Ross v. Varano

• Decision Date: 05 April 2013
• Docket Number: No. 12–2083.,12–2083.
• Citation: 712 F.3d 784
• Parties: Timothy J. ROSS v. David VARANO; PA State Attorney General PA State Attorney General, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

712 F.3d 784

Timothy J. ROSS

v. David VARANO; PA State Attorney GeneralPA State Attorney General, Appellant.

No. 12–2083.

United States Court of Appeals, Third Circuit.

Argued Dec. 13, 2012.

Opinion Filed: April 5, 2013.

Matthew D. Fogal, Esquire, Franklin County District Attorney, Zachary I. Mills, Esquire, (argued), David W. Rahauser, Esquire, Franklin County Office of District Attorney, Chambersburg, PA, Attorneys for Appellant.

James V. Wade, Esquire, Federal Public Defender, Frederick W. Ulrich, Esquire, (argued), Assistant Federal Public Defender, Office of Federal Public Defender, Harrisburg, PA, Attorneys for Appellee.

Before: GREENAWAY, JR., GREENBERG and COWEN, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

The Attorney General of Pennsylvania (the “Commonwealth”) appeals from an order of the District Court dated December 29, 2011, denying the Commonwealth's motionto dismiss the habeas corpus proceedings brought by the petitioner, Timothy J. Ross, as untimely and granting equitable tolling from the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), in this action under 28 U.S.C. § 2254. The Commonwealth also appeals from a subsequent order of the District Court dated March 16, 2012, granting Ross substantive habeas corpus relief.

This case arose in the aftermath of Ross's conviction of first degree murder by a jury in the Franklin County, Pennsylvania, Common Pleas Court on June 14, 2000, and his sentence based on that conviction of life imprisonment on June 21, 2000. For reasons that we will explain, Ross was unable to obtain a state appellate court review of his conviction and sentence. He subsequently brought this habeas corpus case charging that because his attorney wrongfully abandoned him, he lost his appellate rights in violation of the Sixth Amendment.¹ Although the AEDPA statute of limitations, in terms, barred this action as untimely, the District Court found that equitable tolling of the running of the statute was warranted because Ross had been diligent in pursuing his state court appellate remedies but that extraordinary circumstances beyond his control frustrated this attempt.

The District Court reached its conclusion with respect to equitable tolling by adopting a report and recommendation of a magistrate judge that he submitted to the Court following an evidentiary hearing on November 3, 2011. The testimony at the hearing demonstrated that Ross, though diligent in attempting to prosecute what should have been a routine appeal in the state courts, was unsuccessful in this attempt by reason of extraordinary circumstances attributable to his attorney's extreme neglect of his case. This neglect included the attorney missing deadlines for filing documents with the state courts, the attorney's failure to communicate with Ross, and the attorney's misleading statements when he did communicate with Ross. Moreover, when Ross sought to remedy the situation by filing a motion for appointment of a new attorney, the Common Pleas Court denied his motion. Ross's mental health issues, limited education, and limited cognitive ability magnified his problems. Moreover, Ross's status as a prison inmate placed structural obstacles in his path when he attempted to pursue state court appellate proceedings. Subsequently, on March 16, 2012, the District Court adopted a second report and recommendation by the magistrate judge and in so doing granted Ross substantive relief for the same reasons that it denied the Commonwealth's motion to dismiss his petition. The magistrate judge based the second report and recommendation on the same record on which he had predicated his original report and recommendation. The District Court's order required the Commonwealth to reinstate Ross's direct appeal from his conviction within 90 days.

On this appeal the Commonwealth contests the District Court's findings and argues that the Court incorrectly applied equitable tolling principles. According to the Commonwealth, Ross did not diligently pursue his appellate rights between 2004 and 2008, despite being required to do so continuously during the entire period in which he was exhausting his state remedies, as required to preserve his claim for equitable relief from the AEDPA's statute of limitations, prior to bringing these habeas corpus proceedings. For the reasons that we set forth, we will affirm the District Court's decision and order tolling the running of the statute of limitations with respect to Ross's habeas petition, so that the filing of the petition will be deemed timely. We also will affirm its grant of a writ of habeas corpus on the same basis that the Court tolled the running of the statute of limitations. We, however, will remand the case to the District Court with instructions to modify its order that the Commonwealth reinstate Ross's appeal, and, instead, to order Ross's release within 90 days unless the Commonwealth reinstates Ross's right to appeal from his conviction and sentence within that period.²

II. FACTS AND PROCEDURAL HISTORY

The details of the proceedings in the state courts following Ross's sentencing in the Common Pleas Court are convoluted and lengthy, but inasmuch as it is necessary to understand them to make an analysis of the equitable tolling issue, we recite them in great detail. The facts largely were developed at the evidentiary hearing before the magistrate judge, though much of the record in this case consists of documents filed in the state courts.

As we have indicated, Ross was convicted of first degree murder on June 14, 2000, in the Common Pleas Court.³ In an order dated July 11, 2000, that court appointed an attorney, Christopher Sheffield, to represent Ross in “all post-sentence proceedings including appeal.” In the same order, the court stayed the time for filing an amended post-sentence motion by ten days “to permit new counsel to consult with Mr. Ross.” ⁴ J.A. at 328.

Following Sheffield's appointment, Ross wrote to Sheffield in July, September, and October 2000 suggesting strategies for his appeal and asking for basic information as to the status of his case. When Sheffield did not respond, Ross also wrote to his trial attorney asking for his assistance because Sheffield had not contacted him. Ross's former attorney forwarded Ross's correspondence to Sheffield on October 9, 2000. Sheffield did not respond to any of these four letters sent over a period of approximately two and one-half months. Furthermore, Sheffield did not file a post-sentence motion within the extended ten-day period the Common Pleas Court allowed for the filing of such a motion when it appointed him to represent Ross.

On October 16, 2000, Ross wrote to the clerk of the Common Pleas Court to inquire about what steps he might take to pursue his appeal. On December 11, 2000, five months after the Common Pleas Court appointed him to represent Ross, Sheffield, without informing Ross, filed a motion in that court on Ross's behalf for leave to appeal nunc pro tunc. The court granted this motion on December 13, 2000. On January 1, 2001, Ross wrote to the judge assigned to his case in the Common Pleas Court, explaining that he had not heard anything about his case since the court had appointed Sheffield to represent him. Ross also filed a pro se motion for appointment of a new attorney on January 5, 2001. On January 11, 2001, the court denied this motion because “the record indicates that petitioner's court-appointed counsel recently filed a motion for transcripts and leave to file an appeal nunc pro tunc, which was granted by this court on December 13, 2000.” J.A. at 270.

On January 15, 2001, after receiving a copy of this order denying his motion from the court, Ross wrote an apologetic letter to Sheffield in which he requested copies of the appeal documents in his case and emphasized how important the appeal was to him because he was serving a term of life in prison. However, despite the many beseeching letters from his client, Sheffield did not file a notice of appeal to the Superior Court of Pennsylvania until May 9, 2001, six months after the Common Pleas Court granted him leave to do so, and then, apparently, only in reaction to a phone call that the Common Pleas Court made to him indicating its concern that it had not yet seen an appeal filed.⁵ Ross testified at the evidentiary hearing before the magistrate judge that he did not receive a copy of that notice of appeal. On June 8, 2001, a month after receiving the telephone call from the court, Sheffield visited Ross in prison for the first and only time during the approximately eight years that he was Ross's attorney of record and at that meeting assured Ross that his appeal was moving forward. During the meeting Ross stressed that he had sent several letters to Sheffield outlining the issues he felt needed to be raised on appeal.⁶

Notwithstanding his representation to Ross that his appeal was going forward, on June 11, 2001, Sheffield filed a petition with the Common Pleas Court for leave to withdraw Ross's direct appeal and, instead, to file post-trial motions nunc pro tunc for the purpose of establishing an ineffective trial counsel claim. Sheffield explained in this petition that, after his meeting with Ross, “it became evident” to him, apparently for the first time in the almost full year that he had represented Ross, “that there are issues regarding ineffectiveness of trial counsel” and that those issues must “be decided by the trial court and a record on those issues be made prior to continuingon direct appeal.” Id. at 276–77. Though our result is not dependent on the point, we believe that in filing this petition Sheffield was implying that he intended to submit these post-trial motions pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. § 9541 et seq. (West 1998). Sheffield, however, did not refer...