The opinion of the court was delivered by: Savage, J.
In this habeas case brought under 28 U.S.C. § 2254, there is no real dispute that petitioner's former attorney was ineffective when he failed to file a timely appeal after informing the sentencing court that he intended to do so and failed to consult with the petitioner about filing an appeal. The disagreement is over what the appropriate relief is. Petitioner contends he should be permitted to file an amended habeas petition in the federal court without having to exhaust his state remedies through the appellate process. The respondents, on the other hand, argue that his remedy is the reinstatement of his state appellate rights.
We conclude that the petitioner's attorney was ineffective and petitioner is entitled to relief. Therefore, we shall conditionally grant the petition for a writ of habeas corpus and vacate petitioner's convictions unless respondents reinstate his direct appeal so that he may have his claims decided on the merits and not on procedural grounds.
On October 22, 1997, a jury convicted Percy St. George of kidnapping, robbery and related offenses in the Philadelphia Court of Common Pleas.*fn2 On December 3, 1997, Common Pleas Judge Anthony J. DeFino sentenced St. George to an aggregate fifteen-to-thirty year term of imprisonment. St. George is currently serving that sentence.
St. George's trial counsel did not file a notice of appeal within thirty days of the imposition of his sentence. On February 25, 1998, after the deadline for perfecting an appeal had passed, St. George filed a pro se notice of appeal
Through an administrative error, the Clerk of the Court of Common Pleas docketed St. George's appeal in an unrelated case in which he was a defendant. This mistake resulted in many months of delay, during which St. George attempted to discern the status of his appeal by corresponding with the Clerk's office. On June 24, 1999, St. George filed an application for a nunc pro tunc appeal. Because no action was taken, he filed a petition for mandamus in the Pennsylvania Supreme Court which was denied on February 29, 2000. Remarkably, the state court reflects no activity between December 3, 1997, the date of sentencing and July 2, 2002, when new counsel was appointed.
On April 3, 2000, acting pro se, St. George filed his initial habeas corpus petition in the federal court. His habeas case was stayed pending the disposition of his PCRA petition.
On May 15, 2003, new court-appointed counsel filed an amended PCRA petition requesting reinstatement of petitioner's appellate rights. On April 29, 2004, the PCRA court granted St. George's application, reinstated his right to appeal nunc pro tunc, and appointed appellate counsel to represent him. St. George then proceeded to file a notice of appeal and a brief in the Superior Court. On April 11, 2006, the Superior Court dismissed St. George's appeal, ruling that his PCRA petition had been filed too late and the PCRA court did not have jurisdiction to reinstate his appeal rights.
After the Superior Court issued its decision finding that St. George's PCRA petition was untimely, St. George moved to reopen his federal habeas case.*fn3 His motion was granted.
In an opinion issued on March 30, 2009, District Judge Louis H. Pollak ruled that St. George was entitled to equitable tolling because the delay was caused by the Clerk of Courts' administrative error confusing St. George's two cases.*fn4 On November 25, 2009, St. George, with the assistance of appointed counsel, filed the amended petition for writ of habeas corpus that is currently before us.
At the evidentiary hearing held on November 17, 2011, St. George and his former attorney both testified about their recollections of their conversations, particularly as they related to St. George's desire to file an appeal. St. George testified that he did not remember speaking with his trial counsel prior to trial about filing an appeal. Nor did St. George recall speaking with his counsel about filing an appeal after the verdict and before his sentencing. He recalled a meeting with his counsel to discuss a plea offer which counsel encouraged him not to take because it would have exposed him to a sentence of 50 to 100 years.
What St. George did remember is significant. He testified that his attorney informed Judge DeFino at sentencing that St. George intended to appeal his conviction. The transcript of the sentencing confirms St. George's recollection of what his attorney ...