Cir. 2004), cert. denied, 544 U.S. 1037, 125 S.Ct.
2261 (2005) (internal quotation marks omitted) (emphasis
added). Therefore, under Schlueter, the “factual predicate” of a
petitioner’s claims constitutes the “vital facts” underlying those
claims.

         In this case, there is no doubt that the “vital facts”
underlying McAleese’s claims are the denial of his parole
application in an alleged attempt to coerce him to cooperate in
the Santiago case and the decision to require him to participate
in the sex offender program, not the subsequent disclosure of the
content of the letters the district attorney sent to the PBPP. In
fact, McAleese himself proved that the content of the
correspondence was not a “vital fact” underlying his claims as he


       12
          McAleese apparently believes that because he would not admit
that he committed a sex offense as he had not committed such an
offense, and inasmuch as he had to make that admission to complete the
program, he could not complete it. We note with respect to the sex
offender treatment program that, even though McAleese was not
convicted of a sex offense, the record indicates that he has exhibited
dangerous behavior towards females, and the underlying murder
involved stab wounds to the victim’s nipples and right labia. See
McAleese v. Mazurkiewicz, 1 F.3d 159, 163 (3d Cir. 1993).

                                 13
filed his habeas corpus petition without possession of those
documents. Obviously, he could have filed his petition earlier
had he chosen to do so. Furthermore, even before the PBPP
initially denied him parole he was aware of the correspondence
opposing his parole application and surely knew that he had not
been convicted of or, indeed, so far as we are aware, even
charged with a sex offense.

          Clearly, McAleese has confused the facts that make up
his claims with evidence that might support his claims. See
Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004) (“A
desire to see more information in the hope that something will
turn up differs from ‘the factual predicate of [a] claim or claims’
for purposes of § 2244(d)(1)(D).”). The record reveals that
McAleese had all of the “vital facts” at the time of the parole
denial in 1995. Indeed, the record includes his requests for relief
to the DOC and the PBPP soon after his parole denial. The
requests contain all of the critical information and claims which
appeared in his habeas corpus petition filed several years later:
he was denied parole and ordered to comply with a sex offender
treatment program; there was no factual basis for the denial of
parole; the PBPP denied him parole in retaliation for his failure
to cooperate with the district attorney in the Santiago
proceedings; and the correspondence from the district attorney to
the PBPP was being withheld from him illegally. Moreover, we
reiterate that he knew even before the PBPP denied his parole
application that the district attorney had submitted
correspondence opposing his application. Unfortunately for
McAleese, he chose to pursue his grievances for several years
with the DOC and the PBPP rather than to file a timely habeas
corpus petition in the district court.

          We point out that in the Eastern District of
Pennsylvania, the applicable procedural directions for a habeas
corpus petition require that a petitioner “[s]tate concisely every
ground on which you claim that you are being held unlawfully,”
and “[s]ummarize briefly the facts supporting each ground.”
App. at 21. Accordingly, McAleese did not have to present all
of the evidence to support his claims. The petition is only the
first step in a habeas corpus proceeding, following which, if

                                14
appropriate, there can be discovery leading to the uncovering of
evidence. Under McAleese’s theory, a court would delay the
triggering of the running of the limitations period until all
evidence in support of a petition is secured, a result which surely
would run contrary to the intent of Congress through its
enactment of the AEDPA to promote the finality of convictions.
See Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 2128
(2001); United States v. Bendolph, 409 F.3d 155, 162 (3d Cir.
2005), cert. denied, 126 S.Ct. 1908 (2006).

          We are not the only court of appeals to have considered
a situation like the one here. In Flanagan v. Johnson, 154 F.3d
196, 197 (5th Cir. 1998), the petitioner was convicted in 1989 of
aggravated possession of more than 400 grams of cocaine. His
conviction became final in 1991 when its direct review was over.
Id. In 1997, he filed a section 2254 petition asserting that his
conviction was obtained without due process of law because he
was called to testify on his own behalf without being informed
of his right not to testify. Id. The petitioner argued that his
petition was timely under section 2244(d)(1)(D) because he did
not discover the “factual predicate” of his claim until October
1996 when his habeas corpus counsel located his trial counsel in
a rehabilitation facility in rural Texas. Id. at 198. At that time,
the petitioner’s trial counsel executed an affidavit stating that he
did not remember whether he and the petitioner discussed his
right not to testify. Id. The petitioner contended that “the
lawyer’s affidavit form[ed] part of the factual predicate of his
suit because, by not conclusively negating the proposition, the
affidavit implicitly supports [his] claim that he was not informed
of his right not to testify.” Id. at 198-99.

         The Court of Appeals of the Fifth Circuit rejected the
petitioner’s timeliness argument, explaining that

              [the petitioner] is confusing his
              knowledge of the factual predicate of
              his claim with the time permitted for
              gathering evidence in support of that
              claim. Trial counsel’s affidavit
              neither changes the character of [the

                                15
              petitioner’s] pleaded due process
              claim nor provides any new ground
              for [his] federal habeas petition.
              Section 2244(d)(1)(D) does not
              convey a statutory right to an
              extended delay, in this case more
              than seven years, while a habeas
              petitioner gathers every possible
              scrap of evidence that might . . .
              support his claim.

Id. at 199. The court pointed out that the petitioner did not even
file the “purportedly crucial affidavit” with his original habeas
petition. Id. Rather, he submitted only his own affidavit with
the original habeas corpus petition and he did not submit his trial
counsel’s affidavit until he later filed a supplementary pleading.
Id.

          Inasmuch as the material facts here are indistinguishable
from those in Flanagan, not surprisingly we reach a conclusion
parallel with the conclusion that the court reached in that case.
As was true of the trial attorney’s affidavit in Flanagan with
respect to the petitioner’s claims there, the correspondence from
the district attorney was not the “factual predicate” of
McAleese’s claims as the correspondence did not “change[ ] the
character” of the claims, nor did it provide new grounds for the
petition. Rather, the correspondence merely was evidence that
McAleese believed supported his claims. Moreover, like the
petitioner in Flanagan, McAleese filed his habeas corpus
petition without obtaining the “purportedly crucial” materials. In
sum, McAleese’s quest to uncover evidence to support his
claims simply did not entitle him to a potentially indefinite delay
in filing his habeas corpus petition.

         We address one more case relating to this point.
McAleese relies on Johnson v. United States, 340 F.3d 1219,
1223 (11th Cir. 2003), for the proposition that legal events, such
as parole denial, are not “facts” as used in the habeas corpus
limitations provisions because “[a] factual proposition is
typically something capable in principle of falsification (or

                                16
possibly even verification) by some empirical inquiry, while a
legal proposition is identified by consulting some authoritative
legal source.” 13 Appellant’s br. at. 18-19 (quoting Johnson, 340
F.3d at 1223). McAleese, however, neglects to mention that on
further appeal the Supreme Court unanimously disagreed with
Johnson on this point, holding that a state-court vacatur of a state
sentence underlying the federal sentence, and not the facts on
which the challenge to the validity of the state convictions was
based, constituted the “facts” that triggered the one-year period
under section 2255. See Johnson v. United States, 544 U.S. 295,
125 S.Ct. 1571 (2005).14

          This is what happened in Johnson. After the petitioner
pleaded guilty in the district court to distribution of cocaine, the
court sentenced him as a career offender on the basis of two
prior state convictions for cocaine distribution. Id. at 298, 125
S.Ct. at 1575. Four years later, a state court vacated one of the
predicate convictions because the petitioner had not knowingly
waived his right to counsel in that case. Id. at 300-01, 125 S.Ct.
at 1576. Three months after the state court vacated the
conviction, the petitioner filed a section 2255 habeas petition
seeking an order vacating the enhanced federal sentence. Id. at


       13
          Johnson applied 28 U.S.C. § 2255, which imposes a one-year
statute of limitations on motions by prisoners seeking to modify their
federal sentences. Like section 2244, section 2255 states that the one-
year period runs from the latest of four alternative dates, the last of
which is “the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2255. We see no reason to distinguish between
“facts supporting the claim” in section 2255 and “factual predicate” in
section 2244. See Burns, 134 F.3d at 111-12 (holding that one-year
limitations periods under sections 2244 and 2255 are “virtually
identical”).
       14
          We are surprised and disappointed that McAleese’s attorney in
her brief did not mention the Supreme Court opinion in Johnson
inasmuch as the Court filed that opinion on April 4, 2005, and she filed
her brief on July 10, 2006. It seems to us that she should have been
aware of the Supreme Court’s opinion and should have brought it to our
attention.

                                  17
301, 125 S.Ct. at 1576. He claimed that his motion was timely
under section 2255 because the order vacating the state judgment
constituted the fact supporting his claim, thus triggering a
renewed limitations period. Id. A divided court of appeals over
a dissent rejected his argument, holding that the state-court order
vacating the prior conviction was not a “fact,” but, instead, was
“a legally operative order [that was] a mandate of law or a
consequence of applying law, and therefore [was] distinct from a
matter of ‘fact’ as Congress used the term in § 2255.” Id. at 304-
05, 125 S.Ct. at 1578 (summarizing holding of court of appeals).


          The Supreme Court, however, disagreed with the court
of appeals on this point, holding that “notice of the order
vacating the predicate conviction is the event that starts the one
year running” as the state-court order of vacatur was a necessary
predicate for the section 2255 claim. Id. at 308, 125 S.Ct. at
1580. Therefore, the Court unanimously rejected the holding of
the court of appeals that an order vacating a conviction is not a
“fact” as such an order is “subject to proof or disproof like any
other factual issue.” Id. at 306-07, 125 S.Ct. at 1579-80; see id.
(majority holding that vacatur is the fact that begins the
limitations period), and 544 U.S. at 312, 125 S.Ct. at 1582
(dissent agreeing with majority on this point).15 Thus, contrary
to McAleese’s argument, Johnson actually supports a holding
that a legal event, in this case, a parole denial and in Johnson, a
state-court order, can, and in this case does, constitute the
“factual predicate” of a habeas corpus claim under section 2254.


       15
          The Court was split in its ultimate holding in that the majority
concluded that a petitioner must exert due diligence in seeking the state-
court order of vacatur and the petitioner had not done so. Consequently,
the Court upheld the judgment of the court of appeals affirming the
judgment of the district court denying the petition as untimely. Johnson,
544 U.S. at 311, 125 S.Ct. at 1582. The dissent, while agreeing with the
majority that the state-court order of vacatur was the triggering event for
limitations purposes under the AEDPA, believed that section 2255 did
not require the petitioner to show that he used due diligence in seeking
the state-court vacatur. Id. at 312, 125 S.Ct at 1582. Thus, the
dissenting justices would have reversed.

                                    18
            B.   Submission of new materials

         McAleese next argues that even if the denial of the
parole and not the disclosure of the documents constituted the
“factual predicate” of his claims, the limitations period should
not have begun to run until the PBPP last denied him parole in
2001 and not when it first denied him parole in 1995. McAleese
predicates this contention on the fact that the PBPP received
additional correspondence from the district attorney after the
1995 denial on which, according to him, the PBPP relied in
denying him parole in 2000 and 2001. The additional documents
to which McAleese points were attached to the letter dated
August 16, 2000, from the district attorney to the PBPP,
disclosed with respondents’ answer to McAleese’s restated
Eastern District petition to which we have referred: (1) an
anonymous letter postmarked July 14, 2000, to the president of
the Fraternal Order of Police recommending favorable treatment
towards him with respect to the Santiago retrial,16 and (2) a
federal civil rights complaint dated January 12, 1999, that he
filed against the PBPP and the district attorney making
allegations similar to those he asserted in the habeas corpus
petition before us now.

         We reject this argument. McAleese filed his habeas
corpus petition on March 2, 1998. Clearly, the “factual
predicate” of his claims asserted in 1998 cannot be the
subsequent parole denials in 2000 and 2001 regardless of when
the documents on which he relies were sent to the PBPP. This is
chronologically impossible.

          To circumvent this impossibility, McAleese contends
that the repeated denials of parole constitute a “continuing
violation” of his rights, and that we, accordingly, should regard
the most recent parole denial in 2001 as the event that triggered



       16
       The district attorney contends that McAleese actually wrote this
anonymous letter, though it was supposedly from a police officer.

                                  19
the running of the statute of limitations.17 This theory is
misplaced. First, he does not point to any case in which we have
applied the continuing violations theory in the context of tolling
the limitations period in habeas corpus cases in a way that would
extend the habeas corpus petition timeliness requirements in
contravention of Congress’s emphasis on the finality of
convictions in enacting the AEDPA.

          Second, even if we were to apply a continuing
violations theory in the context of habeas corpus petitions, the
successive denials of McAleese’s parole applications would not
constitute “continuing violations.” Under the continuing
violations theory, a plaintiff may pursue a claim for conduct that
standing alone would have been untimely as it occurred before
the start of the applicable statute of limitations filing period as
measured back from the time of the filing of the action. The
application of the continuing violations theory may be
appropriate in cases in which a plaintiff can demonstrate that the
defendant’s allegedly wrongful conduct was part of a practice or
pattern of conduct in which he engaged both without and within
the limitations period. See, e.g., West v. Philadelphia Elec. Co.,
45 F.3d 744, 754 (3d Cir. 1995). “To establish that a claim falls


       17
          As we already have noted, the PBPP denied McAleese parole
for the third time on October 30, 2001, and on June 20, 2002, he filed his
restated habeas corpus petition in the Eastern District pursuant to that
court’s directions. This time sequence could have opened the possibility
that McAleese’s petition was timely if it challenged the October 30,
2001 parole denial standing alone even if it also challenged the original
1995 parole denial. We, however, reject this possibility because
McAleese in his June 20, 2002 submission did not state that he was
making a stand-alone challenge to the October 30, 2001 parole denial.
Moreover, respondents in their brief on this appeal indicate that “[t]he
decision denying parole which the petition challenges is dated September
2, 1995 . . . .” Appellees’ br. at 6. In his reply brief McAleese does not
say that that statement was incorrect, though he does contend “that the
content of the district attorney’s letters” as well as the additional
correspondence to which we referred above “were used to deny [him]
parole in 2000 and 2001, and thus [his] claim was timely filed.”
Appellant’s reply br. at 8. But, of course, that contention was consistent
with his continuing violation argument and, indeed, was its essence.

                                   20
within the continuing violations theory, a plaintiff must do two
things”: (1) “he must demonstrate that at least one act occurred
within the filing period[,]” and (2) he must establish that the
conduct is “more than the occurrence of isolated or sporadic
acts,” i.e., the conduct must be “a persistent, on-going pattern.”
Id. at 754-55 (internal quotation marks omitted).

          In this case, McAleese’s petition was subject to a one-
year filing period under the AEDPA measured from April 24,
1996, until April 23, 1997.18 Consequently, inasmuch as
McAleese filed his habeas corpus petition on March 2, 1998, the
2000 and 2001 parole denials occurred after the close of the
limitations period with respect to the time for a challenge to the
original parole denial on September 2, 1995, and they could not
save any claim that he might have had with respect to that denial.
The actual effect of accepting McAleese’s argument would be to
revive his barred claim challenging the 1995 parole denial,
something we will not do. In this regard, we reiterate that
McAleese has not instituted separate habeas corpus proceedings
with respect to the denial of his parole applications in 2000 and
2001 and thus this case does not involve any act within the filing
period for, as we have explained, the factual predicate of
McAleese’s claims was the 1995 determination by the PBPP to
deny him parole allegedly to coerce his testimony in the Santiago
case and to require him to participate in the sex offender
program.19

         We also point out that it is clear that the three parole
denials over the six-year period from 1995 to 2001 are “isolated
or sporadic acts” and not “a persistent on-going pattern.”
Therefore, in accord with our recent discussion in O’Connor v.


       18
        We are not concerned with any limitations period that predated
the enactment of the AEDPA even though the parole denial on
September 2, 1995, was before its enactment.
       19
           We express no opinion as to whether the restrictions on filing
second or successive habeas corpus claims in 28 U.S.C. § 2244(b) might
have been applicable if McAleese filed or sought permission from us to
file a petition challenging the 2000 and 2001 parole denials.

                                   21
City of Newark, 440 F.3d 125, 127 (3d Cir. 2006), and in light of
the Supreme Court’s holding in National R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002), challenges to
these “discrete acts” of parole denial were required to have been
made within the applicable limitations periods with respect to
each act. Accordingly, because the challenge to the September
2, 1995 parole denial was not raised within the applicable period,
it was untimely. A conclusion that each denial of parole was a
discrete act is unavoidable in that Morgan indicated that
“termination, failure to promote, denial of transfer, or refusal to
hire” are discrete acts. Id. at 114, 122 S.Ct. at 2073. Denial of
parole and a direction that petitioner participate in a sex offender
program are no less discrete.

         C.   Equitable tolling

          McAleese’s last argument is that even if we find that he
failed to file his petition within the AEDPA’s limitation period,
we should equitably toll the running of the statute of limitations
because he “was actively misled as to even the existence of the
various materials sent to the PBPP regarding his parole, and
certainly was denied access to their contents.” Appellant’s br. at
23. McAleese’s argument is unpersuasive. Equitable tolling is
available “only when the principle of equity would make the
rigid application of a limitation period unfair.” Merritt v. Blaine,
326 F.3d 157, 168 (3d Cir. 2003) (internal quotation marks
omitted). A petitioner seeking equitable tolling bears the burden
to show that he diligently pursued his rights and that some
“extraordinary circumstances stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814 (2005).

          Here, there were no extraordinary circumstances, or,
indeed, any circumstances at all, preventing McAleese from
filing a timely petition. Obviously, McAleese cannot
persuasively argue that the withholding of the materials sent to
the PBPP prevented him from doing so as he, in fact, did file his
petition without first seeing that documentation. But instead of
timely filing his petition following the 1995 parole denial, he
engaged in a multi-year campaign to secure evidence that might
support his claims. While we exercise some level of leniency

                                  22
with respect to pro se petitioners as McAleese was both when he
first began contesting the parole denial at the administrative
level and at the time he filed his initial habeas corpus petition,
mere neglect, even if characterized as excusable, does not justify
equitable tolling in any circumstances. See Miller v. N.J. Dep’t
of Corr., 145 F.3d 616, 618 (3d Cir. 1998).




                       V. CONCLUSION

         For the foregoing reasons, we will affirm the order
entered on October 22, 2003, by the district court denying
McAleese’s petition for a writ of habeas corpus.




                                23
