United States District Court, W.D. Pennsylvania
March 10, 2004.
JOSEPH GEORGE NARA, Petitioner,
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
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.
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
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
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.
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
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
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
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
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
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
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 filed under the one-year limitations period.
The federal habeas corpus laws were amended pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.
No. 104-132, 142 Cong. Rec. H3305-01 (April 24, 1996). In section 101 of
AEDPA, Congress imposed a new, one-year limitations period which is
applicable to state prisoners. It provides in relevant part as follows:
(d) 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;
(B) the date on which the impediment to filing
application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
(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
28 U.S.C. § 2244(d) (as amended).
In analyzing whether a petition for writ of habeas corpus has been
timely filed under the new one-year limitations period, a federal court
must undertake a three-part inquiry. First, the court must determine the
date on which the petitioner's direct review concluded and the judgment
became "final" for purposes of triggering the one-year period under
section § 2244(d)(1)(A). Second, the court must determine whether any
applications for post-conviction or collateral relief were pending
during the limitations period that would toll the statute pursuant to
section 2244(d)(2). Third, the court must determine whether any of the
other statutory exceptions or whether the doctrine of equitable tolling
should be applied with respect to the relevant facts.
Here, Nara pleaded guilty and was sentenced on June 20, 1984. He did
not file any motions to withdraw his pleas nor did he file a direct
appeal from his conviction, as was his right. As a result, direct review
of Nara's conviction and sentence concluded, at the latest, on July 19,
1995, following the expiration of the time period allowed under
Pennsylvania law for filing a post-verdict motion to withdraw a plea (ten
days) and the expiration of the time period allowed for filing an appeal
of a criminal sentence (thirty days). See Swartz v.
Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment
becomes final at the conclusion of direct review or the expiration of
time for seeking such review, including the time limit (ninety days) for
filing a writ of certiorari in the United States Supreme Court);
Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (same
for 28 U.S.C. § 2255 motions).
Nara's judgment became final before the April 24, 1996 effective date
of the AEDPA. In Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
1998), the United States Court of Appeals for the Third Circuit agreed
with other courts of appeals in holding that habeas petitions filed on or
before April 23, 1997-one year from AEDPA's effective date-may not be
dismissed for failure to comply with the one-year limitations period.
Consequently, under the new one-year limitations period in AEDPA, Nara
had until April 23, 1997 to file a federal habeas corpus petition
challenging his state conviction.
Nara did not file his federal habeas petition by April 23, 1997.
Instead, his habeas petition was signed and dated December 12, 1998 but
it was not filed with this Court until January 4, 1999. As a result, this
Court must determine whether Nara can take advantage of the "tolling"
provision in section 2244(d)(2). As stated supra, section
2244(d)(2) provides 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 under this subsection."
28 U.S.C. § 2244(d)(2).
In Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002), the
Supreme Court held that in order to be "properly filed" pursuant to the
provisions of 28 U.S.C. § 2244(d)(2), an application for collateral
review in state court must satisfy the state's procedural timeliness
requirements. See also Artuz v. Bennett, 531 U.S. 4
(2000). Moreover, the Court of Appeals for the Third Circuit specifically
has found that untimely PCRA petitions do not statutorily toll the AEDPA
one-year limitations period. See Fahy v. Horn,
240 F.3d 239 (3d Cir. 2001). Similarly, the Court of Appeals for the Third
Circuit has determined that an untimely application for state
post-conviction relief by a petitioner, who unsuccessfully sought to
invoke an exception to the PCRA time bar, is not "properly filed" under
28 U.S.C. § 2244(d)(2). See Merritt v. Blaine,
326 F.3d 157 (3d Cir. 2003). Furthermore, in Brown v. Shannon,
322 F.3d 768, 775, n.5 (3d Cir. 2003), the Court of Appeals for the Third
Circuit recognized that an appeal nunc pro tunc is not "properly
filed" under 28 U.S.C. § 2244(d)(2). Parenthetically, under state
law, a late pleading is considered to be filed improperly.
Accord Douglas v. Horn, ___ F.3d ___, 2004 WL 231207
(3d Cir. Jan. 12, 2004) (holding that the petitioner's nunc pro
tunc petition was not properly filed, and
that, by extension, neither his motion to reconsider the denial of
that petition, nor the time lapse between the two filings, constituted
grounds for statutory tolling); Swartz, 204 F.3d at 424 n.6
("we agree that the time during which Swartz's nunc pro tunc
request for allowance of appeal was pending does not toll the statute of
Here, Nara's third PCRA petition was ordered withdrawn pursuant to his
own motion on April 30, 1996; it subsequently was filed as a motion
seeking permission to withdraw his guilty pleas nunc pro tunc
(nunc pro tunc motion). On review, the trial court determined
that Nara had waived his right to withdraw his guilty pleas because he
failed to file a motion within ten days, as is required under
Pennsylvania procedural law, and he failed to diligently pursue the issue
in the state courts. The Pennsylvania Superior Court affirmed the
decision of the trial court and the Pennsylvania Supreme Court denied
review by Order dated December 8, 1998.
On appeal from this Court's previous Order dismissing Nara's Petition
as being untimely, the Court of Appeals for the Third Circuit determined
that Nara's nunc pro tunc motion was a "properly filed
application for State post-conviction or other collateral review" within
the meaning of 28 U.S.C. § 2244(d)(2).
Nara, 264 at 316.*fn12 Construing Nara's nunc pro
tunc motion as a "properly filed" application for State
post-conviction or other collateral review, the period that Nara's
nunc pro tunc motion was pending in the Pennsylvania courts
statutorily tolls the one-year limitations period.
By Order dated December 8, 1997, the Pennsylvania Supreme Court denied
Nara's Petition for Allowance of Appeal with respect to the disposition
of his nunc pro tunc motion.*fn13 Thus, the latest date that
Nara's nunc pro tunc motion was pending is December 8, 1997.
See Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir. 1998)
(limitations period is tolled under 28 U.S.C. § 2244(d)(2) until the
date that the Pennsylvania Supreme Court
denied Petition for allowance of appeal with respect to the second
Nara's federal habeas corpus petition was received and docketed by the
Clerk of Courts for the United States District Court for the Western
District of Pennsylvania on January 4, 1999, almost one month after the
expiration of the limitations period. Even after applying the "mailbox
rule," Nara's federal habeas corpus petition was unfortunately filed
after the one-year limitations period had expired. That said, both the
federal and the Pennsylvania courts have adopted the "mailbox rule" with
respect to pro se prisoner filings. The "mailbox rule" tolls
statutes of limitations and other filing deadlines on the date that
prisoners relinquish control over court documents and deliver them to
prison officials for mailing. In other words, such documents are "deemed"
filed on the date that the prisoner deposits the filing with prison
authorities or places it in a prison mailbox. See Houston
v. Lack, 487 U.S. 266, 271 (1988);
Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998)
(applying mailbox rule to habeas corpus one-year limitations period for
filing petition); Commonwealth v. Jones, 549 Pa. 58,
700 A.2d 423 (1997) (applying prisoner mailbox rule to pro se direct
appeal from criminal conviction); Commonwealth v. Little,
716 A.2d 1287 (Pa. Super. 1998) (applying mailbox rule to PCRA petition).
However, the mailbox rule does not help Nara. On the last page of his
federal habeas corpus petition, Nara was required to sign a declaration
with respect to the veracity of the facts stated in his petition. Nara's
declaration is dated "December 12, 1998." The latest date that Nara's
one-year statute of limitations period expired would have been December
7, 1998. Thus, Nara's Petition was not timely filed, even after applying
the prison mailbox rule.
C. Equitable Tolling
As recognized by the Court of Appeals for the Third Circuit, AEDPA's
one-year limitation period as set out in § 2244(d) is a statute of
limitations, not a jurisdictional bar, and, therefore, may be equitably
tolled. The court explained, however, the legal constraints imposed upon
the doctrine of equitable tolling in this way:
[e]quitable tolling is proper only when the
principles of equity would make the rigid
application of a limitation period unfair.
Generally, this will occur when the petitioner has
in some extraordinary way been prevented from
asserting his or her rights. The petitioner must
show that he or she exercised reasonable diligence
in investigating and bringing the claims. Mere
excusable neglect is not sufficient.
Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616
618-19 (3d Cir. 1998) (internal citations, quotations, and punctuation
omitted). The burden of establishing entitlement to the extraordinary
remedy of equitable tolling rests with the petitioner. Id. at
978. Moreover, the "petitioner must `show that he or she exercised
reasonable diligence in investigating and bringing [the]
claims.' . . . Mere excusable neglect is not sufficient." Robinson
v. Johnson, 313 F.3d 128
, 142 (3d Cir. 2002) (quoting
Miller, 145 F.3d at 618-19 (internal quotations omitted)).
The United States Court of Appeals for the Third Circuit has held that
equitable tolling of the AEDPA statute of limitations
is permitted if: "(1) the defendant has actively misled the
plaintiff, (2) the plaintiff has in some extraordinary way been prevented
from asserting his rights, or (3) the plaintiff has timely asserted his
rights mistakenly in the wrong forum." Fahy v. Horn,
240 F.3d 239, 244 (3d Cir.) (internal citation omitted), cert. denied,
534 U.S. 944 (2001).
The evidentiary hearings in Nara's action revealed the following.
Attorney Phyllis Jin was appointed to represent Nara in his third PCRA
petition, which was refiled as a motion to withdraw his guilty pleas
nunc pro tunc. Sometime after the trial court denied his motion,
Attorney Jin advised Nara in writing that oral argument was scheduled in
his case in the Superior Court of Pennsylvania on April 23, 1997.
Evidentiary Hearing Hr'g (Hr'g) Ex. J-2. After discussing the situation
with Nara, it was agreed that Attorney Jin would travel to Cambria County
and personally argue his case. The following day, on April 24, 1997,
Attorney Jin wrote a letter to Nara in which she set out her thoughts and
explained to him the status of the case. In her letter, Attorney Jin
I am not sure how long it will take the Superior
Court to make a decision. I will let you know as
soon as I hear something. I
do feel satisfied with how the arguments went,
but as you know, I can make no promises as to what
they will do. All we can do is hope and pray that
the Superior Court will reverse the lower court.
If they do not, please be aware that I will
continue to fight this case through the Supreme
Court of Pennsylvania first and then I believe we
would be on our way to a Federal habeas
corpus. Just try to hang in there and do the
best you can while we are waiting.
Hr'g Ex. J-3 (emphasis added).
Attorney Jin again corresponded with Nara on July 14, 1997, following
the Superior Court's decision which affirmed the trial court's denial of
his motion to withdraw his guilty pleas. In that letter, Attorney Jin
Enclosed please find a copy of the Superior Court
Opinion which, unfortunately the Court affirmed. I
cannot tell you how disappointed I am. But, I am
ready to move past this and file an appeal to the
Court. If that is not successful, the
Federal appeals are next.
Hr'g Ex. J-5 (emphasis added).
On December 10, 1997, Nara contacted his brother who informed him that
his criminal case recently was the subject of a newspaper article. Hr'g
Tr. at 81-82. Immediately afterwards he contacted Attorney Jin to
determine the status of his case. He was only able, however, to speak
with Attorney Jin's secretary who told him that the Supreme Court of
Pennsylvania had denied his Petition for Allowance of Appeal. Hr'g Tr. at
82. When Nara asked the date on which the petition was denied, the
secretary informed him that it would be necessary for him to speak
directly with Attorney Jin, who was unavailable at that time.
On the date of the Evidentiary Hearing, i.e., on October 31,
2002, Attorney Jin produced a letter in her file dated December 10, 1997,
which purportedly shows that she forwarded to Nara the order of the
Pennsylvania Supreme Court which denied his Petition for Allowance of
Appeal. This letter was not a part of the file that was provided to
Nara's counsel prior to the hearing. Moreover, it was discovered during
the evidentiary hearing that Attorney Jin's letterhead had printed on it
incorrect telephone area code. The record shows that Attorney Jin's
area code was changed from 412 to 724 code sometime in mid to late 1998.
All of the correspondence from Attorney Jin's office to Nara dating from
April 1, 1997 up until November 5, 1998 had the 412 area code on the
letterhead. Nara testified that he never received the December 10, 1997
letter from Attorney Jin's office.*fn15
Next, on December 15, 1997, Nara wrote a letter to Attorney Jin and
requested that she file a motion for reconsideration in the Pennsylvania
Supreme Court's with respect to the court's decision not to review his
case; he also stated that he informed her that she had only fourteen days
to seek reconsideration. Hr'g Ex. K-1. In addition, in the letter he
requested that Attorney Jin file a post conviction petition regarding
newly discovered evidence. Finally, Nara stated that because it was
difficult for him to contact Attorney Jin by phone, he requested a
personal meeting to discuss strategy.
The phone logs from the State Correctional Institution at Huntingdon
show that from December 15, 1997 through January 1, 1998, Nara attempted
to contact Attorney Jin by telephone on numerous occasions; none of these
calls, however, were accepted by Attorney Jin. On January 2, 1998,
Attorney Jin directed a letter to Nara and informed him that she wanted
to meet with him personally and to discuss his case. In that letter, she
told Nara: "I am thinking the next step is federal relief, unless you
feel we have not exhausted our other remedies." Hr'g. Ex. J-6. On January
19, 1998, Attorney Jin directed another letter to Nara and informed him
that she still planned to visit him at Huntingdon. Hr'g Ex. J-7. Three
months later, on April 15, 1998, Attorney Jin once again wrote Nara and
expressed her intention to personally visit him at Huntington. Hr'g. Ex.
J-8. In that letter, Attorney Jin said: "I don't believe that there are
any time restraints that could concern us or the District Attorney. The
question is what is our next step federal?" She ended the letter
by telling Nara that she would visit him as soon as possible.
The phone logs from Huntingdon indicate that Nara continued his
attempts to contact Attorney Jin, but his efforts were unavailing. None
of his calls were accepted by Attorney Jin's office. Turning to the
court, on June 29, 1993, Nara directed a letter to President Judge Franks
who appointed Attorney Jin to be his attorney in the state collateral
relief proceedings. In the letter, Nara told Judge Franks that he had
written several letters to Attorney Jin and that he had, on numerous
occasions, unsuccessfully attempted to contact her by telephone.
Essentially, he asked Judge Franks to instruct Attorney Jin to represent
him in a manner which would expedite the resolution of the unresolved
issues in his case. Hr'g Ex. k-5.
After further failed attempts to communicate with Attorney Jin, on
August 21, 1998, Nara, pro se, filed a Motion for Withdrawal of
Attorney Jin as his counsel and requested the appointment of new counsel.
Hr'g. Ex. L-1. On August 29, 1998, Nara wrote a letter to Attorney Jin
and requested the return of his personal file. Hr'g Ex. K-3. On September
23, 1998, Attorney Jin placed a telephone call to Huntingdon and
requested that Nara be asked to contact her office and that she would pay
the toll charges. Hr'g. Ex. C. When Nara contacted Jin's office by
telephone, he spoke with her secretary who informed him that
Attorney Jin was willing to continue to represent him, if he would
withdraw his motion which requested her withdrawal from the case as his
counsel. Hr'g. Tr. at 96. Relenting to her offer, on September 24, 1998,
Nara filed a petition to discontinue his motion for withdrawal of
counsel. Hr'g. Ex. L-2.
After further repeated and unavailing attempts to contact Attorney Jin,
on November 2, 1998, in the Court of Common Pleas of Fayette County, Nara
filed another motion seeking her withdrawal from the case as his counsel;
again, he requested the appointment of new counsel. Hr'g. Ex. L-3. On
November 17, 1998, Judge Frank issued an order which stated that because
Nara already had counsel, the court would not consider his petition
seeking Attorney Jin's dismissal from the case because hybrid
representation was not an acceptable practice under Pennsylvania law.
Hr'g Ex. L-4. When Nara received this order, it was his understanding
that Attorney Jin remained as his court-appointed attorney and that she
would file his federal habeas corpus petition. Hr'g. Tr. at 99. In
addition, Nara testified that Attorney Jin personally told him that she
would file his federal habeas petition. Hr'g Tr. at 115.
On November 27, 1998, Nara directed another letter to Attorney Jin and
requested that she return to him his personal
file. Hr'g. Ex. K-4. He specifically stated that, due to her
failure to respond to his certified letters and numerous telephone calls,
it was in his best interest that she provide him with his personal files,
including any petitions filed on his behalf, so that he could pursue his
case pro se. Nara received his file from Attorney Jin in two
separate packages sometime in January of 1999. Hr'g Tr. at 117.
Nara testified that he had difficulty reading and writing and that Ray
Steffan, an assistant in the law library, helped him prepare and file his
federal habeas corpus petition. Hr'g Tr. at 109. He further testified
that it was his belief that he had an additional fourteen days to file
his federal habeas corpus petition because he assumed that Attorney Jin,
pursuant to the request he made in his December 15, 1997 letter, had
filed a motion for reconsideration with the Pennsylvania Supreme Court.
Because he had no further personal contact with her after that time, he
did not know that she still had not filed the petition. Hr'g Tr. at 115.
It was not until he received his file from Attorney Jin that he
discovered that no motion seeking a reconsideration had been filed. Hr'g
Tr. at 116.
The Courts of Appeals have held that, in non-capital cases, attorney
neglect and mistake by counsel may not rise to the
level of extraordinary circumstances that permit equity relief. See,
e.g., Johnson v. Hendricks, 314 F.3d 159 (3d Cir. 2002)
(agreeing with other circuits in holding that in non-capital cases, an
attorney's failure to comply with a petitioner's one-year limitations
period does not rise to the level of extraordinary circumstances for the
purposes of equitable tolling). Notwithstanding, the Court of Appeals
for the Third Circuit has recognized, as it did in this case, that
equitable relief may be proper where an attorney has actively misled a
For example, in Seitzinger v. The Reading Hospital and Medical
Center, 165 F.3d 236 (3d Cir. 1999), the Court of Appeals reversed
the District Court's decision granting summary judgment and remanded the
case for further consideration of the Plaintiff's claim in which he
argued that the statute of limitations should be equitably tolled.
Referring to counsel's failure to timely file an appeal, the Court of
Appeals explained that "the principles of equitable tolling . . . do
not extend to what is at best a garden variety claim of excusable
neglect." Id. at 241 (internal quotation omitted).
Notwithstanding, the appeals court found that counsel's "level of
misbehavior went well beyond the garden variety, because [counsel]
lied to his client." Id. See also Doherty v.
Teamsters Pension Trust Fund of Phila. & Vicinity, 16 F.3d 1386
(3d Cir. 1994) (remanding action to apply equitable tolling factors
because of the death of petitioner's attorney).
In a more recent opinion, Brown v. Shannon, 322 F.3d 768 (3d
Cir. 2003), the Court of Appeals for the Third Circuit again reviewed the
availability of equitable tolling in the case of attorney misadventure.
In Brown, the petitioner filed a second pro se PCRA
petition on December 24, 1996 and retained Daniel Silverman, Esquire as
his counsel. The PCRA court denied the relief sought by the petitioner in
his collateral relief proceeding on March 26, 1997. Although Brown asked
Silverman to file an appeal, by letter dated April 16, 1997, Silverman
responded as follows:
It is my strong recommendation that you not pursue
an appeal before the Pennsylvania Superior Court.
I believe that paying me money to pursue that
appeal would be a [sic] inefficient use of your
resources. With the record before it as it now
stands, the Superior Court would almost certainly
affirm Judge Sabo's decision. It is my
recommendation that you pursue your remedies
in federal district court via a writ for petition
of habeas corpus [sic]. . . . Consequently, I
will not file a Notice of Appeal to the Superior
Court, although you are certainly permitted to do
Brown, 322 F.3d at 772-773. Brown agreed to have
Silverman file a federal habeas petition and to forgo an appeal in state
court. About a month later, in a letter dated May 20, 1997, Silverman
informed Brown that he had not yet read the trial transcripts nor had he
drafted a habeas petition. Also, despite his best efforts, he had been
unable to obtain the trial transcripts. Subsequently, in a letter dated
July 29, 1997, Silverman informed Brown that he was unable to obtain a
complete set of the trial transcripts and therefore was unable to
continue to properly represent him.
On appeal Brown sought equitable tolling for the period from April 26,
1997, (the day the second PCRA ceased to be pending) through July 29,
1997 (the date that Silverman withdrew representation). In refusing to
apply the doctrine of equitable tolling to this sequence of time, the
Court of Appeals stated that:
We disagree with Brown insofar as he contends
that he is entitled to equitable tolling because
Silverman ineffectively failed to file an appeal
from the denial of the second PCRA petition. From
the outset, Silverman was forthright about not
filing an appeal. In fact, the record reflects
that Brown agreed to pursue federal habeas relief
instead of an appeal in state court.
Significantly, he could have timely filed a pro se
notice of appeal in state court after receiving
Silverman's letter on April 21, 1997. He had five
days in which to do so. He was aware of the filing
deadline (the PCRA court had informed him of the
30-day appeal period). Given his history of pro se
filings, there is no reason to believe that Brown
could not prepare and submit a notice of appeal, a
simple one-paragraph document, within that time.
It appears that he simply chose to not do so.
Under these circumstances, equitable tolling is
not warranted. Insofar as Silverman's advice to
pursue federal habeas relief instead of an appeal
in state court may have been unsound, his
negligence in giving that advice is an
insufficient basis for equitable tolling.
See Fahy v. Horn, 240 F.3d 239,
244 (3d Cir.) ("attorney error, miscalculation,
inadequate research, or other mistakes have not
been found to rise to the `extraordinary'
circumstances required for equitable tolling"),
cert. denied sub nom., 534 U.S. 944
We also disagree with Brown insofar as he
contends that he is entitled to equitable tolling
because Silverman "abandoned" him by withdrawing
representation without filing a federal habeas
petition. Silverman informed
Brown that he was withdrawing because he was
unable to obtain a complete set of the trial
transcripts and felt that he could no longer
properly represent Brown. Prior to withdrawing, he
had made diligent efforts to obtain the trial
transcripts and had been forthright with Brown
regarding his lack of success in obtaining them.
He had also been forthright with Brown regarding
his lack of progress in drafting a habeas
petition. The record simply does not reflect that
Silverman misbehaved or acted so irresponsibly
that his withdrawal can be said to be an
"extraordinary" circumstance warranting equitable
Brown, 322 F.3d at 773-74.
Unlike the situation in Brown, the facts presented at the
evidentiary hearings here clearly show that Nara's attorney did more than
simply provide negligent assistance; she affirmatively misled him into
believing that she would represent him throughout his post conviction
proceedings, up to and including the filing of a federal habeas petition.
Jin actively prevented Nara from moving his case forward by: 1)
failing to inform him of the specific date that the Pennsylvania Supreme
Court had denied review of his motion to remove his guilty plea; 2)
failing to specifically inform him that she had not filed a motion for
reconsideration as he had requested; 3) repeatedly asking his advice
about the applicability of initiating federal proceedings; 4) leading him
to believe that she would continue to represent him in future proceedings
after the Supreme Court of Pennsylvania had denied review of his motion
to withdraw his guilty pleas; 5) leading him to believe that she would
file the federal habeas petition on his behalf; 6) telling him there were
no time constraints for filing a federal habeas petition; and 7) actively
misleading him by referring to the federal habeas corpus action as an
"appeal," and by repeatedly telling him that she planned to visit him at
Huntington to discuss his case after the Supreme Court of
Pennsylvania denied his petition for review in December of 1997.
The record shows that Attorney Jin actively misled Nara not only with
respect to the limitations period but, in addition, she informed him that
she would file a federal habeas corpus petition on his behalf; also, in
the letters that she did finally write to Nara she repeatedly referred to
potential step in the process as the "federal appeal." Nor did Attorney
Jin explain to Nara that the federal proceeding is distinct from the
state PCRA proceeding. Also telling is the fact that many of Attorney
Jin's letters were written to Nara after the state proceedings had been
concluded. In these letters-written after the Supreme Court denied his
petition seeking review-Attorney Jin indicated to Nara on at least
three occasions that she planned to visit him at Huntington to discuss
his case. Unless Attorney Jin intended to represent Nara pro
bono, it would have been reasonable for Attorney Jin to inform Nara
that he had to formally retain her to represent him in the federal
action. However, except as to her self-serving testimony, there is no
record evidence which shows that Attorney Jin advised Nara that she
would not proceed to represent him in the federal proceeding, unless she
was formally retained as his counsel. In fact, Nara testified that he
never personally spoke to Attorney Jin after the Supreme Court of
Pennsylvania denied his petition for review on December 8, 1997.
Moreover, he further testified that Attorney Jin never informed him that
he would be required to personally retain her in order for her to file
his federal habeas petition; to the contrary, he testified that she told
him that she would file his federal habeas
petition and that he relied on her promise. Parenthetically,
Attorney Jin's correspondence to Nara, in which she repeatedly refers to
the next step as the "federal appeal", supports Nara's expectation.
In diligently pursuing his action, Nara made numerous written and
telephonic attempts to contact Attorney Jin. Next, because his efforts
bore no fruit, he directed a letter to Judge Franks and solicited his
assistance. Finally, when all reasonable attempts resulted in nothing but
failure, Nara resorted to a final recourse. He filed a motion asking for
Attorney Jin's withdrawal from the case. Immediately upon receipt of that
motion, Attorney Jin requested that Nara contact her. He complied and
Attorney Jin's secretary informed him that she promised to proceed with
his case. The only possible interpretation that Nara could place on
Attorney Jin's decision was that she planned to file his federal
petition. Placing credence and trust in her decision, the following day
Nara withdrew his motion for withdrawal of counsel. Unfortunately,
Attorney Jin, in keeping with her past practice, continually refused to
communicate with her client.
Nevertheless, Nara continued to act diligently. He again filed a motion
seeking the dismissal of Attorney Jin as his
counsel. The trial court, however, refused his application, finding
that he was already represented by an attorney and that hybrid
representation was not favored by the law. In the meantime, Nara finally
was able to contact Attorney Jin's office and he spoke with her secretary
in November of 1998. At that time, Nara directed that she forward to him
his files so that he could proceed with his federal habeas action pro
se. Shortly thereafter, on December 12, 1998, only five days
following the expiration of his one-year statutory limitations period,
Nara filed his federal habeas petition after soliciting the aid of the
library assistant at Huntingdon.
Under these facts, it is this court's considered opinion that the
one-year statute of limitations in 28 U.S.C. § 2244(d) should be
equitably tolled. Cf. United States v. Wynn, 292 F.3d 226,
230 (5th Cir. 2002) (holding that a prisoner's allegation that he
was deceived by his attorney into believing that a timely § 2255
motion had been filed on his behalf presents a "rare and extraordinary
circumstance" beyond a petitioner's control that should warrant equitable
tolling of the statute of limitations).
It is respectfully recommended that the Petition for Writ of Habeas
Corpus be considered timely filed in accordance with the doctrine of
equitable tolling. Consequently, this Court should permit Nara to file an
amended Petition for Writ of Habeas Corpus through the assistance of his
appointed counsel. An appropriate order will be filed.
In accordance with the Magistrate's Act, 28 U.S.C. § 636 (b)(1)(B)
and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates,
objections to this Report and Recommendation are due by March 26, 2004.
Responses to objections are due by April 5, 2004. Failure to file timely
objections may constitute a waiver of any appellate rights.