Lacava v. Kyler ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    2-11-2005
    Lacava v. Kyler
    Precedential or Non-Precedential: Precedential
    Docket No. 03-1398
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1509
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    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 03-1398
    ________________
    MICHAEL LACAVA,
    Appellant
    v.
    KENNETH D. KYLER;
    THE DISTRICT ATTORNEY FOR
    PHILADELPHIA COUNTY;
    THE ATTORNEY GENERAL OF THE STATE
    OF PENNSYLVANIA
    ___________________________________
    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
    ___________________________________
    Argued
    November 18, 2004
    Before: ROTH, SMITH AND BECKER, Circuit Judges
    (Filed February 11, 2005)
    Joseph Leibowicz, Esquire (Argued)
    James S. Malloy
    Kirkpatrick & Lockhart LLP
    Henry W. Oliver Building
    535 Smithfield Street
    Pittsburgh, Pennsylvania 15222
    Attorneys for Appellant
    Lynne Abraham
    District Attorney of Philadelphia
    Arnold H. Gordon
    First Assistant District Attorney
    Ronald Eisenberg
    Deputy District Attorney, Law Division
    Thomas W. Dolgenos
    Chief, Federal Litigation
    David C. Glebe, Esquire (argued)
    Assistant District Attorney
    1421 Arch Street
    Philadelphia, PA 19102
    Attorneys for Appellee
    _________________
    OPINION OF THE COURT
    _________________
    BECKER, Circuit Judge.
    Michael LaCava appeals from an order of the District
    2
    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
    3
    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). 1
    1
    Section 2244(d)(1) provides as follows:
    A 1-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. The limitation period shall run from
    the latest of–
    (A) the date on which the judgment
    became final by the conclusion of direct
    review or the expiration of the time for
    seeking such review;
    4
    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
    (B) 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;
    (C) the date on which the constitutional
    right asserted was initially recognized by
    the Supreme Court, if the right has been
    newly recognized by the Supreme Court
    and made retroactively applicable to cases
    on collateral review; or
    (D) the date on which the factual predicate
    of the claim or claims presented could
    have been discovered through the exercise
    of due diligence.
    28 U.S.C. § 2244(d)(1) (West Supp. 2004).
    5
    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
    6
    was delayed and he acted diligently in pursuing federal habeas
    corpus relief once he did receive notice. We detail these filings
    in the margin.2 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
    2
    Prior to receipt of the Magistrate Judge’s Report and
    Recommendation, and indeed prior to the date the M agistrate
    Judge’s Report was even issued, LaCava moved, inter alia, for
    leave to file a traverse to the Commonwealth’s response.
    LaCava’s motion, however, was not received by the District
    Court and entered on the docket until July 18, 2002, two days
    after the Magistrate Judge issued her Report. LaCava filed
    objections to the Report two weeks later in which he complained
    that, because his motion had not been acted on before the
    Magistrate Judge issued her Report, he was being precluded
    from showing that his habeas petition was timely filed, using the
    principle of equitable tolling. LaCava also stated that he did not
    address equitable tolling in his petition because, at the time he
    submitted the petition, he had not yet obtained documentary
    evidence supporting his equitable tolling claim, and did not want
    to flag an issue that the Commonwealth could later be deemed
    to have waived. See Robinson v. Johnson, 
    313 F.3d 128
    (3d Cir.
    2002), cert. denied, 
    540 U.S. 826
    (2003).
    7
    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 2000.3
    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
    3
    LaCava further asserted that he is “actually and factually
    innocent of the crimes upon which he was convicted,” and
    argued that this contention overcomes the bar imposed by
    AEDPA’s statute of limitations. In his subsequent papers,
    LaCava pointed to trial testimony which, in his submission,
    undermined his first degree murder conviction, and contends
    that evidence of corruption within the 39th District of the
    Philadelphia Police Department lends support to his belief that
    certain police officers and Commonwealth witnesses testified
    falsely at trial. Since the certificate of appealability issued by
    the motions panel was limited to the equitable tolling argument
    and did not extend to LaCava’s earlier alternative argument that
    his claim of actual innocence could serve to overcome the time-
    bar of § 2244(d)(1), we do not consider this alternative
    contention.
    8
    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 or his attorney. 4 LaCava conceded, however,
    that he was unable to offer direct documentary evidence in the
    form of prison logs or a letter from his attorney since no
    responses were forthcoming.
    In an order entered on January 10, 2003, the District
    Court, after noting that it had independently considered
    LaCava’s petition for writ of habeas corpus, the M agistrate
    Judge’s Report and Recommendation, and LaCava’s traverse,
    approved and adopted the Report and Recommendation, denied
    LaCava’s habeas petition, and declined to issue him a certificate
    of appealability. LaCava timely appealed. We appointed
    4
    Counsel states that in the course of preparing appellees’
    brief he contacted the Chief Clerk of the Pennsylvania Supreme
    Court. During that phone conversation, the clerk reported that
    “although the paper files relating to LaCava’s request for
    allocatur have not been retained, the Court’s computer records
    showed that routine notice was sent to LaCava’s counsel on the
    date that allocatur was denied, viz., August 22, 2000.”
    Additionally, there was no indication in the records that the
    notice was returned as undeliverable and had to be resent. 
    Id. We decline,
    however, appellee’s invitation to take judicial
    notice of the representations made by the Chief Clerk of the
    Pennsylvania State Supreme Court since they are beyond the
    purview of Fed. R. Evid. 201.
    9
    counsel and granted a certificate of appealability as to the issue
    of “whether [LaCava] timely filed his petition for writ of habeas
    corpus pursuant to 28 U.S.C. § 2254.” 5 (Order of Court dated
    12/05/03.)
    The District Court had jurisdiction pursuant to 28 U.S.C.
    § 2254, and this Court has jurisdiction pursuant to 28 U.S.C. §§
    1291 and 2253. Our review of a District Court’s decision
    dismissing a habeas petition on statute of limitations grounds is
    plenary. See Brown v. Shannon, 
    322 F.3d 768
    , 772 (3d Cir.
    2003).
    II. DISCUSSION
    This Court has held that AEDPA’s statute of limitations
    is subject to equitable tolling. Miller v. New Jersey State Dep’t
    of Corr., 
    145 F.3d 616
    , 617 (3d Cir. 1998). We have cautioned,
    however, that courts should be sparing in their use of this
    doctrine, Seitzinger v. Reading Hosp. & Med. Ctr., 
    165 F.3d 236
    , 239 (3d Cir. 1999), applying equitable tolling “only in the
    rare situation where [it] is demanded by sound legal principles
    as well as the interests of justice.” United States v. Midgley, 
    142 F.3d 174
    , 179 (3d Cir. 1998) (quotation marks and citation
    omitted). Equitable tolling is appropriate when “the principles
    of equity would make the rigid application of a limitation period
    unfair,” 
    Miller, 145 F.3d at 618
    (quotation marks and alterations
    5
    We express our appreciation for counsel’s able
    representation of LaCava during both briefing and oral
    argument.
    10
    omitted), such as when a state prisoner faces extraordinary
    circumstances that prevent him from filing a timely habeas
    petition and the prisoner has exercised reasonable diligence in
    attempting to investigate and bring his claims. Fahy v. Horn,
    
    240 F.3d 239
    , 244-45 (3d Cir. 2001). Mere excusable neglect
    is not sufficient. 
    Miller, 145 F.3d at 618
    -19; see also Jones v.
    Morton, 
    195 F.3d 153
    , 159 (3d Cir. 1999).
    LaCava contends that he is entitled to have this matter
    remanded to the District Court for an evidentiary hearing on the
    equitable tolling issue because he did not receive notice of the
    Pennsylvania Supreme Court’s denial of his petition for
    permission to appeal within the limitations period and because
    he exercised reasonable diligence in filing his habeas petition
    once he finally received such notice.
    A. Extraordinary Circumstances
    LaCava argues that his failure to receive notice of the
    Pennsylvania Supreme Court’s denial of his petition for
    permission to appeal constitutes extraordinary circumstances
    which would warrant equitable tolling. We disagree.
    We note that LaCava was represented by counsel during
    his state collateral proceedings, including the filing of his
    petition for allowance of appeal. Accordingly, LaCava was not
    entitled to personal notice of the Pennsylvania Supreme Court’s
    order. See Pa. R. App. P. 1123(a). LaCava fares no better by
    implying that counsel was derelict in failing to timely notify him
    of the state court’s disposition. We have stated that “[i]n
    non-capital cases, attorney error, miscalculation, inadequate
    11
    research, or other mistakes have not been found to rise to the
    ‘extraordinary’ circumstances required for equitable tolling.”
    Merritt v. Blaine, 
    326 F.3d 157
    , 169 (3d Cir. 2003) (quoting
    
    Fahy, 240 F.3d at 244
    ); see also Johnson v. Hendricks, 
    314 F.3d 159
    , 163 (3d Cir. 2002). LaCava advances no allegations of
    attorney malfeasance that would elevate this case to an
    “extraordinary circumstance” sufficient to warrant equitable
    tolling. Moreover, the circumstances of this case are certainly
    distinguishable from that presented in 
    Seitzinger, supra
    , 165
    F.3d at 242, where we held that an attorney’s affirmative
    misrepresentation to his client that he had filed a timely
    complaint on her behalf when in fact he had not, coupled with
    the plaintiff's extreme diligence in pursuing her claim, “created
    a situation appropriate for tolling.”
    We also find LaCava’s reliance on Valverde v. Stinson,
    
    224 F.3d 129
    (2d Cir. 2000) misplaced. The petitioner in
    Valverde alleged that a corrections officer intentionally
    confiscated his pro se habeas petition and related legal papers
    shortly before the filing deadline, and that the officer’s seizure
    “proximately caused” his failure to file the petition on time. The
    Second Circuit held that, as a matter of law, this type of
    intentional confiscation was an “extraordinary circumstance.”
    
    Id. at 133.
    Accordingly, it remanded the matter to the District
    Court for further “factual development” on the issue of whether
    this circumstance prevented the petitioner from filing his
    petition in a timely manner. While a possibility may exist that
    an evidentiary hearing would uncover some wrongdoing on the
    part of correction officers in delivering notice of the state
    court’s order to LaCava, there is no allegation by LaCava that he
    was prevented by prison staff from making an earlier inquiry of
    12
    either the state court or his attorney. Instead, LaCava concedes
    that once his petition for allowance of appeal was filed in
    February of 2000, he did nothing further to ensure that his
    claims were proceeding properly through the state appellate
    process until November 31, 2001.
    B. Due Diligence
    Even assuming arguendo that we agreed with LaCava’s
    contention that the delayed notice he experienced constitutes
    extraordinary circumstances, we nonetheless conclude that
    LaCava did not exercise the requisite due diligence by allowing
    more than twenty-one months to lapse from the filing of his
    petition for allowance of appeal until he inquired with the
    Pennsylvania Supreme Court’s Prothonotary’s Office as to its
    status. We thus find no reason to remand this matter for an
    evidentiary hearing. See, e.g., Robinson v. 
    Johnson, 313 F.3d at 143
    (hearing on availability of equitable tolling not warranted
    where petitioner failed to show that he exercised reasonable
    diligence in attempting to file a timely petition).
    It is a well-established principle that, in order for
    appellant to claim an entitlement to equitable tolling, he must
    show that he “exercised reasonable diligence in . . . bringing
    [the] claims.” 
    Miller, 145 F.3d at 618
    -619 (quoting New Castle
    County v. Halliburton NUS Corp., 
    111 F.3d 1116
    , 1126 (3d Cir.
    1997); see also Irwin v. Department of Veterans Affairs, 
    498 U.S. 89
    , 96 (1990). This obligation does not pertain solely to
    the filing of the federal habeas petition, rather it is an obligation
    that exists during the period appellant is exhausting state court
    remedies as well. See, e.g., Jones v. 
    Morton, 195 F.3d at 160
    13
    (equitable tolling is not warranted where appellant “made no
    showing that he ‘exercised reasonable diligence’ in satisfying
    the exhaustion requirement in order to present his claims in a
    timely federal habeas petition”). The language of AEDPA itself
    indicates as much, with statutory tolling being limited to
    “properly filed” applications for state post-conviction or other
    collateral relief. See 28 U.S.C. § 2244(d)(2); see also Artuz v.
    Bennett, 
    531 U.S. 4
    (2000); Lovasz v. Vaughn, 
    134 F.3d 146
    (3d
    Cir. 1998).
    Moreover, while 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). LaCava knew that he had just over three
    months remaining on the one-year limitations period to file a
    timely federal habeas petition. To be certain, we are not
    attributing fault because LaCava waited nine months to file his
    PCRA petition. See, e.g., 
    Valverde, supra
    , 224 F.3d at 136
    (habeas petitioner “is not ineligible for equitable tolling simply
    because he waited until late in the limitations period to file his
    habeas petition”). However, we believe that this is a factor to be
    taken into consideration when determining whether it was
    reasonable for him to wait twenty-one months before making an
    inquiry to the state court or to counsel, and we conclude that it
    was not.
    The period at issue in the instant case is a far cry from the
    other cases relied on by LaCava. In Phillips v. Donnelly, 
    216 F.3d 508
    (5th Cir. 2000), petitioner asserted that he did not
    receive the notice of denial of review for nearly four months, at
    which time he unsuccessfully sought leave to file an out-of-time
    14
    appeal. Within one month of the state court’s denial of his
    request for leave to file an out-of-time appeal, Phillips filed a
    federal habeas petition. On appeal, the Court of Appeals
    concluded that the delayed notice alleged by Phillips could
    qualify for equitable 
    tolling. 216 F.3d at 511
    . Accordingly,
    given its determination that Phillips pursued his claims with
    “diligence and alacrity,” the Court remanded the matter to the
    District Court for an evidentiary hearing to determine the date
    Phillips actually received notice of the denial. 
    Id. Unlike the
    twenty-one month period at issue in this case, the pre-notice
    delay experienced by Phillips amounted to less than four
    months, and the entire period from Phillips’ filing of his state
    habeas petition until he actually received notice of its denial
    amounted to less than seven months.
    We likewise find the Eleventh Circuit’s decision in
    Knight v. Schofield, 
    292 F.3d 709
    (11th Cir. 2002),
    distinguishable. In Knight, the clerk of the state supreme court
    inadvertently mailed notice of the disposition of Knight’s pro se
    application for discretionary review to the wrong person.
    Knight was finally notified of the court’s disposition of his
    application sixteen months later after he made inquiry with the
    clerk. Equitable tolling of the limitations period was found to
    be warranted given the fact that Knight was a pro se prisoner
    who failed to receive timely notice due to an inadvertent error
    on the part of the clerk, and who, because of the clerk’s
    assurance of personal notification, understandably did not make
    an earlier inquiry. The facts here are very different. Of further
    importance to the court was the fact that Knight, on his own
    initiative and even despite the prior assurance of personal
    notification, contacted the clerk after a year had passed and no
    15
    notice was forthcoming.6
    Finally, as we recently made clear in Schlueter v. 
    Varner, supra
    , 
    384 F.3d 69
    , 74 (3d Cir. 2004), a habeas petitioner is not
    excused from exercising due diligence merely because he has
    representation during various stages of, or even throughout, his
    state and federal proceedings. Schlueter argued for the
    application of equitable tolling principles on the basis of what
    he characterized as attorney malfeasance. Despite the fact that
    counsel had informed Schlueter that he anticipated filing a
    PCRA petition by year’s end, no such petition had been filed by
    the expiration of the filing deadline the following January. We
    nonetheless concluded that equitable tolling was not warranted
    because Schlueter did not attempt to ascertain from his attorney,
    6
    The Court of Appeals was also careful to note that “not in
    every case will a prisoner be entitled to equitable tolling until he
    receives notice,” and that “[e]ach case turns on its own facts.”
    
    Knight, 292 F.3d at 711
    ; see also Miller v. Collins, 
    305 F.3d 491
    , 496 (6th Cir. 2002) (pro se petitioner was entitled to
    equitable tolling where delayed notice amounted to six months
    and court found that petitioner “acted diligently to protect his
    rights both before and after receiving notice,” by filing a motion
    with the state court when no order appeared to be forthcoming);
    Jenkins v. Johnson, 
    330 F.3d 1146
    , 1155 (9th Cir. 2003)
    (remanding for a determination of whether equitable tolling
    should be applied where state court’s clerk’s office mistakenly
    failed to send notice to counsel, the delayed notice involved only
    four months, and state remedies were pursued “as expeditiously
    as practically possible”).
    16
    prior to the expiration of the PCRA filing deadline of which he
    was well aware, whether a timely petition had been filed. 
    Id. at 76-77.
    We add that we think LaCava’s concern, expressed
    during oral argument, that construing the due diligence standard
    to require a litigant to make an occasional status inquiry would
    result in state courts being inundated with unnecessary mail is
    an unwarranted one. There is no reason such letters could not
    alternatively be addressed to counsel when a litigant is
    proceeding with representation.
    C. The District Court’s Failure to Comment
    We do not believe, as the Tenth Circuit Court of Appeals
    apparently did in Woodward v. Williams, 
    263 F.3d 1135
    , 1143
    (10th Cir. 2001), that we are unable to engage in a meaningful
    review of LaCava’s equitable tolling argument simply because
    the District Court rejected the arguments contained in his
    objections and traverse without comment. The District Court
    represented that it had considered LaCava’s petition, the
    Magistrate Judge’s Report and Recommendation, and the
    traverse, which reasserted the arguments contained in LaCava’s
    objections. While it is certainly preferable that the District
    Court discuss the analysis it employed in considering the factors
    relevant to its consideration of whether equitable tolling is
    appropriate, the lack of such a written opinion does not mandate
    that we vacate the District Court’s order of dismissal and
    remand this matter for an evidentiary hearing. Even if we were
    to conclude that LaCava was prevented by “extraordinary
    circumstances” from receiving timely notice of the state court’s
    17
    disposition, he nonetheless failed to exercise reasonable
    diligence in pursuing his claims by passively waiting twenty-one
    months to make an inquiry into the status of his state
    proceeding. LaCava’s initial inquiry came more than fifteen
    months after the Pennsylvania Supreme Court denied his
    petition for allowance of appeal. Thus, no evidentiary hearing
    on the equitable tolling issue is warranted.
    III. CONCLUSION
    While we certainly avoid drawing bright lines when it
    comes to equitable tolling, we hold that the twenty-one months
    of inactivity involved here crosses the line of what constitutes
    due diligence for purposes of employing that principle to save
    an otherwise untimely filing. We thus conclude that LaCava
    “has not alleged facts sufficient to show that ‘sound legal
    principles as well as the interests of justice’ demand pursuit of
    the ‘sparing’ doctrine of equitable tolling.” See 
    Robinson, 313 F.3d at 143
    (quoting 
    Jones, 195 F.3d at 159
    ). The order of the
    District Court dismissing LaCava’s habeas petition as time-
    barred will be affirmed.
    18
    

Document Info

Docket Number: 03-1398

Filed Date: 2/11/2005

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (21)

Commonwealth v. LaCava , 542 Pa. 160 ( 1995 )

Artuz v. Bennett , 121 S. Ct. 361 ( 2000 )

henry-fahy-v-martin-horn-commissioner-pennsylvania-department-of , 240 F.3d 239 ( 2001 )

Steven R. Lovasz v. Scig Supt. Donald T. Vaughn , 134 F.3d 146 ( 1998 )

Wade Johnson v. Roy L. Hendricks, Attorney General of the ... , 314 F.3d 159 ( 2002 )

Alixcair Valverde v. James Stinson, Superintendent, Great ... , 224 F.3d 129 ( 2000 )

Ronald Jones v. Willis Morton, Warden of Trenton State ... , 195 F.3d 153 ( 1999 )

Michael Wayne Jenkins v. Dan Johnson, Superintendent , 330 F.3d 1146 ( 2003 )

79-fair-emplpraccas-bna-48-74-empl-prac-dec-p-45735-75-empl , 165 F.3d 236 ( 1999 )

Donald Burns v. Willis E. Morton, Superintendent Peter ... , 134 F.3d 109 ( 1998 )

marvon-merritt-aka-merrit-monroe-v-conner-blaine-the-district-attorney , 326 F.3d 157 ( 2003 )

United States v. Raymond M. Midgley , 142 F.3d 174 ( 1998 )

Cleveland Knight v. Derrick Schofield , 292 F.3d 709 ( 2002 )

Willie Stokes v. The District Attorney of the County of ... , 247 F.3d 539 ( 2001 )

New Castle County Rhone-Poulenc, Inc., Zeneca, Inc. v. ... , 111 F.3d 1116 ( 1997 )

Ralph Miller v. Terry Collins, Warden , 305 F.3d 491 ( 2002 )

Woodward v. Williams , 263 F.3d 1135 ( 2001 )

Eric Robinson v. Philip L. Johnson the District Attorney of ... , 313 F.3d 128 ( 2002 )

Frank T. Miller v. New Jersey State Department of ... , 145 F.3d 616 ( 1998 )

Charles Brown v. Robert Shannon the District Attorney of ... , 322 F.3d 768 ( 2003 )

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