134 F.3d 146 (3rd Cir. 1998), 97-3505, Lovasz v. Vaughn

Docket Nº:97-3505.
Citation:134 F.3d 146
Party Name:Steven R. LOVASZ, Appellant, v. SCIG Supt. Donald T. VAUGHN.
Case Date:January 14, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 146

134 F.3d 146 (3rd Cir. 1998)

Steven R. LOVASZ, Appellant,


SCIG Supt. Donald T. VAUGHN.

No. 97-3505.

United States Court of Appeals, Third Circuit

January 14, 1998

Submitted by the Clerk for a certificate of appealability pursuant to 28 U.S.C. § 2253 Oct. 23, 1997.

Page 147

Steven Robert Lovasz, Graterford, PA, Pro se.

Before: BECKER, NYGAARD, and ROTH, Circuit Judges(Motions Panel A).


BECKER, Circuit Judge.

The habeas petition of Steven Lovasz currently before us, on application for a certificate of appealability, presents the question whether a second or subsequent petition for postconviction relief, filed according to the procedural rules of the state, constitutes "a properly filed application" for the purpose of triggering the tolling mechanism of 28 U.S.C. § 2244(d)(2) without regard to the merits of the petition. Because we conclude that it does, we will grant the certificate of appealability, reverse the dismissal of Lovasz's petition, and remand this matter to the district court for further consideration.

Page 148


In April 1988, Lovasz was sentenced in the Court of Common Pleas of Fayette County, Pennsylvania, to life in prison for murder. After his conviction was affirmed on direct appeal, Lovasz filed a petition for post-conviction relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. §§ 9541-9546. After relief was denied, Lovasz filed a second PCRA petition, which was dismissed on May 18, 1995. The Pennsylvania Superior Court affirmed on March 4, 1996. The Pennsylvania Supreme Court denied Lovasz's petition for allowance of appeal on September 26, 1996.

On July 30, 1997, Lovasz filed in the district court the current petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court dismissed the petition as time-barred under § 2244(d)(1), without discussing the tolling mechanism of 28 U.S.C. § 2244(d)(2). Before us now is Lovasz's request for a certificate of appealability to appeal from this dismissal.


Title 28 U.S.C. § 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), in relevant part provides:

(1) 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;


(2) The 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.

28 U.S.C. § 2244(d). We have yet to consider what constitutes "a properly filed application" to trigger the tolling mechanism of § 2244(d)(2).

Principles of comity inform our decision. In our federal system, "the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991). Such respect for the states has given rise to the well-established rule that a federal court should not find a state prisoner's claims procedurally barred from federal habeas review unless state law "clearly foreclose[s]" review of the claims. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993); see Banks v. Horn, 126 F.3d 206,...

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