Paul George Schlueter, Iii v. Benjamin Varner

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-3928
PAUL GEORGE SCHLUETER, III,
Appellant
v.
BENJAMIN VARNER; DISTRICT
ATTORNEY NORTHAMPTON
COUNTY;
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA
On Appeal From the United States
District Court
For the Eastern District of Pennsylvania
(D.C. Civil No. 00-cv-05179)
District Judge:
Honorable Anita B. Brody
Argued June 25, 2004
Before: AMBRO, BECKER, and
GREENBERG, Circuit Judges.
(Filed: September 14, 2004)
Michael M. Mustokoff
Stephen A. Mallozzi (argued)
Cindy D. Hinkle
Duane Morris LLP
1650 Market Street
One Liberty Place, 37th Floor
Philadelphia, PA 19103-7396
Attorneys for Appellant
John M. Morganelli (argued)
District Attorney
Northampton County Government
Center
669 Washington Street
Easton, PA 18042
Attorney for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Paul George Schlueter, III, is a
Pennsylvania inmate serving a sentence
of life in prison for first degree murder.
He appeals from an order of the district
court entered September 3, 2003,
dismissing his petition for a writ of
habeas corpus on the ground that the
applicable one-year period of limitation
barred the petition. For the reasons that
follow, we will affirm the district court’s
order.
I. BACKGROUND
In 1985, Schlueter was arrested
and charged in Northampton County,
Pennsylvania, with the criminal
homicide of Carol Ann Bonney. The

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2
Northampton County Public defender’s
office assigned part-time public
defenders George Blasco and Lorenzo
Crowe to represent Schlueter and the
district attorney assigned James
Narlesky, a part-time assistant district
attorney to prosecute the case. Relying
on his attorneys’ advice, Schlueter
entered a plea of nolo contendere to a
charge of open degree homicide.1 The
trial court subsequently conducted a
hearing to determine Schlueter’s degree
of guilt at which Schlueter presented a
diminished capacity defense based on his
level of intoxication and drug use on the
night of the homicide. The trial court
found Schlueter guilty of murder in the
first degree and sentenced him to life in
prison on May 5, 1987.
Following his conviction,
Schlueter met with his attorneys to
discuss whether to pursue a direct
appeal. Blasco and Crowe advised
Schlueter that he would be eligible for
parole in approximately 20 years2 and
that there were no appealable issues that
could reduce his degree of guilt.
Accordingly, Schlueter decided to forego
a direct appeal. Blasco died about one
year later on May 26, 1988. Schlueter
contends that his attorneys’ parole advice
was erroneous as he never will be
eligible for parole. Apparently in part
because of having found out his actual
parole situation, on August 16, 1988,
Schlueter contacted Crowe requesting
information for the purpose of pursuing
state post-conviction review. Crowe,
however, did not respond to Schlueter’s
1Schlueter earlier had pleaded
nolo contendere when represented by
different attorneys from the public
defender’s office but with the court’s
permission had withdrawn that plea.
Consequently, we are concerned with
events following his second nolo
contendere plea.
2Schlueter correctly acknowledges
that the record contains conflicting
information regarding the parole advice
he received. Appellant’s br. at 12 n.11.
In a letter to Crowe dated August 16,
1988, Schlueter stated that he was
advised that he would be eligible for
parole in 20 years. Crowe, however,
stated in an affidavit in 1998 that Blasco
informed Schlueter that he would be
eligible for parole in 15 years. On the
other hand, Schlueter stated in an
affidavit in 1998 that Blasco informed
him that he would be eligible for parole
after 14 years. In denying Schlueter’s
petition for post-conviction relief, the
trial court found as a fact that Schlueter
was advised that he would be eligible for
parole after serving 20 years. See
Commonwealth v. Schlueter, No. 0201-
1986 at 2 (Northampton County, Pa. Ct.
Com. Pl., Crim. Div., Dec. 30, 1998,
app. at 415). Schlueter indicates in his
brief on this appeal that “[f]or purposes
of these habeas proceedings, the term of
eligibility is irrelevant since [he] was and
is never eligible for parole.” Appellant’s
br. at 12.

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3
request.
Meanwhile, in March 1988, the
victim’s family initiated a wrongful
death action against Schlueter, who
initially represented himself in the civil
proceedings. Based on Schlueter’s
criminal conviction, the trial court
entered a directed verdict against him.
In June 1994 Schlueter’s parents retained
attorney Philip Lauer of Easton,
Northampton County, to represent their
son in his civil appeal from the judgment
against him and to explore possible
challenges to his conviction under
Pennsylvania’s Post Conviction Relief
Act (“PCRA”). Lauer advised Schlueter
to postpone pursuing PCRA remedies
until the conclusion of the civil
proceedings. The Superior Court
affirmed the judgment against Schlueter
on his civil appeal and his civil appellate
proceedings were terminated
unsuccessfully when the Pennsylvania
Supreme Court denied his petition for
allowance of appeal on November 28,
1994.
Two years later, prior to Schlueter
filing a PCRA petition, he and his
parents learned that the Pennsylvania
legislature had amended the PCRA to
prescribe a filing deadline of January 16,
1997, in older cases such as Schlueter’s.3
By letter dated November 10, 1996,
Schlueter informed Lauer of the deadline
and asked him to file a timely PCRA
petition. Lauer replied by letter dated
December 2, 1996, that he was “well
aware” of the deadline and would file a
petition “before year’s end.” App. at
783. By letter dated December 13, 1996,
Lauer also informed Schlueter’s parents
that he was anticipating filing a PCRA
petition “prior to the end of this year.”
App. at 790. Nevertheless, Lauer did not
file a PCRA petition and did not
communicate further with Schlueter or
his parents. On March 18, 1997, the
Clerk of the Northampton County Court
of Common Pleas advised Schlueter in
response to his inquiry that no one had
filed a PCRA petition on his behalf.
On May 27, 1997, the Schlueters
retained his current attorneys’ law firm
to explore the possibility of filing a
PCRA petition. After repeated attempts,
the new attorneys retrieved Schlueter’s
files from Lauer on October 2, 1997.
Upon reviewing the files, they
discovered that they did not include
certain files from the Public Defender’s
Office. At Schlueter’s new attorneys’
request, the Public Defender’s Office
located Schlueter’s files and arranged for
them to review the files and to interview
Crowe on December 9, 1997. During
the interview with Crowe, they learned
that George Blasco and Assistant District
3See Commonwealth v. Fenati,
748 A.2d 205, 207 (Pa. 2000) (holding
that PCRA petition filed on January 16,
1997, was timely filed within one year of
the PCRA amendments effective January
16, 1996).

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4
Attorney Narlesky had been “civil law
partners” in Easton prior to Blasco’s
death.4
Relying on this information, his
attorneys filed a PCRA petition on
Schlueter’s behalf on February 2, 1998,
alleging a conflict of interest arising
from the Blasco/Narlesky civil law
practice. Recognizing the apparent
untimeliness of their PCRA petition,
they attempted to invoke a statutory
exception to the PCRA’s period of
limitation by arguing that the facts of the
Blasco/Narlesky arrangement had been
unknown and could not have been
ascertained through the exercise of due
diligence.5 They subsequently reviewed
court records and filings and learned that
Blasco and Narlesky practiced and
shared fees in civil cases, together
owned and shared their office space, and
shared operating expenses and
personnel.
On June 22, 1998, more than 11
years after he was convicted and while
his PCRA petition was pending,
Schlueter filed a motion seeking
restoration of his appellate rights nunc
pro tunc, arguing that the court should
restore his right to a direct appeal due to
his trial attorneys’ erroneous parole
advice. After conducting a hearing, the
PCRA court dismissed the PCRA
petition as untimely and, in the same
opinion, denied Schlueter’s motion to
restore his right to appeal nunc pro tunc
because Schlueter had “knowingly and
voluntarily waived his appellate rights.”
App. at 436. On appeal, the
Pennsylvania Superior Court affirmed
the dismissal of Schlueter’s PCRA
petition as untimely without mentioning
his motion to restore his right to file a
direct appeal from his conviction nunc
pro tunc.6 The Pennsylvania Supreme
Court denied Schlueter’s petition for
allowance of appeal without explanation
on August 28, 2000.
Through his attorneys, Schlueter
filed a federal habeas corpus petition in
the district court on October 12, 2000.7
4The respondents deny that Blasco
and Narlesky were partners and state
they merely were part of an office
sharing arrangement. For purposes of
this appeal we will assume that they
were partners.
5See 42 Pa. Cons. Stat. Ann.
§ 9545(b)(1)(ii) (West 1998).
6Of course, the judgment of
affirmance upheld the denial of the
motion to appeal nunc pro tunc.
7In his federal habeas corpus
petition, Schlueter articulated the
following claims for relief: (1) his plea
was involuntary and unintelligent due to
an actual conflict of interest between
Blasco and Narlesky; (2) his trial
attorneys’ erroneous parole advice
denied him the right to file a direct
appeal; (3) his trial attorneys rendered
ineffective assistance due to the conflict
of interest between Blasco and Narlesky;

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5
The respondents moved to dismiss the
habeas petition as barred by the
applicable one-year period of limitation.
The case was referred to the chief
magistrate judge who rejected
Schlueter’s arguments for equitable and
statutory tolling, and recommended
dismissing the habeas petition as
untimely. After hearing oral argument,
the district court adopted the chief
magistrate judge’s report and
recommendation and dismissed
Schlueter’s habeas petition as untimely.
The court, however, granted a certificate
of appealability on the issue of equitable
tolling. The district court subsequently
“amplified” the certificate of
appealability to include the statutory
tolling issues as well.
Schlueter has filed a timely
appeal.
II. DISCUSSION
A. Jurisdiction and Standard of
Review
The district court had jurisdiction
pursuant to 28 U.S.C. §§ 2241 and 2254
and our jurisdiction is based on 28
U.S.C. §§ 1291 and 2253. We exercise
plenary review over the district court’s
order dismissing Schlueter’s habeas
petition as time barred. See Douglas v.
Horn, 359 F.3d 257, 259 (3d Cir. 2004).
B. One-Year Period of Limitation
In the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”)
Congress prescribed a one-year period of
limitation for the filing of federal habeas
corpus petitions by state prisoners. See
Douglas, 359 F.3d at 261. Effective
April 24, 1996, the AEDPA provides in
relevant part:
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; [or]
. . . .
(D) the date on which the
factual predicate of the
claim or claims presented
could have been
discovered through the
and (4) the Pennsylvania courts denied
his right to due process by refusing to
allow him to present evidence supporting
the merits of his conflict of interest
claim.

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6
exercise of due diligence.
28 U.S.C. § 2244(d)(1).8
We first determine the date on
which the one-year period began
running. Ordinarily under
section 2244(d)(1)(A), Schlueter’s one-
year period of limitation would have
begun running on April 24, 1996,
because his conviction became final well
before the effective date of the AEDPA.
See Burns v. Morton, 134 F.3d 109, 111
(3d Cir. 1998) (allowing a one-year
grace period to petitioners whose
convictions became final prior to the
enactment of the AEDPA). Schlueter
asserts, however, that the one-year
period began running under
section 2244(d)(1)(D) on December 9,
1997, the date on which his current
attorneys discovered the Blasco/Narlesky
arrangement. Appellant’s br. at 51-53.
By its language, the one-year
period of limitation commences under
section 2244(d)(1)(D) when the factual
predicate of a claim could have been
discovered through the exercise of due
diligence, not when it actually was
discovered. See Owens v. Boyd, 235
F.3d 356, 359 (7th Cir. 2000). Due
diligence does not require “the maximum
feasible diligence,” but it does require
reasonable diligence in the
circumstances. Moore v. Knight, 368
F.3d 936, 940 (7th Cir. 2004) (quoting
Wims v. United States, 225 F.3d 186,
190 n.4 (2d Cir. 2000)). Section
2244(d)(1)(D) provides a petitioner with
a later accrual date than
section 2244(d)(1)(A) only “if vital facts
could not have been known.” Owens,
235 F.3d at 359.
We are convinced that if
Schlueter had exercised due diligence,
he could have discovered the
Blasco/Narlesky arrangement long
before the AEDPA became effective.
Lauer testified at the PCRA hearing that
it was common knowledge in the legal
community in Northampton County that
Blasco and Narlesky shared office space.
Lauer also testified that he personally
was aware of the arrangement when he
represented Schlueter in 1994. Indeed,
in our view, it is inconceivable that
Blasco and Narlesky could have hidden
their arrangement from the relatively
small legal community or the public in
Northampton County.9
8The omitted subsections are not
germane in this case.
9We are not suggesting that they
attempted to hide their arrangement or
believed that they had any reason to do
so during the time of their association.
Nevertheless, it must be acknowledged
that not every attorney in Northampton
County was aware of the depth and
circumstances of the Blasco/Narlesky
arrangement as Crowe indicated to
Schlueter’s current attorneys that he was
not.

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7
Moreover, Schlueter’s current
attorneys learned of the arrangement
simply by interviewing Crowe who, with
Blasco, represented Schlueter in the
criminal proceedings. Certainly, if he
had exercised due diligence, Schlueter
would have had Crowe interviewed
many years before December 9, 1997, as
it is apparent in view of his incarceration
that Schlueter had every incentive to
have Crowe, his surviving trial attorney,
interviewed. After all, as early as
August 16, 1988, he had written Crowe
requesting information for the purpose
of pursuing state post-conviction review.
We also point out that the factual basis
for the claim of impropriety based on the
Blasco/Narlesky arrangement was hardly
obscure for, after interviewing Crowe
and discovering the Blasco/Narlesky
arrangement, Schlueter’s current
attorneys learned the details of the
arrangement merely by reviewing court
records and filings, all of which were
matters of public record. Appellant’s br.
at 24.
We realize that Lauer advised
Schlueter to postpone pursuing PCRA
review until the civil proceedings were
concluded. But by the time that his
parents retained Lauer almost six years
had elapsed since the time that Schlueter
first contemplated bringing post-
conviction review proceedings. Clearly,
in allowing this time to pass Schlueter
was not diligent. Moreover, Lauer’s
advice, at most, could have delayed
Schlueter for only about five months
from Lauer’s retention in June 1994 until
November 28, 1994, when the
Pennsylvania Supreme Court refused to
allow him to appeal.
Overall, we are satisfied that
through the exercise of due diligence,
Schlueter could have learned the factual
predicate of his conflict of interest claim
well before April 24, 1996. Therefore,
the one-year period of limitation began
running under section 2244(d)(1)(A) on
April 24, 1996. Inasmuch as Schlueter
filed his federal habeas corpus petition
four and one-half years later on October
12, 2000, in the absence of tolling of the
one-year period of limitation, his habeas
corpus petition was untimely.
In reaching our result, we
recognize that Schlueter is and has been
incarcerated for many years and that
physical confinement can limit a
litigant’s ability to exercise due
diligence. See Moore v. Knight, 368
F.3d at 940. We observe from the record
and references in Schlueter’s brief,
however, that Schlueter’s parents have
been involved actively in their son’s case
for several years. Thus, Schlueter,
unlike many other incarcerated litigants,
has enjoyed the benefit of his family’s
assistance, involvement and resources.
We also point out that Schlueter’s
parents must be well educated as they
both are referred to as “Doctor” in the
record in this case. Therefore,
Schlueter’s incarceration does not
change our view that if he had exercised
due diligence he would have discovered
the facts supporting his PCRA claims

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8
before April 24, 1996.
C. Tolling of the One-Year Period of
Limitation
The AEDPA’s one-year period of
limitation is not an absolute limit.
See Douglas, 359 F.3d at 261. Rather, it
is subject to two possible tolling
exceptions both of which Schlueter
advances: (1) statutory tolling under 28
U.S.C. § 2244(d)(2) while a properly
filed application for post-conviction
review is pending in the state courts; and
(2) equitable tolling. See Merritt v.
Blaine, 326 F.3d 157, 161 (3d Cir.
2003). We examine first the period of
time from April 24, 1996, the date on
which the one-year period began to run,
through December 9, 1997, the date on
which Schlueter’s current attorneys
discovered the Blasco/Narlesky
arrangement, to determine whether there
should be equitable tolling during any
portion of this period.10
The one-year period should be
equitably tolled “only in the rare
situation where equitable tolling is
demanded by sound legal principles as
well as the interests of justice.” Jones v.
Morton, 195 F.3d 153, 159 (3d Cir.
1999). Equitable tolling is appropriate:
only when the principles of
equity would make the
rigid application of a
limitation period unfair.
Generally, this will occur
when the petitioner has in
some extraordinary way
been prevented from
asserting his or her rights.
The petitioner must show
that he or she exercised
reasonable diligence in
investigating and bringing
the claims.
Miller v. New Jersey State Dep’t of
Corr., 145 F.3d 616, 618-19 (3d Cir.
1998) (internal citations and alterations
omitted).
Schlueter bases his equitable
tolling argument on what he
characterizes as attorney malfeasance.
Specifically, he argues that the delay in
filing his PCRA petition (and by
extension his federal habeas corpus
petition) was due to Lauer’s misconduct
in affirmatively misrepresenting that he
would file a timely PCRA petition on
Schlueter’s behalf. In this regard we
point out that if Lauer had filed the
PCRA petition by the state deadline of
January 16, 1997, there would have been
10It is undisputed that the period
of time from April 24, 1996, through
February 2, 1998, cannot be tolled
statutorily under section 2244(d)(2) as
Schlueter did not file any application of
any kind in the state courts from April
24, 1996, until February 2, 1998, and he
had not filed any application earlier that
was pending during that period. In
addition, Schlueter concedes that the
one-year period was running from
December 9, 1997, until February 2,
1998. Appellant’s br. at 62.

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9
a period of tolling under section
2244(d)(2). In addition, Schlueter
contends that Blasco and Narleskys’
alleged misconduct in not disclosing
their arrangement compounded the
unfair effect of Lauer’s failure to file a
PCRA petition after representing that he
would do so.
Generally, in a non-capital case
such as Schlueter’s, attorney error is not
a sufficient basis for equitable tolling of
the AEDPA’s one-year period of
limitation. See Johnson v. Hendricks,
314 F.3d 159, 163 (3d Cir. 2002).
Nevertheless, we have held, albeit
outside the habeas context, that there are
“narrow circumstances in which the
misbehavior of an attorney may merit”
equitable tolling. Seitzinger v. Reading
Hosp. & Med. Ctr., 165 F.3d 236, 239
(3d Cir. 1999). Seitzinger involved a
Title VII plaintiff who asked her attorney
prior to the expiration of an applicable
90-day period of limitations if he had
filed a complaint on her behalf. Id. at
238. The attorney falsely stated that he
had done so whereas, in fact, he did not
file a complaint until one day after the
limitations period expired. Id. We held
that the attorney’s affirmative
misrepresentation to his client, coupled
with the plaintiff’s extreme diligence in
pursuing her claim and the absence of
prejudice to the defendant, “created a
situation appropriate for tolling.” Id. at
242.
We find that the material facts of
Seitzinger are distinguishable from those
presented here. In Seitzinger, counsel
misrepresented to his client that he
already had filed a timely complaint and
by the time the client discovered that her
attorney had not done so the period of
limitations had expired. Here, in
December 1996, Lauer informed
Schlueter and his parents that he
anticipated filing a PCRA petition before
the end of the year. When the year
ended, Schlueter could have learned, as
he did later, that Lauer had not filed a
PCRA petition. If he had done so he still
would have had a small window of time
in which to file a pro se petition and save
his PCRA claims from dismissal as
untimely. Thus, his situation differs
sharply from that of the Seitzinger
plaintiff who was misled by what the
attorney said he had done, not by what
he said he would do.
Moreover, it is apparent that
Schlueter was fully aware of his PCRA
rights in 1994 when he retained Lauer.11
Schlueter knew that Lauer had done
little, if anything, to pursue PCRA relief
for more than two years.
Notwithstanding this knowledge, neither
Schlueter nor his parents took
11The record reflects that
Schlueter actually knew of his right to
pursue state post-conviction review as
early as August 16, 1988, when he wrote
to Crowe requesting information for that
purpose. Crowe declined to respond
because he no longer represented
Schlueter. Schlueter apparently took no
further steps to challenge his conviction
until he retained Lauer in 1994.

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10
affirmative steps to ensure the timely
filing of a PCRA petition until Schlueter
wrote his November 10, 1996 letter to
Lauer advising him of the PCRA
deadline and asking him to file a timely
petition. Then after the end of 1996
Schlueter did not attempt to ascertain
from Lauer prior to the January 16, 1997
deadline of which he was well aware
whether Lauer, in fact, had filed a PCRA
petition. We also find it significant that
the period of limitations at issue in
Seitzinger was a brief 90 days and that
the attorney filed the complaint only one
day late. Thus, the attorney’s
misconduct warranted equitably tolling
one day of a short period of limitations.
Here, the AEDPA’s limitation period is
one year, and did not begin to run until
April 24, 1996, nearly nine years after
Schlueter’s conviction became final in
1987. Schlueter did not initiate state
post-conviction proceedings until 1998
and did not pursue federal habeas corpus
relief until 2000 even though he had
been convicted in 1987. The
circumstances in Schlueter’s case simply
do not warrant the application of
equitable tolling after such lengthy
periods of time had elapsed following
his conviction before he sought state and
federal relief.12
Schlueter also relies on Spitsyn v.
Moore, 345 F.3d 796 (9th Cir. 2003), and
Baldayaque v. United States, 338 F.3d
145 (2d Cir. 2003), for the proposition
that attorney malfeasance constitutes an
extraordinary circumstance sufficient to
warrant equitable tolling of the one-year
period of limitation. As these cases
amply demonstrate, however, a finding
that attorney malfeasance is an
extraordinary circumstance, without
more, is not sufficient to warrant
equitable tolling. Spitsyn holds that
egregious attorney misconduct may
justify equitable tolling, but also requires
district courts to examine the petitioner’s
due diligence in pursuing the matter
under the specific circumstances he
faced. Spitsyn, 345 F.3d at 802.
Likewise, Baldayaque holds that “an
attorney’s conduct, if it is sufficiently
egregious, may constitute the sort of
‘extraordinary circumstances’ that would
justify the application of equitable
tolling.” Baldayaque, 338 F.3d at 152-
53. Baldayaque, however, expressly
states that the presence of extraordinary
circumstances “is not enough” – a
petitioner “must also show that he acted
with reasonable diligence, and that the
extraordinary circumstances caused his
petition to be untimely.” Id. at 153
(citation omitted). In other words,
neither Spitsyn nor Baldayaque holds
that attorney malfeasance, standing
alone, warrants equitable tolling.13
12Inasmuch as we are not allowing
any period of equitable tolling we have
no need to engage in an intricate
counting process computing the
hypothetical possible tolling period.
13We acknowledge Schlueter’s
reliance on Boyd v. Myers, Civ. A. No.
97-7160, 1998 U.S. Dist. LEXIS 20253

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11
For these reasons, we conclude
that the circumstances presented in
Schlueter’s case do not warrant equitable
tolling. We are convinced that if
Schlueter had exercised reasonable
diligence, he could have brought his
claims in a timely fashion, Lauer’s
alleged misconduct notwithstanding.14
Accordingly, we cannot equitably toll
the period of time from April 24, 1996,
until December 9, 1997, or during any
portion thereof. We conclude, therefore,
that the AEDPA’s one-year period of
limitation expired before Schlueter filed
his PCRA petition, his motion to
reinstate his direct appeal nunc pro tunc,
or his federal habeas corpus petition.15
In view of our disposition we
address only briefly Schlueter’s
arguments for equitable or statutory
tolling while either his PCRA petition or
his motion to reinstate his direct appeal
nunc pro tunc was pending in the state
courts. We do note that Merritt v.
Blaine, 326 F.3d at 161-65, forecloses
Schlueter’s argument for statutory tolling
during the time his untimely PCRA
petition was pending as it holds that a
federal habeas court for purposes of
(E.D. Pa. Dec. 21, 1998), in which the
district court applied equitable tolling
where the petitioner’s attorney promised
to file a timely federal habeas petition,
but filed it five months late. Quite aside
from the circumstance that Boyd is not
precedential, we find the case unhelpful
to our current analysis as the district
court issued the opinion in 1998 before
we had provided much guidance on the
subject of equitable tolling in the habeas
context. Consequently, the equitable
tolling standard utilized in Boyd
arguably does not comport with our
more recent pronouncements requiring a
habeas petitioner to demonstrate that he
was “prevented in an extraordinary way
from asserting his rights.” Johnson, 314
F.3d at 163.
14Our opinion should not be
misread to condone or excuse Lauer’s
conduct. To the contrary we
acknowledge that arguably Lauer’s
conduct was unacceptable and fell below
professional standards. On the other
hand, fairness to Lauer requires that we
point out that he could not find what he
regarded was a basis for a PCRA claim.
15We disagree with the dissent’s
position that we should remand to the
district court to consider whether
Schlueter exercised reasonable diligence.
Dissenting opinion at 7. The magistrate
judge concluded that “the delay in
learning of an office sharing relationship
between the prosecutor and defense
counsel did not demonstrate the exercise
of due diligence.” App. at 15 n.1. The
issue of Schlueter’s diligence also was
raised at oral argument before the district
judge. The district judge subsequently
approved and adopted the magistrate
judge’s report and recommendation.
Because the district court already has
ruled that Schlueter did not exercise
reasonable diligence, a remand would be
pointless.

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12
section 2244(d)(2) defers to a state
court’s ruling dismissing a PCRA
petition as untimely.16 Accordingly it is
clear that his untimely state PCRA claim
cannot possibly help him.
We also reject his claim that
somehow filing his motion to restore his
appellate rights on June 22, 1998, more
than one year after the AEDPA period of
limitations had run, should lead to
statutory tolling on the basis that the
motion was a “properly filed”
application for post-conviction review
under section 2244(d)(2). While he
predicates this argument on the theory
that his motion was denied “on the
merits,” appellant’s br. at 46, inasmuch
as the state court pointed out that
Schlueter had “knowingly and
voluntarily waived his appellate rights,”
it is clear that the appeal was not
permitted because it would have been
untimely and there was no basis to
circumvent the time bar and not because
Schlueter could not have demonstrated
that there had been a reversible error in
the trial proceedings so that an appeal
would have been futile. We decline to
adopt a construction of the AEDPA that
permits a petition for habeas corpus to be
deemed timely on the basis of section
2244(d)(2) providing for tolling for
“properly filed application[s] for state
post-conviction . . . review” merely
because the petitioner unsuccessfully has
sought the right to appeal nunc pro tunc
years after his unexercised right to file a
timely direct appeal has expired. See
Douglas, 359 F.3d at 261-63.
Finally we recognize that the
dissent contends that there is a strong
argument for equitable tolling predicated
on various Pennsylvania state appellate
decisions based on Schlueter’s filing of
the PCRA petition and his motion to
reinstate his direct appeal nunc pro tunc.
Dissenting opinion at 3-4 n.2. This point
is critical in the dissent’s analysis as it
points out that equitable tolling during
the period from April 24, 1996, until
December 9, 1997, “saves Schlueter’s
claim only if we also toll pending
resolution of the state-court
proceedings.” Id. We need not discuss
these state decisions as he pursued both
forms of relief after the AEDPA period
of limitations already had run.
III. CONCLUSION
For the foregoing reasons, we
16Schlueter contends that we
“wrongly decided” Merritt v. Blaine,
appellant’s br. at 54, but this panel
cannot entertain that argument. We also
note that even if we held that the one-
year period of limitation began running
under section 2244(d)(1)(D) on
December 9, 1997, in view of Merritt v.
Blaine there would not have been
statutory tolling of the one-year period of
limitation governing Schlueter’s federal
habeas corpus action while his PCRA
petition was pending. Thus, inasmuch as
he commenced his federal action on
October 12, 2000, it would have been
untimely.

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13
conclude that the district court properly
dismissed Schlueter’s habeas corpus
petition as time barred by the one-year
period of limitation. Accordingly, we
will affirm the district court’s order
entered September 3, 2003.
Schlueter v. Varner, et al
No. 03-3928
Ambro, Circuit Judge, Dissenting
It is an underlying assumption of
our legal system that attorneys actively
pursue the best interests of their clients.
All too often, attorneys make mistakes.
The sad reality is that there are not
enough willing defense attorneys to
represent competently the interests of the
many criminal defendants who cycle
through the courts. And thus,
necessarily, we afford substantial leeway
to attorneys when it comes to “mere
‘attorney error.’” Roe v. Flores-Ortega,
528 U.S. 470, 482 (2000).
But the distinction between
mistake and malfeasance is profound.
There can be little semblance of justice
when an attorney assigned to protect a
defendant ignores a blatant conflict of
interest, and another counsel does
nothing while promising more than once
to protect the defendant’s rights. If the
facts are as Paul Schlueter has portrayed
them, his trial counsel (George Blasco)
disregarded his civil law partnership
with the prosecutor (James Narlesky),
and his appellate counsel (Philip Lauer)
affirmatively misrepresented that he
would timely file a petition for relief in
order to forestall the inevitable
accounting for his long-promised and

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14
paid-for legal services.17 Irony becomes
Kafkaesque when the latter act of
malfeasance shelters from review the
former act of malfeasance.
I cannot in good conscience bury
Schlueter’s case before it sees the light
of day. AEDPA confers on federal
courts the authority equitably to toll its
limitations period in the interest of
justice. If any case is ripe for exercise of
that power, this one is. Accordingly, I
respectfully dissent.
* * * * *
As the majority explained,
Schlueter’s habeas petition would
ordinarily have been due on April 23,
1997. See Douglas v. Horn, 359 F.3d
257, 261 (3d Cir. 2004). He did not file
his petition, however, until October 12,
2000. Thus the petition was timely only
if the limitations period was tolled.
The AEDPA filing deadline is
subject to equitable tolling “when the
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) (internal
quotation omitted). While this principle
on its face is broad, it is to be applied
sparingly. Equitable tolling is
appropriate when “the petitioner has in
some extraordinary way been prevented
from asserting his or her rights. The
petitioner must show that he or she
exercised reasonable diligence in
investigating and bringing the claims.”
Id. at 618–19 (internal quotations
omitted); see also Jones v. Morton, 195
F.3d 153, 159 (3d Cir. 1999).
We have concluded, as a general
matter, that attorney error is not so
“extraordinary” as to justify equitable
tolling. See, e.g., Johnson v. Hendricks,
314 F.3d 159, 163 (3d Cir. 2002). This
rule makes sense, as attorney error is
normally attributed to the client. See,
e.g., United States v. Boyle, 469 U.S.
241, 250 (1985). But it does not follow
that tolling based on deception of the
kind alleged by Schlueter in this case is
also foreclosed.
Schlueter and his parents wrote to
and called Lauer on many occasions over
a period of several months. He falsely
assured them that he was preparing a
PCRA petition and would timely file.
But he made no such preparations.
After allowing the deadline to pass, he
17At the very least, I would
remand for a determination by the
District Court whether Lauer, reputed to
be well qualified, did in fact
affirmatively mislead his client. See, e.g.,
United States v. Wynn, 292 F.3d 226,
230 (5th Cir. 2002) (remanding for
hearing to determine whether defendant
was obligated to undertake further
inquiry upon receipt of a letter from the
court stating that no petition under the
Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”) had been filed,
when attorney allegedly told the
defendant’s father that no record of his
filing existed because the petition was
filed directly with the judge).

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15
ceased all communication with the
Schlueters. He did not return their many
phone calls or letters, nor did he timely
return Schlueter’s files despite repeated
requests from Schlueter and his new
counsel. Lauer’s intentional
abandonment of Schlueter’s case cannot
plausibly be labeled “error.” His
behavior, I believe, was sufficiently
egregious to bring it “within the narrow
line of cases in which lawyer misconduct
justifies equitable tolling.” Seitzinger v.
Reading Hosp. & Med. Ctr., 165 F.3d
236, 238 (3d Cir. 1999).
The law of agency provides a
useful framework for understanding the
distinction between error and
misconduct. See Baldayaque v. United
States, 338 F.3d 145, 154 (2d Cir. 2003)
(Jacobs, J., concurring). Ordinarily,
“[a]ttorney ignorance or inadvertence”
does not excuse a petitioner’s non-
compliance with AEDPA, because “the
attorney is the petitioner’s agent when
acting, or failing to act, in furtherance of
the litigation.” Coleman v. Thompson,
501 U.S. 722, 753 (1991) (rejecting
attorney error as “cause” for
procedurally defaulted habeas claims);
see also McCarthy v. Recordex Serv.,
Inc., 80 F.3d 842, 853 (3d Cir. 1996) (“It
is, of course, beyond cavil that the
attorney-client relationship is an
agent-principal relationship.”). We
assume, for better or worse, that a lawyer
is acting as the petitioner’s agent, and the
petitioner therefore “bear[s] the risk of
attorney error.” Coleman, 501 U.S. at
752–53; cf. Link v. Wabash R.R. Co.,
370 U.S. 626, 634 (1962) (“[E]ach party
is deemed bound by the acts of his
lawyer-agent . . . .”).
But it is a fundamental principle
of agency law that the knowledge of an
agent is not attributed to the principal
when the agent is acting in a manner
adverse to the interests of the principal.
Restatement (Third) of Agency § 5.04
(Tentative Draft No. 4 2003) (“Notice is
not imputed to the principal of a fact that
an agent knows or has reason to know if
the agent acts adversely to the principal
in a transaction or matter for the agent’s
own purposes . . . .”). Mere attorney
error does not constitute an
“extraordinary circumstance” because a
circumstance, to be extraordinary, must
be beyond the prisoner’s control. Harris
v. Hutchinson, 209 F.3d 325, 330 (4th
Cir. 2000). Thus, we have explained, a
client who relies on the faulty advice of
his lawyer has not encountered an
obstacle to filing that is external to his
conduct. Johnson, 314 F.3d at 162–63.
Conversely, when, as here, an attorney
ceases altogether to serve the interests of
his client, the law of agency is clear that
the attorney acts alone.
This central tenet—that attorney
malfeasance should not be attributed to
the client—paves any number of parallel
paths to tolling in this case. We might
conclude that Schlueter, had Lauer not
represented that he was acting on the
case, would timely have filed a petition
under Pennsylvania’s Post-Conviction
Relief Act (“PCRA”), 42 Pa. Cons. Stat.
Ann. § 9541, et seq., prior to the

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16
deadline that would have presented
Blasco’s clear conflict as trial counsel.
Thus we might equitably toll the statute
from April 24, 1996, the day it began to
run, to December 9, 1997, the day that
Schlueter’s new counsel was put on
notice of the relationship between Blasco
and Narlesky.18 We might hold that
18Tolling for this minimum
duration saves Schlueter’s claim only if
we also toll pending resolution of the
state-court proceedings. The analysis is
complex, but it can be summarized as
follows.
On February 3, 1998, Schleuter
filed a petition for post-conviction relief
under PCRA. He argued that his PCRA
petition should be deemed timely
because the delay in filing was based on
ineffective assistance of counsel retained
to file the petition. In June 1998 he
separately filed a petition to appeal nunc
pro tunc. The PCRA Court denied the
PCRA petition as untimely and rejected
Schlueter’s request for an appeal nunc
pro tunc. On October 22, 1999, the
Pennsylvania Superior Court affirmed.
Schleuter’s subsequent petition for
allowance of an appeal was denied by
the Pennsylvania Supreme Court on
August 28, 2000.
I note first that statutory tolling
will not save Schlueter’s claim. 28
U.S.C. § 2244(d)(2) provides 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 under this
subsection.” But neither the PCRA
petition nor the nunc pro tunc petition
was “properly filed” for the purposes of
Pennsylvania law. Our Court has stated
that “an untimely PCRA petition does
not toll the statute of limitations for a
federal habeas corpus petition.” Merritt
v. Blaine, 326 F.3d 157, 165 (3d Cir.
2003). Nor is statutory tolling available
based on the nunc pro tunc petition,
notwithstanding our recent decision in
Douglas v. Horn, 359 F.3d 257, 263
n.11 (3d Cir. 2004). Douglas suggested
that statutory tolling might apply to nunc
pro tunc petitions filed before the
Pennsylvania Supreme Court’s decision
in Commonwealth v. Lantzy, 736 A.2d
564 (Pa. 1999), which reversed a series
of decisions by Pennsylvania lower
courts indicating that nunc pro tunc
petitions were compatible with PCRA
under appropriate circumstances. See,
e.g., Commonwealth v. Hall, 713 A.2d
650, 653 (Pa. Super. 1998), rev’d in
part, vacated in part, 771 A.2d 1232
(Pa. 2001). But in Commonwealth v.
Eller, 807 A.2d 838 (Pa. 2002), the
Pennsylvania Supreme Court held that
Lantzy did not announce a new rule and
thus applies retroactively. Therefore,
though Schlueter’s nunc pro tunc
petition was filed more than a year
before Lantzy was decided, it was not
properly filed for the purposes of
Pennsylvania law.
Although I would not statutorily

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17
equity requires us to toll the statute to the
day that Schlueter’s habeus petition was
finally filed. Or we might even conclude
that Schlueter falls within the ambit of
§ 2244(d)(1)(D), because the conflict of
interest, though discoverable by Lauer
based on his alleged knowledge of
Blasco and Narlesky’s office sharing
arrangement, was not reasonably
ascertainable by an incarcerated inmate
who was forestalled from pursuing his
case by the false assurances of a third
party.19
toll the AEDPA limitations period under
§ 2244(d)(2), a strong argument exists
for equitable tolling based on Schlueter’s
good-faith efforts to avail himself of
state post-conviction relief. In Merritt,
326 F.3d at 170 n.10, we preserved the
possibility that equitable tolling may be
appropriate where, as here, a PCRA
petition is late based on newly
discovered facts of a “legitimate” nature.
Id. (“Undoubtedly, there will be other
habeas petitioners who find themselves
in similar situations where their need to
exhaust state remedies will create a
tension with the one-year statute of
limitations in AEDPA. . . . The federal
courts should seek ways to ameliorate
the consequences for these petitioners in
appropriate cases.”). This may be the
special case that panel had in mind.
The argument for equitable tolling
based on Schlueter’s nunc pro
tunc petition is even stronger. The
Pennsylvania Superior Court’s decision
in Hall, 713 A.2d at 653, announcing
that nunc pro tunc petitions were
permissible under appropriate
circumstances despite the language of
PCRA, was issued on June 3, 1998.
Based on that decision, Schlueter’s
counsel concluded that Schlueter was
eligible for nunc pro tunc relief and
would therefore be obligated to pursue it
under AEDPA in order to exhaust state
remedies. He similarly relied on
Pennsylvania case law when he appealed
the PCRA court’s decision in December
1998; although Lantzy had by then been
decided, several post-Lantzy en banc
opinions of the Superior Court (which
would later be overruled by Eller) held
that it would not apply retroactively.
See, e.g., Commonwealth v. Garcia, 749
A.2d 928, 933 (Pa. Super. Ct. 2000) (en
banc), rev’d, 811A.2d 994 (Pa. 2002);
Commonwealth v. Hitchcock, 749 A.2d
935, 939-40 (Pa. Super. Ct. 2000) (en
banc).
19The majority is “convinced that
if Schlueter had exercised due diligence,
he could have discovered the
Blasco/Narlesky arrangement long
before the AEDPA became effective.”
But this task would have been harder
than it sounds. While various
individuals were aware of the office
sharing arrangement, few (if any) knew
the extent of the relationship between the
two attorneys. The evidence strongly
suggests that Narlesky affirmatively
concealed the relationship. According to
Schlueter, Narlesky went so far as to
misrepresent to the PCRA court the

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18
Other courts have applied
equitable tolling under circumstances
like these. In Baldayaque, 338 F.3d at
152, for example, an attorney failed
timely to file a § 2255 motion requested
by his client and made inadequate efforts
to communicate with him. The Second
Circuit held that the attorney, “[b]y
refusing to do what was requested by his
client on such a fundamental matter, . . .
violated a basic duty of an attorney to his
client.” His actions, the Court
continued, “were far enough outside the
range of behavior that reasonably could
be expected by a client that they may be
considered ‘extraordinary’” and thereby
“justify the application of equitable
tolling to the one-year limitations period
of AEDPA.” Id. at 152–53. See also
Spitsyn v. Moore, 345 F.3d 796, 798 (9th
Cir. 2003) (“Based upon the unique facts
of this case, where an attorney was
retained to prepare and file a petition,
failed to do so, and disregarded requests
to return the files pertaining to
petitioner’s case until well after the date
the petition was due, we agree that
equitable tolling of the deadline is
appropriate.”); United States v. Wynn,
292 F.3d 226, 230 (5th Cir. 2002)
(“Wynn’s allegation that he was
deceived by his attorney into believing
that a timely § 2255 motion had been
filed on his behalf presents a ‘rare and
extraordinary circumstance’ beyond
petitioner’s control that could warrant
equitable tolling of the statute of
limitations.”); cf. Doherty v. Teamsters
Pension Trust Fund of Phila. & Vicinity,
16 F.3d 1386 (3d Cir. 1994) (tolling
based on the death of the petitioner’s
attorney).
In our Circuit, the principal case
on point is Seitzinger. It involved a Title
VII claim, though we have since applied
its reasoning to habeas cases. See, e.g.,
Brown v. Shannon, 322 F.3d 768, 774
(3d Cir. 2003). The Supreme Court has
cautioned that in the Title VII context
“the principles of equitable tolling . . . do
not extend to what is at best a garden
variety claim of excusable neglect.”
Irwin v. Dep’t Veteran Affairs, 498 U.S.
89, 96 (1990). Our task in Seitzinger
was to decide whether misconduct by the
plaintiff’s attorney was merely “garden
variety” or, rather, was something more
egregious. The plaintiff alleged that she
repeatedly asked her attorney whether he
had filed a complaint, and each time he
misrepresented to her that he had. Under
these circumstances, we concluded that
equitable tolling was appropriate.
Seitzinger, 165 F.3d at 241.
Of course, Seitzinger also requires
that the client be “reasonably diligent” in
pursuing his or her claims. But the facts
of Seitzinger leave little doubt that
Schlueter has met that burden. In
concluding that the plaintiff in Seitzinger
was diligent, we emphasized that she: (1)
hired an attorney to file her civil
complaint; (2) “contacted him before the
character of his partnership with Blasco.
The conflict was particularly difficult to
discover because Blasco’s death in 1988
dissolved that partnership.

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19
filing deadline, which she knew about in
broad terms, to ensure that he had filed
the complaint”; and (3) repeatedly called
him in order to obtain a copy of the
complaint and monitor the status of her
case. Id. at 241. All of these factors are
true in Schlueter’s case as well. In fact,
Schlueter and his family were, if
anything, more diligent. They apprised
their attorney of the precise filing
deadline (whereas Seitzinger was aware,
“in broad terms,” that a deadline existed)
with ample time to prepare a petition. In
addition to their phone calls, the
Schlueters wrote several letters seeking
to ensure that the PCRA petition would
be filed prior to the deadline. And they
received written assurances that a
petition would timely be filed.
Once the deadline had passed, the
Schlueters did everything that could
reasonably be expected of them. When
their phone calls from Lauer were not
returned, they wrote to the clerk’s office
directly. That office did not respond
until March 18, 1997. The time between
the Schlueters’ discovery of Lauer’s
failure to file and their retaining new
counsel was just over two months. After
that, matters were largely out of
Schlueter and his counsel’s hands.
Lauer simply did not turn over the files
for many months.
The majority dismisses
Schlueter’s efforts as inadequate. They
suggest that he was not entitled to rely
on the two written assurances by the
attorney whom he had hired to pursue
his case; rather, on New Year’s Day of
1997, he should have ascertained
whether Lauer had indeed filed as
promised. Never mind that Lauer had
ceased to return phone calls on
Schlueter’s behalf. Never mind that
when the Schlueters, having received no
word from Lauer for months, inquired
with the clerk’s office whether a petition
had been filed, it was nearly forty days
before they received a response.
Schlueter, says the majority, might have
done more.
This, I suppose, is theoretically
true. But it blinks reality to suggest that
Schlueter might have retained substitute
counsel willing to prepare a petition
within the two short weeks between the
end of 1996 and the PCRA filing
deadline. Still, he might have filed his
own PCRA petition pro se, just in case.
That would have been supremely
diligent.
But supreme diligence is not
required. On the contrary, the standard
is a relatively modest one. Schlueter’s
diligence need only have been
reasonable under the circumstances. Cf.
Baldayaque, 338 F.3d at 153 (“The
standard is not ‘extreme diligence’ or
‘exceptional diligence,’ it is reasonable
diligence.”) (emphasis in text). I believe
that Schlueter’s protracted efforts
handily qualify. But if the majority is
not convinced, it seems to me better to
remand for the District Court to consider
this issue in the first instance rather than
dismiss outright his habeus petition. See
id.

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20
Still, the majority insists,
Seitzinger is distinguishable. If that is
so, it is because the urgency of tolling is
far stronger in Schlueter’s case. The
attorney in Seitzinger nearly cost his
client the right to seek recovery for
gender and age discrimination by her
employer. But the stakes in this case are
far higher—life imprisonment without
the possibility of parole.
The gravity of Schlueter’s
situation is self-evident. “Dismissal of a
first habeas petition is a particularly
serious matter, for that dismissal denies
the petitioner the protections of the Great
Writ entirely, risking injury to an
important interest in human liberty.”
Lonchar v. Thomas, 517 U.S. 314, 324
(1996) (emphasis omitted). The majority
declines to exercise its power to rectify a
fundamental inequity—that Schlueter’s
appellate counsel, rather than assisting
him in obtaining the relief he was
retained to pursue, crippled Schlueter’s
diligent efforts timely to obtain post-
conviction relief for the tainted
representation he received from his
defense attorney at trial. Thus no court
will ever pass on the merits of his habeas
claim. Because I believe that under
these circumstances “the principles of
equity . . . make the rigid application of
[the AEDPA] limitation period unfair,”
Miller, 145 F.3d at 618 (internal
quotations omitted), I respectfully
dissent.

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