On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 00-cv-01482) District Judge: The Honorable Franklin S. Van Antwerpen
Before: Becker, Chief Judge, McKEE and HILL,*fn1 Circuit Judges.
The opinion of the court was delivered by: Becker, Chief Judge.
Charles Brown appeals from the order of the District Court dismissing his petition for a writ of habeas corpus as time-barred under the applicable one-year statute of limitation. The appeal requires us to consider under what circumstances an attorney's withdrawal of representation after failing to file a federal habeas petition warrants equitable tolling of the statutory limitation period. At issue is whether Brown is entitled to statutory or equitable tolling of the limitation period for the following three time periods: (1) April 26, 1997, to July 29, 1997; (2) August 15, 1997, to May 6, 1998; and (3) May 7, 1998, to January 11, 2000. His petition would be timely, only if the limitation period were tolled for all three periods. We conclude that Brown is not entitled to equitable tolling for the period from April 26, 1997, to July 29, 1997, the period of his attorney's putative abandonment of his claim. Without that period of tolling, his petition would be untimely even if the entire period from August 15, 1997, to January 11, 2000, were tolled. Accordingly, we will affirm.
A jury in the Court of Common Pleas of Philadelphia County, Pennsylvania, convicted Brown of second-degree murder, robbery, criminal conspiracy, and possession of an instrument of crime. The trial court sentenced him to a term of life imprisonment without the possibility of parole and concurrent lesser terms of imprisonment. The Pennsylvania Superior Court affirmed. See Commonwealth v. Brown, 480 A.2d 1171 (Pa. Super. Ct. 1984). In January 1985, the Pennsylvania Supreme Court denied Brown's petition for allowance of appeal. See Commonwealth v. Brown, No. 546 E.D. Alloc. Dkt. (Pa. 1984). He did not petition the United States Supreme Court for a writ of certiorari. He subsequently filed a pro se petition for post-conviction relief under the Post Conviction Hearing Act, 42 Pa. C.S. §§ 9541 et seq. See Commonwealth v. Brown, 570 A.2d 585 (Pa. Super. Ct. 1989) (table) (affirming dismissal of petition but vacating sentence imposed for the possession of an instrument of crime); Commonwealth v. Brown, 575 A.2d 108 (Pa. 1990) (table) (denying petition for allowance of appeal).
On December 24, 1996, Brown filed a second pro se petition for state post conviction relief, this one under the newly enacted Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541 et seq. *fn2 He privately retained attorney Daniel Silverman to represent him. The PCRA court denied this second petition on March 26, 1997, and informed Brown of his right to file an appeal to the Pennsylvania Superior Court within 30 days. Brown asked Silverman to file an appeal. By letter dated April 16, 1997, Silverman advised him to not pursue an appeal in state court and to pursue federal habeas relief instead. No notice of appeal was filed.
On July 29, 1997, Silverman informed Brown that he was withdrawing his representation. On August 15, 1997, Brown submitted to the trial court a pro se "Notice of Appeal Nunc Pro Tunc," asserting that Silverman had failed to timely inform him that he (Silverman) would not file an appeal from the denial of the second PCRA petition. The trial court received the notice of appeal nunc pro tunc but mishandled and apparently lost it; at all events the notice was never docketed or filed. *fn3 On May 6, 1998, after a number of inquiries from Brown, the trial court's "PCRA Unit" issued a memorandum informing Brown that it had no record of his notice of appeal nunc pro tunc and advising him that, if he wished to continue with his request for permission to appeal nunc pro tunc, he should file a pro se PCRA petition.
On May 15, 1998, Brown filed a pro se PCRA petition (his third) requesting permission to file an appeal nunc pro tunc from the denial of the second PCRA petition. *fn4 The PCRA court dismissed the petition as untimely filed. The Pennsylvania Superior Court affirmed. See Commonwealth v. Brown, 747 A.2d 409 (Pa. Super. Ct. 1999) (table). On January 11, 2000, the Pennsylvania Supreme Court denied Brown's petition for allowance of appeal. See Commonwealth v. Brown, 749 A.2d 465 (Pa. 2000) (table). He did not petition the United States Supreme Court for a writ of certiorari.
On March 19, 2000, Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania. The Magistrate Judge to whom the petition was referred determined that it was untimely filed and that equitable tolling of the limitation period was not warranted. The District Court adopted the Magistrate Judge's findings, dismissed the petition as time-barred, and declined to issue a certificate of appealability. Brown timely appealed. On March 8, 2002, a motions panel of this Court issued a certificate of appealability on the following issues:
(1) Whether Brown's notice of appeal nunc pro tunc, submitted but never ruled on because it was lost as a result of mishandling by the trial court, may be considered "properly filed" for purposes of 28 U.S.C. § 2244(d)(2), see Swartz v. Meyers, 204 F.3d 417, 421 n.3 (3d Cir. 2000), and, if the notice may be considered "properly filed," when it ceased to be "pending"; and
(2) Whether appellant is entitled to equitable tolling of the statute of limitation for the period from May 7, 1998, through January 11, 2000, and the period from April 26, 1997, through July 29, 1997. See Miller v. New Jersey Dep't of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998); ...