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, 120 S.Ct. 1029, 145 L.Ed.2d 985 (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 paid-for legal services.17 Irony becomes Kafkaesque when the latter act of malfeasance shelters from review the former act of malfeasance.
I cannot in good conscience bury Schlueter’s case before it sees the light of day. AEDPA confers on federal courts the authority equitably to toll its limitations period in the interest of justice. If any case is ripe for exercise of that power, this one is. Accordingly, I respectfully dissent.
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As the majority explained, Schlueter’s habeas petition would ordinarily have been *80due on April 23, 1997. See Douglas v. Horn, 359 F.3d 257, 261 (3d Cir.2004). He did not file his petition, however, until October 12, 2000. Thus the petition was timely only if the limitations period was tolled. ■ ‘
The AEDPA filing deadline is subject to equitable tolling “when the principles of equity would make the rigid application of a limitation period unfair.” Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998) (internal quotation omitted). While this principle on its face is broad, it is to be applied sparingly. Equitable tolling is appropriate when “the petitioner has in some extraordinary way been prevented from asserting his or her rights. . The petitioner must show that, he or she exercised reasonable diligence in investigating and bringing the claims.” Id. at 618-19 (internal quotations omitted); see also Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999).
We have concluded, as a general matter, that attorney error is not so “extraordinary” as to justify equitable tolling. See, e.g., Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir.2002). This rule makes sense, as attorney error is normally attributed to the client. See, e.g., United States v. Boyle, 469 U.S. 241, 250, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985). But it does not follow that tolling based on deception of the kind alleged by Schlueter in this case is also foreclosed.
Schlueter and his parents wrote to and called Lauer on many occasions over a period of several months. He falsely assured them that he was preparing a PCRA petition and would timely file. But he made no such preparations. After allowing the deadline to pass, he ceased all communication with the Schluetérs. He did not return their many phone calls or letters, nor did he timely return Schlueter’s files despite 'repeated requests from Schlueter and his new counsel. Lauer’s intentional abandonment of Schlueter’s case cannot plausibly be labeled “error.” His behavior, I believe, was sufficiently egregious to bring it “within the narrow line of cases in which lawyer misconduct justifies equitable tolling.” Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 238 (3d Cir.1999).
The • law of agency provides a useful framework for understanding the distinction between error and misconduct. See Baldayaque v. United States, 338 F.3d 145, 154 (2d Cir.2003) (Jacobs, J., concurring). Ordinarily, “[ajttorney ignorance or inadvertence” does not excuse a petitioner’s non-compliance with AEDPA, because “the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (rejecting attorney error as “cause” for procedurally defaulted habeas claims); see also McCarthy v. Recordex Serv., Inc., 80 F.3d 842, 853 (3d Cir.1996) (“It is, of course, beyond cavil that the attorney-client relationship is an agent-principal relationship.”). We assume, for better or worse, that a lawyer is acting as the petitioner’s agent, and the petitioner therefore “bear[s] the risk of attorney error.” Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546; cf. Link v. Wabash R.R. Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (“[E]ach party is deemed bound by the acts of his lawyer-agent. ...”).
But it is a fundamental principle of agency law that the knowledge of an agent is not attributed to the principal when the agent is acting in a manner adverse to the interests of the principal. Restatement (Third) of Agency § 5.04 (Tentative Draft No. 4 2003) (“Notice is not imputed to the principal of a fact that an agent knows or has reason to know if the agent acts ad*81versely to the principal in a transaction or matter for the agent’s own purposes.... ”). Mere attorney error does not constitute an “extraordinary circumstance” because a circumstance, to be extraordinary, must be beyond the prisoner’s control. Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000). Thus, we have. explained, a client who relies on the faulty advice of his lawyer has not encountered an obstacle to filing that is external to his conduct. Johnson, 314 F.3d at 162-63. Conversely, when, as here, an attorney ceases altogether to serve the interests of his client, the law of agency is clear that the attorney acts alone.
This central tenet-that attorney malfeasance should not be attributed to the client-paves any number of parallel paths to tolling in this case. We might conclude that Schlueter, had Lauer not represented that he was acting on the case, would timely have filed a petition under Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann. § 9541, et seq., prior to the deadline that would have presented Blasco’s clear conflict as trial counsel. Thus we might equitably toll the statute from April 24, 1996, the day it began to run, to December 9, 1997, the day that Schlueter’s new counsel was put on notice of the relationship between Blasco and Narlesky.18 We might hold *82that equity requires us to toll the statute to the day that Schlueter’s habeas petition was finally filed. Or'we might even conclude that Schlueter falls within the ambit of § 2244(d)(1)(D), because the conflict of interest, though discoverable by ■ Lauer based on his alleged knowledge of Blasco and Narlesky’s office sharing arrangement, was not reasonably ascertainable by an incarcerated inmate who was forestalled from pursuing his case by the false assurances of a third party.19
Other, courts have applied equitable tolling under circumstances like these. In Baldayaque, 338 F.3d at 152, for example, an attorney failed timely to file a § 2255 motion requested by his client and made inadéquate efforts to communicate with him. The Second Circuit held that the attorney, “[b]y refusing to do what was requested by his client on such a fundamental matter, ... violated a basic duty of an attorney to his client.” His actions, the Court continued, “were far enough outside the range of behavior that reasonably could be expected by a client that they may be considered ‘extraordinary’ ” and thereby “justify the application of equitable tolling to the one-year limitations period of AEDPA.” Id. at 152-53. See also Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir.2003) (“Based upon the unique facts of this case, where an attorney was retained to prepare and file a petition, failed to do so, and disregarded requests to return the files pertaining to ■ petitioner’s case until well after the date the petition was due, we agree that equitable tolling of the deadline is appropriate.”); United States v. Wynn, 292 F.3d 226, 230 (5th Cir.2002) (“Wynn’s allegation that he was deceived by his attorney into believing that a timely § 2255 motion had been filed on his behalf presents a ‘rare and extraordinary circumstance’ beyond petitioner’s control that 'could warrant equitable tolling of the statute of limitations.”); cf. Doherty v. Teamsters Pension Trust Fund of Phila. & Vicinity, 16 F.3d 1386 (3d Cir.1994) (tolling based on the death of the petitioner’s attorney).
In our Circuit, the principal case on point is Seitzinger. It involved a Title VII claim, though we have since applied its reasoning to habeas cases. See, e.g., *83Brown v. Shannon, 322 F.3d 768, 774 (3d Cir.2003). The Supreme Court has cautioned that in the Title VII context “the principles of equitable tolling ... do not extend to what is at best a garden variety claim of excusable neglect.” Irwin v. Dep’t Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Our task in Seitzinger was to decide whether misconduct by the plaintiffs attorney was merely “garden variety” or, rather, was something more egregious. The plaintiff alleged that she repeatedly asked her attorney whether he had filed a complaint, and each time he misrepresented to her that he had. Under these circumstances, we concluded that equitable tolling was appropriate. Seitzinger, 165 F.3d at 241.
Of course, Seitzinger also requires that the client be “reasonably diligent” in pursuing his or her claims. But the facts of Seitzinger leave little doubt that Schlueter has met that burden. In concluding that the plaintiff in Seitzinger was diligent, we emphasized that she: (1) hired an attorney to file her civil complaint; (2) “contacted him before the filing deadline, which she knew about in broad terms, to ensure that he had filed the complaint”; and (3) repeatedly called him in order to obtain a copy of the complaint and monitor the status of her case. Id. at 241. All of these factors are true in Schlueter’s ease as well. In fact, Schlueter and his family were, if anything, more diligent. They apprised their attorney of the precise filing deadline (whereas Seitzinger was aware, “in broad terms,” that a deadline existed) with ample time to prepare a petition. In addition to their phone calls, the Schlueters wrote several letters seeking to ensure that the PCRA. petition would be filed prior to the deadline. And they received written assurances that a petition would timely be filed.
Once the deadline had passed, the Schlueters did everything that could reasonably be expected of them. When their phone calls from Lauer were not returned, they wrote to the clerk’s office directly. That office did not respond until March 18, 1997. The time between the Schlueters’ discovery of Lauer’s failure to file and their retaining new counsel was just over two months. After that, matters were largely out of Schlueter and his counsel’s hands. Lauer simply did not turn over the files for many months.
The majority dismisses Schlueter’s efforts as inadequate. They suggest that he was not entitled to rely on the two written assurances by the attorney whom he had hired to pursue his case; rather, on New Year’s Day of 1997, he should have ascertained whether Lauer had indeed filed as promised. Never mind that Lauer had ceased to return phone calls on Schlueter’s behalf. Never mind that when the Schlueters, having received no word from Lauer for months, inquired with the clerk’s office whether a petition had been filed, it was nearly forty days before they received a response. Schlueter, says the majority, might have done more.
This, I suppose, is theoretically true. But it blinks reality to suggest that Schlueter might have retained substitute counsel willing to prepare a petition within the two short weeks between the end of 1996 and the PCRA filing deadline. Still, he might have filed his own PCRA petition pro se, just in case. That would have been supremely diligent.
But supreme diligence is not required. On the contrary, the standard is a relatively modest one. Schlueter’s diligence need only have been reasonable under the circumstances. Cf. Baldayaque, 338 F.3d at 153 (“The standard is not ‘extreme diligence’ or ‘exceptional diligence,’ it is reasonable diligence.”) (emphasis in text). I *84believe that Schlueter’s protracted efforts handily qualify. But if the majority is not convinced, it seems to me better to remand for the District Court to consider this issue in the first instance rather than dismiss outright his habeas petition. See id.
. 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 Seit-zinger 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, 116 S.Ct. 1293, 134 L.Ed.2d 440 (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.
. At the very least, I would remand for a determination by the District Court whether Lauer, reputed to be well qualified, did in fact affirmatively mislead his client. See, e.g., United States v. Wynn, 292 F.3d 226, 230 (5th Cir.2002) (remanding for hearing to determine whether defendant was obligated to undertake further inquiry upon receipt of a letter from the court stating that no petition under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA”) had been filed, when attorney allegedly told the defendant's father that no record of his filing existed because the petition was filed directly with the judge).
. Tolling for this minimum duration saves Schlueter’s claim only if we also toll pending resolution of the state-court proceedings. The analysis is complex, but it can be summarized as follows.
On February 3, 1998, Schleuter filed a petition for post-conviction relief under PCRA. He argued that his PCRA petition should be deemed timely because the delay in filing was based on ineffective assistance of counsel retained to file the petition. In June 1998 he separately filed a petition to appeal nunc pro tunc. The PCRA Court denied the PCRA petition as untimely and rejected Schlueter’s request for an appeal nunc pro tunc. On October 22, 1999, the Pennsylvania Superior Court affirmed. Schleuter's subsequent petition for allowance of an appeal was denied by the Pennsylvania Supreme Court on August 28, 2000.
I note first that statutory tolling will not save Schlueter’s claim. 28 U.S.C. § 2244(d)(2) provides 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 under this subsection.” But neither the PCRA petition nor the nunc pro tunc petition was "properly filed” for the purposes of Pennsylvania law. Our Court has stated that "an untimely PCRA petition does not toll the statute of limitations for a federal habeas corpus petition.” Merritt v. Blaine, 326 F.3d 157, 165 (3d Cir.2003). Nor is statutory tolling available based on the nunc pro tunc petition, notwithstanding our recent, decision in Douglas v. Horn, 359 F.3d 257, 263 n. 11 (3d Cir.2004). Douglas suggested that statutory tolling might apply to nunc pro tunc petitions filed before the Pennsylvania Supreme Court’s decision in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), which reversed a series of decisions by Pennsylvania lower courts indicating that nunc pro tunc petitions were compatible with PCRA under appropriate circumstances. See, e.g., Commonwealth v. Hall, 713 A.2d 650, 653 (Pa.Super.1998), rev’d in part, vacated in part, 565 Pa. 92, 771 A.2d 1232 (2001). But in Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838 (2002), the Pennsylvania Supreme Court held that Lantzy did not announce a new rule and thus applies retroactively. Therefore, though Schlueter's nunc pro tunc petition was filed more than a year before Lantzy was decided, it was not properly filed for the purposes of Pennsylvania law.
Although I would not statutorily toll the AEDPA limitations period under § 2244(d)(2), a strong argument exists for equitable tolling based on Schlueter’s good-faith efforts to avail himself of state post-conviction relief. In Merritt, 326 F.3d at 170 n. 10, we preserved the possibility that equitable tolling may be appropriate where, as here, a PCRA petition is late based on newly discovered facts of a "legitimate” nature. Id. ("Undoubtedly, there will be other habeas petitioners who find themselves in similar situations where their need to exhaust state remedies will create a tension with the one-year statute of limitations in AEDPA.... The federal *82courts should seek ways to ameliorate the consequences for these petitioners in appropriate cases.''). This may be the special case that panel had in mind.
The argument for equitable tolling based on Schlueter's nunc pro tunc petition is even stronger. The Pennsylvania Superior Court’s decision in Hall, 713 A.2d at 653, announcing that nunc pro tunc petitions were permissible under appropriate circumstances despite the language of PCRA, was issued on June 3, 1998. Based on that decision, Schlueter's counsel concluded that Schlueter was eligible for nunc pro tunc relief and would therefore be obligated to pursue it under AEDPA in order to exhaust state remedies. He similarly relied on Pennsylvania case law when he appealed the PCRA court’s decision in December 1998; although Lantzy had by then been decided, ’several post-Lantzy en banc opinions of the Superior Court (which would later be overruled by Eller) held that it would not apply retroactively. See, e.g., Commonwealth v. Garcia, 749 A.2d 928, 933 (2000) (en banc), rev’d, 571 Pa. 112, 811 A.2d 994 (2002); Commonwealth v. Hitchcock, 749 A.2d 935, 939-40 (2000) (en banc).
. The majority is "convinced that if Schlueter had exercised due diligence, he could have discovered the Blasco/Narlesky arrangement long before the AEDPA became effective.” But this task would have been harder than it sounds. While various individuals were aware of the office sharing arrangement, few (if any) knew the extent of the relationship between the two attorneys. The evidence strongly suggests that Narlesky affirmatively concealed the relationship. According to Schlueter, Narlesky went so far as to misrepresent to the PCRA court the character of his partnership with Blasco. The conflict was particularly difficult to discover because Blas-co’s death in 1988 dissolved that partnership.