Swartz v. Meyers

• Decision Date: 01 November 1999
• Docket Number: No. 98-7282,98-7282
• Citation: 204 F.3d 417
• Parties: (3rd Cir. 2000) DALE SWARTZ, Appellant v. MEYERS, Superintendent; PENNSYLVANIA ATTORNEY GENERAL Submitted Pursuant to Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 417

204 F.3d 417 (3rd Cir. 2000)

DALE SWARTZ, Appellant v. MEYERS, Superintendent; PENNSYLVANIA ATTORNEY GENERAL

No. 98-7282

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted Pursuant to Third Circuit LAR 34.1(a) November 1, 1999

Filed February 25, 2000

On Appeal from the United States District Court for the Middle District of Pennsylvania D.C. Civil Action No. 98-cv-00574 (Honorable Malcolm Muir)

Attorney for Appellant: THOMAS F. DORN, JR., ESQUIRE Sinins & Bross 201 Washington Street Newark, New Jersey 07102

Attorneys for Appellees: MARK S. SMITH, ESQUIRE RAY F. GRICAR, ESQUIRE Office of District Attorney Centre County Courthouse Bellefonte, Pennsylvania 16823

Before: GREENBERG, SCIRICA and RENDELL, Circuit Judges

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Dale Swartz appeals from the District Court's order dismissing as untimely his petition for a writ of habeas corpus pursuant to 28 U.S.C. S 2254. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides for the tolling of its one year period of limitation during "[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 ." See 28 U.S.C. S 2244(d)(2) (emphasis added). This appeal requires us to interpret the language "properly filed" and "pending." More specifically, we must decide whether a petition brought under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541-9546, is "properly filed" and "pending" during the time between the Pennsylvania Superior Court's ruling and the expiration of time for seeking an allowance of appeal from the Pennsylvania Supreme Court when the petitioner did not file a timely request for allowance of appeal. We conclude that a PCRA petition is "properly filed" and "pending" during that time. Therefore, we hold that Swartz's petition was timely.

I. Background

In 1989, appellant Dale Swartz was sentenced to a term of imprisonment of ten to twenty years after pleading guilty to rape and involuntary deviate sexual intercourse. In 1990, the Pennsylvania Superior Court affirmed the trial court. Swartz did not seek allowance of appeal from the Pennsylvania Supreme Court.

In 1993, Swartz sought PCRA relief. On November 1, 1995, after an evidentiary hearing, the PCRA court denied relief. On November 29, 1995, Swartz filed an appeal. On April 24, 1996, while the appeal was pending in the Superior Court, AEDPA was signed into law. On October 18, 1996, the Superior Court affirmed the PCRA court. Swartz did not file a timely petition for allowance of appeal in the Pennsylvania Supreme Court. But, on March 4, 1997, Swartz filed a "Motion for Permission to File Petition for Allowance of Appeal Nunc Pro Tunc." On May 2, 1997, the Pennsylvania Supreme Court denied his motion.

On October 29, 1997, Swartz filed a petition for a writ of habeas corpus under 28 U.S.C. S 2254. The District Court for the Eastern District of Pennsylvania transferred the petition to the District Court for the Middle District of Pennsylvania. There, the District Court read his petition as stating that his judgment became final on November 22, 1995. It found, therefore, that under Burns v. Morton, 134 F.3d 109 (3d Cir. 1998), Swartz had until one year from AEDPA's enactment (April 24, 1997) to file his habeas petition. Accordingly, it dismissed the petition as untimely without consideration of applicable tolling provisions.¹

Swartz appealed and submitted an application for a certificate of appealability. We granted the certificate of appealability on: "whether Swartz's time to file a federal habeas corpus petition under 28 U.S.C. S 2244(d)(1) was tolled under 28 U.S.C. S 2244(d)(2), and, if so, on what date did the tolling period end." The District Court had jurisdiction under 28 U.S.C. S 2254(a). We have jurisdiction under 28 U.S.C. SS 1291, 2253. We exercise plenary review over the statute of limitations issue. See Jones v. Morton, 195 F.3d 153, 156 (3d Cir. 1999).

II. Discussion

AEDPA places a one-year period of limitation on all habeas petitions.² See 28 U.S.C. S 2244(d). That period has four potential starting points. See id. In this case, the applicable starting point is the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review, including the time for filing a writ of certiorari in the Supreme Court. See Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999); Kapral v. United States, 166 F.3d 565, 575, 577 (3d Cir. 1999).

Swartz's judgment became final well before AEDPA took effect. Consequently he had at least one year from April 24, 1996 (the date AEDPA took effect) to file his petition for a writ of habeas corpus. See Burns, 134 F.3d at 111. Swartz filed his habeas petition on October 29, 1997. But, because his PCRA appeal to the Pennsylvania Superior Court was under review at the time AEDPA took effect, his petition was not necessarily untimely. The period of limitation was tolled from the date AEDPA took effect (April 24, 1996) until his "properly filed application" for state post-conviction relief was no longer "pending." See 28 U.S.C. S 2244(d)(2); Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir. 1998). He had one year from that date to file his federal habeas petition.

The question presented on appeal is what date was Swartz's "properly filed" PCRA application no longer "pending:" October 18, 1996 (the date the Pennsylvania Superior Court ruled dismissing his petition), November 18, 1996 (the date his time for seeking allowance of appeal in the Pennsylvania Supreme Court expired), or on May 2, 1997 (the date the Pennsylvania Supreme Court denied his nunc pro tunc request for allowance of appeal). Swartz argues for May 2, 1997. The Commonwealth argues for October 18, 1996. But, we conclude that the proper reading of the statute favors the alternative date of November 18, 1996.

A. Does the period of limitation toll during the time between a court's ruling and the timely filing of an appeal or request for allowance of appeal?

As a starting point in our analysis we first look at whether a state post-conviction petition is "properly filed" and "pending" during the time between the date of one appellate court's decision and the petitioner's filing of a further appeal, thereby tolling the period of limitation. Several courts of appeals have considered this question and found that the period of limitation does toll during this time. See Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999); Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999); Barnett v. Lemaster, 167 F.3d 1321 (10th Cir. 1999); see also Gaskins v. Duval, 183 F.3d 8 (1st Cir. 1999) (tolling the period of limitation, but noting that it would not have altered the disposition of the case); Guenther v. Holt, 173 F.3d 1328 (11th Cir.), cert. denied, 120 S.Ct. 811 (2000) (tolling the period of limitation although it did not affect the ultimate disposition). The holdings in Taylor , Nino, and Barnett are rooted in two principles. First, "a contrary construction would be antithetical to the entire theory of state remedy exhaustion and would inevitably lead to the filing of protective federal habeas petitions." Nino, 183 F.3d at 1005; see Taylor, 186 F.3d at 561 ("[W]e believe that tolling the entire period of state proceedings upholds `the principle of comity that underlies the exhaustion doctrine.' ") (brackets and citation omitted); Barnett, 167 F.3d at 1323 ("We conclude the term "pending" must be construed more broadly to encompass all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application."). Second, such a construction is consistent with the definition of the term "pending." See Nino, 183 F.3d at 1005-1006; Barnett, 167 F.3d at 1323.

For the reasons discussed in detail in those opinions, we find this view persuasive. Tolling the period of limitation between the time a state court denies post-conviction relief and the timely appeal or request for allowance of appeal is consistent with the plain meaning of the statutory language as well as the firmly rooted principle of state-remedy exhaustion. That being established, we turn to the ultimate issue in this appeal.

B. Does the period of limitation toll during the time between one appellate court's ruling and the deadline for filing a timely request for allowance of appeal when a timely request for allowance of appeal is not filed?

To determine whether the period of limitation tolls when a timely PCRA appeal is not filed, we again need to ask whether the PCRA application is "properly filed" and "pending." However, whether the PCRA application was "properly filed" is not really an issue in this case. It is clear that Swartz's PCRA application was "properly filed."³ On November 1, 1995, the PCRA court denied Swartz's application. On November 29, 1995, Swartz appealed the PCRA court's decision. That appeal was denied by the Superior Court on October 18, 1996. The question is at what point after the Superior Court's decision did the appeal cease to be pending.

Thus, we turn our attention to the term "pending." "Pending" is not defined in the statute. Black's Law Dictionary, 6th ed. P. 1134 (1990) defines "pending" as,

[b]egun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Awaiting an occurrence or conclusion of action, period of continuance or indeterminacy. Thus, an action or suit is "pending" from its inception until the rendition of final judgment. An action is "pending" after it is commenced by either filing a complaint with the court or by the service of a summons. (emphasis added).

This definition reflects the term's common usage. See Deerwester v. Carter, 26...