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NARA v. FRANK

March 10, 2004.

JOSEPH GEORGE NARA, Petitioner,
v.
FREDERICK FRANK, Superintendent, Respondent, and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Additional Respondent



The opinion of the court was delivered by: FRANCIS CAIAZZA, Chief Magistrate Judge

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus commenced by Joseph George Nara be considered as being timely filed in accordance with the doctrine of equitable tolling. Because of this determination, the Petitioner will be provided with an additional period of time during which he may file an Amended Petition for Writ of Habeas Corpus, through the assistance of his appointed counsel. An appropriate order will be subsequently filed.

  II. REPORT Page 2

  The Petitioner, Joseph George Nara (the Petitioner or Nara), a prisoner presently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania, filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254, wherein he challenged his guilty pleas to two counts of Murder in the First Degree.

  A. Relevant Procedural History

  On June 20, 1984, in the Court of Common Pleas of Fayette County, Pennsylvania, Nara pleaded guilty to two counts of Murder in the First Degree for the deaths of his wife and mother-in-law. After accepting Nara's guilty pleas, the Honorable William J. Franks sentenced Nara to two concurrent terms of life imprisonment. Nara did not file any post-verdict motions nor did he file a direct appeal.

  On April 25, 1988, Nara filed a petition for relief pursuant to the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §§ 9541, et. seq., wherein he raised claims of ineffective assistance of counsel. By Opinion and Order dated October 17, 1988, the PCHA court denied Nara's petition for post-conviction relief.*fn1 Nara filed a timely appeal to the Pennsylvania Superior Court. By Order dated March 29, 1989, the Page 3 Superior Court affirmed the Order of the PCHA court and dismissed Nara's appeal.*fn2 The Pennsylvania Supreme Court denied Nara's Petition for Allowance of Appeal by Order dated September 21, 1989.*fn3

  On May 15, 1990, Nara filed a second PCRA petition wherein he sought to withdraw his guilty pleas based on a claim of mental incompetency. Following the hearings, the PCRA court granted the relief which Nara sought in his petition and, by Order dated January 30, 1991, directed that Nara's guilty pleas be withdrawn.*fn4 Following an appeal by the Commonwealth, through a Memorandum Opinion and Order dated April 30, 1992, the Pennsylvania Superior Court vacated the Order of the PCRA court and reinstated Nara's guilty pleas, finding that the issue of Nara's competence had been waived because he had failed to raise it in his first post-conviction hearing.*fn5 The Pennsylvania Page 4 Supreme Court denied Nara's Petition for Allowance of Appeal by Order dated October 7, 1992.*fn6 Subsequently, the United States Supreme Court denied Nara's petition for certiorari. Page 5

  On December 21, 1995, Nara filed a third PCRA petition, alleging that he was incompetent at the time he entered his guilty plea. The court appointed attorney Phyllis Jin to represent Nara and then scheduled a hearing for April 30, 1996.

  At the hearing, Nara's counsel asked to withdraw his third PCRA petition because the issue he raised was "previously litigated" in favor of filing a motion to withdraw his guilty plea nunc pro tunc pursuant to Pennsylvania Rule of Criminal Procedure 321. The Court granted Nara's motion*fn7 and issued a briefing schedule. On June 23, 1996, Attorney Jin filed a memorandum in support of Nara's motion to withdraw his guilty plea.*fn8 By Opinion and Order dated September 30, 1996, the Court of Common Pleas of Fayette County denied Nara's motion to withdraw his pleas, concluding that Nara had been advised at his sentencing hearing in 1984 of his right to move to withdraw the pleas within ten days. The court found that Nara failed to state a compelling reason which explained his decision to wait twelve years before he sought to withdraw his guilty plea.*fn9 By Memorandum Opinion and Order dated July 9, 1997, the Superior Court affirmed the trial court's Page 6 decision which denied Nara's motion to withdraw his guilty pleas.*fn10 Finally, by Order dated December 8, 1997, the Pennsylvania Supreme Court denied Nara's Petition for Allowance of Appeal.*fn11

  On or about January 4, 1999, this Court received Nara's federal habeas corpus petition. The certificate of mailing indicates that prison personnel mailed the petition on December 15, 1998; however, Nara's habeas petition is signed and dated December 12, 1998, and his cover letter appended to the petition is dated December 12, 1998.

  The District Court referred the case to Magistrate Judge Francis X. Caiazza, who recommended that Nara's petition be dismissed because it was filed untimely and that a certificate of appealability be likewise denied. The District Court adopted the Magistrate Judge's Recommendations, dismissed Nara's federal habeas petition as being filed untimely and likewise denied the certificate of appealability.

  Nara filed a timely appeal to the Court of Appeals for the Third Circuit. On August 30, 2001, the Court of Appeals issued a Page 7 written opinion in Nara v. Frank, 264 F.3d 310, 319-20 (3d Cir. 2001), overruled in part by Carey v. Saffold, 536 U.S. 214 (2002). Specifically, the Court of Appeals agreed with the District Court that Nara's petition was commenced untimely under the provisions of 28 U.S.C. § 2244(d). Notwithstanding, the Third Circuit Court vacated the dismissal of the habeas petition as being filed untimely and remanded it to the District Court with directions to conduct an evidentiary hearing to determine whether the circumstances, described more particularity infra, warranted the equitable tolling of the limitations period.

  Specifically, the Court of Appeals ordered the District Court to conduct an evidentiary hearing based on Nara's assertions with respect to two issues: 1) whether he suffered from mental health problems at the time that he entered his guilty plea, and 2) whether his attorney in the third PCRA proceeding effectively abandoned him and prevented him from filing a timely federal habeas petition.

  In his application for a certificate of appealability, he listed a myriad of ways in which he was allegedly prejudiced by his attorney's conduct: 1) he was not informed that the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal; 2) his attorney refused to remove herself as appointed Page 8 counsel after the Pennsylvania Supreme Court's decision, thus preventing him from moving his case forward; 3) his attorney led him to believe that she would file a federal habeas petition on his behalf; and 4) he was told by his attorney that there were no time constraints applicable to the commencement of a federal habeas petition. In addressing Nara's argument, the Court of Appeals wrote:
These allegations may constitute extraordinary circumstances to justify equitable tolling. As we held in Miller and other cases, courts have discretion to apply principles of equity when the petitioner has been unfairly prevented from asserting his rights in a timely fashion. We believe that an evidentiary hearing on these allegations is warranted.
Nara, 264 F.3d at 320.

  The District Court held evidentiary hearings on October 31, 2002 and January 28, 2003. The evidence adduced at the hearings, as well as the clarification of the law as set out by the Court of Appeals for the Third Circuit after its decision in Nara in 1999, requires this Court to conclude that the doctrine Page 9 of equitable tolling is applicable to Nara's case. And, as the discussion infra demonstrates, Nara's federal habeas petition should be considered to have been timely filed under the doctrine of equitable tolling.

  B. Limitations Period for Federal Habeas Corpus Petitions

  The first consideration which a district court must necessarily consider in reviewing a federal habeas corpus petition is whether it was timely ...


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