NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-1956
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KEITH L. KAMMERDEINER,
Appellant
v.
SUPERINTENDENT ALBION SCI;
ATTORNEY GENERAL PENNSYLVANIA;
DISTRICT ATTORNEY ARMSTRONG COUNTY
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-17-cv-00808)
Honorable David S. Cercone, United States District Judge
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Submitted under Third Circuit L.A.R. 34.1(a)
October 20, 2020
BEFORE: GREENAWAY, JR., COWEN, and FUENTES, Circuit Judges
(Filed: January 21, 2021)
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OPINION
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This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.
Keith Kammerdeiner appeals from the order and judgment of the United States
District Court for the Western District of Pennsylvania dismissing his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. We will affirm.
I.
In 2013, Kammerdeiner was convicted in the Pennsylvania Court of Common
Pleas of Armstrong County of rape (threat of forcible compulsion), aggravated assault,
aggravated indecent assault (forcible compulsion), terroristic threats with intent to
terrorize another, unlawful restraint/serious bodily injury, indecent assault (without
consent of another), and risking a catastrophe. He was sentenced to an aggregate term of
120 to 240 months in prison. The state trial court denied Kammerdeiner’s motion for a
new trial on December 18, 2013, and Kammerdeiner did not file an appeal.
On October 3, 2014, Kammerdeiner filed a pro se petition for review under the
Pennsylvania Post Conviction Relief Act (“PCRA”). The state PCRA court appointed
counsel, who filed an amended PCRA petition. After an evidentiary hearing, the court
denied relief on November 16, 2015. Kammerdeiner’s counsel filed an appeal to the
Pennsylvania Superior Court, and the state intermediate appellate court affirmed the
denial of his PRCA petition on July 13, 2016.
Acting pro se, Kammerdeiner filed a § 2254 petition, which was dated June 8,
2017. The Magistrate Judge recommended “that the petition for writ of habeas corpus be
dismissed as time-barred,” because “no equitable tolling applies to remedy the
untimeliness.” (Appellant’s Brief Attached App’x at 33A.) The District Court overruled
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Kammerdeiner’s objections to the report and recommendation, which the District Court
approved and adopted as supplemented. Accordingly, the District Court dismissed the
habeas petition as untimely (and denied any certificate of appealability).
Kammerdeiner appealed and filed an application for a certificate of appealability.
This Court granted his request for a certificate of appealability as to two issues:
As jurists of reason could reasonably debate these issues, the foregoing
application for a certificate of appealability is granted as to: (1) whether the
District Court correctly concluded, without holding an evidentiary hearing,
that equitable tolling was not warranted to excuse the untimeliness of
Kammerdeiner’s habeas petition, see Nara v. Frank, 264 F.3d 310, 320 (3d
Cir. 2001), overruled in part on other grounds by Carey v. Saffold, 536 U.S.
214 (2002); and (2) whether the District Court erred in dismissing, as
procedurally barred, Kammerdeiner’s claim that counsel was ineffective for
failing to file a direct appeal, see Martinez v. Ryan, 566 U.S. 1, 9 (2012).
We are satisfied that this claim “states a valid claim of the denial of a
constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). A
certificate of appealability is denied as to the other claims.
(Id. at 34A.) This Court also appointed counsel to represent Kammerdeiner.
II.
“Appellant concedes that if equitable tolling does not apply, then his Habeas
petition is late” (Appellant’s Brief at 18).1 See, e.g., 28 U.S.C. § 2244(d)(1)(A), (d)(2).
Kammerdeiner argues that the District Court erred by concluding that equitable tolling
1
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 2254,
and we have appellate jurisdiction under 28 U.S.C. § 1291. We generally exercise de
novo review over a district court’s application of the equitable tolling doctrine. See, e.g.,
Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012). The district court retains
discretion to grant an evidentiary hearing. See, e.g., Schriro v. Landrigan, 550 U.S. 465,
473 (2007). In deciding whether to grant an evidentiary hearing, the district court
considers whether such a hearing could enable a petitioner to prove factual allegations
that, if true, would entitle the petitioner to relief. See, e.g., id. at 474.
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was not warranted in this case without even holding an evidentiary hearing. According to
him, he was entitled to at least an evidentiary hearing on equitable tolling on account of
his own mental health issues and because he was abandoned by both trial counsel as well
as his PCRA attorney. We, however, conclude that the District Court properly disposed
of his federal habeas petition on timeliness grounds.
Mental illness does not constitute a per se reason to toll the limitations period, and,
in order to warrant equitable tolling, “the alleged mental incompetence must somehow
have affected the petitioner’s ability to file a timely habeas petition.” Nara, 264 F.3d at
320 (citing Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)).
Kammerdeiner has presented evidence of some serious episodes of mental illness.
However, the evidence is primarily concerned with the circumstances surrounding his
arrest and subsequent trial. For example, he was admitted to the psychiatric emergency
department for overnight observation on the night of the incident, diagnosed with an
altered mental status with a principal diagnosis of psychosis, and, according to his own
trial counsel, acted somewhat erratically at his preliminary hearing and his behavior
became even more outlandish during the trial itself.
Kammerdeiner’s appellate briefing does not offer any explanation for how his
mental health problems hindered his ability to file a timely habeas petition. Instead, he
simply cites in general to his mental health records and claims in a conclusory fashion
that his long history of mental illness “undoubtedly affects his ability to comprehend the
status of his case and his ability to pursue his own case.” (Appellant’s Brief at 25 (citing
App’x Vol. II at 286A).) Furthermore, he contends that “it was not until Appellant met
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an individual in jail [a prisoner named Ross Nicholas] who was willing to help him [that
he could] file or even understand his option to file a habeas petition.” (Id. at 25-26
(citing App’x Vol. I at 21A).) This individual (who Kammerdeiner had met during a
mental health support group at the prison) was not a mental health professional and
simply averred (without any further explanation) that “I assisted in the drafting of the
federal habeas petition and supporting memorandum” based “on the limited information I
was able to obtain from Mr. Kammerdeiner due to his mental illness.” (App’x Vol. I at
47A.) We further note that, despite his mental health issues, Kammerdeiner was still able
to file a pro se PCRA petition in a timely fashion and to testify at the subsequent
evidentiary hearing conducted by the PCRA court (and was then able to file a federal
habeas petition and obtain a certificate of appealability).
According to Kammerdeiner, he was abandoned by both his trial counsel, “who
did not file a direct appeal on his behalf, despite Appellant requesting such” (Appellant’s
Brief at 19), and by his PCRA counsel, with whom he “had no further contact” after the
denial of his PCRA petition and who, “unbeknownst to Appellant, filed an appeal and
brief with the Pennsylvania Superior Court” while then failing to “advise Appellant of
any other options after the appeal was denied” (id. at 25 (citing App’x Vol. I at 25A)).2
He further asserts that “Appellant requested his case file and documents from his PCRA
attorney and was never given such.” (Appellant’s Brief at 19; see also, e.g., App’x Vol. I
at 47A (Nicholas averring that “Mr. Kammerdeiner only had a state court docketing
2
James H. Wray, Esq., represented Kammerdeiner at trial, and Linda L.
Ziembicki, Esq., was appointed counsel for his PCRA proceedings. According to
Kammerdeiner, his PCRA attorney was disbarred in 2019 for unknown reasons.
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statement and all attempts to retrieve the case record from counsel and the state court
have been ignored”).)
“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstances stood
in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). We have recognized that
attorney malfeasance, when combined with reasonable diligence on the part of the
petitioner, may trigger equitable tolling. See, e.g., Ross v. Varano, 712 F.3d 784, 800 (3d
Cir. 2013). However, Kammerdeiner’s vague assertions that he tried to obtain his case
records were clearly insufficient to establish that he was acting with reasonable diligence
in pursuing his own rights.
In addition, he was still able to file both a (timely) PCRA petition as well as an
(untimely) federal habeas petition without the case documents (or the benefit of counsel).
Kammerdeiner v. Clark, 2:17cv808, 2019 WL 1458683, at *2 (W.D. Pa. Apr. 2, 2019)
(“Kammerdeiner did in fact file the instant petition although he apparently still does not
have his case documents. Thus, Kammerdeiner cannot persuasively argue that his
inability to procure his case file hindered his ability to timely file his Petition.”).
Likewise, there is no indication that Kammerdeiner ever notified the state courts that both
trial and PCRA counsel had abandoned him. See, e.g., id. (observing, inter alia, that
issue of trial counsel abandonment with respect to direct appeal was not raised in pro se
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PCRA petition).3
III.
For the foregoing reasons, we will affirm the order and judgment of the District
Court.
3
Because we conclude that the habeas petition was untimely and that the District
Court appropriately disposed of his equitable tolling allegations, we need not—and do
not—decide whether the District Court erred in dismissing as procedurally barred
Kammerdeiner’s claim that counsel was ineffective for failing to file a direct appeal.
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