On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 00-cv-02338) District Judge: Hon. John P. Fullam
Before: Sloviter, McKEE, and Rosenn, Circuit Judges
The opinion of the court was delivered by: Sloviter, Circuit Judge
Marvon Merritt appeals from the order of the District Court dismissing his petition for habeas corpus as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Merritt v. Blaine, No. 00-2338 (E.D. Pa. May 29, 2001). Merritt argues that the District Court erred by not tolling the statute of limitations for his federal habeas corpus petition during the period of time he was pursuing post-conviction relief in state court under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541-9546 (1998) (PCRA). This court granted Merritt's request for a certificate of appealability with respect to two issues:
(1) whether the invocation in a state application for post-conviction relief of a statutory exception to the state's timeliness requirement renders the application "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2); and (2) whether appellant has established "extraordinary circumstances" warranting the equitable tolling of that limitations period. Merritt v. Blaine, No. 01-2455 (3d Cir. May 20, 2002).
We hold that an untimely application for state post-conviction relief by a petitioner, who sought but was denied application of a statutory exception to the PCRA's time bar, is not "properly filed" under 28 U.S.C. § 2244(d)(2). We also agree with the District Court's rejection of Merritt's request for equitable tolling of the statute of limitations. Therefore, we will affirm.
I. FACTS AND PROCEDURAL BACKGROUND
Merritt was convicted of murder of the second degree, robbery, criminal conspiracy and possession of the instrument of a crime for his participation in the fatal shooting of George Dunbar in Philadelphia, Pennsylvania. Dunbar was killed when Merritt and his co-conspirator Ronald Baxter sought to rob Dunbar at his home. After Merritt brandished a gun, Dunbar took out a gun and fired two shots. Dunbar and Merritt struggled, while Baxter and Robert Wells, who was present, also fought. It was the Commonwealth's position that Merritt shot Dunbar after Dunbar fell to the floor. Baxter was shot in the leg.
At trial, Merritt presented as his defense that the state's witness, Wells, shot both Dunbar and Baxter. As stated, the jury convicted Merritt. The Superior Court of Pennsylvania affirmed Merritt's conviction and sentence on October 9, 1986, Commonwealth v. Merritt, 361 Pa. Super. 636, 517 A.2d 1365 (1986) (table), and the Supreme Court of Pennsylvania denied Merritt's petition for allowance of appeal on July 7, 1987. Commonwealth v. Merritt, 516 Pa. 639, 533 A.2d 711 (1987) (table).
Merritt filed his first post-conviction review petition in state court on June 21, 1988, pursuant to the PCRA. After appointing counsel and allowing an amended petition, the PCRA court denied relief on November 9, 1993. The denial was affirmed by the Pennsylvania Superior Court on January 17, 1995, Commonwealth v. Monroe (a name Merritt also used), 442 Pa. Super. 659, 660 A.2d 123 (1995) (table), and the Pennsylvania Supreme Court denied allowance of appeal on November 8, 1995, Commonwealth v. Monroe, 542 Pa. 663, 668 A.2d 1127 (1995) (table).
On December 20, 1996, Merritt filed a second pro se PCRA petition in state court. Merritt alleged that he had recently learned of a new technology, the Scanning Electron Microscope (SEM), that was not available at the time of his trial. He alleged that SEM could be used to determine if the bullet that killed Dunbar and the bullet that wounded Baxter came from the same gun. Merritt argued that identifying the source of the bullets was essential to his defense at trial that Wells shot both Dunbar and Baxter, while the state argued at trial that Dunbar and Baxter were shot by different persons. Merritt asked the PCRA court to order a SEM analysis of the bullets.*fn1
The PCRA court appointed counsel for Merritt. Counsel requested, and the court granted, additional time to file an amended petition. However, before the amended petition was filed, the PCRA court denied Merritt's pro se PCRA petition without a hearing.*fn2 Commonwealth v. Monroe, Nos. 1736-39 (Phila. Co. Ct. C.P. August 12, 1997) (order dismissing second PCRA petition); Commonwealth v. Monroe, Super. Ct. No. 3909 Phila. 1997 (Phila. Co. Ct. C.P. April 12, 1998) (opinion dismissing second PCRA petition). The court denied the petition both on the merits and because it was untimely.
On the merits, the court held that (1) Merritt failed to establish in sufficient form and substance the facts stated in support of his grounds for relief; (2) Merritt neither alleged nor established that SEM results constitute such scientifically adduced evidence as is qualified as admissible at trial; (3) the issue of the sufficiency of the evidence to support Merritt's convictions had been previously litigated and "is presently waived"; (4) Merritt failed to present evidence sufficient to establish a strong prima facie showing that a miscarriage of justice may have occurred; and, in addition, Merritt's ineffective assistance of counsel claims failed because the SEM analysis would have been cumulative and therefore did not affect the outcome of the trial and because counsel cannot be held ineffective for failure to predict future technological changes found to be acceptable devices to produce reliable ballistics evidence. Commonwealth v. Monroe, Nos. 1736-39, order at 3-6 (Phila. Co. Ct. C.P. August 12, 1997). The court held alternatively that the petition was untimely filed under 42 Pa. Cons. Stat. Ann. § 9545(b)(1) because it was not filed within a year of the date Merritt's conviction became final and "none of the exceptions [to the PCRA's timeliness requirements] to be found in § 9545(b)(1)(i)(ii)(iii) were alleged or proven. . . ." Commonwealth v. Monroe, Nos. 1736-39, order at 7 (Phila. Co. Ct. C.P. August 12, 1997).
On October 12, 1999, the Pennsylvania Superior Court affirmed the dismissal of the petition because it was time-barred, holding that Merritt failed to allege or prove any of the applicable exceptions under 42 Pa. Cons. Stat. Ann. § 9545(b)(1). Commonwealth v. Monroe, No. 3909 Phila. 1997, slip op. at 4 (Pa. Super. Oct. 12, 1999). The Supreme Court of Pennsylvania denied allowance of appeal on February 24, 2000.
On May 5, 2000, Merritt filed this petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. He argued that the state court's refusal to order the SEM analysis denied his rights to due process, equal protection and effective assistance of counsel. The Magistrate Judge recommended denial of Merritt's petition as time-barred. The Magistrate Judge recognized that 28 U.S.C. § 2244(d)(2) tolls AEDPA's statute of limitations while any "properly filed" application for state post-conviction relief is pending, but reasoned that because the state court had found Merritt's second PCRA petition to be untimely, it was "not properly filed and it cannot serve to statutorily toll the habeas period of limitations." App. at 9. The Magistrate Judge also found that Merritt was not eligible for equitable relief from AEDPA's statute of limitations because Merritt failed to demonstrate the "extraordinary circumstances" necessary for equitable tolling.
The District Court adopted and approved the Magistrate Judge's report and recommendation. Merritt v. Blaine, No. 00-2338 (E.D. Pa. May 29, 2001). Merritt filed a Notice of Appeal on June 6, 2001, and we granted the certificate of appealability. We consider first whether Merritt's second PCRA application was "properly filed" under 28 U.S.C. § 2244(d)(2) and, if not, whether he is entitled to equitable tolling of the habeas corpus statute of limitations.
A. Jurisdiction and Standard of Review
Merritt filed his petition for habeas corpus under 28 U.S.C. § 2254. The District Court exercised jurisdiction over the petition under 28 U.S.C. § 2254(a). We have jurisdiction over the District Court's final order dismissing the petition as untimely pursuant to 28 U.S.C. §§ 1291 and 2253. "We have plenary review over statute of limitations issues." Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
B. AEDPA's Statute of Limitations
AEDPA imposes a one-year statute of limitations on applications for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(1)(A), the statute of limitations begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In this case, Merritt's conviction became final prior to the enactment of AEDPA. By its terms, AEDPA became effective on April 24, 1996. Therefore, the statute of limitations for Merritt's habeas petition did not begin to run until April 24, 1996. We "implied from the statute a one-year grace period for those petitioners whose convictions became final before the effective date of AEDPA. . . ." Nara, 264 F.3d at 315; see Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) ("we hold that habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 2244(d)(1)'s time limit"). However, Merritt did not file his habeas corpus petition until May 5, 2000, more than three years after the expiration of the statute of limitations.
The statute of limitations for federal habeas corpus petitions is subject to two tolling exceptions: (1) statutory tolling during the time a "properly filed" application for state post-conviction review is pending in state court and (2) equitable tolling, a judicially crafted exception. Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999).
C. "Properly Filed" Application for State Post-Conviction Relief
AEDPA expressly provides that its one-year limitation is tolled for 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." 28 U.S.C. § 2244(d)(2). Merritt's second PCRA petition was pending in state court from December 20, 1996 through February 24, 2000. Therefore, if Merritt's second PCRA petition were "properly filed," the statute of limitations for his habeas petition would have been tolled from December 20, 1996, the date his second PCRA petition was filed in state court, through February 24, 2000, and his habeas corpus petition, filed on May 5, 2000, would be timely.
However, to fall within the AEDPA tolling provision, the petition for state post-conviction review must have been both pending and "properly filed." Fahy v. Horn, 240 F.3d 239, 243 (3d Cir.), cert. denied, Horn v. Fahy, 534 U.S. 944 (2001). There is no question that Merritt's second PCRA petition was pending. The principal issue on this appeal is whether it was "properly filed."
The Supreme Court has stated that "an application is 'properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original). This compliance requirement includes rules governing the "form of the document" and "the time limits upon its delivery." Id.; see also Fahy, 240 F.3d at 243 (a "properly filed" application must be " 'submitted according to ...