Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
9-14-2004
Schlueter v. Varner Precedential or Non-Precedential: Precedential
Docket No. 03-3928
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Recommended Citation "Schlueter v. Varner" (2004). 2004 Decisions. Paper 280. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/280
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No. 03-3928 John M. Morganelli (argued) District Attorney Northampton County Government PAUL GEORGE SCHLUETER, III, Center 669 Washington Street Appellant Easton, PA 18042
v. Attorney for Appellees
BENJAMIN VARNER; DISTRICT ATTORNEY NORTHAMPTON OPINION OF THE COURT COUNTY; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA GREENBERG, Circuit Judge. Paul George Schlueter, III, is a Pennsylvania inmate serving a sentence On Appeal From the United States of life in prison for first degree murder. District Court He appeals from an order of the district For the Eastern District of Pennsylvania court entered September 3, 2003, (D.C. Civil No. 00-cv-05179) dismissing his petition for a writ of District Judge: habeas corpus on the ground that the Honorable Anita B. Brody applicable one-year period of limitation barred the petition. For the reasons that follow, we will affirm the district court’s Argued June 25, 2004 order. Before: AMBRO, BECKER, and GREENBERG, Circuit Judges. I. BACKGROUND (Filed: September 14, 2004) In 1985, Schlueter was arrested and charged in Northampton County, Michael M. Mustokoff Pennsylvania, with the criminal Stephen A. Mallozzi (argued) homicide of Carol Ann Bonney. The Cindy D. Hinkle Northampton County Public defender’s that there were no appealable issues that office assigned part-time public could reduce his degree of guilt. defenders George Blasco and Lorenzo Accordingly, Schlueter decided to forego Crowe to represent Schlueter and the a direct appeal. Blasco died about one district attorney assigned James year later on May 26, 1988. Schlueter Narlesky, a part-time assistant district contends that his attorneys’ parole advice attorney to prosecute the case. Relying was erroneous as he never will be on his attorneys’ advice, Schlueter eligible for parole. Apparently in part entered a plea of nolo contendere to a because of having found out his actual charge of open degree homicide.1 The parole situation, on August 16, 1988, trial court subsequently conducted a Schlueter contacted Crowe requesting hearing to determine Schlueter’s degree information for the purpose of pursuing of guilt at which Schlueter presented a state post-conviction review. Crowe, diminished capacity defense based on his however, did not respond to Schlueter’s level of intoxication and drug use on the night of the homicide. The trial court found Schlueter guilty of murder in the In a letter to Crowe dated August 16, first degree and sentenced him to life in 1988, Schlueter stated that he was prison on May 5, 1987. advised that he would be eligible for parole in 20 years. Crowe, however, Following his conviction, stated in an affidavit in 1998 that Blasco Schlueter met with his attorneys to informed Schlueter that he would be discuss whether to pursue a direct eligible for parole in 15 years. On the appeal. Blasco and Crowe advised other hand, Schlueter stated in an Schlueter that he would be eligible for affidavit in 1998 that Blasco informed parole in approximately 20 years2 and him that he would be eligible for parole after 14 years. In denying Schlueter’s 1 Schlueter earlier had pleaded petition for post-conviction relief, the nolo contendere when represented by trial court found as a fact that Schlueter different attorneys from the public was advised that he would be eligible for defender’s office but with the court’s parole after serving 20 years. See permission had withdrawn that plea. Commonwealth v. Schlueter, No. 0201- Consequently, we are concerned with 1986 at 2 (Northampton County, Pa. Ct. events following his second nolo Com. Pl., Crim. Div., Dec. 30, 1998, contendere plea. app. at 415). Schlueter indicates in his brief on this appeal that “[f]or purposes 2 Schlueter correctly acknowledges of these habeas proceedings, the term of that the record contains conflicting eligibility is irrelevant since [he] was and information regarding the parole advice is never eligible for parole.” Appellant’s he received. Appellant’s br. at 12 n.11. br. at 12.
2 request. By letter dated November 10, 1996, Schlueter informed Lauer of the deadline Meanwhile, in March 1988, the and asked him to file a timely PCRA victim’s family initiated a wrongful petition. Lauer replied by letter dated death action against Schlueter, who December 2, 1996, that he was “well initially represented himself in the civil aware” of the deadline and would file a proceedings. Based on Schlueter’s petition “before year’s end.” App. at criminal conviction, the trial court 783. By letter dated December 13, 1996, entered a directed verdict against him. Lauer also informed Schlueter’s parents In June 1994 Schlueter’s parents retained that he was anticipating filing a PCRA attorney Philip Lauer of Easton, petition “prior to the end of this year.” Northampton County, to represent their App. at 790. Nevertheless, Lauer did not son in his civil appeal from the judgment file a PCRA petition and did not against him and to explore possible communicate further with Schlueter or challenges to his conviction under his parents. On March 18, 1997, the Pennsylvania’s Post Conviction Relief Clerk of the Northampton County Court Act (“PCRA”). Lauer advised Schlueter of Common Pleas advised Schlueter in to postpone pursuing PCRA remedies response to his inquiry that no one had until the conclusion of the civil filed a PCRA petition on his behalf. proceedings. The Superior Court affirmed the judgment against Schlueter On May 27, 1997, the Schlueters on his civil appeal and his civil appellate retained his current attorneys’ law firm proceedings were terminated to explore the possibility of filing a unsuccessfully when the Pennsylvania PCRA petition. After repeated attempts, Supreme Court denied his petition for the new attorneys retrieved Schlueter’s allowance of appeal on November 28, files from Lauer on October 2, 1997. 1994. Upon reviewing the files, they discovered that they did not include Two years later, prior to Schlueter certain files from the Public Defender’s filing a PCRA petition, he and his Office. At Schlueter’s new attorneys’ parents learned that the Pennsylvania request, the Public Defender’s Office legislature had amended the PCRA to located Schlueter’s files and arranged for prescribe a filing deadline of January 16, them to review the files and to interview 1997, in older cases such as Schlueter’s.3 Crowe on December 9, 1997. During the interview with Crowe, they learned that George Blasco and Assistant District 3 See Commonwealth v. Fenati, 748 A.2d 205, 207 (Pa. 2000) (holding that PCRA petition filed on January 16, the PCRA amendments effective January 1997, was timely filed within one year of 16, 1996).
3 Attorney Narlesky had been “civil law pro tunc, arguing that the court should partners” in Easton prior to Blasco’s restore his right to a direct appeal due to death.4 his trial attorneys’ erroneous parole advice. After conducting a hearing, the Relying on this information, his PCRA court dismissed the PCRA attorneys filed a PCRA petition on petition as untimely and, in the same Schlueter’s behalf on February 2, 1998, opinion, denied Schlueter’s motion to alleging a conflict of interest arising restore his right to appeal nunc pro tunc from the Blasco/Narlesky civil law because Schlueter had “knowingly and practice. Recognizing the apparent voluntarily waived his appellate rights.” untimeliness of their PCRA petition, App. at 436. On appeal, the they attempted to invoke a statutory Pennsylvania Superior Court affirmed exception to the PCRA’s period of the dismissal of Schlueter’s PCRA limitation by arguing that the facts of the petition as untimely without mentioning Blasco/Narlesky arrangement had been his motion to restore his right to file a unknown and could not have been direct appeal from his conviction nunc ascertained through the exercise of due pro tunc.6 The Pennsylvania Supreme diligence.5 They subsequently reviewed Court denied Schlueter’s petition for court records and filings and learned that allowance of appeal without explanation Blasco and Narlesky practiced and on August 28, 2000. shared fees in civil cases, together owned and shared their office space, and Through his attorneys, Schlueter shared operating expenses and filed a federal habeas corpus petition in personnel. the district court on October 12, 2000.7
On June 22, 1998, more than 11 6 years after he was convicted and while Of course, the judgment of his PCRA petition was pending, affirmance upheld the denial of the Schlueter filed a motion seeking motion to appeal nunc pro tunc. restoration of his appellate rights nunc 7 In his federal habeas corpus petition, Schlueter articulated the 4 The respondents deny that Blasco following claims for relief: (1) his plea and Narlesky were partners and state was involuntary and unintelligent due to they merely were part of an office an actual conflict of interest between sharing arrangement. For purposes of Blasco and Narlesky; (2) his trial this appeal we will assume that they attorneys’ erroneous parole advice were partners. denied him the right to file a direct appeal; (3) his trial attorneys rendered 5 See 42 Pa. Cons. Stat. Ann. ineffective assistance due to the conflict § 9545(b)(1)(ii) (West 1998). of interest between Blasco and Narlesky;
4 The respondents moved to dismiss the U.S.C. §§ 1291 and 2253. We exercise habeas petition as barred by the plenary review over the district court’s applicable one-year period of limitation. order dismissing Schlueter’s habeas The case was referred to the chief petition as time barred. See Douglas v. magistrate judge who rejected Horn, 359 F.3d 257, 259 (3d Cir. 2004). Schlueter’s arguments for equitable and statutory tolling, and recommended B. One-Year Period of Limitation dismissing the habeas petition as untimely. After hearing oral argument, In the Antiterrorism and Effective the district court adopted the chief Death Penalty Act of 1996 (“AEDPA”) magistrate judge’s report and Congress prescribed a one-year period of recommendation and dismissed limitation for the filing of federal habeas Schlueter’s habeas petition as untimely. corpus petitions by state prisoners. See The court, however, granted a certificate Douglas, 359 F.3d at 261. Effective of appealability on the issue of equitable April 24, 1996, the AEDPA provides in tolling. The district court subsequently relevant part: “amplified” the certificate of appealability to include the statutory A 1-year period of tolling issues as well. limitation shall apply to an application for a writ of Schlueter has filed a timely habeas corpus by a person appeal. in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— II. DISCUSSION (A) the date on which the A. Jurisdiction and Standard of judgment became final by Review the conclusion of direct review or the expiration of The district court had jurisdiction the time for seeking such pursuant to 28 U.S.C. §§ 2241 and 2254 review; [or] and our jurisdiction is based on 28 . . . .
and (4) the Pennsylvania courts denied (D) the date on which the his right to due process by refusing to factual predicate of the allow him to present evidence supporting claim or claims presented the merits of his conflict of interest could have been claim. discovered through the
5 exercise of due diligence. F.3d 936, 940 (7th Cir. 2004) (quoting Wims v. United States, 225 F.3d 186, 28 U.S.C. § 2244(d)(1).8 190 n.4 (2d Cir. 2000)). Section 2244(d)(1)(D) provides a petitioner with We first determine the date on a later accrual date than which the one-year period began section 2244(d)(1)(A) only “if vital facts running. Ordinarily under could not have been known.” Owens, section 2244(d)(1)(A), Schlueter’s one- 235 F.3d at 359. year period of limitation would have begun running on April 24, 1996, We are convinced that if because his conviction became final well Schlueter had exercised due diligence, before the effective date of the AEDPA. he could have discovered the See Burns v. Morton, 134 F.3d 109, 111 Blasco/Narlesky arrangement long (3d Cir. 1998) (allowing a one-year before the AEDPA became effective. grace period to petitioners whose Lauer testified at the PCRA hearing that convictions became final prior to the it was common knowledge in the legal enactment of the AEDPA). Schlueter community in Northampton County that asserts, however, that the one-year Blasco and Narlesky shared office space. period began running under Lauer also testified that he personally section 2244(d)(1)(D) on December 9, was aware of the arrangement when he 1997, the date on which his current represented Schlueter in 1994. Indeed, attorneys discovered the Blasco/Narlesky in our view, it is inconceivable that arrangement. Appellant’s br. at 51-53. Blasco and Narlesky could have hidden their arrangement from the relatively By its language, the one-year small legal community or the public in period of limitation commences under Northampton County.9 section 2244(d)(1)(D) when the factual predicate of a claim could have been discovered through the exercise of due diligence, not when it actually was 9 We are not suggesting that they discovered. See Owens v. Boyd, 235 attempted to hide their arrangement or F.3d 356, 359 (7th Cir. 2000). Due believed that they had any reason to do diligence does not require “the maximum so during the time of their association. feasible diligence,” but it does require Nevertheless, it must be acknowledged reasonable diligence in the that not every attorney in Northampton circumstances. Moore v. Knight, 368 County was aware of the depth and circumstances of the Blasco/Narlesky arrangement as Crowe indicated to 8 The omitted subsections are not Schlueter’s current attorneys that he was germane in this case. not.
6 Moreover, Schlueter’s current November 28, 1994, when the attorneys learned of the arrangement Pennsylvania Supreme Court refused to simply by interviewing Crowe who, with allow him to appeal. Blasco, represented Schlueter in the criminal proceedings. Certainly, if he Overall, we are satisfied that had exercised due diligence, Schlueter through the exercise of due diligence, would have had Crowe interviewed Schlueter could have learned the factual many years before December 9, 1997, as predicate of his conflict of interest claim it is apparent in view of his incarceration well before April 24, 1996. Therefore, that Schlueter had every incentive to the one-year period of limitation began have Crowe, his surviving trial attorney, running under section 2244(d)(1)(A) on interviewed. After all, as early as April 24, 1996. Inasmuch as Schlueter August 16, 1988, he had written Crowe filed his federal habeas corpus petition requesting information for the purpose four and one-half years later on October of pursuing state post-conviction review. 12, 2000, in the absence of tolling of the We also point out that the factual basis one-year period of limitation, his habeas for the claim of impropriety based on the corpus petition was untimely. Blasco/Narlesky arrangement was hardly obscure for, after interviewing Crowe In reaching our result, we and discovering the Blasco/Narlesky recognize that Schlueter is and has been arrangement, Schlueter’s current incarcerated for many years and that attorneys learned the details of the physical confinement can limit a arrangement merely by reviewing court litigant’s ability to exercise due records and filings, all of which were diligence. See Moore v. Knight, 368 matters of public record. Appellant’s br. F.3d at 940. We observe from the record at 24. and references in Schlueter’s brief, however, that Schlueter’s parents have We realize that Lauer advised been involved actively in their son’s case Schlueter to postpone pursuing PCRA for several years. Thus, Schlueter, review until the civil proceedings were unlike many other incarcerated litigants, concluded. But by the time that his has enjoyed the benefit of his family’s parents retained Lauer almost six years assistance, involvement and resources. had elapsed since the time that Schlueter We also point out that Schlueter’s first contemplated bringing post- parents must be well educated as they conviction review proceedings. Clearly, both are referred to as “Doctor” in the in allowing this time to pass Schlueter record in this case. Therefore, was not diligent. Moreover, Lauer’s Schlueter’s incarceration does not advice, at most, could have delayed change our view that if he had exercised Schlueter for only about five months due diligence he would have discovered from Lauer’s retention in June 1994 until the facts supporting his PCRA claims
7 before April 24, 1996. The one-year period should be equitably tolled “only in the rare C. Tolling of the One-Year Period of situation where equitable tolling is Limitation demanded by sound legal principles as well as the interests of justice.” Jones v. The AEDPA’s one-year period of Morton, 195 F.3d 153, 159 (3d Cir. limitation is not an absolute limit. 1999). Equitable tolling is appropriate: See Douglas, 359 F.3d at 261. Rather, it is subject to two possible tolling only when the principles of exceptions both of which Schlueter equity would make the advances: (1) statutory tolling under 28 rigid application of a U.S.C. § 2244(d)(2) while a properly limitation period unfair. filed application for post-conviction Generally, this will occur review is pending in the state courts; and when the petitioner has in (2) equitable tolling. See Merritt v. some extraordinary way Blaine, 326 F.3d 157, 161 (3d Cir. been prevented from 2003). We examine first the period of asserting his or her rights. time from April 24, 1996, the date on The petitioner must show which the one-year period began to run, that he or she exercised through December 9, 1997, the date on reasonable diligence in which Schlueter’s current attorneys investigating and bringing discovered the Blasco/Narlesky the claims. arrangement, to determine whether there Miller v. New Jersey State Dep’t of should be equitable tolling during any Corr., 145 F.3d 616, 618-19 (3d Cir. portion of this period.10 1998) (internal citations and alterations omitted). 10 It is undisputed that the period Schlueter bases his equitable of time from April 24, 1996, through tolling argument on what he February 2, 1998, cannot be tolled characterizes as attorney malfeasance. statutorily under section 2244(d)(2) as Specifically, he argues that the delay in Schlueter did not file any application of filing his PCRA petition (and by any kind in the state courts from April extension his federal habeas corpus 24, 1996, until February 2, 1998, and he petition) was due to Lauer’s misconduct had not filed any application earlier that in affirmatively misrepresenting that he was pending during that period. In would file a timely PCRA petition on addition, Schlueter concedes that the Schlueter’s behalf. In this regard we one-year period was running from point out that if Lauer had filed the December 9, 1997, until February 2, PCRA petition by the state deadline of 1998. Appellant’s br. at 62. January 16, 1997, there would have been
8 a period of tolling under section misrepresented to his client that he 2244(d)(2). In addition, Schlueter already had filed a timely complaint and contends that Blasco and Narleskys’ by the time the client discovered that her alleged misconduct in not disclosing attorney had not done so the period of their arrangement compounded the limitations had expired. Here, in unfair effect of Lauer’s failure to file a December 1996, Lauer informed PCRA petition after representing that he Schlueter and his parents that he would do so. anticipated filing a PCRA petition before the end of the year. When the year Generally, in a non-capital case ended, Schlueter could have learned, as such as Schlueter’s, attorney error is not he did later, that Lauer had not filed a a sufficient basis for equitable tolling of PCRA petition. If he had done so he still the AEDPA’s one-year period of would have had a small window of time limitation. See Johnson v. Hendricks, in which to file a pro se petition and save 314 F.3d 159, 163 (3d Cir. 2002). his PCRA claims from dismissal as Nevertheless, we have held, albeit untimely. Thus, his situation differs outside the habeas context, that there are sharply from that of the Seitzinger “narrow circumstances in which the plaintiff who was misled by what the misbehavior of an attorney may merit” attorney said he had done, not by what equitable tolling. Seitzinger v. Reading he said he would do. Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). Seitzinger involved a Moreover, it is apparent that Title VII plaintiff who asked her attorney Schlueter was fully aware of his PCRA prior to the expiration of an applicable rights in 1994 when he retained Lauer.11 90-day period of limitations if he had Schlueter knew that Lauer had done filed a complaint on her behalf. Id. at little, if anything, to pursue PCRA relief 238. The attorney falsely stated that he for more than two years. had done so whereas, in fact, he did not Notwithstanding this knowledge, neither file a complaint until one day after the Schlueter nor his parents took limitations period expired. Id. We held that the attorney’s affirmative 11 misrepresentation to his client, coupled The record reflects that with the plaintiff’s extreme diligence in Schlueter actually knew of his right to pursuing her claim and the absence of pursue state post-conviction review as prejudice to the defendant, “created a early as August 16, 1988, when he wrote situation appropriate for tolling.” Id. at to Crowe requesting information for that 242. purpose. Crowe declined to respond because he no longer represented We find that the material facts of Schlueter. Schlueter apparently took no Seitzinger are distinguishable from those further steps to challenge his conviction presented here. In Seitzinger, counsel until he retained Lauer in 1994.
9 affirmative steps to ensure the timely Moore, 345 F.3d 796 (9th Cir. 2003), and filing of a PCRA petition until Schlueter Baldayaque v. United States, 338 F.3d wrote his November 10, 1996 letter to 145 (2d Cir. 2003), for the proposition Lauer advising him of the PCRA that attorney malfeasance constitutes an deadline and asking him to file a timely extraordinary circumstance sufficient to petition. Then after the end of 1996 warrant equitable tolling of the one-year Schlueter did not attempt to ascertain period of limitation. As these cases from Lauer prior to the January 16, 1997 amply demonstrate, however, a finding deadline of which he was well aware that attorney malfeasance is an whether Lauer, in fact, had filed a PCRA extraordinary circumstance, without petition. We also find it significant that more, is not sufficient to warrant the period of limitations at issue in equitable tolling. Spitsyn holds that Seitzinger was a brief 90 days and that egregious attorney misconduct may the attorney filed the complaint only one justify equitable tolling, but also requires day late. Thus, the attorney’s district courts to examine the petitioner’s misconduct warranted equitably tolling due diligence in pursuing the matter one day of a short period of limitations. under the specific circumstances he Here, the AEDPA’s limitation period is faced. Spitsyn, 345 F.3d at 802. one year, and did not begin to run until Likewise, Baldayaque holds that “an April 24, 1996, nearly nine years after attorney’s conduct, if it is sufficiently Schlueter’s conviction became final in egregious, may constitute the sort of 1987. Schlueter did not initiate state ‘extraordinary circumstances’ that would post-conviction proceedings until 1998 justify the application of equitable and did not pursue federal habeas corpus tolling.” Baldayaque, 338 F.3d at 152- relief until 2000 even though he had 53. Baldayaque, however, expressly been convicted in 1987. The states that the presence of extraordinary circumstances in Schlueter’s case simply circumstances “is not enough” – a do not warrant the application of petitioner “must also show that he acted equitable tolling after such lengthy with reasonable diligence, and that the periods of time had elapsed following extraordinary circumstances caused his his conviction before he sought state and petition to be untimely.” Id. at 153 federal relief.12 (citation omitted). In other words, neither Spitsyn nor Baldayaque holds Schlueter also relies on Spitsyn v. that attorney malfeasance, standing alone, warrants equitable tolling.13 12 Inasmuch as we are not allowing any period of equitable tolling we have 13 no need to engage in an intricate We acknowledge Schlueter’s counting process computing the reliance on Boyd v. Myers, Civ. A. No. hypothetical possible tolling period. 97-7160, 1998 U.S. Dist. LEXIS 20253
10 For these reasons, we conclude until December 9, 1997, or during any that the circumstances presented in portion thereof. We conclude, therefore, Schlueter’s case do not warrant equitable that the AEDPA’s one-year period of tolling. We are convinced that if limitation expired before Schlueter filed Schlueter had exercised reasonable his PCRA petition, his motion to diligence, he could have brought his reinstate his direct appeal nunc pro tunc, claims in a timely fashion, Lauer’s or his federal habeas corpus petition.15 alleged misconduct notwithstanding.14 In view of our disposition we Accordingly, we cannot equitably toll address only briefly Schlueter’s the period of time from April 24, 1996, arguments for equitable or statutory tolling while either his PCRA petition or (E.D. Pa. Dec. 21, 1998), in which the his motion to reinstate his direct appeal district court applied equitable tolling nunc pro tunc was pending in the state where the petitioner’s attorney promised courts. We do note that Merritt v. to file a timely federal habeas petition, Blaine, 326 F.3d at 161-65, forecloses but filed it five months late. Quite aside Schlueter’s argument for statutory tolling from the circumstance that Boyd is not during the time his untimely PCRA precedential, we find the case unhelpful petition was pending as it holds that a to our current analysis as the district federal habeas court for purposes of court issued the opinion in 1998 before we had provided much guidance on the 15 subject of equitable tolling in the habeas We disagree with the dissent’s context. Consequently, the equitable position that we should remand to the tolling standard utilized in Boyd district court to consider whether arguably does not comport with our Schlueter exercised reasonable diligence. more recent pronouncements requiring a Dissenting opinion at 7. The magistrate habeas petitioner to demonstrate that he judge concluded that “the delay in was “prevented in an extraordinary way learning of an office sharing relationship from asserting his rights.” Johnson, 314 between the prosecutor and defense F.3d at 163. counsel did not demonstrate the exercise of due diligence.” App. at 15 n.1. The 14 Our opinion should not be issue of Schlueter’s diligence also was misread to condone or excuse Lauer’s raised at oral argument before the district conduct. To the contrary we judge. The district judge subsequently acknowledge that arguably Lauer’s approved and adopted the magistrate conduct was unacceptable and fell below judge’s report and recommendation. professional standards. On the other Because the district court already has hand, fairness to Lauer requires that we ruled that Schlueter did not exercise point out that he could not find what he reasonable diligence, a remand would be regarded was a basis for a PCRA claim. pointless.
11 section 2244(d)(2) defers to a state untimely and there was no basis to court’s ruling dismissing a PCRA circumvent the time bar and not because petition as untimely.16 Accordingly it is Schlueter could not have demonstrated clear that his untimely state PCRA claim that there had been a reversible error in cannot possibly help him. the trial proceedings so that an appeal would have been futile. We decline to We also reject his claim that adopt a construction of the AEDPA that somehow filing his motion to restore his permits a petition for habeas corpus to be appellate rights on June 22, 1998, more deemed timely on the basis of section than one year after the AEDPA period of 2244(d)(2) providing for tolling for limitations had run, should lead to “properly filed application[s] for state statutory tolling on the basis that the post-conviction . . . review” merely motion was a “properly filed” because the petitioner unsuccessfully has application for post-conviction review sought the right to appeal nunc pro tunc under section 2244(d)(2). While he years after his unexercised right to file a predicates this argument on the theory timely direct appeal has expired. See that his motion was denied “on the Douglas, 359 F.3d at 261-63. merits,” appellant’s br. at 46, inasmuch as the state court pointed out that Finally we recognize that the Schlueter had “knowingly and dissent contends that there is a strong voluntarily waived his appellate rights,” argument for equitable tolling predicated it is clear that the appeal was not on various Pennsylvania state appellate permitted because it would have been decisions based on Schlueter’s filing of the PCRA petition and his motion to reinstate his direct appeal nunc pro tunc. 16 Schlueter contends that we Dissenting opinion at 3-4 n.2. This point “wrongly decided” Merritt v. Blaine, is critical in the dissent’s analysis as it appellant’s br. at 54, but this panel points out that equitable tolling during cannot entertain that argument. We also the period from April 24, 1996, until note that even if we held that the one- December 9, 1997, “saves Schlueter’s year period of limitation began running claim only if we also toll pending under section 2244(d)(1)(D) on resolution of the state-court December 9, 1997, in view of Merritt v. proceedings.” Id. We need not discuss Blaine there would not have been these state decisions as he pursued both statutory tolling of the one-year period of forms of relief after the AEDPA period limitation governing Schlueter’s federal of limitations already had run. habeas corpus action while his PCRA petition was pending. Thus, inasmuch as he commenced his federal action on III. CONCLUSION October 12, 2000, it would have been untimely. For the foregoing reasons, we
12 conclude that the district court properly Schlueter v. Varner, et al dismissed Schlueter’s habeas corpus No. 03-3928 petition as time barred by the one-year period of limitation. Accordingly, we will affirm the district court’s order entered September 3, 2003. Ambro, Circuit Judge, 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 (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
13 paid-for legal services.17 Irony becomes if the limitations period was tolled. Kafkaesque when the latter act of The AEDPA filing deadline is malfeasance shelters from review the subject to equitable tolling “when the former act of malfeasance. principles of equity would make the rigid I cannot in good conscience bury application of a limitation period unfair.” Schlueter’s case before it sees the light Miller v. N.J. State Dep’t of Corr., 145 of day. AEDPA confers on federal F.3d 616, 618 (3d Cir. 1998) (internal courts the authority equitably to toll its quotation omitted). While this principle limitations period in the interest of on its face is broad, it is to be applied justice. If any case is ripe for exercise of sparingly. Equitable tolling is that power, this one is. Accordingly, I appropriate when “the petitioner has in respectfully dissent. some extraordinary way been prevented from asserting his or her rights. The * * * * * petitioner must show that he or she As the majority explained, exercised reasonable diligence in Schlueter’s habeas petition would investigating and bringing the claims.” ordinarily have been due on April 23, Id. at 618–19 (internal quotations 1997. See Douglas v. Horn, 359 F.3d omitted); see also Jones v. Morton, 195 257, 261 (3d Cir. 2004). He did not file F.3d 153, 159 (3d Cir. 1999). his petition, however, until October 12, We have concluded, as a general 2000. Thus the petition was timely only matter, that attorney error is not so “extraordinary” as to justify equitable 17 At the very least, I would tolling. See, e.g., Johnson v. Hendricks, remand for a determination by the 314 F.3d 159, 163 (3d Cir. 2002). This District Court whether Lauer, reputed to rule makes sense, as attorney error is be well qualified, did in fact normally attributed to the client. See, affirmatively mislead his client. See, e.g., e.g., United States v. Boyle, 469 U.S. United States v. Wynn, 292 F.3d 226, 241, 250 (1985). But it does not follow 230 (5th Cir. 2002) (remanding for that tolling based on deception of the hearing to determine whether defendant kind alleged by Schlueter in this case is was obligated to undertake further also foreclosed. inquiry upon receipt of a letter from the Schlueter and his parents wrote to court stating that no petition under the and called Lauer on many occasions over Anti-Terrorism and Effective Death a period of several months. He falsely Penalty Act (“AEDPA”) had been filed, assured them that he was preparing a when attorney allegedly told the PCRA petition and would timely file. defendant’s father that no record of his But he made no such preparations. filing existed because the petition was After allowing the deadline to pass, he filed directly with the judge).
14 ceased all communication with the 370 U.S. 626, 634 (1962) (“[E]ach party Schlueters. He did not return their many is deemed bound by the acts of his phone calls or letters, nor did he timely lawyer-agent . . . .”). return Schlueter’s files despite repeated But it is a fundamental principle requests from Schlueter and his new of agency law that the knowledge of an counsel. Lauer’s intentional agent is not attributed to the principal abandonment of Schlueter’s case cannot when the agent is acting in a manner plausibly be labeled “error.” His adverse to the interests of the principal. behavior, I believe, was sufficiently Restatement (Third) of Agency § 5.04 egregious to bring it “within the narrow (Tentative Draft No. 4 2003) (“Notice is line of cases in which lawyer misconduct not imputed to the principal of a fact that justifies equitable tolling.” Seitzinger v. an agent knows or has reason to know if Reading Hosp. & Med. Ctr., 165 F.3d the agent acts adversely to the principal 236, 238 (3d Cir. 1999). in a transaction or matter for the agent’s The law of agency provides a own purposes . . . .”). Mere attorney useful framework for understanding the error does not constitute an distinction between error and “extraordinary circumstance” because a misconduct. See Baldayaque v. United circumstance, to be extraordinary, must States, 338 F.3d 145, 154 (2d Cir. 2003) be beyond the prisoner’s control. Harris (Jacobs, J., concurring). Ordinarily, v. Hutchinson, 209 F.3d 325, 330 (4th “[a]ttorney ignorance or inadvertence” Cir. 2000). Thus, we have explained, a does not excuse a petitioner’s non- client who relies on the faulty advice of compliance with AEDPA, because “the his lawyer has not encountered an attorney is the petitioner’s agent when obstacle to filing that is external to his acting, or failing to act, in furtherance of conduct. Johnson, 314 F.3d at 162–63. the litigation.” Coleman v. Thompson, Conversely, when, as here, an attorney 501 U.S. 722, 753 (1991) (rejecting ceases altogether to serve the interests of attorney error as “cause” for his client, the law of agency is clear that procedurally defaulted habeas claims); the attorney acts alone. see also McCarthy v. Recordex Serv., This central tenet—that attorney Inc., 80 F.3d 842, 853 (3d Cir. 1996) (“It malfeasance should not be attributed to is, of course, beyond cavil that the the client—paves any number of parallel attorney-client relationship is an paths to tolling in this case. We might agent-principal relationship.”). We conclude that Schlueter, had Lauer not assume, for better or worse, that a lawyer represented that he was acting on the is acting as the petitioner’s agent, and the case, would timely have filed a petition petitioner therefore “bear[s] the risk of under Pennsylvania’s Post-Conviction attorney error.” Coleman, 501 U.S. at Relief Act (“PCRA”), 42 Pa. Cons. Stat. 752–53; cf. Link v. Wabash R.R. Co., Ann. § 9541, et seq., prior to the
15 deadline that would have presented Blasco’s clear conflict as trial counsel. Thus we might equitably toll the statute pending shall not be counted toward any from April 24, 1996, the day it began to period of limitation under this run, to December 9, 1997, the day that subsection.” But neither the PCRA Schlueter’s new counsel was put on petition nor the nunc pro tunc petition notice of the relationship between Blasco was “properly filed” for the purposes of and Narlesky.18 We might hold that Pennsylvania law. Our Court has stated that “an untimely PCRA petition does not toll the statute of limitations for a 18 Tolling for this minimum federal habeas corpus petition.” Merritt duration saves Schlueter’s claim only if v. Blaine, 326 F.3d 157, 165 (3d Cir. we also toll pending resolution of the 2003). Nor is statutory tolling available state-court proceedings. The analysis is based on the nunc pro tunc petition, complex, but it can be summarized as notwithstanding our recent decision in follows. Douglas v. Horn, 359 F.3d 257, 263 On February 3, 1998, Schleuter n.11 (3d Cir. 2004). Douglas suggested filed a petition for post-conviction relief that statutory tolling might apply to nunc under PCRA. He argued that his PCRA pro tunc petitions filed before the petition should be deemed timely Pennsylvania Supreme Court’s decision because the delay in filing was based on in Commonwealth v. Lantzy, 736 A.2d ineffective assistance of counsel retained 564 (Pa. 1999), which reversed a series to file the petition. In June 1998 he of decisions by Pennsylvania lower separately filed a petition to appeal nunc courts indicating that nunc pro tunc pro tunc. The PCRA Court denied the petitions were compatible with PCRA PCRA petition as untimely and rejected under appropriate circumstances. See, Schlueter’s request for an appeal nunc e.g., Commonwealth v. Hall, 713 A.2d pro tunc. On October 22, 1999, the 650, 653 (Pa. Super. 1998), rev’d in Pennsylvania Superior Court affirmed. part, vacated in part, 771 A.2d 1232 Schleuter’s subsequent petition for (Pa. 2001). But in Commonwealth v. allowance of an appeal was denied by Eller, 807 A.2d 838 (Pa. 2002), the the Pennsylvania Supreme Court on Pennsylvania Supreme Court held that August 28, 2000. Lantzy did not announce a new rule and I note first that statutory tolling thus applies retroactively. Therefore, will not save Schlueter’s claim. 28 though Schlueter’s nunc pro tunc U.S.C. § 2244(d)(2) provides that “[t]he petition was filed more than a year time during which a properly filed before Lantzy was decided, it was not application for State post-conviction or properly filed for the purposes of other collateral review with respect to Pennsylvania law. the pertinent judgment or claim is Although I would not statutorily
16 equity requires us to toll the statute to the day that Schlueter’s habeus petition was toll the AEDPA limitations period under finally filed. Or we might even conclude § 2244(d)(2), a strong argument exists that Schlueter falls within the ambit of for equitable tolling based on Schlueter’s § 2244(d)(1)(D), because the conflict of good-faith efforts to avail himself of interest, though discoverable by Lauer state post-conviction relief. In Merritt, based on his alleged knowledge of 326 F.3d at 170 n.10, we preserved the Blasco and Narlesky’s office sharing possibility that equitable tolling may be arrangement, was not reasonably appropriate where, as here, a PCRA ascertainable by an incarcerated inmate petition is late based on newly who was forestalled from pursuing his discovered facts of a “legitimate” nature. case by the false assurances of a third Id. (“Undoubtedly, there will be other party.19 habeas petitioners who find themselves in similar situations where their need to decided, several post-Lantzy en banc exhaust state remedies will create a opinions of the Superior Court (which tension with the one-year statute of would later be overruled by Eller) held limitations in AEDPA. . . . The federal that it would not apply retroactively. courts should seek ways to ameliorate See, e.g., Commonwealth v. Garcia, 749 the consequences for these petitioners in A.2d 928, 933 (Pa. Super. Ct. 2000) (en appropriate cases.”). This may be the banc), rev’d, 811A.2d 994 (Pa. 2002); special case that panel had in mind. Commonwealth v. Hitchcock, 749 A.2d The argument for equitable tolling 935, 939-40 (Pa. Super. Ct. 2000) (en based on Schlueter’s nunc pro banc). tunc petition is even stronger. The 19 Pennsylvania Superior Court’s decision The majority is “convinced that in Hall, 713 A.2d at 653, announcing if Schlueter had exercised due diligence, that nunc pro tunc petitions were he could have discovered the permissible under appropriate Blasco/Narlesky arrangement long circumstances despite the language of before the AEDPA became effective.” PCRA, was issued on June 3, 1998. But this task would have been harder Based on that decision, Schlueter’s than it sounds. While various counsel concluded that Schlueter was individuals were aware of the office eligible for nunc pro tunc relief and sharing arrangement, few (if any) knew would therefore be obligated to pursue it the extent of the relationship between the under AEDPA in order to exhaust state two attorneys. The evidence strongly remedies. He similarly relied on suggests that Narlesky affirmatively Pennsylvania case law when he appealed concealed the relationship. According to the PCRA court’s decision in December Schlueter, Narlesky went so far as to 1998; although Lantzy had by then been misrepresent to the PCRA court the
17 Other courts have applied extraordinary circumstance’ beyond equitable tolling under circumstances petitioner’s control that could warrant like these. In Baldayaque, 338 F.3d at equitable tolling of the statute of 152, for example, an attorney failed limitations.”); cf. Doherty v. Teamsters timely to file a § 2255 motion requested Pension Trust Fund of Phila. & Vicinity, by his client and made inadequate efforts 16 F.3d 1386 (3d Cir. 1994) (tolling to communicate with him. The Second based on the death of the petitioner’s Circuit held that the attorney, “[b]y attorney). refusing to do what was requested by his In our Circuit, the principal case client on such a fundamental matter, . . . on point is Seitzinger. It involved a Title violated a basic duty of an attorney to his VII claim, though we have since applied client.” His actions, the Court its reasoning to habeas cases. See, e.g., continued, “were far enough outside the Brown v. Shannon, 322 F.3d 768, 774 range of behavior that reasonably could (3d Cir. 2003). The Supreme Court has be expected by a client that they may be cautioned that in the Title VII context considered ‘extraordinary’” and thereby “the principles of equitable tolling . . . do “justify the application of equitable not extend to what is at best a garden tolling to the one-year limitations period variety claim of excusable neglect.” of AEDPA.” Id. at 152–53. See also Irwin v. Dep’t Veteran Affairs, 498 U.S. Spitsyn v. Moore, 345 F.3d 796, 798 (9th 89, 96 (1990). Our task in Seitzinger Cir. 2003) (“Based upon the unique facts was to decide whether misconduct by the of this case, where an attorney was plaintiff’s attorney was merely “garden retained to prepare and file a petition, variety” or, rather, was something more failed to do so, and disregarded requests egregious. The plaintiff alleged that she to return the files pertaining to repeatedly asked her attorney whether he petitioner’s case until well after the date had filed a complaint, and each time he the petition was due, we agree that misrepresented to her that he had. Under equitable tolling of the deadline is these circumstances, we concluded that appropriate.”); United States v. Wynn, equitable tolling was appropriate. 292 F.3d 226, 230 (5th Cir. 2002) Seitzinger, 165 F.3d at 241. (“Wynn’s allegation that he was deceived by his attorney into believing Of course, Seitzinger also requires that a timely § 2255 motion had been that the client be “reasonably diligent” in filed on his behalf presents a ‘rare and pursuing his or her claims. But the facts of Seitzinger leave little doubt that Schlueter has met that burden. In character of his partnership with Blasco. concluding that the plaintiff in Seitzinger The conflict was particularly difficult to was diligent, we emphasized that she: (1) discover because Blasco’s death in 1988 hired an attorney to file her civil dissolved that partnership. complaint; (2) “contacted him before the
18 filing deadline, which she knew about in 1997, he should have ascertained broad terms, to ensure that he had filed whether Lauer had indeed filed as the complaint”; and (3) repeatedly called promised. Never mind that Lauer had him in order to obtain a copy of the ceased to return phone calls on complaint and monitor the status of her Schlueter’s behalf. Never mind that case. Id. at 241. All of these factors are when the Schlueters, having received no true in Schlueter’s case as well. In fact, word from Lauer for months, inquired Schlueter and his family were, if with the clerk’s office whether a petition anything, more diligent. They apprised had been filed, it was nearly forty days their attorney of the precise filing before they received a response. deadline (whereas Seitzinger was aware, Schlueter, says the majority, might have “in broad terms,” that a deadline existed) done more. with ample time to prepare a petition. In This, I suppose, is theoretically addition to their phone calls, the true. But it blinks reality to suggest that Schlueters wrote several letters seeking Schlueter might have retained substitute to ensure that the PCRA petition would counsel willing to prepare a petition be filed prior to the deadline. And they within the two short weeks between the received written assurances that a end of 1996 and the PCRA filing petition would timely be filed. deadline. Still, he might have filed his Once the deadline had passed, the own PCRA petition pro se, just in case. Schlueters did everything that could That would have been supremely reasonably be expected of them. When diligent. their phone calls from Lauer were not But supreme diligence is not returned, they wrote to the clerk’s office required. On the contrary, the standard directly. That office did not respond is a relatively modest one. Schlueter’s until March 18, 1997. The time between diligence need only have been the Schlueters’ discovery of Lauer’s reasonable under the circumstances. Cf. failure to file and their retaining new Baldayaque, 338 F.3d at 153 (“The counsel was just over two months. After standard is not ‘extreme diligence’ or that, matters were largely out of ‘exceptional diligence,’ it is reasonable Schlueter and his counsel’s hands. diligence.”) (emphasis in text). I believe Lauer simply did not turn over the files that Schlueter’s protracted efforts for many months. handily qualify. But if the majority is The majority dismisses not convinced, it seems to me better to Schlueter’s efforts as inadequate. They remand for the District Court to consider suggest that he was not entitled to rely this issue in the first instance rather than on the two written assurances by the dismiss outright his habeus petition. See attorney whom he had hired to pursue id. his case; rather, on New Year’s Day of
19 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 Seitzinger 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 (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.