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Timothy Ross v. David Varano

July 18, 2011

TIMOTHY ROSS,
PETITIONER,
v.
DAVID VARANO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: (Magistrate Judge Carlson)

(Judge Caldwell)

MEMORANDUM OPINION

I. Statement of Facts and of the Case

Eleven years ago, on June 21, 2000, Timothy Ross was convicted in the Court of Common Pleas of Franklin County of first-degree murder and was sentenced to life imprisonment without parole. (Docs 1, 8 and 11) Following this conviction, counsel was appointed to represent Ross in this case, a case in which Ross' life literally hung in the balance.

The record of that state court representation, while incomplete, is completely troubling. It appears that Ross' state court-appointed counsel neglected to file a timely notice of appeal, then later filed an untimely, nunc pro tunc, notice of appeal in May 2001. (Doc. 11) After belatedly filing this notice of appeal, counsel did not prosecute an appeal on Ross' behalf, but rather withdrew the appeal on June 18, 2001, ostensibly so that Ross could pursue nunc pro tunc post-trial motions instead. Thus, Ross' direct appeal was wholly abandoned by counsel in September 2001.

Having abandoned Ross' direct appeal in favor of post trial motions, state counsel then apparently did nothing for two years until September 11, 2003, when counsel wrote to Ross and stated that he intended to file a petition on Ross' behalf "by the end of the month." (Doc. 1, Ex. September 11, 2003, letter of counsel) Almost five years then elapsed before counsel wrote again to Ross on March 25, 2008. This March 25, 2008, letter is from the Court's perspective a disturbing document. In it, Ross' counsel indicated that he "just noticed" a 2003 letter from the petitioner. Claiming that the letter "must have gotten misplaced" for nearly five years, counsel informed Ross that he will "be following up on your matter," but admonished Ross that he will often be "unable to take a call from you." (Id., Ex. March 25, 2008, letter of counsel) Thus, on its face, this correspondence seems to reflect that state counsel had done nothing for Ross, a prisoner serving a life sentence, for almost 8 full years. In the face of this inaction by counsel, Ross unsuccessfully sought state PCRA relief, but was denied relief because his claims were time-barred. Ross has now filed a petition for writ of habeas corpus in this Court, seeking adjudication of his claims in federal court.

The respondents have opposed this request, and moved to dismiss this petition, citing the one-year statute of limitations that applies to state habeas actions under 28 U.S.C. § 2244.(Doc. 10) This matter has been fully briefed by the parties (Docs. 1, 10 and 11) and is now ripe for review.

For the reasons set forth below, we find that there are factual issues relating to whether Ross is entitled to equitable tolling of the statute of limitations due to the abandonment of his defense by his state counsel, factual issues that must be fully-developed, and factual issues which call for the assistance of counsel in this case. Accordingly, for the reasons set forth below, we will appoint counsel to represent Ross in this matter, and schedule an evidentiary hearing on these equitable tolling issues.

II. Discussion

A. State Prisoner Habeas Relief--The Legal Standard.

A state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--

(A) the applicant has exhausted the remedies available in the courts of the State;

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies ...


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