Schlueter v. Varner

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

9-14-2004

Schlueter v. Varner
Precedential or Non-Precedential: Precedential

Docket No. 03-3928

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 PRECEDENTIAL Duane Morris LLP
1650 Market Street
UNITED STATES COURT OF One Liberty Place, 37th Floor
APPEALS Philadelphia, PA 19103-7396
FOR THE THIRD CIRCUIT
Attorneys for Appellant

No. 03-3928 John M. Morganelli (argued)
District Attorney
Northampton County Government
PAUL GEORGE SCHLUETER, III, Center
669 Washington Street
Appellant Easton, PA 18042

v. Attorney for Appellees

BENJAMIN VARNER; DISTRICT
ATTORNEY NORTHAMPTON OPINION OF THE COURT
COUNTY;
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA GREENBERG, Circuit Judge.
Paul George Schlueter, III, is a
Pennsylvania inmate serving a sentence
On Appeal From the United States
of life in prison for first degree murder.
District Court
He appeals from an order of the district
For the Eastern District of Pennsylvania
court entered September 3, 2003,
(D.C. Civil No. 00-cv-05179)
dismissing his petition for a writ of
District Judge:
habeas corpus on the ground that the
Honorable Anita B. Brody
applicable one-year period of limitation
barred the petition. For the reasons that
follow, we will affirm the district court’s
Argued June 25, 2004
order.
Before: AMBRO, BECKER, and
GREENBERG, Circuit Judges.
I. BACKGROUND
(Filed: September 14, 2004)
In 1985, Schlueter was arrested
and charged in Northampton County,
Michael M. Mustokoff
Pennsylvania, with the criminal
Stephen A. Mallozzi (argued)
homicide of Carol Ann Bonney. The
Cindy D. Hinkle
Northampton County Public defender’s that there were no appealable issues that
office assigned part-time public could reduce his degree of guilt.
defenders George Blasco and Lorenzo Accordingly, Schlueter decided to forego
Crowe to represent Schlueter and the a direct appeal. Blasco died about one
district attorney assigned James year later on May 26, 1988. Schlueter
Narlesky, a part-time assistant district contends that his attorneys’ parole advice
attorney to prosecute the case. Relying was erroneous as he never will be
on his attorneys’ advice, Schlueter eligible for parole. Apparently in part
entered a plea of nolo contendere to a because of having found out his actual
charge of open degree homicide.1 The parole situation, on August 16, 1988,
trial court subsequently conducted a Schlueter contacted Crowe requesting
hearing to determine Schlueter’s degree information for the purpose of pursuing
of guilt at which Schlueter presented a state post-conviction review. Crowe,
diminished capacity defense based on his however, did not respond to Schlueter’s
level of intoxication and drug use on the
night of the homicide. The trial court
found Schlueter guilty of murder in the In a letter to Crowe dated August 16,
first degree and sentenced him to life in 1988, Schlueter stated that he was
prison on May 5, 1987. advised that he would be eligible for
parole in 20 years. Crowe, however,
Following his conviction, stated in an affidavit in 1998 that Blasco
Schlueter met with his attorneys to informed Schlueter that he would be
discuss whether to pursue a direct eligible for parole in 15 years. On the
appeal. Blasco and Crowe advised other hand, Schlueter stated in an
Schlueter that he would be eligible for affidavit in 1998 that Blasco informed
parole in approximately 20 years2 and him that he would be eligible for parole
after 14 years. In denying Schlueter’s
1
Schlueter earlier had pleaded petition for post-conviction relief, the
nolo contendere when represented by trial court found as a fact that Schlueter
different attorneys from the public was advised that he would be eligible for
defender’s office but with the court’s parole after serving 20 years. See
permission had withdrawn that plea. Commonwealth v. Schlueter, No. 0201-
Consequently, we are concerned with 1986 at 2 (Northampton County, Pa. Ct.
events following his second nolo Com. Pl., Crim. Div., Dec. 30, 1998,
contendere plea. app. at 415). Schlueter indicates in his
brief on this appeal that “[f]or purposes
2
Schlueter correctly acknowledges of these habeas proceedings, the term of
that the record contains conflicting eligibility is irrelevant since [he] was and
information regarding the parole advice is never eligible for parole.” Appellant’s
he received. Appellant’s br. at 12 n.11. br. at 12.

2
request. By letter dated November 10, 1996,
Schlueter informed Lauer of the deadline
Meanwhile, in March 1988, the and asked him to file a timely PCRA
victim’s family initiated a wrongful petition. Lauer replied by letter dated
death action against Schlueter, who December 2, 1996, that he was “well
initially represented himself in the civil aware” of the deadline and would file a
proceedings. Based on Schlueter’s petition “before year’s end.” App. at
criminal conviction, the trial court 783. By letter dated December 13, 1996,
entered a directed verdict against him. Lauer also informed Schlueter’s parents
In June 1994 Schlueter’s parents retained that he was anticipating filing a PCRA
attorney Philip Lauer of Easton, petition “prior to the end of this year.”
Northampton County, to represent their App. at 790. Nevertheless, Lauer did not
son in his civil appeal from the judgment file a PCRA petition and did not
against him and to explore possible communicate further with Schlueter or
challenges to his conviction under his parents. On March 18, 1997, the
Pennsylvania’s Post Conviction Relief Clerk of the Northampton County Court
Act (“PCRA”). Lauer advised Schlueter of Common Pleas advised Schlueter in
to postpone pursuing PCRA remedies response to his inquiry that no one had
until the conclusion of the civil filed a PCRA petition on his behalf.
proceedings. The Superior Court
affirmed the judgment against Schlueter On May 27, 1997, the Schlueters
on his civil appeal and his civil appellate retained his current attorneys’ law firm
proceedings were terminated to explore the possibility of filing a
unsuccessfully when the Pennsylvania PCRA petition. After repeated attempts,
Supreme Court denied his petition for the new attorneys retrieved Schlueter’s
allowance of appeal on November 28, files from Lauer on October 2, 1997.
1994. Upon reviewing the files, they
discovered that they did not include
Two years later, prior to Schlueter certain files from the Public Defender’s
filing a PCRA petition, he and his Office. At Schlueter’s new attorneys’
parents learned that the Pennsylvania request, the Public Defender’s Office
legislature had amended the PCRA to located Schlueter’s files and arranged for
prescribe a filing deadline of January 16, them to review the files and to interview
1997, in older cases such as Schlueter’s.3 Crowe on December 9, 1997. During
the interview with Crowe, they learned
that George Blasco and Assistant District
3
See Commonwealth v. Fenati,
748 A.2d 205, 207 (Pa. 2000) (holding
that PCRA petition filed on January 16, the PCRA amendments effective January
1997, was timely filed within one year of 16, 1996).

3
Attorney Narlesky had been “civil law pro tunc, arguing that the court should
partners” in Easton prior to Blasco’s restore his right to a direct appeal due to
death.4 his trial attorneys’ erroneous parole
advice. After conducting a hearing, the
Relying on this information, his PCRA court dismissed the PCRA
attorneys filed a PCRA petition on petition as untimely and, in the same
Schlueter’s behalf on February 2, 1998, opinion, denied Schlueter’s motion to
alleging a conflict of interest arising restore his right to appeal nunc pro tunc
from the Blasco/Narlesky civil law because Schlueter had “knowingly and
practice. Recognizing the apparent voluntarily waived his appellate rights.”
untimeliness of their PCRA petition, App. at 436. On appeal, the
they attempted to invoke a statutory Pennsylvania Superior Court affirmed
exception to the PCRA’s period of the dismissal of Schlueter’s PCRA
limitation by arguing that the facts of the petition as untimely without mentioning
Blasco/Narlesky arrangement had been his motion to restore his right to file a
unknown and could not have been direct appeal from his conviction nunc
ascertained through the exercise of due pro tunc.6 The Pennsylvania Supreme
diligence.5 They subsequently reviewed Court denied Schlueter’s petition for
court records and filings and learned that allowance of appeal without explanation
Blasco and Narlesky practiced and on August 28, 2000.
shared fees in civil cases, together
owned and shared their office space, and Through his attorneys, Schlueter
shared operating expenses and filed a federal habeas corpus petition in
personnel. the district court on October 12, 2000.7

On June 22, 1998, more than 11 6
years after he was convicted and while Of course, the judgment of
his PCRA petition was pending, affirmance upheld the denial of the
Schlueter filed a motion seeking motion to appeal nunc pro tunc.
restoration of his appellate rights nunc 7
In his federal habeas corpus
petition, Schlueter articulated the
4
The respondents deny that Blasco following claims for relief: (1) his plea
and Narlesky were partners and state was involuntary and unintelligent due to
they merely were part of an office an actual conflict of interest between
sharing arrangement. For purposes of Blasco and Narlesky; (2) his trial
this appeal we will assume that they attorneys’ erroneous parole advice
were partners. denied him the right to file a direct
appeal; (3) his trial attorneys rendered
5
See 42 Pa. Cons. Stat. Ann. ineffective assistance due to the conflict
§ 9545(b)(1)(ii) (West 1998). of interest between Blasco and Narlesky;

4
The respondents moved to dismiss the U.S.C. §§ 1291 and 2253. We exercise
habeas petition as barred by the plenary review over the district court’s
applicable one-year period of limitation. order dismissing Schlueter’s habeas
The case was referred to the chief petition as time barred. See Douglas v.
magistrate judge who rejected Horn, 359 F.3d 257, 259 (3d Cir. 2004).
Schlueter’s arguments for equitable and
statutory tolling, and recommended B. One-Year Period of Limitation
dismissing the habeas petition as
untimely. After hearing oral argument, In the Antiterrorism and Effective
the district court adopted the chief Death Penalty Act of 1996 (“AEDPA”)
magistrate judge’s report and Congress prescribed a one-year period of
recommendation and dismissed limitation for the filing of federal habeas
Schlueter’s habeas petition as untimely. corpus petitions by state prisoners. See
The court, however, granted a certificate Douglas, 359 F.3d at 261. Effective
of appealability on the issue of equitable April 24, 1996, the AEDPA provides in
tolling. The district court subsequently relevant part:
“amplified” the certificate of
appealability to include the statutory A 1-year period of
tolling issues as well. limitation shall apply to an
application for a writ of
Schlueter has filed a timely habeas corpus by a person
appeal. in custody pursuant to the
judgment of a State court.
The limitation period shall
run from the latest of—
II. DISCUSSION
(A) the date on which the
A. Jurisdiction and Standard of judgment became final by
Review the conclusion of direct
review or the expiration of
The district court had jurisdiction the time for seeking such
pursuant to 28 U.S.C. §§ 2241 and 2254 review; [or]
and our jurisdiction is based on 28
. . . .

and (4) the Pennsylvania courts denied (D) the date on which the
his right to due process by refusing to factual predicate of the
allow him to present evidence supporting claim or claims presented
the merits of his conflict of interest could have been
claim. discovered through the

5
 exercise of due diligence. F.3d 936, 940 (7th Cir. 2004) (quoting
Wims v. United States, 225 F.3d 186,
28 U.S.C. § 2244(d)(1).8 190 n.4 (2d Cir. 2000)). Section
2244(d)(1)(D) provides a petitioner with
We first determine the date on a later accrual date than
which the one-year period began section 2244(d)(1)(A) only “if vital facts
running. Ordinarily under could not have been known.” Owens,
section 2244(d)(1)(A), Schlueter’s one- 235 F.3d at 359.
year period of limitation would have
begun running on April 24, 1996, We are convinced that if
because his conviction became final well Schlueter had exercised due diligence,
before the effective date of the AEDPA. he could have discovered the
See Burns v. Morton, 134 F.3d 109, 111 Blasco/Narlesky arrangement long
(3d Cir. 1998) (allowing a one-year before the AEDPA became effective.
grace period to petitioners whose Lauer testified at the PCRA hearing that
convictions became final prior to the it was common knowledge in the legal
enactment of the AEDPA). Schlueter community in Northampton County that
asserts, however, that the one-year Blasco and Narlesky shared office space.
period began running under Lauer also testified that he personally
section 2244(d)(1)(D) on December 9, was aware of the arrangement when he
1997, the date on which his current represented Schlueter in 1994. Indeed,
attorneys discovered the Blasco/Narlesky in our view, it is inconceivable that
arrangement. Appellant’s br. at 51-53. Blasco and Narlesky could have hidden
their arrangement from the relatively
By its language, the one-year small legal community or the public in
period of limitation commences under Northampton County.9
section 2244(d)(1)(D) when the factual
predicate of a claim could have been
discovered through the exercise of due
diligence, not when it actually was 9
We are not suggesting that they
discovered. See Owens v. Boyd, 235 attempted to hide their arrangement or
F.3d 356, 359 (7th Cir. 2000). Due believed that they had any reason to do
diligence does not require “the maximum so during the time of their association.
feasible diligence,” but it does require Nevertheless, it must be acknowledged
reasonable diligence in the that not every attorney in Northampton
circumstances. Moore v. Knight, 368 County was aware of the depth and
circumstances of the Blasco/Narlesky
arrangement as Crowe indicated to
8
The omitted subsections are not Schlueter’s current attorneys that he was
germane in this case. not.

6
 Moreover, Schlueter’s current November 28, 1994, when the
attorneys learned of the arrangement Pennsylvania Supreme Court refused to
simply by interviewing Crowe who, with allow him to appeal.
Blasco, represented Schlueter in the
criminal proceedings. Certainly, if he Overall, we are satisfied that
had exercised due diligence, Schlueter through the exercise of due diligence,
would have had Crowe interviewed Schlueter could have learned the factual
many years before December 9, 1997, as predicate of his conflict of interest claim
it is apparent in view of his incarceration well before April 24, 1996. Therefore,
that Schlueter had every incentive to the one-year period of limitation began
have Crowe, his surviving trial attorney, running under section 2244(d)(1)(A) on
interviewed. After all, as early as April 24, 1996. Inasmuch as Schlueter
August 16, 1988, he had written Crowe filed his federal habeas corpus petition
requesting information for the purpose four and one-half years later on October
of pursuing state post-conviction review. 12, 2000, in the absence of tolling of the
We also point out that the factual basis one-year period of limitation, his habeas
for the claim of impropriety based on the corpus petition was untimely.
Blasco/Narlesky arrangement was hardly
obscure for, after interviewing Crowe In reaching our result, we
and discovering the Blasco/Narlesky recognize that Schlueter is and has been
arrangement, Schlueter’s current incarcerated for many years and that
attorneys learned the details of the physical confinement can limit a
arrangement merely by reviewing court litigant’s ability to exercise due
records and filings, all of which were diligence. See Moore v. Knight, 368
matters of public record. Appellant’s br. F.3d at 940. We observe from the record
at 24. and references in Schlueter’s brief,
however, that Schlueter’s parents have
We realize that Lauer advised been involved actively in their son’s case
Schlueter to postpone pursuing PCRA for several years. Thus, Schlueter,
review until the civil proceedings were unlike many other incarcerated litigants,
concluded. But by the time that his has enjoyed the benefit of his family’s
parents retained Lauer almost six years assistance, involvement and resources.
had elapsed since the time that Schlueter We also point out that Schlueter’s
first contemplated bringing post- parents must be well educated as they
conviction review proceedings. Clearly, both are referred to as “Doctor” in the
in allowing this time to pass Schlueter record in this case. Therefore,
was not diligent. Moreover, Lauer’s Schlueter’s incarceration does not
advice, at most, could have delayed change our view that if he had exercised
Schlueter for only about five months due diligence he would have discovered
from Lauer’s retention in June 1994 until the facts supporting his PCRA claims

7
before April 24, 1996. The one-year period should be
equitably tolled “only in the rare
C. Tolling of the One-Year Period of situation where equitable tolling is
Limitation demanded by sound legal principles as
well as the interests of justice.” Jones v.
The AEDPA’s one-year period of Morton, 195 F.3d 153, 159 (3d Cir.
limitation is not an absolute limit. 1999). Equitable tolling is appropriate:
See Douglas, 359 F.3d at 261. Rather, it
is subject to two possible tolling only when the principles of
exceptions both of which Schlueter equity would make the
advances: (1) statutory tolling under 28 rigid application of a
U.S.C. § 2244(d)(2) while a properly limitation period unfair.
filed application for post-conviction Generally, this will occur
review is pending in the state courts; and when the petitioner has in
(2) equitable tolling. See Merritt v. some extraordinary way
Blaine, 326 F.3d 157, 161 (3d Cir. been prevented from
2003). We examine first the period of asserting his or her rights.
time from April 24, 1996, the date on The petitioner must show
which the one-year period began to run, that he or she exercised
through December 9, 1997, the date on reasonable diligence in
which Schlueter’s current attorneys investigating and bringing
discovered the Blasco/Narlesky the claims.
arrangement, to determine whether there
Miller v. New Jersey State Dep’t of
should be equitable tolling during any
Corr., 145 F.3d 616, 618-19 (3d Cir.
portion of this period.10
1998) (internal citations and alterations
omitted).
10
It is undisputed that the period Schlueter bases his equitable
of time from April 24, 1996, through tolling argument on what he
February 2, 1998, cannot be tolled characterizes as attorney malfeasance.
statutorily under section 2244(d)(2) as Specifically, he argues that the delay in
Schlueter did not file any application of filing his PCRA petition (and by
any kind in the state courts from April extension his federal habeas corpus
24, 1996, until February 2, 1998, and he petition) was due to Lauer’s misconduct
had not filed any application earlier that in affirmatively misrepresenting that he
was pending during that period. In would file a timely PCRA petition on
addition, Schlueter concedes that the Schlueter’s behalf. In this regard we
one-year period was running from point out that if Lauer had filed the
December 9, 1997, until February 2, PCRA petition by the state deadline of
1998. Appellant’s br. at 62. January 16, 1997, there would have been

8
a period of tolling under section misrepresented to his client that he
2244(d)(2). In addition, Schlueter already had filed a timely complaint and
contends that Blasco and Narleskys’ by the time the client discovered that her
alleged misconduct in not disclosing attorney had not done so the period of
their arrangement compounded the limitations had expired. Here, in
unfair effect of Lauer’s failure to file a December 1996, Lauer informed
PCRA petition after representing that he Schlueter and his parents that he
would do so. anticipated filing a PCRA petition before
the end of the year. When the year
Generally, in a non-capital case
ended, Schlueter could have learned, as
such as Schlueter’s, attorney error is not
he did later, that Lauer had not filed a
a sufficient basis for equitable tolling of
PCRA petition. If he had done so he still
the AEDPA’s one-year period of
would have had a small window of time
limitation. See Johnson v. Hendricks,
in which to file a pro se petition and save
314 F.3d 159, 163 (3d Cir. 2002).
his PCRA claims from dismissal as
Nevertheless, we have held, albeit
untimely. Thus, his situation differs
outside the habeas context, that there are
sharply from that of the Seitzinger
“narrow circumstances in which the
plaintiff who was misled by what the
misbehavior of an attorney may merit”
attorney said he had done, not by what
equitable tolling. Seitzinger v. Reading
he said he would do.
Hosp. & Med. Ctr., 165 F.3d 236, 239
(3d Cir. 1999). Seitzinger involved a Moreover, it is apparent that
Title VII plaintiff who asked her attorney Schlueter was fully aware of his PCRA
prior to the expiration of an applicable rights in 1994 when he retained Lauer.11
90-day period of limitations if he had Schlueter knew that Lauer had done
filed a complaint on her behalf. Id. at little, if anything, to pursue PCRA relief
238. The attorney falsely stated that he for more than two years.
had done so whereas, in fact, he did not Notwithstanding this knowledge, neither
file a complaint until one day after the Schlueter nor his parents took
limitations period expired. Id. We held
that the attorney’s affirmative
11
misrepresentation to his client, coupled The record reflects that
with the plaintiff’s extreme diligence in Schlueter actually knew of his right to
pursuing her claim and the absence of pursue state post-conviction review as
prejudice to the defendant, “created a early as August 16, 1988, when he wrote
situation appropriate for tolling.” Id. at to Crowe requesting information for that
242. purpose. Crowe declined to respond
because he no longer represented
We find that the material facts of Schlueter. Schlueter apparently took no
Seitzinger are distinguishable from those further steps to challenge his conviction
presented here. In Seitzinger, counsel until he retained Lauer in 1994.

9
affirmative steps to ensure the timely Moore, 345 F.3d 796 (9th Cir. 2003), and
filing of a PCRA petition until Schlueter Baldayaque v. United States, 338 F.3d
wrote his November 10, 1996 letter to 145 (2d Cir. 2003), for the proposition
Lauer advising him of the PCRA that attorney malfeasance constitutes an
deadline and asking him to file a timely extraordinary circumstance sufficient to
petition. Then after the end of 1996 warrant equitable tolling of the one-year
Schlueter did not attempt to ascertain period of limitation. As these cases
from Lauer prior to the January 16, 1997 amply demonstrate, however, a finding
deadline of which he was well aware that attorney malfeasance is an
whether Lauer, in fact, had filed a PCRA extraordinary circumstance, without
petition. We also find it significant that more, is not sufficient to warrant
the period of limitations at issue in equitable tolling. Spitsyn holds that
Seitzinger was a brief 90 days and that egregious attorney misconduct may
the attorney filed the complaint only one justify equitable tolling, but also requires
day late. Thus, the attorney’s district courts to examine the petitioner’s
misconduct warranted equitably tolling due diligence in pursuing the matter
one day of a short period of limitations. under the specific circumstances he
Here, the AEDPA’s limitation period is faced. Spitsyn, 345 F.3d at 802.
one year, and did not begin to run until Likewise, Baldayaque holds that “an
April 24, 1996, nearly nine years after attorney’s conduct, if it is sufficiently
Schlueter’s conviction became final in egregious, may constitute the sort of
1987. Schlueter did not initiate state ‘extraordinary circumstances’ that would
post-conviction proceedings until 1998 justify the application of equitable
and did not pursue federal habeas corpus tolling.” Baldayaque, 338 F.3d at 152-
relief until 2000 even though he had 53. Baldayaque, however, expressly
been convicted in 1987. The states that the presence of extraordinary
circumstances in Schlueter’s case simply circumstances “is not enough” – a
do not warrant the application of petitioner “must also show that he acted
equitable tolling after such lengthy with reasonable diligence, and that the
periods of time had elapsed following extraordinary circumstances caused his
his conviction before he sought state and petition to be untimely.” Id. at 153
federal relief.12 (citation omitted). In other words,
neither Spitsyn nor Baldayaque holds
Schlueter also relies on Spitsyn v.
that attorney malfeasance, standing
alone, warrants equitable tolling.13
12
Inasmuch as we are not allowing
any period of equitable tolling we have
13
no need to engage in an intricate We acknowledge Schlueter’s
counting process computing the reliance on Boyd v. Myers, Civ. A. No.
hypothetical possible tolling period. 97-7160, 1998 U.S. Dist. LEXIS 20253

10
 For these reasons, we conclude until December 9, 1997, or during any
that the circumstances presented in portion thereof. We conclude, therefore,
Schlueter’s case do not warrant equitable that the AEDPA’s one-year period of
tolling. We are convinced that if limitation expired before Schlueter filed
Schlueter had exercised reasonable his PCRA petition, his motion to
diligence, he could have brought his reinstate his direct appeal nunc pro tunc,
claims in a timely fashion, Lauer’s or his federal habeas corpus petition.15
alleged misconduct notwithstanding.14
In view of our disposition we
Accordingly, we cannot equitably toll
address only briefly Schlueter’s
the period of time from April 24, 1996,
arguments for equitable or statutory
tolling while either his PCRA petition or
(E.D. Pa. Dec. 21, 1998), in which the his motion to reinstate his direct appeal
district court applied equitable tolling nunc pro tunc was pending in the state
where the petitioner’s attorney promised courts. We do note that Merritt v.
to file a timely federal habeas petition, Blaine, 326 F.3d at 161-65, forecloses
but filed it five months late. Quite aside Schlueter’s argument for statutory tolling
from the circumstance that Boyd is not during the time his untimely PCRA
precedential, we find the case unhelpful petition was pending as it holds that a
to our current analysis as the district federal habeas court for purposes of
court issued the opinion in 1998 before
we had provided much guidance on the
15
subject of equitable tolling in the habeas We disagree with the dissent’s
context. Consequently, the equitable position that we should remand to the
tolling standard utilized in Boyd district court to consider whether
arguably does not comport with our Schlueter exercised reasonable diligence.
more recent pronouncements requiring a Dissenting opinion at 7. The magistrate
habeas petitioner to demonstrate that he judge concluded that “the delay in
was “prevented in an extraordinary way learning of an office sharing relationship
from asserting his rights.” Johnson, 314 between the prosecutor and defense
F.3d at 163. counsel did not demonstrate the exercise
of due diligence.” App. at 15 n.1. The
14
Our opinion should not be issue of Schlueter’s diligence also was
misread to condone or excuse Lauer’s raised at oral argument before the district
conduct. To the contrary we judge. The district judge subsequently
acknowledge that arguably Lauer’s approved and adopted the magistrate
conduct was unacceptable and fell below judge’s report and recommendation.
professional standards. On the other Because the district court already has
hand, fairness to Lauer requires that we ruled that Schlueter did not exercise
point out that he could not find what he reasonable diligence, a remand would be
regarded was a basis for a PCRA claim. pointless.

11
section 2244(d)(2) defers to a state untimely and there was no basis to
court’s ruling dismissing a PCRA circumvent the time bar and not because
petition as untimely.16 Accordingly it is Schlueter could not have demonstrated
clear that his untimely state PCRA claim that there had been a reversible error in
cannot possibly help him. the trial proceedings so that an appeal
would have been futile. We decline to
We also reject his claim that
adopt a construction of the AEDPA that
somehow filing his motion to restore his
permits a petition for habeas corpus to be
appellate rights on June 22, 1998, more
deemed timely on the basis of section
than one year after the AEDPA period of
2244(d)(2) providing for tolling for
limitations had run, should lead to
“properly filed application[s] for state
statutory tolling on the basis that the
post-conviction . . . review” merely
motion was a “properly filed”
because the petitioner unsuccessfully has
application for post-conviction review
sought the right to appeal nunc pro tunc
under section 2244(d)(2). While he
years after his unexercised right to file a
predicates this argument on the theory
timely direct appeal has expired. See
that his motion was denied “on the
Douglas, 359 F.3d at 261-63.
merits,” appellant’s br. at 46, inasmuch
as the state court pointed out that Finally we recognize that the
Schlueter had “knowingly and dissent contends that there is a strong
voluntarily waived his appellate rights,” argument for equitable tolling predicated
it is clear that the appeal was not on various Pennsylvania state appellate
permitted because it would have been decisions based on Schlueter’s filing of
the PCRA petition and his motion to
reinstate his direct appeal nunc pro tunc.
16
Schlueter contends that we Dissenting opinion at 3-4 n.2. This point
“wrongly decided” Merritt v. Blaine, is critical in the dissent’s analysis as it
appellant’s br. at 54, but this panel points out that equitable tolling during
cannot entertain that argument. We also the period from April 24, 1996, until
note that even if we held that the one- December 9, 1997, “saves Schlueter’s
year period of limitation began running claim only if we also toll pending
under section 2244(d)(1)(D) on resolution of the state-court
December 9, 1997, in view of Merritt v. proceedings.” Id. We need not discuss
Blaine there would not have been these state decisions as he pursued both
statutory tolling of the one-year period of forms of relief after the AEDPA period
limitation governing Schlueter’s federal of limitations already had run.
habeas corpus action while his PCRA
petition was pending. Thus, inasmuch as
he commenced his federal action on III. CONCLUSION
October 12, 2000, it would have been
untimely. For the foregoing reasons, we

12
conclude that the district court properly Schlueter v. Varner, et al
dismissed Schlueter’s habeas corpus
No. 03-3928
petition as time barred by the one-year
period of limitation. Accordingly, we
will affirm the district court’s order
entered September 3, 2003.
Ambro, Circuit Judge, Dissenting
It is an underlying assumption of
our legal system that attorneys actively
pursue the best interests of their clients.
All too often, attorneys make mistakes.
The sad reality is that there are not
enough willing defense attorneys to
represent competently the interests of the
many criminal defendants who cycle
through the courts. And thus,
necessarily, we afford substantial leeway
to attorneys when it comes to “mere
‘attorney error.’” Roe v. Flores-Ortega,
528 U.S. 470, 482 (2000).
But the distinction between
mistake and malfeasance is profound.
There can be little semblance of justice
when an attorney assigned to protect a
defendant ignores a blatant conflict of
interest, and another counsel does
nothing while promising more than once
to protect the defendant’s rights. If the
facts are as Paul Schlueter has portrayed
them, his trial counsel (George Blasco)
disregarded his civil law partnership
with the prosecutor (James Narlesky),
and his appellate counsel (Philip Lauer)
affirmatively misrepresented that he
would timely file a petition for relief in
order to forestall the inevitable
accounting for his long-promised and

13
paid-for legal services.17 Irony becomes if the limitations period was tolled.
Kafkaesque when the latter act of
The AEDPA filing deadline is
malfeasance shelters from review the
subject to equitable tolling “when the
former act of malfeasance.
principles of equity would make the rigid
I cannot in good conscience bury application of a limitation period unfair.”
Schlueter’s case before it sees the light Miller v. N.J. State Dep’t of Corr., 145
of day. AEDPA confers on federal F.3d 616, 618 (3d Cir. 1998) (internal
courts the authority equitably to toll its quotation omitted). While this principle
limitations period in the interest of on its face is broad, it is to be applied
justice. If any case is ripe for exercise of sparingly. Equitable tolling is
that power, this one is. Accordingly, I appropriate when “the petitioner has in
respectfully dissent. some extraordinary way been prevented
from asserting his or her rights. The
* * * * *
petitioner must show that he or she
As the majority explained, exercised reasonable diligence in
Schlueter’s habeas petition would investigating and bringing the claims.”
ordinarily have been due on April 23, Id. at 618–19 (internal quotations
1997. See Douglas v. Horn, 359 F.3d omitted); see also Jones v. Morton, 195
257, 261 (3d Cir. 2004). He did not file F.3d 153, 159 (3d Cir. 1999).
his petition, however, until October 12,
We have concluded, as a general
2000. Thus the petition was timely only
matter, that attorney error is not so
“extraordinary” as to justify equitable
17
At the very least, I would tolling. See, e.g., Johnson v. Hendricks,
remand for a determination by the 314 F.3d 159, 163 (3d Cir. 2002). This
District Court whether Lauer, reputed to rule makes sense, as attorney error is
be well qualified, did in fact normally attributed to the client. See,
affirmatively mislead his client. See, e.g., e.g., United States v. Boyle, 469 U.S.
United States v. Wynn, 292 F.3d 226, 241, 250 (1985). But it does not follow
230 (5th Cir. 2002) (remanding for that tolling based on deception of the
hearing to determine whether defendant kind alleged by Schlueter in this case is
was obligated to undertake further also foreclosed.
inquiry upon receipt of a letter from the Schlueter and his parents wrote to
court stating that no petition under the and called Lauer on many occasions over
Anti-Terrorism and Effective Death a period of several months. He falsely
Penalty Act (“AEDPA”) had been filed, assured them that he was preparing a
when attorney allegedly told the PCRA petition and would timely file.
defendant’s father that no record of his But he made no such preparations.
filing existed because the petition was After allowing the deadline to pass, he
filed directly with the judge).

14
ceased all communication with the 370 U.S. 626, 634 (1962) (“[E]ach party
Schlueters. He did not return their many is deemed bound by the acts of his
phone calls or letters, nor did he timely lawyer-agent . . . .”).
return Schlueter’s files despite repeated
But it is a fundamental principle
requests from Schlueter and his new
of agency law that the knowledge of an
counsel. Lauer’s intentional
agent is not attributed to the principal
abandonment of Schlueter’s case cannot
when the agent is acting in a manner
plausibly be labeled “error.” His
adverse to the interests of the principal.
behavior, I believe, was sufficiently
Restatement (Third) of Agency § 5.04
egregious to bring it “within the narrow
(Tentative Draft No. 4 2003) (“Notice is
line of cases in which lawyer misconduct
not imputed to the principal of a fact that
justifies equitable tolling.” Seitzinger v.
an agent knows or has reason to know if
Reading Hosp. & Med. Ctr., 165 F.3d
the agent acts adversely to the principal
236, 238 (3d Cir. 1999).
in a transaction or matter for the agent’s
The law of agency provides a own purposes . . . .”). Mere attorney
useful framework for understanding the error does not constitute an
distinction between error and “extraordinary circumstance” because a
misconduct. See Baldayaque v. United circumstance, to be extraordinary, must
States, 338 F.3d 145, 154 (2d Cir. 2003) be beyond the prisoner’s control. Harris
(Jacobs, J., concurring). Ordinarily, v. Hutchinson, 209 F.3d 325, 330 (4th
“[a]ttorney ignorance or inadvertence” Cir. 2000). Thus, we have explained, a
does not excuse a petitioner’s non- client who relies on the faulty advice of
compliance with AEDPA, because “the his lawyer has not encountered an
attorney is the petitioner’s agent when obstacle to filing that is external to his
acting, or failing to act, in furtherance of conduct. Johnson, 314 F.3d at 162–63.
the litigation.” Coleman v. Thompson, Conversely, when, as here, an attorney
501 U.S. 722, 753 (1991) (rejecting ceases altogether to serve the interests of
attorney error as “cause” for his client, the law of agency is clear that
procedurally defaulted habeas claims); the attorney acts alone.
see also McCarthy v. Recordex Serv.,
This central tenet—that attorney
Inc., 80 F.3d 842, 853 (3d Cir. 1996) (“It
malfeasance should not be attributed to
is, of course, beyond cavil that the
the client—paves any number of parallel
attorney-client relationship is an
paths to tolling in this case. We might
agent-principal relationship.”). We
conclude that Schlueter, had Lauer not
assume, for better or worse, that a lawyer
represented that he was acting on the
is acting as the petitioner’s agent, and the
case, would timely have filed a petition
petitioner therefore “bear[s] the risk of
under Pennsylvania’s Post-Conviction
attorney error.” Coleman, 501 U.S. at
Relief Act (“PCRA”), 42 Pa. Cons. Stat.
752–53; cf. Link v. Wabash R.R. Co.,
Ann. § 9541, et seq., prior to the

15
deadline that would have presented
Blasco’s clear conflict as trial counsel.
Thus we might equitably toll the statute pending shall not be counted toward any
from April 24, 1996, the day it began to period of limitation under this
run, to December 9, 1997, the day that subsection.” But neither the PCRA
Schlueter’s new counsel was put on petition nor the nunc pro tunc petition
notice of the relationship between Blasco was “properly filed” for the purposes of
and Narlesky.18 We might hold that Pennsylvania law. Our Court has stated
that “an untimely PCRA petition does
not toll the statute of limitations for a
18
Tolling for this minimum federal habeas corpus petition.” Merritt
duration saves Schlueter’s claim only if v. Blaine, 326 F.3d 157, 165 (3d Cir.
we also toll pending resolution of the 2003). Nor is statutory tolling available
state-court proceedings. The analysis is based on the nunc pro tunc petition,
complex, but it can be summarized as notwithstanding our recent decision in
follows. Douglas v. Horn, 359 F.3d 257, 263
On February 3, 1998, Schleuter n.11 (3d Cir. 2004). Douglas suggested
filed a petition for post-conviction relief that statutory tolling might apply to nunc
under PCRA. He argued that his PCRA pro tunc petitions filed before the
petition should be deemed timely Pennsylvania Supreme Court’s decision
because the delay in filing was based on in Commonwealth v. Lantzy, 736 A.2d
ineffective assistance of counsel retained 564 (Pa. 1999), which reversed a series
to file the petition. In June 1998 he of decisions by Pennsylvania lower
separately filed a petition to appeal nunc courts indicating that nunc pro tunc
pro tunc. The PCRA Court denied the petitions were compatible with PCRA
PCRA petition as untimely and rejected under appropriate circumstances. See,
Schlueter’s request for an appeal nunc e.g., Commonwealth v. Hall, 713 A.2d
pro tunc. On October 22, 1999, the 650, 653 (Pa. Super. 1998), rev’d in
Pennsylvania Superior Court affirmed. part, vacated in part, 771 A.2d 1232
Schleuter’s subsequent petition for (Pa. 2001). But in Commonwealth v.
allowance of an appeal was denied by Eller, 807 A.2d 838 (Pa. 2002), the
the Pennsylvania Supreme Court on Pennsylvania Supreme Court held that
August 28, 2000. Lantzy did not announce a new rule and
I note first that statutory tolling thus applies retroactively. Therefore,
will not save Schlueter’s claim. 28 though Schlueter’s nunc pro tunc
U.S.C. § 2244(d)(2) provides that “[t]he petition was filed more than a year
time during which a properly filed before Lantzy was decided, it was not
application for State post-conviction or properly filed for the purposes of
other collateral review with respect to Pennsylvania law.
the pertinent judgment or claim is Although I would not statutorily

16
 equity requires us to toll the statute to the
day that Schlueter’s habeus petition was
toll the AEDPA limitations period under finally filed. Or we might even conclude
§ 2244(d)(2), a strong argument exists that Schlueter falls within the ambit of
for equitable tolling based on Schlueter’s § 2244(d)(1)(D), because the conflict of
good-faith efforts to avail himself of interest, though discoverable by Lauer
state post-conviction relief. In Merritt, based on his alleged knowledge of
326 F.3d at 170 n.10, we preserved the Blasco and Narlesky’s office sharing
possibility that equitable tolling may be arrangement, was not reasonably
appropriate where, as here, a PCRA ascertainable by an incarcerated inmate
petition is late based on newly who was forestalled from pursuing his
discovered facts of a “legitimate” nature. case by the false assurances of a third
Id. (“Undoubtedly, there will be other party.19
habeas petitioners who find themselves
in similar situations where their need to decided, several post-Lantzy en banc
exhaust state remedies will create a opinions of the Superior Court (which
tension with the one-year statute of would later be overruled by Eller) held
limitations in AEDPA. . . . The federal that it would not apply retroactively.
courts should seek ways to ameliorate See, e.g., Commonwealth v. Garcia, 749
the consequences for these petitioners in A.2d 928, 933 (Pa. Super. Ct. 2000) (en
appropriate cases.”). This may be the banc), rev’d, 811A.2d 994 (Pa. 2002);
special case that panel had in mind. Commonwealth v. Hitchcock, 749 A.2d
The argument for equitable tolling 935, 939-40 (Pa. Super. Ct. 2000) (en
based on Schlueter’s nunc pro banc).
tunc petition is even stronger. The
19
Pennsylvania Superior Court’s decision The majority is “convinced that
in Hall, 713 A.2d at 653, announcing if Schlueter had exercised due diligence,
that nunc pro tunc petitions were he could have discovered the
permissible under appropriate Blasco/Narlesky arrangement long
circumstances despite the language of before the AEDPA became effective.”
PCRA, was issued on June 3, 1998. But this task would have been harder
Based on that decision, Schlueter’s than it sounds. While various
counsel concluded that Schlueter was individuals were aware of the office
eligible for nunc pro tunc relief and sharing arrangement, few (if any) knew
would therefore be obligated to pursue it the extent of the relationship between the
under AEDPA in order to exhaust state two attorneys. The evidence strongly
remedies. He similarly relied on suggests that Narlesky affirmatively
Pennsylvania case law when he appealed concealed the relationship. According to
the PCRA court’s decision in December Schlueter, Narlesky went so far as to
1998; although Lantzy had by then been misrepresent to the PCRA court the

17
 Other courts have applied extraordinary circumstance’ beyond
equitable tolling under circumstances petitioner’s control that could warrant
like these. In Baldayaque, 338 F.3d at equitable tolling of the statute of
152, for example, an attorney failed limitations.”); cf. Doherty v. Teamsters
timely to file a § 2255 motion requested Pension Trust Fund of Phila. & Vicinity,
by his client and made inadequate efforts 16 F.3d 1386 (3d Cir. 1994) (tolling
to communicate with him. The Second based on the death of the petitioner’s
Circuit held that the attorney, “[b]y attorney).
refusing to do what was requested by his
In our Circuit, the principal case
client on such a fundamental matter, . . .
on point is Seitzinger. It involved a Title
violated a basic duty of an attorney to his
VII claim, though we have since applied
client.” His actions, the Court
its reasoning to habeas cases. See, e.g.,
continued, “were far enough outside the
Brown v. Shannon, 322 F.3d 768, 774
range of behavior that reasonably could
(3d Cir. 2003). The Supreme Court has
be expected by a client that they may be
cautioned that in the Title VII context
considered ‘extraordinary’” and thereby
“the principles of equitable tolling . . . do
“justify the application of equitable
not extend to what is at best a garden
tolling to the one-year limitations period
variety claim of excusable neglect.”
of AEDPA.” Id. at 152–53. See also
Irwin v. Dep’t Veteran Affairs, 498 U.S.
Spitsyn v. Moore, 345 F.3d 796, 798 (9th
89, 96 (1990). Our task in Seitzinger
Cir. 2003) (“Based upon the unique facts
was to decide whether misconduct by the
of this case, where an attorney was
plaintiff’s attorney was merely “garden
retained to prepare and file a petition,
variety” or, rather, was something more
failed to do so, and disregarded requests
egregious. The plaintiff alleged that she
to return the files pertaining to
repeatedly asked her attorney whether he
petitioner’s case until well after the date
had filed a complaint, and each time he
the petition was due, we agree that
misrepresented to her that he had. Under
equitable tolling of the deadline is
these circumstances, we concluded that
appropriate.”); United States v. Wynn,
equitable tolling was appropriate.
292 F.3d 226, 230 (5th Cir. 2002)
Seitzinger, 165 F.3d at 241.
(“Wynn’s allegation that he was
deceived by his attorney into believing Of course, Seitzinger also requires
that a timely § 2255 motion had been that the client be “reasonably diligent” in
filed on his behalf presents a ‘rare and pursuing his or her claims. But the facts
of Seitzinger leave little doubt that
Schlueter has met that burden. In
character of his partnership with Blasco. concluding that the plaintiff in Seitzinger
The conflict was particularly difficult to was diligent, we emphasized that she: (1)
discover because Blasco’s death in 1988 hired an attorney to file her civil
dissolved that partnership. complaint; (2) “contacted him before the

18
filing deadline, which she knew about in 1997, he should have ascertained
broad terms, to ensure that he had filed whether Lauer had indeed filed as
the complaint”; and (3) repeatedly called promised. Never mind that Lauer had
him in order to obtain a copy of the ceased to return phone calls on
complaint and monitor the status of her Schlueter’s behalf. Never mind that
case. Id. at 241. All of these factors are when the Schlueters, having received no
true in Schlueter’s case as well. In fact, word from Lauer for months, inquired
Schlueter and his family were, if with the clerk’s office whether a petition
anything, more diligent. They apprised had been filed, it was nearly forty days
their attorney of the precise filing before they received a response.
deadline (whereas Seitzinger was aware, Schlueter, says the majority, might have
“in broad terms,” that a deadline existed) done more.
with ample time to prepare a petition. In
This, I suppose, is theoretically
addition to their phone calls, the
true. But it blinks reality to suggest that
Schlueters wrote several letters seeking
Schlueter might have retained substitute
to ensure that the PCRA petition would
counsel willing to prepare a petition
be filed prior to the deadline. And they
within the two short weeks between the
received written assurances that a
end of 1996 and the PCRA filing
petition would timely be filed.
deadline. Still, he might have filed his
Once the deadline had passed, the own PCRA petition pro se, just in case.
Schlueters did everything that could That would have been supremely
reasonably be expected of them. When diligent.
their phone calls from Lauer were not
But supreme diligence is not
returned, they wrote to the clerk’s office
required. On the contrary, the standard
directly. That office did not respond
is a relatively modest one. Schlueter’s
until March 18, 1997. The time between
diligence need only have been
the Schlueters’ discovery of Lauer’s
reasonable under the circumstances. Cf.
failure to file and their retaining new
Baldayaque, 338 F.3d at 153 (“The
counsel was just over two months. After
standard is not ‘extreme diligence’ or
that, matters were largely out of
‘exceptional diligence,’ it is reasonable
Schlueter and his counsel’s hands.
diligence.”) (emphasis in text). I believe
Lauer simply did not turn over the files
that Schlueter’s protracted efforts
for many months.
handily qualify. But if the majority is
The majority dismisses not convinced, it seems to me better to
Schlueter’s efforts as inadequate. They remand for the District Court to consider
suggest that he was not entitled to rely this issue in the first instance rather than
on the two written assurances by the dismiss outright his habeus petition. See
attorney whom he had hired to pursue id.
his case; rather, on New Year’s Day of

19
 Still, the majority insists,
Seitzinger is distinguishable. If that is
so, it is because the urgency of tolling is
far stronger in Schlueter’s case. The
attorney in Seitzinger nearly cost his
client the right to seek recovery for
gender and age discrimination by her
employer. But the stakes in this case are
far higher—life imprisonment without
the possibility of parole.
The gravity of Schlueter’s
situation is self-evident. “Dismissal of a
first habeas petition is a particularly
serious matter, for that dismissal denies
the petitioner the protections of the Great
Writ entirely, risking injury to an
important interest in human liberty.”
Lonchar v. Thomas, 517 U.S. 314, 324
(1996) (emphasis omitted). The majority
declines to exercise its power to rectify a
fundamental inequity—that Schlueter’s
appellate counsel, rather than assisting
him in obtaining the relief he was
retained to pursue, crippled Schlueter’s
diligent efforts timely to obtain post-
conviction relief for the tainted
representation he received from his
defense attorney at trial. Thus no court
will ever pass on the merits of his habeas
claim. Because I believe that under
these circumstances “the principles of
equity . . . make the rigid application of
[the AEDPA] limitation period unfair,”
Miller, 145 F.3d at 618 (internal
quotations omitted), I respectfully
dissent.

20