Lacava v. Kyler, 03-1398.

• Decision Date: 11 February 2005
• Docket Number: No. 03-1398.,03-1398.
• Citation: 398 F.3d 271
• Parties: Michael LACAVA, Appellant v. Kenneth D. KYLER; The District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

Page 271

398 F.3d 271

Michael LACAVA, Appellant v. Kenneth D. KYLER; The District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania.

No. 03-1398.

United States Court of Appeals, Third Circuit.

Argued November 18, 2004.

Filed February 11, 2005.

Joseph Leibowicz, (Argued), James S. Malloy, Kirkpatrick & Lockhart LLP, Pittsburgh, for Appellant.

Lynne Abraham, District Attorney of Philadelphia, Arnold H. Gordon, First Assistant District Attorney, Ronald Eisenberg, Deputy District Attorney, Law Division, Thomas W. Dolgenos, Chief, Federal Litigation, David C. Glebe, (argued), Assistant District Attorney, Philadelphia, for Appellee.

Before ROTH, SMITH and BECKER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Michael LaCava appeals from an order of the District Court which denied his petition for writ of habeas corpus as untimely filed, rejecting his contention that equitable tolling should apply. The appeal requires us to decide whether the twenty-one month period that LaCava allowed to pass prior to making inquiry into the status of his state petition for allowance of appeal precludes a finding of due diligence and thus application of the principle of equitable tolling, or whether the matter should, as LaCava contends, be remanded to the District Court for an evidentiary hearing. We hold that, under the circumstances of this case, the twenty-one month period of passivity precludes a finding of due diligence for purposes of equitable tolling, and thus the necessity of an evidentiary hearing. We will therefore affirm the order of the District Court denying the petition as untimely.

I. FACTS AND PROCEDURAL HISTORY

LaCava was found guilty by a jury in the Philadelphia County Court of Common Pleas of first degree murder, aggravated assault, simple assault, possession of an instrument of crime, and criminal conspiracy. The jury set the penalty at death. On direct appeal, the Pennsylvania Supreme Court affirmed LaCava's convictions, but vacated the death sentence and remanded the matter for a new sentencing hearing. Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221 (1995). LaCava was subsequently sentenced to life imprisonment on March 22, 1996, a sentence he did not appeal.

In January 1997 LaCava filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. § 9541-9545 (West 1998). Counsel was appointed and an amended post-conviction petition was filed. The PCRA court denied LaCava's petition on January 27, 1999, and the Pennsylvania Superior Court affirmed that decision in January of the following year. LaCava, still represented by counsel, filed a request for permission to appeal, but the Pennsylvania Supreme Court rejected the petition in an order dated August 22, 2000.

On December 12, 2001, LaCava filed a pro se petition for habeas corpus, presenting four claims that appellate counsel rendered ineffective assistance. As the merits of those claims are not at issue here, we will not set forth the specifics. The Commonwealth answered by asserting that LaCava's habeas petition was time-barred and must be dismissed. The Magistrate Judge to whom LaCava's petition was referred issued a Report recommending that his habeas petition be denied as untimely under 28 U.S.C. § 2244(d).¹

The Magistrate Judge concluded that LaCava's conviction became final on April 21, 1996, at the expiration of his time for seeking review with the Pennsylvania Supreme Court. See Pa. R.App. P. 1113(a) (petition for allowance of appeal shall be filed within thirty days from the entry of the order of the Superior Court sought to be reviewed); see also 28 U.S.C. § 2244(d)(1)(A); Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir.2000) ("[T]he period of limitation tolls during the time a prisoner has to seek review of the Pennsylvania Superior Court's decision[,] whether or not review is actually sought."). This was three days before the Antiterrorism and Effective Death Penalty Act ("AEDPA") went into effect, and hence, pursuant to Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998), LaCava had until April 23, 1997 to file his habeas petition.

Section 2244(d)(2) provides, however, 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...." 28 U.S.C. § 2244(d)(2). Accordingly, the statute was tolled when LaCava properly filed his state post-conviction petition on January 14, 1997, and remained tolled until August 22, 2000 when the Pennsylvania Supreme Court denied his petition for allowance of appeal. See Stokes v. Dist. Attorney of County of Philadelphia, 247 F.3d 539, 542 (3d Cir.2001) (time during which state prisoner may file certiorari petition in the United States Supreme Court from denial of state post-conviction petition does not toll statute of limitations). The Magistrate Judge calculated, correctly we believe, that LaCava had approximately three and one-half months, or until December 2000, to file a timely habeas petition. LaCava's petition, which was submitted to prison officials on December 12, 2001, was filed well beyond the permissible period. The Magistrate Judge also concluded that LaCava had failed to satisfy any of the exceptions to the limitation period as set forth in 28 U.S.C. § 2244(d)(1)(B)-(D).

There ensued a series of filings in which LaCava asserted that the untimely filing could not be attributed to him because notice of the order denying his petition for allowance of appeal was delayed and he acted diligently in pursuing federal habeas corpus relief once he did receive notice. We detail these filings in the margin.² Attached to LaCava's filings were three documents: (1) a copy of a letter from LaCava to the Pennsylvania Supreme Court's Deputy Prothonotary dated April 17, 2002, inquiring as to whether notice of the denial of allocatur had been mailed to him prior to December 5, 2001; (2) a copy of a letter from the Prothonotary's Office dated December 5, 2001, advising LaCava that his petition for allowance of appeal was denied on August 22, 2000; and (3) a copy of a letter from LaCava to his court-appointed PCRA attorney dated April 17, 2002, requesting that counsel review his records to determine if notice of the Pennsylvania Supreme Court's August 22 order had been mailed to LaCava at any time in August of 2000.³

On consideration of these papers, the Magistrate Judge issued an order permitting LaCava thirty days to file a traverse. LaCava did so, essentially reasserting the arguments he set forth in his previous filings. He again claimed an entitlement to equitable tolling due to the "extraordinary circumstance" of having received delayed notice of the state court's disposition of his petition for allowance of appeal. LaCava asserted that his allegation of delayed notice — and thus the reason for his untimely filing — was supported by the exhibits he attached to his objections, see supra, which, he claims, showed that he did not receive timely notice of the Pennsylvania Supreme Court's disposition from either the Prothonotary of the Pennsylvania Supreme Court or his attorney.⁴ LaCava conceded, however, that he was unable to offer direct documentary evidence in the form of prison logs or a letter from his attorney since no responses were forthcoming.

In an order entered on January 10, 2003, the District Court, after noting that it had independently considered LaCava's petition for writ of habeas corpus, the Magistrate Judge's Report and Recommendation, and LaCava's traverse, approved and adopted the Report and Recommendation, denied LaCava's habeas petition, and declined to issue him a certificate of appealability. LaCava timely appealed. We appointed counsel and granted a certificate of appealability as to the issue of "whether [LaCava] timely filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254."⁵ (Order of Court dated 12/05/03.)

The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and this Court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Our review of a District Court's decision dismissing a habeas petition on statute of limitations grounds is plenary. See Brown v. Shannon, 322 F.3d 768, 772 (3d Cir.2003).

II. DISCUSSION

This Court has held that AEDPA's statute of limitations is subject to equitable tolling. Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617 (3d Cir.1998). We have cautioned, however, that courts should be sparing in their use of this doctrine, Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir.1999), applying equitable tolling "only in the rare situation where [it] is demanded by sound legal principles as well as the interests of justice." United States v. Midgley, 142 F.3d 174, 179 (3d Cir.1998) (quotation marks and citation omitted). Equitable tolling is appropriate when "the principles of equity would make the rigid application of a limitation period unfair," Miller, 145 F.3d at 618 (quotation marks and alterations omitted), such as when a state prisoner faces extraordinary circumstances that prevent him from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims. Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.2001). Mere excusable neglect is not sufficient. Miller, 145 F.3d at 618-19; see also Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999).

LaCava contends that he is entitled to have this matter remanded to the District Court for an evidentiary hearing on the equitable tolling issue because he did not receive notice of the Pennsylvania Supreme Court's denial of his petition for permission to appeal within the limitations period and because he exercised reasonable diligence in filing his habeas petition once he finally received such notice.

A. Extraordinary...