Pridgen v. Shannon

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

8-19-2004

Pridgen v. Shannon
Precedential or Non-Precedential: Precedential

Docket No. 02-3842

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 PRECEDENTIAL 1515 Locust Street
Tenth Floor
UNITED STATES COURT OF Philadelphia, PA 19102
APPEALS
FOR THE THIRD CIRCUIT Attorney for Appellant

Susan E. Moyer [Argued]
Office of the District Attorney
No. 02-3842 Lancaster County Courthouse
50 North Duke Street
P.O. Box 83480
JAMES MARIO PRIDGEN, Lancaster, PA 17608-3480

Appellant Attorney for Appellees

v.

SHANNON; THE DISTRICT
ATTORNEY OF THE COUNTY OPINION OF THE COURT
OF LANCASTER; THE ATTORNEY
GENERAL OF THE STATE OF _______________________
PENNSYLVANIA
FUENTES, Circuit Judge: F o l l o w i n g a
___________
state court jury trial, James Mario Pridgen
(“Pridgen”) was convicted of the shooting
On Appeal from the United States
death of Colin Koulesser and sentenced to
District Court
life in prison. After exhausting direct
for the Eastern District of Pennsylvania
appeals and filing an unsuccessful federal
habeas petition, Pridgen filed a Federal
Rule of Civil Procedure 60(b) motion
District Court Judge: The Honorable Jan
seeking “Relief From Judgment or Order,”
E. DuBois
based on newly discovered evidence. The
(D.C. No. 00-cv-04561)
new evidence consisted of two affidavits
___________
of witnesses who, according to Pridgen,
Argued on December 9, 2003
were present at the scene of the shooting
and could refute the testimony of the
Before: AMBRO, FUENTES &
state’s key witness. The principal issue we
CHERTOFF, Circuit Judges
must determine is whether a Rule 60(b)
motion by a state prisoner, who previously
(Opinion Filed: August 19, 2004 )
filed an unsuccessful habeas petition,
should be regarded as an unauthorized
successive habeas petition. We conclude
Elayne C. Bryn [Argued]
in this case that the District Court correctly While Pridgen’s appeal of the
dismissed those claims in Pridgen’s Rule denial of his PCRA petition was still
60(b) motion which sought to invalidate pending in the Pennsylvania courts,
his underlying state conviction because Pridgen filed a Petition for Writ of Habeas
they constituted the equivalent of a second Corpus in the United States District Court
habeas petition. We also affirm the for the Eastern District of Pennsylvania.
District Court’s denial of the remaining The District Court, adopting the Report
portion of his motion, though on different and Recommendation of the Magistrate
grounds. 1 Judge, dismissed the habeas petition
without prejudice on the ground that
I. F ACTS AND P ROCEDURAL
Pridgen had failed to exhaust his state
B ACKGROUND
court remedies. Thereafter, the Superior
Pridgen was convicted in July 1993 Court of Pennsylvania affirmed the denial
of first-degree murder in state court in of Pridgen’s PCRA petition, and on
Lancaster County, Pennsylvania. He was January 12, 1999, the Pennsylvania
sentenced to mandatory life imprisonment. Supreme Court denied his appeal. At this
At trial, the government established that point, Pridgen’s state remedies had been
Pridgen fired a handgun at Sheila Wright exhausted and he became eligible to file a
with the intent to kill her, but, instead, he petition for federal habeas relief. 28
shot and killed Colin Koulesser, who was U.S.C. § 2254(b)(1)(A); Holloway v.
positioned behind Wright. After an Horn, 355 F.3d 707, 714 (3d Cir. 2004).
unsuccessful direct appeal, Pridgen filed a
Section 2244(d) of the Anti-
petition under the Pennsylvania Post
Terrorism and Effective Death Penalty Act
Conviction Relief Act (PCRA), claiming
(AEDPA) of 1996 sets forth a one-year
ineffective assistance of counsel,
statute of limitations period following
prosecutorial misconduct, and actual
direct review in the state courts within
innocence. The Court of Common Pleas
which a state prisoner may file a petition
of Lancaster County denied Pridgen’s
for a writ of habeas corpus. 28 U.S.C. §
petition and he appealed.
2244. However, section 2244(d)(2)
provides that “the time during which a
properly filed application for State post-
1
The District Court concluded that it conviction or other collateral review with
was bound, under the law of the case respect to the pertinent judgment or claim
doctrine, by an earlier panel of this Court’s is pending shall not be counted toward any
denial of a Certificate of Appealability to period of limitation under this subsection.”
Pridgen on a separate claim raised in his 28 U.S.C. § 2244(d)(2) (emphasis added).
60(b) motion. Because we conclude that
Pridgen’s second PCRA petition was not
Rather than filing a petition for
“properly filed” under AEDPA, we do not
habeas relief, Pridgen, in February 1999,
reach the law of the case issue.

2
filed a second PCRA petition in state filed, in the District Court, a Motion for
court. The Court of Common Pleas denied Relief from Judgment under Federal Rule
the petition because it was filed beyond the of Civil Procedure 60(b)(1), (2) and (6).2
one-year period permitted by state law. 42 Pridgen’s motion set forth three separate
Pa.C.S.A. § 9545 (1982). The grounds for relief: he sought relief
Pennsylvania Superior Court affirmed, and pursuant to Rule 60(b) on the grounds that
on June 20, 2000, the state Supreme Court newly discovered evidence and evidence
declined to hear the appeal. that he inadvertently failed to include in
his habeas petition demonstrate that (1) the
On July 24, 2000, a year and a half
state court erred in denying his second
after the Pennsylvania Supreme Court
PCRA petition as untimely; (2) the state
denied his first PCRA petition, Pridgen
court lacked jurisdiction to rule that the
again filed for habeas relief in federal
claims raised in his second petition were
court. The District Court dismissed the
federal petition, reasoning that, because
the Pennsylvania courts dismissed
2
Pridgen’s second PCRA petition as Rule 60(b) provides in part:
untimely, the PCRA petition had not been
“properly filed” and thus could not act to ( b ) M i s t a k e s ;
toll the one-year statute of limitations Inadvertence; Excusable
under AEDPA. The District Court Neglect; Newly Discovered
reasoned that because the section 2244 Evidence; Fraud, Etc. On
statute of limitations began to run on motion and upon such terms
January 13, 1999 (the day after the as are just, the court may
Pennsylvania Supreme Court denied his relieve a party or a party’s
appeal), the one-year period had expired legal representative from a
by the time Pridgen filed his habeas final judgment, order, or
petition in July 2000. 28 U.S.C. § proceeding for the following
2244(d)(1)(A). Therefore, the District r e a s o n s : ( 1 ) m i s ta k e ,
Court dismissed Pridgen’s habeas petition inadvertence, surprise, or
in its entirety and declined to issue him a excusable neglect; (2) newly
Certificate of Appealability (COA). discovered evidence which
by due diligence could not
Pridgen then petitioned this Court
have been discovered in
for a CO A under 28 U.S .C. §
time to move for a new trial
2253(c)(1)(A). We denied the petition for
under Rule 59(b) . . . or (6)
the same reasons stated by the District
any other reason justifying
Court – Pridgen’s habeas petition was not
relief from the operation of
timely filed (Order, October 31, 2001,
the judgment.
Appendix A-41). While his petition for a
COA was pending in our Court, Pridgen
F ED. R. C IV. P. 60(b).

3
waived; and (3) his second PCRA petition Memorandum Op. at 6. Pridgen had
was a “properly filed application for [s]tate received no such authorization. The Court
post-conviction relief or other collateral noted that a majority of the courts of
review” under § 2244(d)(2) that tolls the appeals that have ruled on the issue have
AEDPA statute of limitations applicable to held that a Rule 60(b) motion, challenging
his federal habeas petition. Pridgen also a prior judgment denying habeas relief
posited that his “properly filed” claim should, in most cases, be treated as the
presented “extraordinary circumstances” functional equivalent of a second or
that warranted relief under the catchall successive habeas petition requiring, under
provision of Rule 60(b)(6). AEDPA, authorization from a court of
appeals. Id. at 8 (citations omitted). The
The District Court first considered
Court determined that it had to dismiss the
whether Pridgen’s Rule 60(b) motion was
first and second arguments in Pridgen’s
in essence a second or successive habeas
60(b) motion because, in its view, Pridgen
petition. In its written opinion, the Court
was seeking relief that would be available
pointed out that such an analysis was
to him only in a second habeas petition. In
necessary because “[a] state prisoner
other words, those portions of Pridgen’s
seeking to file a second or successive §
60(b) motion that should have been raised
2254 habeas petition must as a preliminary
in a second habeas petition had to be
step obtain an order from the appropriate
dismissed because they amounted to an
court of appeals authorizing the district
unauthorized successive filing under
court to con sider th e mo tion .” 3
AEDPA.

3
Secti on 2244(b) of the A E D PA
provides in pertinent part:
(3)(A) Before a second or judge panel of the court of
s u c c e s s iv e applic atio n appeals.
permitted by this section is (C) The court of appeals
filed in the district court, the may authorize the filing of a
applicant shall move in the s e c o n d o r s u c c e ss i v e
appropriate court of appeals applic ation only if it
for an order authorizing the d e t e r m in e s that th e
district court to consider the application makes a prima
application. facie showing that the
(B) A motion in the court of application satisfies the
appe als for an order r e q u i r e m e n t s o f t h is
authorizing the district court subsection.
to consider a second or
successive application shall 28 U.S.C. § 2244(b).
be determined by a three-

4
 With regard to the third and final Only one question was certified for
argument in Pridgen’s 60(b) motion, that appeal by the District Court: whether the
his second PCRA petition was properly law of the case doctrine prevented the
filed for purposes of AEDPA, the District District Court from reconsidering its
Court determined that it was bound, under earlier ruling that Pridgen’s second PCRA
the law of the case doctrine, by this was untimely and, therefore, not properly
Court’s prior ruling that the second PCRA filed for the purposes of 28 U.S.C. § 2244.
was not timely filed. Based on that ruling, However, we must first satisfy ourselves
the District Court denied this claim, but, that the District Court properly exercised
nevertheless, granted Pridgen a COA on jurisdiction over Pridgen’s Rule 60(b)
this issue. motion, which requires us to consider
whether it should have been treated as a
For the reasons that follow, we
second or successive habeas petition or a
agree with the District Co urt’ s
proper Rule 60(b) motion.4 A
classification of certain portions of
determination that the Rule 60(b) motion
Pridgen’s 60(b) motion as attacks on his
was in essence a successive habeas
underlying conviction and we concur in
petition means that under AEDPA the
the Court’s ultimate dismissal of those
District Court did not have jurisdiction to
claims. Additionally, we affirm the
entertain the motion because this Court
District Court’s denial of Pridgen’s
had not authorized Pridgen to file a
“properly filed” argument because, in our
successive habeas petition. 28 U.S.C. §
view, Pridgen’s untimely second PCRA
2244(b).
petition failed to toll AEDPA’s statute of
limitations. III. D ISCUSSION
II. J URISDICTION AND S TANDARD OF A.Whether Pridgen’s Rule 60(b) motion
R EVIEW constitutes a second habeas petition
A district court’s denial of a Rule
60(b) motion is typically reviewed for an Several circuit courts have
abuse of discretion. Brown v. Phila. Hous. addressed the issue of whether a Rule
Auth., 350 F.3d 338, 342 (3d Cir. 2003). 60(b) motion made by a habeas corpus
How ever, the preliminary question petitioner can be considered following the
regarding the legal status of the 60(b) dismissal of a federal habeas petition. The
motion is an issue of law that we review de Sixth, Tenth, and Eleventh Circuits have
novo. See Planned Parenthood of Cent.
N.J. v. Attorney General of State of N.J.,
4
297 F.3d 253, 259 (3d Cir. 2002) (“[T]he As noted earlier, because we conclude
legal interpretation of a procedural rule is that Pridgen’s “properly filed” argument in
reviewed de novo.” (citation omitted)). his 60(b) motion should have been denied
on the merits, we will not reach the law of
the case issue.

5
adopted the position that a Rule 60(b) customary scope of Rule 60(b) does not
motion filed after the dismissal of a federal offend AEDPA. Id.
petition for habeas corpus should per se be
A plurality view emerges between
treated as a second or successive habeas
these two ends of the spectrum. The First,
petition under AEDPA. Thus, such
Fourth, Seventh, Eighth and Ninth Circuits
motions can never be entertained by a
maintain that a Rule 60(b) motion may be
district court without permission from the
considered, but not if it conflicts with the
appropriate court of appeals. See Lopez v.
provisions of AEDPA or if its purpose is
Douglas, 141 F.3d 974, 975 (10th Cir.
to attack the underlying conviction. The
1998); Felker v. Turpin, 101 F.3d 657
Ninth Circuit held in Thompson v.
(11th Cir. 1996); McQueen v. Scroggy, 99
Calderon, 151 F.3d 918, 921 (9th Cir.
F.3d 1302, 1335 (6th Cir. 1996). The
1998) that “[i]n most cases when the
Eleventh Circuit reasoned in Felker that
factual predicate for a Rule 60(b) motion
allowing courts to consider Rule 60(b)
also states a claim for a successive petition
motions in habeas cases would invite
under 28 U.S.C. § 2244(b) . . . the Rule
prisoners to file second or successive
60(b) motion should be treated as a
collateral attacks on their convictions,
successive habeas petition . . . . We do not
thereby evading the limitations that
foreclose the possibility, however, that
Congress set forth in AEDPA. 101 F.3d at
under a different factual situation a 60(b)
661.
motion filed after the denial of an initial
The Second Circuit alone has taken petition for habeas corpus would not have
the position that “a motion under Rule to comply with the AEDPA’s successive
60(b) to vacate a judgment denying habeas petition requirements.”). In Dunlap v.
is not a second or successive habeas Litscher, the Seventh Circuit stated that
petition and should therefore be treated as AEDPA’s provisions “are clear and bar a
any other motion under Rule 60(b).” district court from using Rule 60(b) to give
Rodriguez v. Mitchell, 252 F.3d 191, 198 a prisoner broader relief from a judgment
(2d Cir. 2001). The court explained in rendered by the court in the prisoner’s
Rodriguez that a Rule 60(b) motion does federal habeas corpus (including section
not seek the same relief requested in a 2255) proceeding. Otherwise AEDPA’s
habeas petition (which is, generally, to limitations on collateral attack would be
h a v e t h e u nd e r l yi n g c o n vi c t i o n set at naught.” 301 F.3d 873, 875 (7th Cir.
invalidated). Rather, such a motion “seeks 2002). The court clarified, however, that
only to vacate the federal court judgment “[i]t is only when Rule 60(b) conflicts with
dismissing the habeas petition.” Id. In AEDPA that it is unavailable to a
other words, a Rule 60(b) motion is prisoner.” Id. The Seventh Circuit
“merely a step along the way” to habeas envisioned circumstances in which a
relief. Id. at 199. Consequently, the prisoner’s motion to vacate a judgment
Second Circuit determined that the under Rule 60(b) would not offend

6
AEDPA (for example, if it were raise claims in an earlier petition.” Id. at
discovered that the state had fraudulently 1339. Because petitioner’s counsel had
procured the dismissal of the habeas omitted claims that would have been
petition). Id. at 875-76. cognizable on federal habeas review, the
Rule 60(b) motion was deemed to
Under the pre-AEDPA habeas
constitute a successive habeas petition. Id.
statute, the Eighth Circuit took a position
similar to that of the Seventh. See Guinan We find the reasoning of the First,
v. Delo, 5 F.3d 313, 316 (8th Cir. 1993) Fourth, Seventh, Eighth, and Ninth
(“We do not rule out the possibility that a Circuits convincing. We are particularly
habeas case may present circumstances in persuaded by the F irst Circu it’s
which a Rule 60(b) motion might properly explanation in Rodwell v. Pepe, 324 F.3d
be examined as such rather than as a 66, 67 (1st Cir. 2003), that “AEDPA’s
subsequent habeas petition. This, restrictions on the filing of second or
however, is not such a case”). In Guinan, successive habeas petitions make it
the court stated that, had the Rule 60(b) implausible to believe that Congress
motion been timely filed, the district court wanted Rule 60(b) to operate under full
should have treated it as a second habeas throttle in the habeas context.” We
petition “because it [sought] to raise concur, and hold that, in those instances in
claims that either could have been raised in which the factual predicate of a
Guinan’s original habeas petition or were petitioner’s Rule 60(b) motion attacks the
raised therein and adjudicated.” Id. at 317. manner in which the earlier habeas
judgment was procured and not the
underlying conviction, the Rule 60(b)
In Hunt v. Nuth, 57 F.3d 1327,
motion may be adjudicated on the merits.
1338 (4th Cir. 1995), another pre-AEDPA
However, when the Rule 60(b) motion
case, the Fourth Circuit affirmed the denial
seeks to collaterally attack the petitioner’s
of a Rule 60(b) motion by a prisoner who
underlying conviction, the motion should
attempted to correct his habeas counsel’s
be treated as a successive habeas petition.
failure to include several claims in his
We believe that this rule is consonant with
initial habeas petition. The district court
Congress’s goal of restricting the
had applied the “cause and prejudice”
availability of relief to habeas petitioners.
standard for determining ineffective
142 Cong. Rec. S3446-02 (daily ed. Apr.
assistance of counsel under habeas law,
17, 1996) (Statements of Senator Hatch);
rejecting petitioner’s plea to apply the
Felker v. Turpin, 518 U.S. 651, 664
standard set forth under Rule 60(b). The
(1996). Prior to AEDPA, it was generally
court of appeals affirmed, holding that a
understood that there were no limitations
district court “may properly treat a Rule
on a prisoner’s filing successive habeas
60(b) motion as a successive habeas
petitions. Indeed, as far back as 1924, the
petition and require that the defendant
Supreme Court had noted in Salinger v.
show cause and prejudice for the failure to

7
Loisel, 265 U.S. 224, 230 (1924), that the Regarding Pridgen’s contention that
doctrine of res judicata did not apply to a his second PCRA was “properly filed” for
petition for habeas corpus. Thus, res the purposes of tolling the AEDPA statute
judicata did not prevent a prisoner from of limitations, we believe that the District
filing an endless stream of habeas Court properly regarded this argument as
petitions. AEDPA changed the landscape an attack on the habeas proceeding, rather
in 1996 by severely limiting the number of than on Pridgen’s underlying state
successive habeas petitions a prisoner is conviction. This is because Pridgen does
entitled to file, as well as the time period not argue that he is entitled to a new trial.
in which to seek relief. Fahy v. Horn, 240 Rather, he contends that the District Court
F.3d 239, 243 (3d Cir. 2001). misinterpreted Pennsylvania law and
AEDPA. Unlike the other claims in his
Against this background, we turn to
60(b) motion, this ground, if proven,
the District Court’s disposition of
would necessarily result in the reopening
Pridgen’s Rule 60(b) motion. Pridgen
of Pridgen’s federal habeas proceeding.
raised three principal issues in the motion:
This portion of Pridgen’s motion would
first, that the state court erred in its
not necessarily affect the state court
determination that his second PCRA
judgments in Pridgen’s case. Thus, as to
petition was untimely; second, that the
the “properly filed” issue, we conclude
state court lacked jurisdiction to rule that
that the District Court properly exercised
the claims raised in his second PCRA
jurisdiction without Pridgen having first
petition had been waived; and third, that
obtained Court of Appeals approval under
notwithstanding the state court’s
section 2244(b) of AEDPA.5
timeliness ruling, his second PCRA
petition was a properly filed application B.Whether the District Court properly
for state post-conviction relief or other denied Pridgen’s “properly filed” claim
collateral review under AEDPA, and it
therefore tolled the applicable section 2244
limitations period. With respect to his first As we previously stated, Pridgen
two arguments, we agree with the District claims that regardless of the state court’s
Court that Pridgen simply sought to ruling his second PCRA petition untimely,
relitigate issues that the District Court had
already considered and rejected when
5
ruling on Pridgen’s habeas petition. If Alth oug h the D istrict Court ’s
Pridgen were to succeed on these claims, disposition of the other arguments in
the result would be the reversal of the state Pridgen’s Rule 60(b) motion has not been
court judgment rejecting his second PCRA raised on appeal, we note that because
petition. The proper forum to raise these those arguments directed their attacks at
claims is in a habeas proceeding. actions of the state court, they would not
be cognizable under a Rule 60(b) motion
pursuant to the rule we set forth today.

8
the petition was a “properly filed” revisiting its prior decision that the habeas
application for state post-conviction relief petition was untimely filed. Moreover, our
under AEDPA. The District Court did not decision in Merritt v. Blaine. 326 F.3d 157
address the merits of this claim, but (3d Cir. 2003), reinforces the District
instead denied it because a prior panel of Court’s decision. In Merritt, we addressed
this Court had earlier denied Pridgen a the same argument that Pridgen makes
Certificate of Appealability (COA). The here: namely, whether an untimely
District Court reasoned that it was bound, application for state post-conviction relief
under the law of the case doctrine, by the by a petitioner was “properly filed” for
panel’s denial of a COA to Pridgen on the purposes of the federal statute’s tolling
grounds that his habeas corpus petition provisions.
was untimely. The District Court certified
In Merritt, the petitioner appealed,
this issue for appeal. We agree with the
on timeliness grounds, from the dismissal
District Court’s decision to deny relief but
of his habeas corpus petition challenging a
for reasons other than those expressed by
Pennsylvania conviction. 326 F.3d at 158-
the Court. We conclude that because the
59. After an unsuccessful direct appeal,
state court ruled that Pridgen’s second
Merritt filed a PCRA petition, which was
PCRA petition was not timely filed, it did
ultimately denied by the Pennsylvania
not toll the one-year AEDPA statute of
Supreme Court on January 17, 1995. Id. at
limitations. We therefore do not reach the
159. On December 20, 1996, Merritt filed
law of the case issue in concluding that the
a second PCRA petition in state court,
District Court was correct in dismissing
seeking to introduce new ballistics
the petition.
evidence. The Pennsylvania court denied
The standards for deciding a Rule the second PCRA petition both on the
60(b)(6) motion are well settled and merits and because it was untimely. Id. at
familiar. “[L]egal error does not by itself 160. Merritt, like Pridgen, had failed to
warrant the application of Rule 60(b). .... file his second PCRA petition in
Since legal error can usually be corrected a c c o r d a n c e w i t h t h e tim e l i n e ss
on appeal, that factor without more does requirements of 41 Pa. Cons. Stat. Ann. §
not justify the granting of relief under Rule 9545(b)(1).
60( b)(6 ).” Ma rtinez-McB ean v.
On May 5, 2000, Merritt filed a
Government of Virgin Islands, 562 F.2d,
petition for a writ of habeas corpus in
908, 912 (3d Cir.1977). In Page v.
federal district court. On appeal from the
Schweiker, 786 F.2d 150, 158 (3rd
district court’s denial of the habeas
Cir.1986), the court held that only
petition, we concluded that when a
“extraordinary, and special circumstances”
Pennsylvania court holds that a petition for
justify relief under Rule 60(b)(6). No
collateral relief is untimely, it is not
extraordinary circumstances are presented
“properly filed” under AEDPA. 326 F.3d
here that would warrant the District Court
at 166 (citing Fahy v. Horn, 240 F.3d 239

9
(3d Cir. 2001)). Furthermore, we rejected not “properly filed” and therefore did not
Merritt’s argument, which is identical to toll AEDPA’s statute of limitations.
the argument Pridgen makes here, that
IV. C ONCLUSION
even if his PCRA petition had been
dismissed as untimely, it was still In sum, we conclude that when a
“properly filed” if the applicant asserted a Rule 60(b) motion is in conflict with
statutory exception to the Pennsylvania provisions of AEDPA or is a direct attack
statute of limitations. Id. on a state conviction, it constitutes the
equivalent of a successive habeas corpus
Our decision in Merritt drew
petition and should be dismissed. We
support from Carey v. Saffold, 536 U.S.
accordingly affirm the District Court’s
214 (2002), an opinion involving
decision dismissing those portions of
California’s timeliness standard for post-
Pridgen’s Rule 60(b) motion that
conviction petitions. In California, a
represented challenges to his state
petitioner who sought to appeal the
conviction, and were not authorized under
dismissal of a state petition was required to
28 U.S.C. § 2244(b)(3). We also affirm
file a second, original petition in a higher
the District Court’s denial of Pridgen’s
state court within a “reasonable” period of
“properly filed” claim because Pridgen
time. Id. at 221. The Supreme Court held
failed to satisfy AEDPA’s limitations
that if the California petition was
period.
ultimately found untimely, AEDPA’s
statute of limitations would not be tolled
while the question of unreasonable delay
was pending before the state court. Id. at
225-26. As is the case in Pennsylvania,
the California statute of limitations for
post-conviction petitions was not an
absolute bar. Nevertheless, the Supreme
Court stated that even when the state court
considered the merits of the underlying
state claim as well as its timeliness, if the
petitioner’s delay was ultimately found to
have been unreasonable it would not toll
the AEDPA statute of limitations. Id. at
226.
As in Merritt, Pridgen was unable
to convince the Pennsylvania courts that
his second PCRA petition met one of the
state’s statutory exceptions for timeliness.
For these reasons, Pridgen’s petition was

10