On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 01-cv-06829) District Judge: Honorable Berle M. Schiller
Before: Roth, Smith And Becker, Circuit Judges
The opinion of the court was delivered by: Becker, Circuit Judge
Michael LaCava appeals from an order of the District Court which denied his petition for writ of habeas corpus as untimely filed, rejecting his contention that equitable tolling should apply. The appeal requires us to decide whether the twenty-one month period that LaCava allowed to pass prior to making inquiry into the status of his state petition for allowance of appeal precludes a finding of due diligence and thus application of the principle of equitable tolling, or whether the matter should, as LaCava contends, be remanded to the District Court for an evidentiary hearing. We hold that, under the circumstances of this case, the twenty-one month period of passivity precludes a finding of due diligence for purposes of equitable tolling, and thus the necessity of an evidentiary hearing. We will therefore affirm the order of the District Court denying the petition as untimely.
I. FACTS AND PROCEDURAL HISTORY
LaCava was found guilty by a jury in the Philadelphia County Court of Common Pleas of first degree murder, aggravated assault, simple assault, possession of an instrument of crime, and criminal conspiracy. The jury set the penalty at death. On direct appeal, the Pennsylvania Supreme Court affirmed LaCava's convictions, but vacated the death sentence and remanded the matter for a new sentencing hearing. Commonwealth v. LaCava, 666 A.2d 221 (Pa. 1995). LaCava was subsequently sentenced to life imprisonment on March 22, 1996, a sentence he did not appeal.
In January 1997 LaCava filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541-9545 (West 1998). Counsel was appointed and an amended post-conviction petition was filed. The PCRA court denied LaCava's petition on January 27, 1999, and the Pennsylvania Superior Court affirmed that decision in January of the following year. LaCava, still represented by counsel, filed a request for permission to appeal, but the Pennsylvania Supreme Court rejected the petition in an order dated August 22, 2000.
On December 12, 2001, LaCava filed a pro se petition for habeas corpus, presenting four claims that appellate counsel rendered ineffective assistance. As the merits of those claims are not at issue here, we will not set forth the specifics. The Commonwealth answered by asserting that LaCava's habeas petition was time-barred and must be dismissed. The Magistrate Judge to whom LaCava's petition was referred issued a Report recommending that his habeas petition be denied as untimely under 28 U.S.C. § 2244(d).*fn1
The Magistrate Judge concluded that LaCava's conviction became final on April 21, 1996, at the expiration of his time for seeking review with the Pennsylvania Supreme Court. See Pa. R. App. P. 1113(a) (petition for allowance of appeal shall be filed within thirty days from the entry of the order of the Superior Court sought to be reviewed); see also 28 U.S.C. § 2244(d)(1)(A); Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000) ("[T]he period of limitation tolls during the time a prisoner has to seek review of the Pennsylvania Superior Court's decision[,] whether or not review is actually sought."). This was three days before the Antiterrorism and Effective Death Penalty Act ("AEDPA") went into effect, and hence, pursuant to Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998), LaCava had until April 23, 1997 to file his habeas petition.
Section 2244(d)(2) provides, however, that: "[t]he 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 shall not be counted toward any period of limitation...." 28 U.S.C. § 2244(d)(2). Accordingly, the statute was tolled when LaCava properly filed his state post-conviction petition on January 14, 1997, and remained tolled until August 22, 2000 when the Pennsylvania Supreme Court denied his petition for allowance of appeal. See Stokes v. Dist. Attorney of County of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001) (time during which state prisoner may file certiorari petition in the United States Supreme Court from denial of state post-conviction petition does not toll statute of limitations). The Magistrate Judge calculated, correctly we believe, that LaCava had approximately three and one-half months, or until December 2000, to file a timely habeas petition. LaCava's petition, which was submitted to prison officials on December 12, 2001, was filed well beyond the permissible period. The Magistrate Judge also concluded that LaCava had failed to satisfy any of the exceptions to the limitation period as set forth in 28 U.S.C. § 2244(d)(1)(B)-(D).
There ensued a series of filings in which LaCava asserted that the untimely filing could not be attributed to him because notice of the order denying his petition for allowance of appeal was delayed and he acted diligently in pursuing federal habeas corpus relief once he did receive notice. We detail these filings in the margin.*fn2 Attached to LaCava's filings were three documents: (1) a copy of a letter from LaCava to the Pennsylvania Supreme Court's Deputy Prothonotary dated April 17, 2002, inquiring as to whether notice of the denial of allocatur had been mailed to him prior to December 5, 2001; (2) a copy of a letter from the Prothonotary's Office dated December 5, 2001, advising LaCava that his petition for allowance of appeal was denied on August 22, 2000; and (3) a copy of a letter from LaCava to his court-appointed PCRA attorney dated April 17, 2002, requesting that counsel review his records to determine if notice of the Pennsylvania Supreme Court's August 22 order had been mailed to LaCava at any time in August of 2000.*fn3
On consideration of these papers, the Magistrate Judge issued an order permitting LaCava thirty days to file a traverse. LaCava did so, essentially reasserting the arguments he set forth in his previous filings. He again claimed an entitlement to equitable tolling due to the "extraordinary circumstance" of having received delayed notice of the state court's disposition of his petition for allowance of appeal. LaCava asserted that his allegation of delayed notice – and thus the reason for his untimely filing – was supported by the exhibits he attached to his objections, see supra, which, he claims, showed that he did not receive timely notice of the Pennsylvania Supreme Court's disposition from either the Prothonotary of the Pennsylvania Supreme Court ...