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Angel Pabon v. Superintendent S.C.I. Mahanoy; the District Attorney

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


July 12, 2011

ANGEL PABON, APPELLANT
v.
SUPERINTENDENT S.C.I. MAHANOY; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 07-cv-04199) District Judge: Honorable Eduardo C. Robreno

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued September 23, 2010

Before: MCKEE, Chief Judge, AMBRO and CHAGARES, Circuit Judges

OPINION OF THE COURT

I. OVERVIEW

Angel Pabon appeals the District Court‟s dismissal of his pro se petition for habeas corpus as untimely. He is serving consecutive life sentences for two related murder convictions in Pennsylvania state court. He concedes that his federal habeas petition was not timely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, but contends that equitable tolling should be granted.

Specifically, Pabon maintains that his inability to speak, read, or write English, coupled with the prison‟s lack of Spanishlanguage legal materials and repeated denials of translation assistance, are extraordinary circumstances that prevented him from timely filing his habeas petition despite diligent efforts to pursue his federal claims.

The District Court dismissed Pabon‟s habeas petition as untimely and denied equitable tolling. We granted a certificate of appealability ("COA") on that issue. We subsequently issued an order staying oral argument due to a potential defect in our COA, as it had not addressed whether Pabon had made a "substantial showing of the denial of a constitutional right," a jurisdictional prerequisite before a COA may issue. 28 U.S.C. § 2253(c). Our jurisdiction turns on whether the trial court may have committed a Sixth Amendment Confrontation Clause violation under Bruton v. United States, 391 U.S. 123 (1968), by allowing a non- testifying co-defendant‟s confession to be admitted into evidence despite its potential to prejudice Pabon‟s defense.

We conclude that Pabon has made a substantial showing that his Sixth Amendment right to confrontation may have been violated. On the equitable tolling issue, we hold that the facts Pabon alleges regarding his language inability (if true), coupled with the prison system‟s lack of Spanish- language legal materials or interpreters, would be extraordinary circumstances. We also hold that Pabon exercised reasonable diligence in pursuing his claims. Thus, we reverse the District Court‟s ruling that Pabon was not reasonably diligent, vacate its order of dismissal, and remand for an evidentiary hearing on the factual issue of whether Pabon faced the extraordinary circumstances he claims.

II. BACKGROUND

A. The Crime

The back-story begins with Elias Pagan, a drug dealer who in 1997 controlled the corner of Eighth and Birch Streets in Philadelphia. Six men who worked for Pagan were involved in the crime at issue or the subsequent trial: Carlos Robles ("Guatauba"), Arisbel Ortiz, George Roman, JoseDeJesus, Jonathan Hernandez, and the petitioner, Pabon. Aileen Centeno, Pagan‟s common-law wife, lived with him and knew these men.

On March 18, 1997, Felix Vargas, a member of a rival drug group, shot and injured Guatauba, who vowed to kill Vargas. Elias Pagan witnessed the shooting and told Guatauba that he would pay him if he killed Vargas. On May 30, 1997, Guatauba, Ortiz, Roman, Hernandez, DeJesus, Pabon and Centeno were present at Pagan‟s home when plans were made to kill Vargas later that night. Around 10:30 p.m., Ortiz reported to Pagan that he had found Vargas, and Pagan told Ortiz to come to Pagan‟s house with his car. At the house, Pagan provided the men with guns and black ski masks to wear during the planned shooting.*fn1 Pagan distributed three weapons: AK-47 rifles for Guatauba and DeJesus, and a handgun for Hernandez. Pabon was not provided a weapon. His confession, later taken by

Philadelphia police, states that he already possessed a 9mm handgun that he used in the shooting.

After leaving Pagan‟s house, Ortiz drove his car to the intersection of Franklin and Indiana Streets, blocking the parked car in which Vargas was sitting. Guatauba allegedly was in the front passenger seat of Ortiz‟s car, while DeJesus, Pabon and Hernandez were in the back seat. Wearing their ski masks, Guatauba and two or three other men*fn2 got out of Ortiz‟s car and started shooting at Vargas. He was killed immediately and a bystander, Elizabeth Carrisquilla, was also fatally shot. Two other female bystanders, both on Franklin Street, were shot but survived their injuries.

At trial, a ballistics expert testified that there were five firearms involved in the attack: two AK-47s, two 9mm semi- automatic handguns, and one .45 caliber handgun.

Prosecutors contended that the assailants used four of those guns. The fifth gun, one of the two 9mm handguns, was used to shoot at the assailants by an unknown person who was never identified. A shot from that fifth gun injured Ortiz, who drove away with some of the other shooters, purportedly leaving Pabon and the other remaining shooter behind to flee on foot.

Back at Pagan‟s house on Birch Street, Pagan told Centeno to give two bundles of $2,500 each to Guatauba in payment for the murder. Guatauba kept one bundle and gave the other to DeJesus. A few days later, Pabon went with Pagan and Centeno and their kids, along with Hernandez and Roman, to Wildwood, New Jersey, for one week. On returning to Philadelphia, Pabon was shot in an unrelated incident. After being released from the hospital, he stayed with Pagan for a few days and then went to his home town in Puerto Rico.

Police arrested Pabon in Puerto Rico on charges related to the murders of Vargas and the bystander, Carrisquilla, and read him his Miranda rights in Spanish. After his extradition to Philadelphia, Philadelphia Police interrogated him in Spanish.*fn3 Pabon ultimately gave a confession, conducted in Spanish but translated into English by Detective Perez, in which he admitted to dealing drugs and to being one of the shooters in the attack on Vargas.

B. The Structure of Pabon's Joint Trial

The Philadelphia DA‟s Office, on behalf of the Commonwealth of Pennsylvania, prosecuted Pabon jointly with four co-defendants for the murders of Vargas and Carrisquilla. His co-defendants were: (1) Pagan, alleged to have planned and paid for the killing but not to have been one of the shooters; (2) Centeno, Pagan‟s common-law wife who the DA claimed was involved in the conspiracy to murder Vargas; (3) DeJesus, an alleged shooter; and (4) Hernandez, an alleged shooter.

Guatauba, also believed to be one of the shooters, was not apprehended by authorities at the time of trial. Ortiz, the purported driver, accepted a plea deal to avoid the death penalty and testified for the Commonwealth. Roman, a member of the drug group who was not involved in the shooting, also testified for the Commonwealth as part of a cooperation agreement regarding a different murder charge.

Judge Jane Greenspan presided over the joint jury trial. Each of the five defendants was represented by his or her own defense counsel. All of the defense attorneys moved for severance, but their motions were denied. The defense attorneys later moved for recusal of Judge Greenspan based on remarks made by her during voir dire, but those motions also were denied. Pabon used a court translator for pre-trial hearings and during the trial.

The Commonwealth‟s decision to introduce confessions given by several of the non-testifying co-defendants raised the potential for violations of the Confrontation Clause of the Sixth Amendment of the Constitution. Thus, the trial transcript reflects negotiated, line-by-line edits to these confessions, made by Judge Greenspan in discussion with prosecutors and several of the defense attorneys.

Pabon‟s court-appointed counsel in this habeas appeal points to one passage in DeJesus‟s statement as a Bruton violation. The relevant portion of his statement reads:

Question: Jose, is there anything you would like to add to your statement? Answer, Yeah. I know that I didn‟t shoot the girl who got killed. Another should be arrested for this. He paid it off.

He even gave me the Grand National for helping to do this besides the money that Guatauba paid me.

(N.T. 8/2/99: 44) (emphasis added). The statement referred to Pagan, who employed the other men and was alleged to have paid for the killings. Pagan‟s attorney objected, asking that the statement be limited to "I know that I didn‟t shoot the girl who got killed" to avoid a violation of his client‟s Sixth Amendment rights. The Commonwealth argued that the statement should not be redacted because it did not name Pagan explicitly. Ultimately, his attorney and the DA agreed to limit the statement to "I know that I didn‟t shoot the girl who got killed. Another should be arrested for this." Pabon‟s claim that this redacted statement, in the context of the trial, violated his Confrontation Clause rights is discussed in part III.B below.

C. Evidence Admitted at Trial

In addition to Pabon and DeJesus‟s confessions, several of Pabon‟s co-defendants gave statements to the police that were introduced at trial. Pagan‟s initial statement to the police implicated Guatauba, Hernandez, DeJesus and Ortiz in the murder, but did not implicate Pabon. However, Roman, who was not a co-defendant but was part of the drug group, testified at trial that Pabon was involved in the conspiracy to kill Vargas, participated in the shooting, and fled Philadelphia. Ortiz, the driver, testified that he drove Pabon to the shooting, but he did not know if all of the men fired weapons when they got out of his car. Roman and Ortiz‟s testimony both conflicted with their past statements to the police.*fn4

Eyewitnesses at the scene saw a car fitting the description of Ortiz‟s car. They saw three males get out of the car, one from the driver‟s side and two from the passenger‟s side. All three were wearing black clothes and face masks.*fn5 No eyewitness placed Pabon at the scene of the crime. Eyewitnesses testified that on returning to Birch Street after the murder, three males--identified as Ortiz, Hernandez, and Guatauba--got out of the car. Another witness testified that she saw Pagan, Centeno, Hernandez, and Guatauba celebrating after the shooting, but did not see Pabon. One witness testified about Pabon‟s involvement in drug dealing but did not link him to the shooting.

Pabon‟s confession was the Commonwealth‟s strongest evidence against him at trial. In his statement to Philadelphia police, he admitted to dealing drugs, having a 9mm handgun for protection, and participating in the shooting. It also states: "While I was shooting at [Vargas], I heard [Ortiz] holler I am shot. I look at [Ortiz]. He was holding his head. The way his car was parked, I knew the shot that hit [Ortiz] came from Franklin Street, so I started firing in that direction."

At trial, Pabon attempted to repudiate his confession. He presented testimony from a forensic document examiner that the signature on his confession was unlikely his own. Pabon also argued that there was no new information provided in his statement that the police did not already know. Additionally, he pointed out that questions commonly asked in such interviews, to which the police would not have known the answers, were not asked in Pabon‟s interrogation.*fn6 In rebuttal, however, the DA presented its own document examiner who testified that the signature on the confession was likely Pabon‟s. During deliberations, the jury requested to see, in their words, Pabon‟s "alleged confession." Judge Greenspan informed them they could only have it read to them and see only the signatures.*fn7

D. Pabon's Conviction and State Court Appeals

At trial, the jury found Pabon guilty on all counts but could not agree on a sentence. Judge Greenspan imposed two consecutive life sentences for the murders of Vargas and Carisquilla, six to 20 years for conspiracy, concurrent terms of five to 20 years for each aggravated assault conviction, one to two years for possessing an instrument of crime, and one to two years for reckless endangerment.

Pabon‟s appeal to the Superior Court of Pennsylvania raised six substantive issues, including the Bruton issue into which we now make a threshold inquiry. The Superior Court adopted an opinion written by Judge Greenspan as its own and affirmed Pabon‟s convictions. Commonwealth v. Pabon, 768 A.2d 886 (Pa. Super. 2002). The Pennsylvania Supreme Court then denied Pabon‟s petition for allowance of appeal.

Pabon timely filed a pro se petition pursuant to the Post Conviction Relief Act ("PCRA"). Sondra Rodrigues was appointed counsel and filed an amended petition and memorandum of law. The PCRA Court, in an opinion written by Judge Greenspan, dismissed the petition on the merits without a hearing.

Pabon appealed to the Pennsylvania Superior Court, which affirmed the PCRA Court‟s dismissal in an unpublished decision. The Pennsylvania Supreme Court again denied allowance of appeal. Pabon‟s subsequent petition for a writ of certiorari was denied by the United States Supreme Court.

E. Pabon's Pro Se Habeas Petition in the Eastern District of Pennsylvania

Pabon filed a pro se petition for habeas corpus with the District Court for the Eastern District of Pennsylvania on September 20, 2007 and it was received by the Court on October 5, 2007.*fn8 The District Court referred the matter to a Magistrate Judge for a Report and Recommendation ("R&R"). It concluded that Pabon‟s petition was filed ten months after AEDPA‟s one-year statutory deadline and was therefore time-barred under 28 U.S.C. § 2244. The R&R also concluded that there was no basis for equitable tolling of the limitations period.

Pabon filed hand-written objections to the R&R, arguing that he was entitled to have the time for filing equitably tolled because he does not read, write or speak English and he was repeatedly denied access to Spanish language materials or a translator while in prison. The Court overruled Pabon‟s objections, adopted the R&R, and dismissed the habeas petition as untimely. Pabon filed a timely notice of appeal in our Court and, subsequently, an application for a COA.

We granted the COA on "whether the habeas petition was timely filed under 28 U.S.C. § 2244(d), including the question whether there is a basis for equitably tolling the limitations period." We later issued an order staying oral argument, however, pending resolution of a possible jurisdictional defect in the COA. The order directed the parties to brief whether Pabon had made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c).

That jurisdictional issue and Pabon‟s equitable tolling claim are now before us. We conclude that Pabon has made a substantial showing of the denial of a constitutional right based on the alleged Bruton violation. Pabon‟s co-defendant DeJesus‟s redacted confession, when combined with Pabon‟s own confession and the limited number of co-defendants allegedly involved in the shooting, may have created a damaging inference that DeJesus was accusing Pabon of being a shooter in the crime and violated Pabon‟s Sixth Amendment right to confront witnesses testifying against him.

Further, we hold that Pabon is entitled to an evidentiary hearing on his equitable tolling claim. The District Court misinterpreted the evidence before it, stating that Pabon had access to a Spanish speaking attorney when in fact he did not. Pabon‟s claim that he does not speak, read, or write in English exceeds the initial showing of extraordinary circumstances required by two other Courts of Appeals. See Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008), and Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006). He has also shown a significant degree of due diligence--including reaching out to an attorney he thought spoke Spanish (who did not) and requesting translation assistance multiple times despite the prison‟s repeated denials. While there is not enough evidence in the record to determine whether Pabon‟s language deficiency actually caused the delay in bringing his habeas claim, an evidentiary hearing is warranted.

III. JURISDICTION

A. Standard of Review

Before a circuit court may rule on an appeal from a district court, a state prisoner seeking federal habeas corpus relief must obtain a COA as a "jurisdictional pre-requisite." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing 28 U.S.C. § 2253(c)(1)). Slack v. McDaniel, interpreting § 2253(c), clarifies that when a district court denies a habeas petition on procedural grounds without reaching the merits of the underlying constitutional claim, as here, a COA may issue only if the petitioner shows that: (1) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling;" and (2) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." 529 U.S. 473, 478 (2000).

An appellate court‟s "COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits." Miller-El, 537 U.S. at 336. This is a "limit[ed]," "threshold inquiry" that "does not require full consideration of the factual or legal bases adduced in support of the claims." Id.*fn9 In Miller-El, the Supreme Court "reiterate[d] that a prisoner seeking a COA need only demonstrate 'a substantial showing of the denial of a constitutional right.‟" Id. at 327 (citing 28 U.S.C. § 2253(c)(2)). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court‟s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Id. (citing Slack, 529 U.S. at 484). While a state prisoner must show "'something more than the absence of frivolity‟ or the existence of mere 'good faith‟ on his or her part," he or she is not required "to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Id. at 338 (internal citation omitted).

We determined in our initial COA that reasonable jurists could dispute the District Court‟s dismissal of Pabon‟s habeas petition as untimely filed, also noting that the Second and Ninth Circuit Courts have concluded that there may be a basis for equitably tolling AEDPA‟s limitations period due to severe language barriers. See Diaz, 515 F.3d 149; Mendoza, 449 F.3d 1065. We now decide that the second jurisdictional requirement, a substantial showing of the denial of a constitutional right, has been met.

B. Pabon's Confrontation Clause Claim

Pabon claims that the introduction at trial of the confession of DeJesus, Pabon‟s non-testifying co-defendant, violated his Sixth Amendment Confrontation Clause right under Bruton. To resolve whether this claim is debatable, we make a threshold inquiry regarding the application of Bruton and its progeny to Pabon‟s trial and conviction. Miller-El, 537 U.S. at 338.

1. Bruton and Progeny

Trials with multiple defendants create opportunities for violations of the Sixth Amendment right of cross- examination. Bruton held that, in a joint trial, a defendant‟s right under the Confrontation Clause of the Sixth Amendment is violated by introducing a non-testifying co-defendant‟s confession that implicates the defendant as a participant in the crime. Such statements violate the Sixth Amendment even when the jury is explicitly instructed that the testimony at issue is only to be considered as evidence against the co-defendant.*fn10 This is because jurors in joint trials cannot be expected to "perform the overwhelming task of considering" a co-defendant‟s confession "in determining the guilt or innocence of the declarant and then of ignoring it in determining the guilt or innocence of any co-defendants . . . ."

Bruton, 391 U.S. at 131.*fn11 In these circumstances, jury instructions are "intrinsically ineffective" because the inadmissible confession "cannot be wiped from the brains of the jurors." Id. at 129.

The Supreme Court elaborated on Bruton‟s core holding in a case issued the same day, Cruz v. New York, 481 U.S. 186, 194 (1987). When a defendant‟s confession substantially "interlocks" with the non-testifying co-defendant‟s confession, this exacerbates the potential for a Bruton violation rather than rectifying it. Id. at 192. This is because it is not the reliability of the co-defendant‟s confession that is at issue in Bruton situations, but the likelihood that the jury is not able to disregard it. Id. at 192- 93. The more "interlocking" the co-defendant‟s confession, the less likely jurors will be capable of putting it out of their minds in deciding the defendant‟s guilt or innocence. Id. Thus, while a "co-defendant‟s confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, [it would be] enormously damaging if it confirms, in all essential respects, the defendant‟s alleged confession." Id. at 192. The damage to the defendant might be less "devastating" "if [he] were standing by his confession . . . ." Id. (emphasis in original). However, "in the real world of criminal litigation, [when] the defendant is seeking to avoid his confession," the damage is significant, like that in Bruton. Id. (emphasis in original).

Two subsequent cases addressed the thorny issue of redacted statements of non-testifying co-defendants. In Richardson v. Marsh, the Court held that when "any reference to [the defendant‟s] existence" has been removed and the confession "bec[omes incriminating] only when linked with evidence introduced later at trial," limiting instructions may cure what would otherwise be a Bruton violation. 481 U.S. 200, 211, 208 (1987). While the testimony in Bruton directly named the defendant, in Richardson "the confession was not incriminating on its face, and became so only when linked with" the defendant‟s testimony. Id. at 208. The Court noted that "[w]here the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." Id.

However, the distinction between directly naming a co-defendant and indirect linkage is not rigid. Even redacted confessions that remove the defendant‟s name completely, using a blank space or neutral pronoun instead, may sometimes violate Bruton. Gray v. Maryland, 523 U.S. 189 (1998). "Redactions that simply replace a name with an obvious blank space or a word such as 'deleted‟ or a symbol or other similarly obvious indications of alteration . . . so closely resemble Bruton‟s unredacted statements that . . . the law must require the same result." Id. at 192. An "obvious deletion" is likely to "call the jurors‟ attention specifically to the removed name" and may "overemphasize the importance of the confession‟s accusation." Id. at 193. Jury instructions are likely to exacerbate the situation, as the instruction itself "will provide an obvious reason for the [redaction]." Id.

In limiting Richardson, Gray noted that "inference [connecting a co-defendant‟s statement to the defendant] pure and simple cannot make the critical difference" between a Bruton violation and permissible testimony under Richardson. Id. at 195. It is the "kind of, not the simple fact of, inference" that might lead a jury to infer that testimony incriminated a co-defendant in some redacted statements but not others. Id. at 196 (emphases in original). Thus, context is relevant to determining whether a Bruton violation has occurred, regardless whether the challenged testimony has been redacted or curative instructions given.

For example, our Court held in Vazquez v. Wilson, 550 F.3d 270 (3d Cir. 2008), that even when neutral pronoun substitution or its equivalent is used (in that case, "my boy" or "the other guy"), if there is a strong implication that the non-testifying co-defendant‟s confession refers to the defendant, it may still violate Bruton despite the substitution and use of jury instructions.*fn12 In addition, the number of co-defendants that could be implicated in a Gray analysis, where redactions or substitutions have been used, is also important. Compare United States v. Richards, 241 F.3d 335, 341 (3d Cir. 2001) (Bruton violated where only three people were involved in crime) with Priester v. Vaughn, 382 F.3d 394, 400-01 (3d Cir. 2004) ("another guy" did not implicate any particular person given that at least 15 persons were involved in the crime, and the placeholder used was "bereft of any innuendo [linking] them" to particular defendants, in contrast to Richards in which redactions "were tantamount to an explicit reference" to a co-defendant).

Under AEDPA‟s deferential review standard, our Court in Vazquez rejected the Pennsylvania Supreme Court‟s seeming "bright-line rule that when terms like 'my boy,‟ the 'other guy,‟ or the 'other man‟ are used [as substitutions,] . . . there cannot be a Bruton violation." Vazquez, 550 F.3d at 281. Rather, as Vazquez instructs, using a bright line is "an unreasonable application 'of clearly established Federal law under the decisions of the Supreme Court of the United States‟" given the necessity of determining how strongly a co-defendant‟s statement implicates the defendant and the likelihood that it would be disregarded by the jury. Id. at 282.

2. DeJesus‟s Confession in the Context of Pabon‟s Joint Trial

Pabon‟s co-defendant DeJesus confessed to the crime (from the conspiracy to murder Vargas through payment he received for the murder) in a statement recorded by Detective McDermott. The relevant portion of DeJesus‟s confession that Detective McDermott read to the jury at trial follows:

Question, Jose, when the shootings happened, how many times did you shoot? Answer, like a good twelve times. I was standing in front of [Vargas]‟s car shooting into it.

Question, did you see a female standing near [Vargas]‟s car when you were shooting? Answer, yeah. She was on the side of the car. I screamed at her, yo, get the fuck out of here. She moved away, and that is how I know I didn‟t hit the girl. I am standing real close to [Vargas]‟s car, so I know that everything I shot was at [Vargas]. How could I miss, I was so close.

Question, do you know how the two females who were standing on Franklin Street were shot?

Answer, no, I didn‟t even see them.

Question, Jose, is there anything you would like to add to your statement? Answer, Yeah. I know that I didn't shoot the girl who got killed. Another should be arrested for this.

(N.T. 8/2/99: 42-44) (emphases added).

As noted above, DeJesus‟s statement initially implicated Pagan. It stated that the person who should be arrested for Carisquilla‟s shooting should be the person who "paid it off" (i.e., provided money and weapons). (N.T. 8/2/99: 22-23). However, it was truncated to stop at "another should be arrested for this," with all further references to Pagan‟s identity and role deleted, as Pagan‟s counsel requested because of his own client‟s Bruton rights. (N.T. 8/2/99: 1-33). The prosecution, defense counsel, and trial court were involved in redacting DeJesus‟s statement. Judge Greenspan instructed the jury that DeJesus‟s confession could only be used as evidence against him, not any of his co-defendants. (N.T. 8/2/99: 38-39). She repeated this caution at the end of trial in regard to Pabon in particular.

Though DeJesus‟s confession did not identify Pabon by name, he argues that the use of "another" (in the statement "[a]nother should be arrested for this") was an "unnatural locution" that revealed reference to a co-defendant‟s participation in the shooting. See Gray, 523 U.S. at 192 ("obvious indications of alteration" may cause a Bruton violation even in a redacted statement). He claims that DeJesus‟s confession would have implicated Pagan, had it not been truncated, but was altered to implicate Pabon (or Hernandez or Gautauba) as read to the jury at trial.

In context, DeJesus‟s statement that "another" should be arrested for Carrisquilla‟s death does seem to refer to "another" of the alleged shooters.*fn13 It is in a passage of DeJesus‟s confession discussing how the shooting occurred, making the natural inference from the cropped statement that DeJesus was implicating another shooter. Of the five co-defendants, two were not alleged to have been shooters, Pagan and Centeno. That leaves only Pabon, Hernandez, and Guatauba (with DeJesus the fourth alleged shooter) as the person referred to as "another." If the jury credited DeJesus‟s confession that he shot Vargas but "another" should be arrested for shooting Carisquilla, Pabon and Hernandez are the only two co-defendants to whom he plausibly could have referred in this passage of his confession (three persons in all could have been referenced, but one was not a co-defendant*fn14 ). While this is not so clear-cut a situation that only one defendant is implicated by a co-defendant‟s statement, it is also a far cry from the situation in Priester, for example, in which 15 co-defendants were all equally implicated. 382 F.3d at 401. Here, because one of three persons was implicated by the statement, it is possible that attempting to avoid a Bruton violation for one co-defendant may have created one for two of the others.*fn15

In addition, as noted above, Pabon allegedly confessed to shooting toward "Franklin Street," the street from which shots were fired at Ortiz. (N.T. 7/30/99: 64). This increases the likelihood that DeJesus‟s statement regarding the shooting of "two females who were standing on Franklin Street" was particularly damaging to Pabon (rather than Hernandez or Guatauba, the other alleged shooters). Pabon claims that his challenged confession "is cumulative to the harm suffered . . . because of the admission of the DeJesus statement . . . ."

Pabon Br. 22. The potential corroboration of Pabon‟s confession by DeJesus‟s does raise flags under Cruz. That is, the "interlocking" nature of these two confessions makes it less likely, not more, that curative instructions would solve the Bruton problem. Reinforcing this point, Pabon also argues that the prosecutor‟s closing argument to the jury contended that Pabon and DeJesus‟s confessions corroborated each other. (N.T. 8/4/99: 94). In these ways, DeJesus‟s confession may have prejudiced Pabon by increasing the likelihood that the jury would believe he was one of the shooters.

3. Pennsylvania Superior Court‟s Analysis of Pabon‟s Bruton Claim

The DA asserts that the state trial court reasonably concluded that Pabon‟s Bruton claim "is plainly meritless."

Supp. Br. for Appellees 28. As noted, however, in Vazquez we rejected explicitly the bright-line approach taken by the Pennsylvania Supreme Court, under which a substitution of a pronoun for a name is adequate provided no specific name was used and limiting instructions were given. Vazquez, 550 F.3d at 282. That same flawed, bright-line approach was applied in deciding Pabon‟s direct appeal. This implies that Pabon‟s Bruton claim was decided under Pennsylvania case law that is an "unreasonable application of Federal law." Id.

In addition, Judge Greenspan repeatedly emphasized the "curative" instructions issued at several times during the trial. These instructions, however, are beside the point. The central premise of Bruton is that "[l]imiting instructions may not in fact erase the prejudice" created by a co-defendant‟s confession. Bruton, 391 U.S. at 132. Moreover, as Cruz noted, under Bruton it is the "likelihood that the instruction will be disregarded," not the quality of the instruction or its repetition, that is relevant in determining whether a Bruton violation has occurred. Cruz, 481 U.S. 186. The United States Supreme Court has reaffirmed that instructions can exacerbate the problem jurors face in trying to segregate evidence that is admissible as to one co-defendant but not another. See Gray, 523 U.S. at 193. Thus, the Court that decided Pabon‟s direct appeal should have focused on the degree to which DeJesus‟s confession implicated Pabon and the extent of any resulting prejudice in the particular circumstances of the trial, rather than the quality or number of jury instructions given.

C. Pabon's Bruton Claim is Debatable for the Purposes of a COA

Under the Miller-El standard, Pabon‟s alleged Bruton violation need only be debatable. For the reasons explained above, we conclude that reasonable jurists could debate whether Pabon has a meritorious claim regarding the introduction of DeJesus‟s confession at their joint trial and that claim deserves developing.*fn16 See Miller-El, 537 U.S. at 327.

IV. EQUITABLE TOLLING

A. The R&R and the District Court's Ruling

As noted earlier, the District Court adopted the Magistrate Judge‟s R&R, which denied Pabon‟s habeas petition as untimely. Under AEDPA, a prisoner has one year from the date a state court conviction becomes final, not including the time during which state post-conviction appeals are pending, to file an application for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Judgment becomes final at "the conclusion of direct review or the expiration of the time for seeking such review." Id.

Pabon‟s conviction became final on August 12, 2002, when the time expired for seeking certiorari for direct review by the United States Supreme Court. See Kapral v. United States, 166 F.3d 565, 567 (3d Cir. 1999). About nine months later (May 12, 2003),*fn17 statutory tolling of the limitations period began when Pabon filed his PCRA petition in the Court of Common Pleas. On August 8, 2006, the Supreme Court of Pennsylvania denied allowance of appeal, ending the statutory tolling period.*fn18 As about nine months had passed before Pabon filed his PCRA petition, he had three months left before AEDPA‟s one-year filing deadline. His habeas petition was filed on September 20, 2007, well past the one- year mark.

The R&R stated that "Pabon does not allege circumstances which prevent him in some extraordinary way from filing a timely habeas petition." R&R at 7. It also stated that Pabon "fails to allege circumstances indicating that he exercised reasonable diligence." Id.

Pabon filed objections (handwritten by a fellow inmate) to the R&R. They were that: (1) timely filing of his habeas petition was unlawfully impeded by state action and AEDPA allows a habeas petition to be submitted up to one year after an unlawful impediment to filing created by state action has been lifted, see § 2244(d)(1)(B), so, he contends, his petition was timely under AEDPA; and/or (2) equitable tolling should apply. As to his second argument, he asserts that he should have been entitled to equitable tolling from September 7, 2006 (the date he initially requested legal assistance from a prison paralegal) to September 20, 2007 (the deemed filing date of his habeas petition) due to his inability to read, write, or understand English, the lack of Spanish-language legal materials in the prison‟s restricted housing unit (the "RHU"), and repeated denials of requests for legal or translation assistance.*fn19

The District Court concluded that there was no basis for equitable tolling of the statutory limitations period. In doing so, it did not hold an evidentiary hearing with respect to Pabon‟s language ability, his access to Spanish-language legal materials in prison, or how he may have been affected by his inability to obtain legal or translation assistance. As noted, Pabon appealed and we granted his application for a COA.

B. The Standard for Equitable Tolling

In determining whether equitable tolling should be granted, we address two questions: (1) whether the petitioner faced extraordinary circumstances that stood in the way of timely filing; and (2) whether he or she exercised reasonable diligence. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003) (same). In Holland v. Florida the Supreme Court confirmed that equitable tolling may be applied to AEDPA‟s statutory limitations period. 130 S. Ct. 2549, 2560 (2010).*fn20

There are no bright lines in determining whether equitable tolling is warranted in a given case. Rather, the particular circumstances of each petitioner must be taken into account. Id. at 2563. As Holland explains, while prior decisions provide guidance, rigid reliance on precedent should be avoided. Id. In each case, there is a need for "flexibility," "avoiding 'mechanical rules,‟" and "awareness . . that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Id. (internal citation omitted).*fn21 In sum, equitable tolling is appropriate when "principles of equity would make the rigid application of a limitation period unfair." Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998); see also LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005).

However, courts need to be "sparing in their use of" the doctrine. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).

C. Equitable Tolling Analysis

1. Extraordinary Circumstances

Our Court has not yet addressed whether a language deficiency may constitute an extraordinary circumstance for the purposes of equitable tolling. We find it persuasive that the Second and Ninth Circuit Courts of Appeals have both determined that equitable tolling might be warranted when a non-English speaking petitioner could not comply with AEDPA‟s statute of limitations because the prison did not provide access to AEDPA-related materials, translation, or legal assistance in his or her language.

In Mendoza, the petitioner asserted that he did not speak English and that "the prison law library possessed no Spanish books, no Spanish-English legal dictionaries, and no postings about the AEDPA time limitations in any language." 449 F.3d at 1067. The Ninth Circuit held that the "combination of (1) a prison law library‟s lack of Spanish- language legal materials, and (2) a petitioner‟s inability to obtain translation assistance before the one-year deadline, could constitute extraordinary circumstances." Id. at 1069. Mendoza‟s case was remanded for an evidentiary hearing on his equitable tolling claim in light of that holding. Id. at 1071.

Pabon has alleged almost identical extraordinary circumstances as the petitioner in Mendoza (indeed, Pabon‟s are perhaps more extraordinary given his confinement in the RHU). In Mendoza, the petitioner eventually "found a newly- arrived, bilingual inmate willing to offer assistance" for a fee, and was able to file a habeas petition (though only after the AEDPA deadline had passed). Id. at 1069. Again similar to Mendoza, Pabon eventually received help from an English- speaking inmate in filing his habeas petition, but after the AEDPA deadline.

Second, in Diaz, the Second Circuit adopted a similar approach to that used in Mendoza. 515 F.3d at 154 (holding that "English language deficiency can warrant tolling of the AEDPA limitations period"). The petitioners in Diaz--Angel Diaz and Yoke Yew Tan--had asserted, respectively, being "'primarily a Spanish speaker‟" and having "a lack of 'a working knowledge‟ of English and 'difficult[y]‟ in finding interpreters in the Department of Correctional Services." Id. at 151-52 (alterations in original). The Diaz Court noted that "the proper inquiry is not how unusual the circumstance alleged to warrant tolling is among the universe of prisoners," as the State had argued (and the Commonwealth urges in Pabon‟s appeal), "but rather how severe an obstacle it is for the prisoner endeavoring to comply with AEDPA‟s limitations period." Id. at 154 (emphases added). "For the prisoner who cannot read English, the obstacle is undoubtedly serious . . . and can, in some circumstances, justify equitable tolling." Id. In that case, however, the petitioners failed on the reasonable diligence prong. Neither had made efforts "to learn of [AEDPA‟s] requirements within their places of confinement." Id.

As these Circuit Courts did in Mendoza and Diaz, we now hold that inability to read or understand English, combined with denial of access to translation or legal assistance, can constitute extraordinary circumstances that trigger equitable tolling.*fn22 In addition, as the Diaz Court did, we note that the relevant inquiry is not whether the circumstance alleged to be extraordinary is unique to the petitioner, but how severe an obstacle it creates with respect to meeting AEDPA‟s one-year deadline.

In light of this holding, we conclude that the District Court erred in rejecting Pabon‟s claim without an evidentiary hearing. First, it erred in concluding that Pabon had not explained why his inability to read, speak, or write English caused his inability to timely file his habeas petition. Pabon explained that there were no Spanish-language legal materials, and there was no notice of AEDPA in Spanish, in the RHU where he was housed for five years. These facts, he argued, coupled with repeated denials of legal or translation assistance from prison officials despite efforts on his part, were "extraordinary circumstances" that prevented him from timely filing his habeas petition. See Pabon Br. 18-19. He asserted quite clearly that language inability, coupled with denials of assistance, created a barrier to timely filing.

The District Court also assumed that Pabon‟s potential language barrier was negated by his communication with a "Spanish-speaking attorney." Op. at 2 n.1. We disagree, as the evidence currently before us supports the contrary conclusion--that Pabon continued to face a language barrier until his habeas petition was filed, as he had been unable to obtain legal or translation assistance despite continuing efforts. The record also reflects that Pabon required a Spanish-language translator in trial and pre-trial proceedings. A129-130. A Spanish-speaking detective (Detective Perez) testified at trial that he read Pabon his Miranda rights in Spanish, questioned him in Spanish, and asked him (in

Spanish) whether he reads, writes, or understands English, to which Pabon answered "no." (N.T. 7/30/99: 52-62).*fn23

In sum, there is substantial evidence in the record that Pabon may have faced an extraordinary circumstance: he has consistently claimed to be a non-English speaker, required a translator in his interactions with police and the court system, lacked access to legal materials or notice of AEDPA in Spanish in the RHU where he was housed for five years, and was repeatedly denied legal materials in Spanish or translation assistance.*fn24 As the District Court did not hold an evidentiary hearing on this issue, we reverse and remand for it to do so.

2. Reasonable Diligence

Even if a petitioner has faced extraordinary circumstances, he must also "exercise[] reasonable diligence in . . . bringing [the] claims." Miller, 145 F.3d at 618-619 (internal quotation marks omitted). The Supreme Court addressed reasonable diligence in Holland, explaining that "[t]he diligence required for equitable tolling purposes is 'reasonable diligence,‟ not 'maximum feasible diligence.‟" 130 S.Ct. at 2565 (internal citations omitted).

Our Court has established a similar standard. "Due diligence does not require 'the maximum feasible diligence;‟" "it does require reasonable diligence in the circumstances." Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (internal citations omitted); see also LaCava, 398 F.3d at 277.

Here, based on the documents Pabon submitted with his objections to the R&R, we count ten or more efforts where he sought assistance, both before and after the AEDPA deadline. After ascertaining that there were no Spanish- language legal materials in the RHU, Pabon wrote to his PCRA attorney, in Spanish, before October 28, 2004. He wrote a second letter seeking help from that attorney before November 30, 2004. At various times before September 7, 2006, he submitted "numerous written requests" seeking legal materials or assistance within the prison system.*fn25 While in the RHU, he submitted a letter to the general population law library, with help from an English-speaking inmate, requesting assistance from the staff paralegal, but was denied assistance on September 19, 2006. On November 6, 2006, Pabon filed an "Official Inmate Grievance," with the assistance of inmate Jose Ortiz, again requesting access to legal services and stating that he does not speak, read, or write in English.*fn26 That grievance was denied without explanation.*fn27 All of these efforts occurred before the AEDPA filing deadline of November 6, 2006.

Pabon‟s efforts did not stop there. Before December 22, 2006, he again sought help from an attorney. He submitted a second appeal for access to paralegal services before January 23, 2007. On February 4, 2007, he requested the appointment of an Inmate Legal Reference Aide, but never received a response to his request. Thereafter, he found a bilingual inmate who agreed to help him with his pro se habeas petition. That petition was signed (and, as noted, delivered to prison officials) on September 20, 2007.

The District Court‟s conclusion that Pabon did not demonstrate diligence is based, at least in part, on the assumption that he had a Spanish-speaking attorney. In its Order dismissing Pabon‟s habeas petition, the Court stated that he "has made no attempt to explain why, in light of the fact that he contacted a Spanish speaking attorney, his petition was close to one year late." Op. at 2 n.1. The record belies that statement. The attorney the Court references seems to be Pabon‟s post-conviction (PCRA) attorney, who did not speak Spanish. She wrote the following letter to Pabon on October 28, 2004:

Dear Mr. Pabon:

You have sent a letter to me in Spanish. I do not understand it. If you are asking about your appeal, there will not be a decision on it until some time next year (or longer). You must correspond with me in English in the future if you expect me to comprehend what you are saying. Thank you.

Sincerely,

Sondra R. Rodrigues, Esq. A-51 (emphases added).*fn28

Thus, unlike the Diaz petitioners who had made no efforts to communicate with anyone outside of prison or learn of next steps to pursue their legal claims within their places of confinement, 515 F.3d at 154, Pabon attempted to pursue his claims repeatedly. Moreover, within prison he sought access to legal materials in Spanish or translation assistance, but was denied or left without a response each time he did so. Under these circumstances, we hold that Pabon was reasonably diligent.

Because we hold that language inability, when coupled with lack of translation assistance, may constitute an extraordinary circumstance, and because Pabon was reasonably diligent in pursuing his claims, we conclude that the District Court erred in dismissing Pabon‟s equitable tolling claim without considering the evidence he offered. The Commonwealth should also have an opportunity to submit evidence in response. Thus, we remand for an evidentiary hearing on the extraordinary circumstances prong of Pabon‟s equitable tolling claim.

D. Timeliness under § 2244(d)(1)(B): "Impediment to Filing"

AEDPA provides that "a one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). Sub-parts to that section provide four possible starting dates for the tolling period. "The limitation period shall run from the latest" date of those four options. Id.

Under § 2244(d)(1)(A), the limitations period runs from "the date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking review."*fn29 However, Pabon argued in his application for a COA that § 2244(d)(1)(B) applies. Under it, the limitation period runs from "the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action." § 2244(d)(1)(B). Pabon claims that the Commonwealth‟s denial of Spanish-language legal assistance or notice of AEDPA in Spanish is an "impediment to filing" within the meaning of § 2244(d)(1)(B). Our Court has not addressed the meaning of "impediment to filing" under § 2244(d)(1)(B). We do not reach the issue here because the impediment Pabon argues prevented him from filing remained un-removed: As far as we know, and as Pabon himself argues, at the time that he filed his habeas petition he was still denied Spanish-language materials, translation and legal assistance.

V. CONCLUSION

We hold that language inability, when coupled with denial of legal or translation assistance, can be an extraordinary circumstance for equitable tolling purposes in the habeas context. We also hold that Pabon was reasonably diligent in pursuing his claims. Thus, Pabon‟s equitable tolling claim merits an evidentiary hearing. We thus reverse the District Court‟s ruling, vacate its order of dismissal, and remand for an evidentiary hearing on the extraordinary circumstances Pabon has alleged in his equitable tolling claim.


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