Nara v. Frank

• Decision Date: 30 August 2001
• Docket Number: No. 99-3364,99-3364
• Citation: 264 F.3d 310
• Parties: (3rd Cir. 2001) JOSEPH GEORGE NARA, Appellant v. FREDERICK FRANK
• Court: U.S. Court of Appeals — Third Circuit

Page 310

264 F.3d 310 (3rd Cir. 2001)

JOSEPH GEORGE NARA, Appellant v. FREDERICK FRANK

No. 99-3364

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued March 1, 2001

Filed August 30, 2001

On Appeal from the United States District Court for the Western District of Pennsylvania District Judge: Hon. Gary L. Lancaster, (D.C. Civil No. 99-CV-00005)

Shelley Stark (Argued) Lisa B. Freeland Federal Public Defender Pittsburgh, PA 15222, Attorney for Appellant

John A. Kopas, III (Argued) First Administrative Assistant District Attorney Office of the District Attorney Uniontown, PA 15401, Attorney for Appellee

Before: SLOVITER, NYGAARD and ROTH, Circuit Judges

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Joseph George Nara appeals the District Court's dismissal of his Petition for Writ of Habeas Corpus as untimely. Nara argues that the one-year statute of limitations under 28 U.S.C. S 2244(d)(1) should have been tolled under 28 U.S.C. S 2244(d)(2), because his motion to withdraw his guilty plea nunc pro tunc was a properly filed application for state post-conviction or other collateral review that was pending. Alternatively, Nara argues that this court should apply equitable tolling principles because of extraordinary circumstances in his case.

I. FACTS AND PROCEDURAL HISTORY

The parties do not dispute the facts of this case. On January 28, 1984, Nara shot and killed his wife and mother-in-law. After Nara was arrested, he underwent a psychiatric evaluation during which he described himself as being severely depressed after his wife left him in December 1983. The Commonwealth of Pennsylvania charged Nara with two counts of criminal homicide. On June 20, 1984, Nara pled guilty in the Pennsylvania Court of Common Pleas to two counts of first degree murder and later was sentenced to concurrent terms of life imprisonment. He did not appeal his sentence.

The record shows that Nara's mental condition deteriorated while he was in prison. Shortly after he arrived at the State Correctional Institution at Pittsburgh, he was placed in the institution's hospital for "psychiatric reasons." App. at 316. Nara was transferred to Farview State Hospital after being diagnosed as having "suicidal ideation of severe proportions." App. at 319. Although he was returned to prison, he was hospitalized again after attempting to commit suicide in February 1985 by overdosing on drugs. A psychiatrist diagnosed Nara as "severely mentally disabled" and "a clear and present danger to himself." Supp. App. at 67. After another lengthy hospital stay for approximately 16 months, he was transferred to the State Correctional Institution at Huntingdon, Pennsylvania in 1986, where he is incarcerated to this day. There is nothing in the record of Nara's mental condition after 1986.

On April 21, 1988, Nara filed his first petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541 et seq . In the accompanying pro se brief, Nara stated, inter alia, that he was not mentally competent when he pled guilty and that his trial counsel was ineffective for failing to assess his mental competence at the time of the crimes and when he pled guilty. After a hearing at which Nara was represented by court-appointed counsel, the trial court denied the petition. The trial court's opinion and order, however, addressed only the ineffective assistance of counsel claim. The Superior Court of Pennsylvania affirmed, and the Pennsylvania Supreme Court denied review in 1989.

On May 15, 1990, Nara filed a second PCRA petition. He argued that his plea should be withdrawn because he was mentally incompetent when he entered it. The trial court appointed new counsel and held a hearing on November 19, 1990 at which a forensic psychiatrist testified that Nara was psychotic and depressed at the time of his guilty plea and therefore was "not mentally capable" of entering a plea. App. at 474. Based on this testimony, the trial court found that Nara's guilty plea was not valid and granted Nara's petition. The Commonwealth appealed. The Superior Court reversed and reinstated the plea, ruling that the issue of Nara's competence had been waived because Nara had failed to raise it in his first post-conviction hearing.¹ The Superior Court stated in a footnote that Nara waived his right to request withdrawal of his guilty plea by failing to file a post-sentence motion to withdraw the plea pursuant to Pa. R. Crim. P. 321. That rule provided, in part:"(a) A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence."² In 1992, the Pennsylvania Supreme Court denied Nara's petition for allowance to appeal. The United States Supreme Court denied Nara's petition for certiorari.

On December 19, 1995, Nara filed a third PCRA petition, alleging, inter alia, that he was incompetent to enter the guilty plea. The trial court appointed attorney Phyllis Jin to represent Nara, and held a hearing on April 30, 1996. At this hearing, Nara agreed that he had previously litigated the issues in his PCRA petition. Nara therefore asked to withdraw his PCRA petition in favor of filing a motion to withdraw his guilty plea nunc pro tunc pursuant to Rule 321. The court allowed Nara to withdraw the petition and issued a briefing schedule for the motion to withdraw his guilty plea.

After the submission of briefs, the trial court issued an opinion and order on September 30, 1996 denying the motion. The court found that Nara had been advised at his sentencing in 1984 of his right to move to withdraw the plea within 10 days and noted that Nara did not give a compelling reason why he waited 12 years to ask to withdraw his guilty plea. The Superior Court affirmed on July 9, 1997 and the Pennsylvania Supreme Court denied Nara's petition for allowance to appeal on December 8, 1997. Nara did not file a motion for reconsideration to the Pennsylvania Supreme Court nor did he file a petition for certiorari to the United States Supreme Court.

Nara then filed the present Petition for Writ of Habeas Corpus. The certificate of mailing indicates that the prison mailed the petition on December 15, 1998. However, his habeas petition is signed and dated December 12, 1998, and his cover letter to the petition is dated December 12, 1998.

The District Court referred the matter to a Magistrate Judge, who recommended that Nara's petition be dismissed as untimely and that a certificate of appealability be denied. In analyzing the applicability of the one-year statute of limitations under S 2244(d)(1) and the tolling provision under S 2244(d)(2), the Magistrate Judge determined that the latest date on which Nara's application for state post-conviction or other collateral review was pending was December 8, 1997, when the Pennsylvania Supreme Court denied his petition for allowance of appeal with respect to his nunc pro tunc motion. Thus, according to the Magistrate Judge, the statute of limitations would have begun on that date and would have run until December 7, 1998. Therefore, even with the benefit of the mailbox rule which would recognize filing of Nara's habeas petition on December 12, 1998, his petition was untimely. The District Court adopted the Magistrate Judge's recommendations, dismissed Nara's habeas petition as untimely, and denied the certificate of appealability.

Nara filed a timely appeal to this court.

II. DISCUSSION

A. Jurisdiction and Standard of Review

On February 15, 2000, a motions panel of this court issued a certificate of appealability under 28 U.S.C. S 2253(c)(1) on the following:

the issues of whether the District Court correctly concluded that Nara's habeas petition was untimely filed under the statute of limitations, 28 U.S.C. S 2244(d)(1), see Burns v. Morton, 134 F.3d 109 (3d Cir. 1998), and whether Nara was entitled to any tolling of the limitations period pursuant to either 28 U.S.C. S 2244(d)(2), see Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998), or the principles of equitable tolling, see Jones v. Morton, 195 F.3d 153 (3d Cir. 1999); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616 (3d Cir. 1998). In particular, the parties should address whether Nara's motion to withdraw his guilty plea nunc pro tunc was a `properly filed application for State post-conviction or other collateral review' within the meaning of S 2244(d)(2). If that motion tolled the limitations period, the parties should address whether Nara is also entitled to tolling for the 90-day period following entry of Pennsylvania Supreme Court's order on December 8, 1997, when Nara could have petitioned for certiorari review in the United States Supreme Court.

Nara v. Frank, No. 99-3364, Order Granting Certificate of Appealability (Feb. 15, 2000).

We have jurisdiction under 28 U.S.C. SS 1291 and 2253. We have plenary review over statute of limitations issues. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000).

B. The Requirements of 28 U.S.C. S 2244(d)

A state prisoner must file his or her habeas corpus petition within one year after the completion of the state court proceedings. 28 U.S.C. S 2244(d), enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, provides, in relevant part:

(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...