Lacava v. Kyler

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

2-11-2005

Lacava v. Kyler
Precedential or Non-Precedential: Precedential

Docket No. 03-1398

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Lacava v. Kyler" (2005). 2005 Decisions. Paper 1509.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1509

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 03-1398
________________

MICHAEL LACAVA,
Appellant

v.

KENNETH D. KYLER;
THE DISTRICT ATTORNEY FOR
PHILADELPHIA COUNTY;
THE ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA
___________________________________

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 01-cv-06829)
District Judge: Honorable Berle M. Schiller
___________________________________

Argued
November 18, 2004

Before: ROTH, SMITH AND BECKER, Circuit Judges

(Filed February 11, 2005)
Joseph Leibowicz, Esquire (Argued)
James S. Malloy
Kirkpatrick & Lockhart LLP
Henry W. Oliver Building
535 Smithfield Street
Pittsburgh, Pennsylvania 15222

Attorneys for Appellant

Lynne Abraham
District Attorney of Philadelphia
Arnold H. Gordon
First Assistant District Attorney
Ronald Eisenberg
Deputy District Attorney, Law Division
Thomas W. Dolgenos
Chief, Federal Litigation
David C. Glebe, Esquire (argued)
Assistant District Attorney
1421 Arch Street
Philadelphia, PA 19102

Attorneys for Appellee
_________________

OPINION OF THE COURT
_________________

BECKER, Circuit Judge.

Michael LaCava appeals from an order of the District

2
Court which denied his petition for writ of habeas corpus as
untimely filed, rejecting his contention that equitable tolling
should apply. The appeal requires us to decide whether the
twenty-one month period that LaCava allowed to pass prior to
making inquiry into the status of his state petition for allowance
of appeal precludes a finding of due diligence and thus
application of the principle of equitable tolling, or whether the
matter should, as LaCava contends, be remanded to the District
Court for an evidentiary hearing. We hold that, under the
circumstances of this case, the twenty-one month period of
passivity precludes a finding of due diligence for purposes of
equitable tolling, and thus the necessity of an evidentiary
hearing. We will therefore affirm the order of the District Court
denying the petition as untimely.

I. FACTS AND PROCEDURAL HISTORY

LaCava was found guilty by a jury in the Philadelphia
County Court of Common Pleas of first degree murder,
aggravated assault, simple assault, possession of an instrument
of crime, and criminal conspiracy. The jury set the penalty at
death. On direct appeal, the Pennsylvania Supreme Court
affirmed LaCava’s convictions, but vacated the death sentence
and remanded the matter for a new sentencing hearing.
Commonwealth v. LaCava, 666 A.2d 221 (Pa. 1995). LaCava
was subsequently sentenced to life imprisonment on March 22,
1996, a sentence he did not appeal.

In January 1997 LaCava filed a pro se petition for
collateral relief under the Pennsylvania Post Conviction Relief
Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541-9545 (West

3
1998). Counsel was appointed and an amended post-conviction
petition was filed. The PCRA court denied LaCava’s petition
on January 27, 1999, and the Pennsylvania Superior Court
affirmed that decision in January of the following year. LaCava,
still represented by counsel, filed a request for permission to
appeal, but the Pennsylvania Supreme Court rejected the petition
in an order dated August 22, 2000.

On December 12, 2001, LaCava filed a pro se petition for
habeas corpus, presenting four claims that appellate counsel
rendered ineffective assistance. As the merits of those claims
are not at issue here, we will not set forth the specifics. The
Commonwealth answered by asserting that LaCava’s habeas
petition was time-barred and must be dismissed. The Magistrate
Judge to whom LaCava’s petition was referred issued a Report
recommending that his habeas petition be denied as untimely
under 28 U.S.C. § 2244(d). 1

1
Section 2244(d)(1) provides as follows:

A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a
State court. The limitation period shall run from
the latest of–

(A) the date on which the judgment
became final by the conclusion of direct
review or the expiration of the time for
seeking such review;

4
 The Magistrate Judge concluded that LaCava’s
conviction became final on April 21, 1996, at the expiration of
his time for seeking review with the Pennsylvania Supreme
Court. See Pa. R. App. P. 1113(a) (petition for allowance of
appeal shall be filed within thirty days from the entry of the
order of the Superior Court sought to be reviewed); see also 28
U.S.C. § 2244(d)(1)(A); Swartz v. Meyers, 204 F.3d 417, 424
(3d Cir. 2000) (“[T]he period of limitation tolls during the time
a prisoner has to seek review of the Pennsylvania Superior

(B) the date on which the impediment to
filing an application created by State
action in violation of the Constitution or
laws of the United States is removed, if the
applicant was prevented from filing by
such State action;

(C) the date on which the constitutional
right asserted was initially recognized by
the Supreme Court, if the right has been
newly recognized by the Supreme Court
and made retroactively applicable to cases
on collateral review; or

(D) the date on which the factual predicate
of the claim or claims presented could
have been discovered through the exercise
of due diligence.

28 U.S.C. § 2244(d)(1) (West Supp. 2004).

5
Court’s decision[,] whether or not review is actually sought.”).
This was three days before the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) went into effect, and hence,
pursuant to Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998),
LaCava had until April 23, 1997 to file his habeas petition.

Section 2244(d)(2) provides, however, that: “[t]he time
during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation. . . .” 28 U.S.C. § 2244(d)(2).
Accordingly, the statute was tolled when LaCava properly filed
his state post-conviction petition on January 14, 1997, and
remained tolled until August 22, 2000 when the Pennsylvania
Supreme Court denied his petition for allowance of appeal. See
Stokes v. Dist. Attorney of County of Philadelphia, 247 F.3d
539, 542 (3d Cir. 2001) (time during which state prisoner may
file certiorari petition in the United States Supreme Court from
denial of state post-conviction petition does not toll statute of
limitations). The Magistrate Judge calculated, correctly we
believe, that LaCava had approximately three and one-half
months, or until December 2000, to file a timely habeas petition.
LaCava’s petition, which was submitted to prison officials on
December 12, 2001, was filed well beyond the permissible
period. The Magistrate Judge also concluded that LaCava had
failed to satisfy any of the exceptions to the limitation period as
set forth in 28 U.S.C. § 2244(d)(1)(B)-(D).

There ensued a series of filings in which LaCava asserted
that the untimely filing could not be attributed to him because
notice of the order denying his petition for allowance of appeal

6
was delayed and he acted diligently in pursuing federal habeas
corpus relief once he did receive notice. We detail these filings
in the margin.2 Attached to LaCava’s filings were three
documents: (1) a copy of a letter from LaCava to the
Pennsylvania Supreme Court’s Deputy Prothonotary dated April
17, 2002, inquiring as to whether notice of the denial of
allocatur had been mailed to him prior to December 5, 2001; (2)
a copy of a letter from the Prothonotary’s Office dated
December 5, 2001, advising LaCava that his petition for
allowance of appeal was denied on August 22, 2000; and (3) a
copy of a letter from LaCava to his court-appointed PCRA

2
Prior to receipt of the Magistrate Judge’s Report and
Recommendation, and indeed prior to the date the M agistrate
Judge’s Report was even issued, LaCava moved, inter alia, for
leave to file a traverse to the Commonwealth’s response.
LaCava’s motion, however, was not received by the District
Court and entered on the docket until July 18, 2002, two days
after the Magistrate Judge issued her Report. LaCava filed
objections to the Report two weeks later in which he complained
that, because his motion had not been acted on before the
Magistrate Judge issued her Report, he was being precluded
from showing that his habeas petition was timely filed, using the
principle of equitable tolling. LaCava also stated that he did not
address equitable tolling in his petition because, at the time he
submitted the petition, he had not yet obtained documentary
evidence supporting his equitable tolling claim, and did not want
to flag an issue that the Commonwealth could later be deemed
to have waived. See Robinson v. Johnson, 313 F.3d 128 (3d Cir.
2002), cert. denied, 540 U.S. 826 (2003).

7
attorney dated April 17, 2002, requesting that counsel review his
records to determine if notice of the Pennsylvania Supreme
Court’s August 22 order had been mailed to LaCava at any time
in August of 2000.3

On consideration of these papers, the Magistrate Judge
issued an order permitting LaCava thirty days to file a traverse.
LaCava did so, essentially reasserting the arguments he set forth
in his previous filings. He again claimed an entitlement to
equitable tolling due to the “extraordinary circumstance” of
having received delayed notice of the state court’s disposition of
his petition for allowance of appeal. LaCava asserted that his
allegation of delayed notice – and thus the reason for his
untimely filing – was supported by the exhibits he attached to

3
LaCava further asserted that he is “actually and factually
innocent of the crimes upon which he was convicted,” and
argued that this contention overcomes the bar imposed by
AEDPA’s statute of limitations. In his subsequent papers,
LaCava pointed to trial testimony which, in his submission,
undermined his first degree murder conviction, and contends
that evidence of corruption within the 39th District of the
Philadelphia Police Department lends support to his belief that
certain police officers and Commonwealth witnesses testified
falsely at trial. Since the certificate of appealability issued by
the motions panel was limited to the equitable tolling argument
and did not extend to LaCava’s earlier alternative argument that
his claim of actual innocence could serve to overcome the time-
bar of § 2244(d)(1), we do not consider this alternative
contention.

8
his objections, see supra, which, he claims, showed that he did
not receive timely notice of the Pennsylvania Supreme Court’s
disposition from either the Prothonotary of the Pennsylvania
Supreme Court or his attorney. 4 LaCava conceded, however,
that he was unable to offer direct documentary evidence in the
form of prison logs or a letter from his attorney since no
responses were forthcoming.

In an order entered on January 10, 2003, the District
Court, after noting that it had independently considered
LaCava’s petition for writ of habeas corpus, the M agistrate
Judge’s Report and Recommendation, and LaCava’s traverse,
approved and adopted the Report and Recommendation, denied
LaCava’s habeas petition, and declined to issue him a certificate
of appealability. LaCava timely appealed. We appointed

4
Counsel states that in the course of preparing appellees’
brief he contacted the Chief Clerk of the Pennsylvania Supreme
Court. During that phone conversation, the clerk reported that
“although the paper files relating to LaCava’s request for
allocatur have not been retained, the Court’s computer records
showed that routine notice was sent to LaCava’s counsel on the
date that allocatur was denied, viz., August 22, 2000.”
Additionally, there was no indication in the records that the
notice was returned as undeliverable and had to be resent. Id.
We decline, however, appellee’s invitation to take judicial
notice of the representations made by the Chief Clerk of the
Pennsylvania State Supreme Court since they are beyond the
purview of Fed. R. Evid. 201.

9
counsel and granted a certificate of appealability as to the issue
of “whether [LaCava] timely filed his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.” 5 (Order of Court dated
12/05/03.)

The District Court had jurisdiction pursuant to 28 U.S.C.
§ 2254, and this Court has jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253. Our review of a District Court’s decision
dismissing a habeas petition on statute of limitations grounds is
plenary. See Brown v. Shannon, 322 F.3d 768, 772 (3d Cir.
2003).

II. DISCUSSION

This Court has held that AEDPA’s statute of limitations
is subject to equitable tolling. Miller v. New Jersey State Dep’t
of Corr., 145 F.3d 616, 617 (3d Cir. 1998). We have cautioned,
however, that courts should be sparing in their use of this
doctrine, Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d
236, 239 (3d Cir. 1999), applying equitable tolling “only in the
rare situation where [it] is demanded by sound legal principles
as well as the interests of justice.” United States v. Midgley, 142
F.3d 174, 179 (3d Cir. 1998) (quotation marks and citation
omitted). Equitable tolling is appropriate when “the principles
of equity would make the rigid application of a limitation period
unfair,” Miller, 145 F.3d at 618 (quotation marks and alterations

5
We express our appreciation for counsel’s able
representation of LaCava during both briefing and oral
argument.

10
omitted), such as when a state prisoner faces extraordinary
circumstances that prevent him from filing a timely habeas
petition and the prisoner has exercised reasonable diligence in
attempting to investigate and bring his claims. Fahy v. Horn,
240 F.3d 239, 244-45 (3d Cir. 2001). Mere excusable neglect
is not sufficient. Miller, 145 F.3d at 618-19; see also Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999).

LaCava contends that he is entitled to have this matter
remanded to the District Court for an evidentiary hearing on the
equitable tolling issue because he did not receive notice of the
Pennsylvania Supreme Court’s denial of his petition for
permission to appeal within the limitations period and because
he exercised reasonable diligence in filing his habeas petition
once he finally received such notice.

A. Extraordinary Circumstances

LaCava argues that his failure to receive notice of the
Pennsylvania Supreme Court’s denial of his petition for
permission to appeal constitutes extraordinary circumstances
which would warrant equitable tolling. We disagree.

We note that LaCava was represented by counsel during
his state collateral proceedings, including the filing of his
petition for allowance of appeal. Accordingly, LaCava was not
entitled to personal notice of the Pennsylvania Supreme Court’s
order. See Pa. R. App. P. 1123(a). LaCava fares no better by
implying that counsel was derelict in failing to timely notify him
of the state court’s disposition. We have stated that “[i]n
non-capital cases, attorney error, miscalculation, inadequate

11
research, or other mistakes have not been found to rise to the
‘extraordinary’ circumstances required for equitable tolling.”
Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003) (quoting
Fahy, 240 F.3d at 244); see also Johnson v. Hendricks, 314 F.3d
159, 163 (3d Cir. 2002). LaCava advances no allegations of
attorney malfeasance that would elevate this case to an
“extraordinary circumstance” sufficient to warrant equitable
tolling. Moreover, the circumstances of this case are certainly
distinguishable from that presented in Seitzinger, supra, 165
F.3d at 242, where we held that an attorney’s affirmative
misrepresentation to his client that he had filed a timely
complaint on her behalf when in fact he had not, coupled with
the plaintiff's extreme diligence in pursuing her claim, “created
a situation appropriate for tolling.”

We also find LaCava’s reliance on Valverde v. Stinson,
224 F.3d 129 (2d Cir. 2000) misplaced. The petitioner in
Valverde alleged that a corrections officer intentionally
confiscated his pro se habeas petition and related legal papers
shortly before the filing deadline, and that the officer’s seizure
“proximately caused” his failure to file the petition on time. The
Second Circuit held that, as a matter of law, this type of
intentional confiscation was an “extraordinary circumstance.”
Id. at 133. Accordingly, it remanded the matter to the District
Court for further “factual development” on the issue of whether
this circumstance prevented the petitioner from filing his
petition in a timely manner. While a possibility may exist that
an evidentiary hearing would uncover some wrongdoing on the
part of correction officers in delivering notice of the state
court’s order to LaCava, there is no allegation by LaCava that he
was prevented by prison staff from making an earlier inquiry of

12
either the state court or his attorney. Instead, LaCava concedes
that once his petition for allowance of appeal was filed in
February of 2000, he did nothing further to ensure that his
claims were proceeding properly through the state appellate
process until November 31, 2001.

B. Due Diligence

Even assuming arguendo that we agreed with LaCava’s
contention that the delayed notice he experienced constitutes
extraordinary circumstances, we nonetheless conclude that
LaCava did not exercise the requisite due diligence by allowing
more than twenty-one months to lapse from the filing of his
petition for allowance of appeal until he inquired with the
Pennsylvania Supreme Court’s Prothonotary’s Office as to its
status. We thus find no reason to remand this matter for an
evidentiary hearing. See, e.g., Robinson v. Johnson, 313 F.3d at
143 (hearing on availability of equitable tolling not warranted
where petitioner failed to show that he exercised reasonable
diligence in attempting to file a timely petition).

It is a well-established principle that, in order for
appellant to claim an entitlement to equitable tolling, he must
show that he “exercised reasonable diligence in . . . bringing
[the] claims.” Miller, 145 F.3d at 618-619 (quoting New Castle
County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir.
1997); see also Irwin v. Department of Veterans Affairs, 498
U.S. 89, 96 (1990). This obligation does not pertain solely to
the filing of the federal habeas petition, rather it is an obligation
that exists during the period appellant is exhausting state court
remedies as well. See, e.g., Jones v. Morton, 195 F.3d at 160

13
(equitable tolling is not warranted where appellant “made no
showing that he ‘exercised reasonable diligence’ in satisfying
the exhaustion requirement in order to present his claims in a
timely federal habeas petition”). The language of AEDPA itself
indicates as much, with statutory tolling being limited to
“properly filed” applications for state post-conviction or other
collateral relief. See 28 U.S.C. § 2244(d)(2); see also Artuz v.
Bennett, 531 U.S. 4 (2000); Lovasz v. Vaughn, 134 F.3d 146 (3d
Cir. 1998).

Moreover, while due diligence “does not require ‘the
maximum feasible diligence,’ . . . it does require reasonable
diligence in the circumstances.” Schlueter v. Varner, 384 F.3d
69, 74 (3d Cir. 2004). LaCava knew that he had just over three
months remaining on the one-year limitations period to file a
timely federal habeas petition. To be certain, we are not
attributing fault because LaCava waited nine months to file his
PCRA petition. See, e.g., Valverde, supra, 224 F.3d at 136
(habeas petitioner “is not ineligible for equitable tolling simply
because he waited until late in the limitations period to file his
habeas petition”). However, we believe that this is a factor to be
taken into consideration when determining whether it was
reasonable for him to wait twenty-one months before making an
inquiry to the state court or to counsel, and we conclude that it
was not.

The period at issue in the instant case is a far cry from the
other cases relied on by LaCava. In Phillips v. Donnelly, 216
F.3d 508 (5th Cir. 2000), petitioner asserted that he did not
receive the notice of denial of review for nearly four months, at
which time he unsuccessfully sought leave to file an out-of-time

14
appeal. Within one month of the state court’s denial of his
request for leave to file an out-of-time appeal, Phillips filed a
federal habeas petition. On appeal, the Court of Appeals
concluded that the delayed notice alleged by Phillips could
qualify for equitable tolling. 216 F.3d at 511. Accordingly,
given its determination that Phillips pursued his claims with
“diligence and alacrity,” the Court remanded the matter to the
District Court for an evidentiary hearing to determine the date
Phillips actually received notice of the denial. Id. Unlike the
twenty-one month period at issue in this case, the pre-notice
delay experienced by Phillips amounted to less than four
months, and the entire period from Phillips’ filing of his state
habeas petition until he actually received notice of its denial
amounted to less than seven months.

We likewise find the Eleventh Circuit’s decision in
Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002),
distinguishable. In Knight, the clerk of the state supreme court
inadvertently mailed notice of the disposition of Knight’s pro se
application for discretionary review to the wrong person.
Knight was finally notified of the court’s disposition of his
application sixteen months later after he made inquiry with the
clerk. Equitable tolling of the limitations period was found to
be warranted given the fact that Knight was a pro se prisoner
who failed to receive timely notice due to an inadvertent error
on the part of the clerk, and who, because of the clerk’s
assurance of personal notification, understandably did not make
an earlier inquiry. The facts here are very different. Of further
importance to the court was the fact that Knight, on his own
initiative and even despite the prior assurance of personal
notification, contacted the clerk after a year had passed and no

15
notice was forthcoming.6

Finally, as we recently made clear in Schlueter v. Varner,
supra, 384 F.3d 69, 74 (3d Cir. 2004), a habeas petitioner is not
excused from exercising due diligence merely because he has
representation during various stages of, or even throughout, his
state and federal proceedings. Schlueter argued for the
application of equitable tolling principles on the basis of what
he characterized as attorney malfeasance. Despite the fact that
counsel had informed Schlueter that he anticipated filing a
PCRA petition by year’s end, no such petition had been filed by
the expiration of the filing deadline the following January. We
nonetheless concluded that equitable tolling was not warranted
because Schlueter did not attempt to ascertain from his attorney,

6
The Court of Appeals was also careful to note that “not in
every case will a prisoner be entitled to equitable tolling until he
receives notice,” and that “[e]ach case turns on its own facts.”
Knight, 292 F.3d at 711; see also Miller v. Collins, 305 F.3d
491, 496 (6th Cir. 2002) (pro se petitioner was entitled to
equitable tolling where delayed notice amounted to six months
and court found that petitioner “acted diligently to protect his
rights both before and after receiving notice,” by filing a motion
with the state court when no order appeared to be forthcoming);
Jenkins v. Johnson, 330 F.3d 1146, 1155 (9th Cir. 2003)
(remanding for a determination of whether equitable tolling
should be applied where state court’s clerk’s office mistakenly
failed to send notice to counsel, the delayed notice involved only
four months, and state remedies were pursued “as expeditiously
as practically possible”).

16
prior to the expiration of the PCRA filing deadline of which he
was well aware, whether a timely petition had been filed. Id. at
76-77.

We add that we think LaCava’s concern, expressed
during oral argument, that construing the due diligence standard
to require a litigant to make an occasional status inquiry would
result in state courts being inundated with unnecessary mail is
an unwarranted one. There is no reason such letters could not
alternatively be addressed to counsel when a litigant is
proceeding with representation.

C. The District Court’s Failure to Comment

We do not believe, as the Tenth Circuit Court of Appeals
apparently did in Woodward v. Williams, 263 F.3d 1135, 1143
(10th Cir. 2001), that we are unable to engage in a meaningful
review of LaCava’s equitable tolling argument simply because
the District Court rejected the arguments contained in his
objections and traverse without comment. The District Court
represented that it had considered LaCava’s petition, the
Magistrate Judge’s Report and Recommendation, and the
traverse, which reasserted the arguments contained in LaCava’s
objections. While it is certainly preferable that the District
Court discuss the analysis it employed in considering the factors
relevant to its consideration of whether equitable tolling is
appropriate, the lack of such a written opinion does not mandate
that we vacate the District Court’s order of dismissal and
remand this matter for an evidentiary hearing. Even if we were
to conclude that LaCava was prevented by “extraordinary
circumstances” from receiving timely notice of the state court’s

17
disposition, he nonetheless failed to exercise reasonable
diligence in pursuing his claims by passively waiting twenty-one
months to make an inquiry into the status of his state
proceeding. LaCava’s initial inquiry came more than fifteen
months after the Pennsylvania Supreme Court denied his
petition for allowance of appeal. Thus, no evidentiary hearing
on the equitable tolling issue is warranted.

III. CONCLUSION

While we certainly avoid drawing bright lines when it
comes to equitable tolling, we hold that the twenty-one months
of inactivity involved here crosses the line of what constitutes
due diligence for purposes of employing that principle to save
an otherwise untimely filing. We thus conclude that LaCava
“has not alleged facts sufficient to show that ‘sound legal
principles as well as the interests of justice’ demand pursuit of
the ‘sparing’ doctrine of equitable tolling.” See Robinson, 313
F.3d at 143 (quoting Jones, 195 F.3d at 159). The order of the
District Court dismissing LaCava’s habeas petition as time-
barred will be affirmed.

18