Douglas v. Horn

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

2-9-2004

Douglas v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 02-2339

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Recommended Citation
"Douglas v. Horn" (2004). 2004 Decisions. Paper 961.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/961

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 PRECEDENTIAL Defender Association of Philadelphia
Federal Court Division
UNITED STATES COURT OF The Curtis Center - Suite 545 West
APPEALS Independence Square West
FOR THE THIRD CIRCUIT Philadelphia, PA 19106

Attorneys for Appellant
No. 02-2339
David Curtis Glebe
Assistant District Attorney
ROBERT DOUGLAS, Thomas W. Dolgenos
Chief, Federal Litigation
Appellant Ronald Eisenberg
Deputy District Attorney,
v. Law Division
Arnold H. Gordon
MARTIN HORN, Commissioner, First Assistant District Attorney
Pennsylvania Department of Lynne Abraham
Corrections; DONALD VAUGHN, District Attorney
Superintendent of the State 1421 Arch Street
Correctional Institution at Graterford Philadelphia, PA 19102-1582

Attorneys for Appellees
On Appeal from the United States
District Court for the Eastern District
of Pennsylvania OPINION OF THE COURT
(D.C. Civ. No. 00-4935)
Honorable John R. Padova,
District Judge GREENBERG, Circuit Judge.

This matter comes on before this
Submitted under Third Circuit court on appeal from an order of the
LAR 34.1(a) January 12, 2004 district court dated April 12, 2002, and
entered on April 15, 2002, denying the
BEFORE: BARRY, SMITH, and petition of Robert Douglas (“Douglas”)
GREENBERG, Circuit Judges for habeas corpus relief under 28 U.S.C.
§ 2254 on the ground that it was
(Filed: February 9, 2004) untimely under 28 U.S.C. § 2244(d)(1).
The district court had jurisdiction
pursuant to 28 U.S.C. § 2254 and we
Matthew Lawry have jurisdiction pursuant to 28 U.S.C.
James J. McHugh, Jr. §§ 1291 and 2253(c)(1)(A). Our review
of the order denying the habeas petition filed a “no merit” letter with the court
as time-barred is plenary. See Johnson v. which thereafter dismissed Douglas’s
Hendricks, 314 F.3d 159, 161 (3d Cir. petition. Douglas again appealed to the
2002). For the reasons stated herein, we Superior Court, but that court affirmed
will affirm the district court’s order. the dismissal on July 15, 1999, partially
on the merits and partially for procedural
reasons.2

I. BACKGROUND Thereafter, Douglas attempted
to submit a motion for reconsideration to
On April 2, 1982, a jury in the the Superior Court, but the court’s
Court of Common Pleas of Philadelphia prothonotary returned the motion to him,
County, Pennsylvania, found Douglas originally for procedural reasons and
guilty of conspiracy, aggravated assault, then, when Douglas resubmitted it,
robbery, and possession of an instrument because it was untimely. When the
of crime. On July 10, 1984, the trial prothonotary returned it the second time,
court sentenced him to a total period of he informed Douglas in his letter that if
incarceration of 20 to 40 years. Douglas Douglas planned to appeal to the
appealed, but the Pennsylvania Superior Pennsylvania Supreme Court, his petition
Court affirmed on December 13, 1985. for allowance of appeal was required to
Douglas did not file a timely petition for be postmarked by August 16, 1999.
allocatur with the Pennsylvania Supreme Douglas, however, did not meet that
Court but did file a request for deadline but instead, on September 10,
permission to appeal nunc pro tunc 1999, submitted a petition for allowance
which that court denied on October 5, of appeal nunc pro tunc to prison
1987. Thus, the proceedings on his officials at his place of confinement for
direct appeal were concluded at that mailing to the Pennsylvania Supreme
time. Court. The officials apparently did mail
the petition as he requested and it was
On December 16, 1996, Douglas filed on September 14, 1999. But on
filed a pro se petition for post conviction January 28, 2000, the Supreme Court
relief under the Post Conviction Relief denied his request. On February 4, 2000,
Act (“PCRA”), 42 Pa. Cons. Stat. Ann. Douglas moved for reconsideration of
§§ 9541 et seq. (West 1998 & West the denial, but on June 12, 2000, the
Supp. 2003), in the common pleas court.1
Douglas’s appointed counsel, however, 2
We note that the Superior Court
indicated in its opinion that the jury
1
The appellees do not contend that this found Douglas guilty on March 29, 1982,
petition was not filed properly under 28 though he indicates that the correct date
U.S.C. § 2244(d)(2). was April 2, 1982.

2
court denied this motion. As of that date, almost timely as the court counted 374
then, his state post conviction relief untolled days after the effective date of
proceedings were exhausted. the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”) before Douglas
On September 29, 2000, filed his federal habeas petition on
Douglas filed a petition for a writ of September 29, 2000. As will be seen
habeas corpus pursuant to 28 U.S.C. § below, if Douglas had filed his habeas
2254 in the district court. The court corpus petition within one year of the
referred the petition to a magistrate judge effective date of that statute (excluding
who, on September 28, 2001, tolled periods), it would have been
recommended that the court deny it as timely. On the other hand, inasmuch as
untimely. On April 12, 2002, the district the magistrate judge did not recommend
court adopted the magistrate judge’s tolling during the period in which
recommendation and denied Douglas’s Douglas’s petition for allowance of
petition as time-barred. appeal nunc pro tunc and the motion for
reconsideration of the order denying the
The district court and the petition were pending, she calculated that
magistrate judge made significantly Douglas’s federal petition was almost
different calculations with respect to the nine months late.
timeliness of the petition, though their
conclusion that it was untimely was the Douglas then appealed and we
same. The difference was that the treated his notice of appeal as a request
district court, but not the magistrate for a certificate of appealability under 28
judge, assumed that the time for filing U.S.C. § 2253(c)(1). On February 25,
the petition had been tolled during the 2003, we issued a certificate of
period in which Douglas’s petition for appealability on the following question:
allowance of appeal nunc pro tunc and
subsequent motion for reconsideration Whether the District
were pending in the post conviction Court erred by
relief proceedings in the Pennsylvania dismissing Appellant’s
Supreme Court. Nevertheless, the petition for a writ of
district court would not toll the period habeas corpus as time-
between January 28, 2000, when the barred by the one-year
Supreme Court denied Douglas’s petition period of limitation
for allowance of appeal nunc pro tunc, prescribed in 28 U.S.C.
and February 4, 2000, when he moved § 2244(d)(1) without
for reconsideration of the denial. statutorily tolling the
period of time from
Under the district court’s September 10, 1999
calculations, Douglas’s petition was (the date Appellant’s

3
 petition for allowance the period of September 10, 1999,
of appeal nunc pro tunc through June 12, 2000, in our certificate
was filed with the of appealability, in fact, as we have
Pennsylvania Supreme explained, the district court did toll the
Court) through June 12, running of the statute of limitations
2000 (the date the during that period except for the time
Pennsylvania Supreme between when the Supreme Court denied
Court denied Douglas’s petition for allowance of an
Appellant’s motion for appeal nunc pro tunc and when he filed
reconsideration). his motion for reconsideration of that
denial. In view of our granting the
A. 35.3 Notwithstanding the reference to certificate of appealability, the appeal has
gone forward. See 28 U.S.C. §
3
2253(c)(1)(A).
Douglas moved in this court for an
order expanding the scope of the
certificate of appealability but on July 21,
2003, we denied his motion.
Nevertheless, in our order we invited
supplemental briefing based on these mailbox rule. See Brown v.
observations: Shannon, 322 F.3d 768, 771
n.3 (3d Cir. 2003) (citing
In conducting its statutory Commonwealth v. Jones,
tolling analysis, the District 700 A.2d 423, 426 (Pa.
Court ultimately concluded 1997)). Additionally, the
that 374 days lapsed before District Court declined to
Appellant filed his federal statutorily toll the six-day
habeas petition. We are period between January 28,
persuaded that jurists of 2000, and February 4, 2000.
reason would debate the See Nara v. Frank, 264 F.3d
correctness of this 310, 319 (3d Cir. 2001).
conclusion for the following
two reasons. First, the Supp. A. 1-2. Of course, in view of our
District Court found that result there could not be any tolling
236 days lapsed before during the six-day period as that period
Appellant filed his petition was nothing more than a gap in the nunc
for postconviction relief pro tunc proceedings which themselves
filed on Monday, December did not trigger a tolling period. As we
16, 1996, without extending explain below, we have no need to
Appellant the benefit of consider the mailbox rule question. See
Pen nsylvania’s prison infra n.6.

4
 II. DISCUSSION tolling of the one-year clock.5

The AEDPA established a one- The one-year period is, however,
year limitation period for the filing of not an absolute limit. For example, 28
petitions of habeas corpus by state U.S.C. § 2244(d)(2) (“section
prisoners which has been codified at 28 2244(d)(2)”), which is involved here,
U.S.C. § 2244(d)(1) (“section provides for “statutory tolling” in the
2244(d)(1)”).4 Douglas’s conviction following circumstance:
became “final” before the AEDPA came
into effect on April 24, 1996, and thus The time during which
his one-year period for filing a habeas a properly filed
petition began running on that date. See application for State
Burns v. Morton, 134 F.3d 109, 111 (3d post-conviction or other
Cir. 1998) (establishing a one-year collateral review with
“grace period” for petitioners whose respect to the pertinent
convictions became “final” before the judgment or claim is
AEDPA became effective). pending shall not be
Accordingly, his petition would have counted toward any
been due by April 23, 1997, absent any period of limitation
under this subsection.

4
In this appeal, Douglas contends that he
Section 2244(d)(1) provides in was entitled to statutory tolling during
relevant part: the entire pendency of his nunc pro tunc
petition in his post conviction relief
A 1-year period of limitation proceedings before the Pennsylvania
shall apply to an application Supreme Court including the period the
for a writ of habeas corpus district court excluded from tolling after
by a person in custody the Supreme Court denied his petition
pursuant to the judgment of
a State court. The limitation
5
period shall run from the In Burns v. Morton, we indicated that
latest of -- a petition filed “on or before April 23,
(A) the date on which the 1997, may not be dismissed for failure to
judgment became final by comply with § 2244(d)(1)’s time limit.”
the conclusion of direct 134 F.3d at 111. Arguably we should
review or the expiration of have used April 24, 1997, rather than
the time for seeking such April 23, 1997, as the cut-off date. See
review. Fed. R. Civ. P. 6(d). In these
proceedings, however, the one-day
discrepancy is not germane.

5
and until he sought reconsideration from We therefore conclude that Douglas’s
that court and the period during which habeas filing on September 29, 2000,
his motion for reconsideration was was more than nine months late.
pending.
We reject Douglas’s contention
We calculate Douglas’s one- that the clock should be tolled during the
year “grace period” as follows. The following time-frames: (1) from the
period ran without interruption from filing of his nunc pro tunc petition in the
April 24, 1996, the effective date of the post conviction relief proceedings before
AEDPA, to December 16, 1996, when the Pennsylvania Supreme Court through
Douglas filed his PCRA petition. Thus, the denial of that petition; (2) from the
without taking a potential four-day filing of his motion to reconsider the
tolling under Pennsylvania’s prisoner denial of his nunc pro tunc petition
mailbox rule into account, 236 days had through the denial of the motion to
run on his clock.6 His PCRA petition reconsider; and (3) during the time gap
statutorily tolled the limitations period between the denial of his nunc pro tunc
until August 16, 1999, the last date by petition and the filing of his motion to
which he timely could have appealed the reconsider the denial of his nunc pro tunc
denial of his PCRA petition to the petition.7
Pennsylvania Supreme Court. See
Swartz v. Meyers, 204 F.3d 417, 424 (3d We decline to toll any of these
Cir. 2000). The clock then ran from time frames because we hold that
August 16, 1999, to December 23, 1999,
thereby exhausting the 129 days 7
remaining on his 365-day grace period. Douglas also argues for equitable
tolling from August 16, 1999 (the last
date upon which he timely could have
6
Douglas argues that although his appealed the denial of his PCRA petition
PCRA petition was filed on December to the Pennsylvania Supreme Court) until
16, 1999, according to the mailbox rule it the date of filing of his nunc pro tunc
should be deemed to have been filed on petition. His position is meritless
December 12, 1996, the day he gave it to because he has made no showing of an
prison authorities for filing. Appellees “extraordinary” circumstance that would
contend that the mailbox rule had not allow such tolling. See Miller v. New
been established under Pennsylvania law Jersey State Dept. of Corr., 145 F.3d 616,
at the time that Douglas submitted his 618 (3d Cir. 1998) (equitable basis for
PCRA application. We decline to tolling may be shown “when the
address this issue because under our petitioner has in some extraordinary way
conclusions, Douglas’s petition is . . . been prevented from asserting his or
untimely regardless of whether he is her rights”) (citation and internal
credited with these four days. quotation marks omitted).

6
Douglas’s nunc pro tunc petition was not Id. at 775 n.5 (citations omitted). 8
“properly filed” under the AEDPA. In Likewise, in Swartz v. Meyers, 204 F.3d
determining whether a petition is at 424 n.6, we noted that we “agree that
“properly filed,” a federal court “must the time during which Swartz’s nunc pro
look to state law governing when a tunc request for allowance of appeal was
petition for collateral relief is properly pending does not toll the statute of
filed.” Fahy v. Horn, 240 F.3d 239, 243 limitation.” 9 Consistently with these
(3d Cir. 2001). We recognized in Brown views, we hold herein that Douglas’s
v. Shannon, 322 F.3d 768 (3d Cir. 2003), nunc pro tunc petition was not properly
that a notice of appeal nunc pro tunc is filed, and thus did not toll the clock. By
filed improperly as a matter of state law, extension, neither Douglas’s motion to
noting as follows: reconsider the denial of that petition, nor
the time between the two filings,
Pennsylvania law thus constituted grounds for statutory tolling.
did not (and does not)
recognize extra-PCRA We thus reject the district
petitions like Brown’s court’s determination in Chhoeum v.
notice of appeal nunc Shannon, 219 F. Supp. 2d 649, 652 (E.D.
pro tunc. Because such Pa. 2002), that the petitioner’s
petitions are improperly application in that case for allowance of
filed as a matter of state appeal nunc pro tunc tolled the statute of
law, it seems doubtful
that they may be
8
deemed ‘properly filed’ In Brown v. Shannon, we indicated
within the meaning of § that we were not “address[ing]” certain
2244(d)(2) . . . . of the petitioner’s contentions but rather
Permitting petitions not merely making “several observations”
recognized under state regarding them because even if we
law and improperly accepted his arguments his petition
filed as a matter of state would have been untimely. 322 F.3d at
law to toll the limitation 774-75.
period would not seem 9
to promote exhaustion We recognize that in Swartz our
in the manner comments with respect to the statute of
contemplated by the limitations not being tolled during the
AEDPA. time that a nunc pro tunc request for
allowance of appeal was pending were
not necessary to our result inasmuch as
the petitioner’s petition for habeas corpus
was timely without regard for that period.
See Swartz, 204 F.3d at 424-25.

7
limitations until that request had been that Nara be applied so broadly that by
denied. We note that Nara v. Frank, 264 filing a nunc pro tunc petition for leave
F.3d 310, 316 (3d Cir. 2001), in which to appeal a petitioner could obtain further
we held that a state-court motion to tolling after the time for even
withdraw a guilty plea nunc pro tunc was discretionary review of a judgment has
“properly filed,” and on which the expired. See Kapral v. United States,
district court relied in Chhoeum, is 166 F.3d 565, 577 (3d Cir. 1999).
distinguishable because Nara involved a
nunc pro tunc petition that was filed at Accordingly, we conclude that
what reasonably may have been Douglas’s one-year grace period should
considered the suggestion of the Superior not be tolled during the pendency of his
Court and because that motion was nunc pro tunc petition from September
denied for substantive reasons, rather 10, 1999, when he submitted it to the
than a failure to follow the state’s filing prison officials, through June 12, 2000,
rules.10 See Merritt v. Blaine, 326 F.3d when the Pennsylvania Supreme Court
157, 165-66 & n.6 (3d Cir. 2003) (noting denied his motion for reconsideration of
same and holding that because its denial of his petition for allowance of
petitioner’s second PCRA petition was his appeal nunc pro tunc. Consequently,
untimely under state law, it was not his petition for habeas corpus was
“properly filed” for purposes of the untimely and the district court properly
AEDPA). 11 We certainly did not intend denied it.

10
In Chhoeum the district court cited
Swartz but did not mention it for the III. CONCLUSION
point in our quotation of that case above.
11
For the foregoing reasons, we
We reject Douglas’s claim that his will affirm the order of the district court
nunc pro tunc petition should be dated April 12, 2002, and entered April
considered properly filed under 15, 2002.
Commonwealth v. Hernandez, 817 A.2d
479 (Pa. 2003), which held that a nunc
pro tunc petition should not have been
dismissed as improper when it was filed direct appeal . . . .” Id. at 570. In our
prior to the Pennsylvania Supreme view, Hernandez does not help Douglas
Court’s decision in Commonwealth v. here because he filed his nunc pro tunc
Lantzy, 736 A.2d 564 (Pa. 1999). Lantzy petition approximately two months after
held that “the PCRA provides the the Supreme Court decided Lantzy. By
exclusive remedy for post-conviction that time, the window that Hernandez
claims seeking restoration of appellate retroactively opened for a pre-Lantzy
rights due to counsel’s failure to perfect a nunc pro tunc appeal had been closed.

8