                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    __________

                                    NO. 07-2782
                                    __________


                               DERRICK CRAMER,
                                          Appellant

                                         v.

               * SECRETARY PENNSYLVANIA DEPARTMENT OF
         CORRECTIONS; DISTRICT ATTORNEY FOR YORK COUNTY
         PENNSYLVANIA; ATTORNEY GENERAL FOR THE STATE OF
                          PENNSYLVANIA

                     * (Pursuant to Rule 43(c), Fed. R. App. P.)

                                    __________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. Civil No. 07-cv-00496)
                          District Judge: Hon. Yvette Kane

                                    __________

                             Argued November 8, 2010

       Before: McKEE, Chief Judge, SLOVITER and COWEN, Circuit Judges

                           (Opinion filed: April 21, 2011)

Kenneth M. Weidaw, III, Esq. (Argued)
3901 Washington Road
Suite 201
McMurray, PA 15317
  Counsel for Appellant
Clarence N. Patterson, Esq.
Jeffrey Forrest Boyles, Esq.
James Edward Zamotowicz, Esq. (Argued)
Office of the District Attorney of York County
45 North George Street
York County Judicial Center
York, PA 17401

Robert M. Wolff, Esq.
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050

    Counsel for Appellees
                                        __________

                                         OPINION
                                         __________


SLOVITER, Circuit Judge.

        Appellant Derrick Cramer appeals the District Court’s order dismissing his

petition for a writ of habeas corpus directed to the Secretary of the Pennsylvania

Department of Corrections,1 the District Attorney of York County, and the Pennsylvania

Attorney General (collectively “State”), under 28 U.S.C. § 2254 as time-barred. The

timeliness of Cramer’s petition is the only issue before this court.

                                              I.

        Cramer, a Pennsylvania state prisoner, was convicted of first-degree murder in a

Pennsylvania state court on May 9, 2003 and sentenced to life in prison. The


1
 The Secretary was substituted for the original defendant, the Superintendent of SCI-
Huntingdon.

                                              2
Pennsylvania Superior Court affirmed the judgment of sentence and the Pennsylvania

Supreme Court denied allowance of appeal on August 12, 2004.

       On February 8, 2005, Cramer filed his first petition for post-conviction relief

pursuant to Pennsylvania’s Post-Conviction Relief Act (“PCRA”), which was denied on

June 13, 2005.2 Cramer appealed to the Pennsylvania Superior Court on June 23, 2005

and, on March 29, 2006, the Superior Court affirmed.3 On August 30, 2006, Cramer filed

a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied

on December 15, 2006.4

       On March 16, 2007, Cramer filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The District Court raised the statute of limitations issue

sua sponte and directed the parties to address whether the petition was timely under 28

U.S.C. § 2244(d)(1). The State argued that the petition was untimely because it was not


2
 This court is troubled by the inaccuracies in the State’s brief with respect to key facts.
For example, the State’s brief incorrectly states that Cramer’s PCRA petition was filed on
May 20, 2005, when in fact it was filed on February 8, 2005, and that the first post-
conviction petition was denied on May 15, 2006, when in fact it was denied on March 29,
2006. Moreover, the State misplaces reliance on the untimeliness of Cramer’s second
PCRA petition filed on February 16, 2007. Because the second petition is not relevant to
our determination of the timeliness of the present habeas petition, it will not be discussed.
3
 Apparently due to court error, Cramer’s attorney did not receive notice of the denial
until May 30, 2006, after the time for filing an appeal to the Pennsylvania Supreme Court
had run. Cramer’s attorney filed a petition for leave to file a petition for allowance of
appeal outside of the thirty-day period or nunc pro tunc. Leave was granted and Cramer
had until August 30, 2006 to file.
4
 The docket indicates that the petition was denied on December 17, 2006, but this
appears to be the date when the Court of Common Pleas received notice of the
Pennsylvania Supreme Court’s decision. Whether it was denied on the 15th or 17th does
not change the outcome in this case.
                                             3
filed within one year of the date when the judgment became final. Cramer responded that

the petition was timely because the statute was tolled during the pendency of his state

post-conviction petition, that is, from February 8, 2005 until December 15, 2006.

        On May 21, 2007, the District Court denied the habeas petition as untimely. The

District Court concluded that the statute of limitations ran from November 11, 2004, the

date when Cramer had to file a petition for a writ of certiorari to the United States

Supreme Court, until February 8, 2005, the date when Cramer filed for post-conviction

relief, or approximately eighty-eight days. The District Court found that the statute was

tolled from February 8, 2005 until March 29, 2006, the date on which the Superior Court

denied Cramer’s request for post-conviction relief. Because Cramer’s August 30, 2006

petition for allowance of appeal was not filed within thirty days of the denial, the District

Court found that the statute began to run again on March 29, at which point Cramer had

approximately 277 days remaining or until early January 2007 to submit a timely habeas

petition. In other words, Cramer filed his § 2254 petition about two-and-a-half months

late.

        Cramer appealed the District Court order dismissing his petition and filed an

application for a certificate of appealability with this court to which he attached exhibits.

The application included a copy of an order from the Pennsylvania Supreme Court, dated

July 31, 2006, granting him leave to file his petition for allowance of appeal nunc pro

tunc within thirty days of the order. It appears that the District Court was unaware that an

extension had been granted.



                                              4
       Accordingly, this court, by order dated January 11, 2008, granted Cramer’s

request for a certificate of appealability and ordered the State to “show cause, in writing,

why the District Court’s order . . . dismissing [Cramer’s] habeas corpus petition as

untimely, should not be summarily vacated, and appellant’s petition remanded for

consideration of any procedural or substantive issues other than the issue of timeliness.”

App. at 42-43. Because the State disputed the timeliness of the petition, we appointed

counsel and scheduled briefing.

                                              II.

       We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. Our review of

the District Court’s order denying Cramer’s habeas petition as time-barred is plenary.

Douglas v. Horn, 359 F.3d 257, 259 (3d Cir. 2004).

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a one-year period of limitation applies to an application for writ of habeas

corpus, which begins to run on “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.” 28

U.S.C. § 2244(d)(1)(A). Because Cramer did not file his habeas petition until March 16,

2007, after AEDPA’s one-year grace period ended, his petition can only be deemed

timely if he was entitled to statutory or equitable tolling of the limitations period.5


5
 Under § 2244(d)(2), the limitations period is tolled for “[t]he time during which a
properly filed application for State post-conviction or other collateral review . . . is
pending.” Moreover, equitable tolling of AEDPA’s limitations period is available where
petitioner shows that he has been pursuing his rights diligently, and that some
extraordinary circumstance stood in his way and prevented timely filing. Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010).

                                               5
          Cramer argues that the record supports statutory tolling because his post-

conviction filings with the state court were “properly filed” in light of the Pennsylvania

Supreme Court’s order granting Cramer leave to file a petition for allowance of appeal

nunc pro tunc. However, because the Pennsylvania Supreme Court denied Cramer’s

nunc pro tunc petition without discussion, this court must presume it did so on timeliness

grounds. See Caswell v. Ryan, 953 F.2d 853, 858 (3d Cir. 1992) (“[W]hen a nunc pro

tunc allocatur petition is perfunctorily denied without discussion, when its untimeliness is

apparent, and when sufficient facts to override the general disallowance of extended

times for appeal are absent in the petition, the denial of allocatur can be presumed to be

based on a procedural default caused by its untimeliness.”) (quotation omitted). Cramer

has not alleged facts sufficient to overcome the application of this presumption. As a

result, Cramer’s nunc pro tunc petition for allowance of appeal was not “properly filed”

and the clock began to run on March 29, 2006, rendering his habeas petition, as

calculated by the District Court above, about two-and-a-half months late. See supra text

at 3-4.

          Cramer may, however, be entitled to equitable tolling if he diligently pursued his

rights (here, seeking leave to file nunc pro tunc) and extraordinary circumstances (here,

court error) prevented timely filing. Because these determinations involve a factual

inquiry, the proper course is to remand to the District Court to consider in the first

instance whether Cramer is entitled to equitable tolling.




                                               6
                                           III.


       For the foregoing reasons, we will vacate the order dismissing Cramer’s habeas

petition as time-barred, and we will remand to the District Court to consider whether

Cramer is entitled to equitable tolling.




                                            7
