Percy St. George was convicted in a Pennsylvania state criminal court in 1997, but his lawyer did not file an appeal. So St. George tried to file his own. Although his pro se appeal was untimely, the Pennsylvania courts did not so notify him. Instead, state officials repeatedly mixed up two of St. George's cases and, as a result, St. George missed his chance to seek collateral relief on the grounds that his trial counsel was ineffective for failing to file an appeal. In other words, by the time the state's mix-up over the two cases was resolved, Pennsylvania procedural rules barred St. George from seeking reinstatement of his appellate rights.
St. George now seeks a writ of habeas corpus in this court. His sole contention is that his trial counsel was ineffective for disregarding St. George's request that an appeal be filed on his behalf. For the reasons stated below, St. George is entitled to an evidentiary hearing.
Following a jury trial in the Court of Common Please of Philadelphia County, petitioner was convicted, in October of 1997, of kidnaping and other crimes. He was sentenced, on December 3, 1997, to a 15--30 year term of incarceration, which he is currently serving. Petitioner's counsel at trial and sentencing, Robert Dixon, failed to file a notice of appeal or any other post-verdict motions on petitioner's behalf. Accordingly, petitioner filed a pro se notice of appeal on February 25, 1998. See Pet'r's Ex. 1 (Notice of Appeal, Feb. 25, 1998).*fn1 Because this notice was filed more than thirty days after his sentence was entered, petitioner's notice of appeal was untimely. See Pa. R. App. Proc. 903(a).
The Clerk of Court for the appeals unit of the Court of Common Pleas returned the tardy notice of appeal to the petitioner, without having filed it and with a notation stating that the appeal was premature. The docket number on the returned notice of appeal (which petitioner listed as "CP No. 0523")*fn2 had been crossed out and replaced with the docket number of an unrelated case (CP No. 9704-0396), still pending trial, in which petitioner was also a defendant. See Pet'r's Ex. 1 (Notice of Appeal, Feb. 25, 1998). Respondents do not dispute that the Clerk, to whom petitioner properly mailed his notice of appeal, erroneously concluded that petitioner's tardy notice of appeal was premature because the Clerk believed, incorrectly, that petitioner's notice of appeal had been filed in petitioner's other case.
Petitioner then corresponded frequently with the Clerk's office about his appeal. Respondents do not dispute that, during the course of this lengthy correspondence, he was never told that his appeal had been filed late. Having not gotten any confirmation that his appeal had been filed,*fn3 petitioner sought to file, on June 24, 1999, an appeal nunc pro tunc. However, the state's confusion between petitioner's two cases persisted when, on June 30, 1999, the Criminal Appeal / Post Trial Unit of the Philadelphia Criminal Justice Center, stated that "An appeal has been filed for you on 5-24-99. Your attorney is: James Divergilis, Esq." Pet'r's Ex. 4. Divergilis was petitioner's trial counsel in case number 9704-0396, not case number 9704-0523. On July 9, 1999, petitioner wrote back to the appeals unit, again explaining the mix-up and again asking that his application for leave to file an appeal nunc pro tunc be filed. See Pet'r's Ex. 5. After the court failed to act on that application, petitioner filed a petition for a writ of mandamus with the Pennsylvania Superior Court, which was denied on February 29, 2000.
On April 3, 2000, petitioner filed, under 28 U.S.C. § 2254, his initial petition for a writ of habeas corpus with this court. Docket No. 1. On August 16, 2002, this court approved a Report & Recommendation from Magistrate Judge Charles B. Smith, which recommended that St. George be granted leave to amend his petition to address the merits of his claim that his trial counsel had been ineffective for failing to file an appeal. Docket No. 35. On September 13, 2002, petitioner filed an amended petition. Docket No. 37.
In the meantime, on April 10, 2002, the state officials forwarded petitioner's June 24, 1999, motion for leave to appeal nunc pro tunc to the Commonwealth's PCRA unit, where it was treated as a motion for collateral relief. On July 2, 2002, petitioner was appointed PCRA counsel, who filed an amended PCRA application on behalf of petitioner that requested reinstatement of petitioner's appellate rights due to trial counsel's ineffectiveness. On December 30, 2002, having learned that petitioner's case would be heard by the state PCRA unit, I placed petitioner's habeas case in suspense but kept the case on my docket in case "Mr. St. George [did] not obtain his desired outcome at the state level and wish[ed] to again seek relief here." Docket No. 44.
On April 29, 2004, the amended PCRA petition was granted by Judge D. Webster Keogh, acting as the PCRA court, and petitioner's appellate rights were reinstated nunc pro tunc. Petitioner's PCRA counsel then filed a notice of appeal on May 21, 2004. On November 5, 2004, the Criminal Appeals Unit of the Court of Common Pleas denied petitioner's nunc pro tunc appeal, ruling that (1) the trial court had not erred in denying petitioner's motion to suppress the photographic array that led to his arrest; and (2) the evidence was sufficient to sustain the verdict. Petitioner appealed to the Superior Court.
On April 11, 2006, the Superior Court ruled that it could not reach the merits of petitioner's appeal. Instead, the Superior Court ruled that Judge Keogh did not have jurisdiction to reinstate petitioner's appellate rights because his decision was based on an untimely PCRA petition. Commonwealth v. St. George, 902 A.2d 982 (Pa. Super. Ct. 2006) (table). The ruling was premised on the one-year statute of limitations for filing a PCRA petition. See 42 Pa. C. S. § 9545(b)(1). Specifically, the Superior Court noted that petitioner's judgment of sentence became final thirty days after his December 3, 1997, sentencing. Because no timely appeal or post-sentence motion was filed, petitioner had until January 3, 1999, to file a timely PCRA petition. Thus, petitioner's June 24, 1999, application for leave to file an appeal nunc pro tunc-which was eventually treated as a PCRA petition, and then was granted-was time-barred. The Superior Court therefore did not reach the merits of petitioner's appeal, and ruled that "[b]ecause [petitioner's] PCRA petition was untimely, the PCRA court lacked jurisdiction to reinstate his appellate rights. Hence, his appeal must be quashed." Id.
On October 23, 2006, petitioner moved this court to reopen his case. Docket No. 50. I granted that request on September 21, 2007, and referred the case to Magistrate Judge M. Faith Angell. Docket No. 52. On October 10, 2008, Judge Angell issued a Report & Recommendation finding that (1) the petitioner was entitled to equitable tolling, but (2) the petition failed to state a cognizable claim. Docket No. 72. Although I agreed that the petition should be equitably tolled, I did not agree that the petition should be denied for failure to state a cognizable claim. Instead, because it was apparent that "[p]petitioner's failure to properly plead [ineffective assistance of counsel] in his amended petition shows that petitioner is not capable of adequately representing himself pro se," I directed the Clerk of this Court to arrange for the appointment of pro bono counsel, and I remanded the case to Judge Angell for further proceedings. Docket No. 78 at 7.
II. The pending amended habeas petition
On November 25, 2009, petitioner filed, with the assistance of pro bono counsel, an amended petition for writ of habeas corpus. Docket No. 89. The amended petition asserts a single claim of ineffective assistance of counsel for failure to file an appeal. After considering the response from the District Attorney of the County of Philadelphia ("respondent"), Judge Angell issued a Report & Recommendation ("the R&R"). Docket No. 98. Petitioner filed objections, and the matter is now before this court.
As noted above, the issue of equitable tolling has already been resolved in the petitioner's favor.*fn4 Moreover, the parties agree that petitioner's claim is procedurally defaulted.*fn5 Thus, the only questions before the court are (1) whether there is sufficient "cause and prejudice" to excuse petitioner's procedural default; and (2) if so, whether petitioner is entitled to an evidentiary hearing to develop factual support for his ...