Robert Douglas v. MARTIN HORN, Commissioner, Pennsylvania Department of Corrections

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-2339
ROBERT DOUGLAS,
Appellant
v.
MARTIN HORN, Commissioner,
Pennsylvania Department of
Corrections; DONALD VAUGHN,
Superintendent of the State
Correctional Institution at Graterford
On Appeal from the United States
District Court for the Eastern District
of Pennsylvania
(D.C. Civ. No. 00-4935)
Honorable John R. Padova,
District Judge
Submitted under Third Circuit
LAR 34.1(a) January 12, 2004
BEFORE: BARRY, SMITH, and
GREENBERG, Circuit Judges
(Filed: February 9, 2004)
Matthew Lawry
James J. McHugh, Jr.
Defender Association of Philadelphia
Federal Court Division
The Curtis Center - Suite 545 West
Independence Square West
Philadelphia, PA 19106
Attorneys for Appellant
David Curtis Glebe
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney,
Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
1421 Arch Street
Philadelphia, PA 19102-1582
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this
court on appeal from an order of the
district court dated April 12, 2002, and
entered on April 15, 2002, denying the
petition of Robert Douglas (“Douglas”)
for habeas corpus relief under 28 U.S.C.
§ 2254 on the ground that it was
untimely under 28 U.S.C. § 2244(d)(1).
The district court had jurisdiction
pursuant to 28 U.S.C. § 2254 and we
have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253(c)(1)(A). Our review

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of the order denying the habeas petition
as time-barred is plenary. See Johnson v.
Hendricks, 314 F.3d 159, 161 (3d Cir.
2002). For the reasons stated herein, we
will affirm the district court’s order.
I. BACKGROUND
On April 2, 1982, a jury in the
Court of Common Pleas of Philadelphia
County, Pennsylvania, found Douglas
guilty of conspiracy, aggravated assault,
robbery, and possession of an instrument
of crime. On July 10, 1984, the trial
court sentenced him to a total period of
incarceration of 20 to 40 years. Douglas
appealed, but the Pennsylvania Superior
Court affirmed on December 13, 1985.
Douglas did not file a timely petition for
allocatur with the Pennsylvania Supreme
Court but did file a request for
permission to appeal nunc pro tunc
which that court denied on October 5,
1987. Thus, the proceedings on his
direct appeal were concluded at that
time.
On December 16, 1996, Douglas
filed a pro se petition for post conviction
relief under the Post Conviction Relief
Act (“PCRA”), 42 Pa. Cons. Stat. Ann.
§§ 9541 et seq. (West 1998 & West
Supp. 2003), in the common pleas court.1
Douglas’s appointed counsel, however,
filed a “no merit” letter with the court
which thereafter dismissed Douglas’s
petition. Douglas again appealed to the
Superior Court, but that court affirmed
the dismissal on July 15, 1999, partially
on the merits and partially for procedural
reasons.2
Thereafter, Douglas attempted
to submit a motion for reconsideration to
the Superior Court, but the court’s
prothonotary returned the motion to him,
originally for procedural reasons and
then, when Douglas resubmitted it,
because it was untimely. When the
prothonotary returned it the second time,
he informed Douglas in his letter that if
Douglas planned to appeal to the
Pennsylvania Supreme Court, his petition
for allowance of appeal was required to
be postmarked by August 16, 1999.
Douglas, however, did not meet that
deadline but instead, on September 10,
1999, submitted a petition for allowance
of appeal nunc pro tunc to prison
officials at his place of confinement for
mailing to the Pennsylvania Supreme
Court. The officials apparently did mail
the petition as he requested and it was
filed on September 14, 1999. But on
January 28, 2000, the Supreme Court
denied his request. On February 4, 2000,
Douglas moved for reconsideration of
the denial, but on June 12, 2000, the
1The appellees do not contend that this
petition was not filed properly under 28
U.S.C. § 2244(d)(2).
2We note that the Superior Court
indicated in its opinion that the jury
found Douglas guilty on March 29, 1982,
though he indicates that the correct date
was April 2, 1982.

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court denied this motion. As of that date,
then, his state post conviction relief
proceedings were exhausted.
On September 29, 2000,
Douglas filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. §
2254 in the district court. The court
referred the petition to a magistrate judge
who, on September 28, 2001,
recommended that the court deny it as
untimely. On April 12, 2002, the district
court adopted the magistrate judge’s
recommendation and denied Douglas’s
petition as time-barred.
The district court and the
magistrate judge made significantly
different calculations with respect to the
timeliness of the petition, though their
conclusion that it was untimely was the
same. The difference was that the
district court, but not the magistrate
judge, assumed that the time for filing
the petition had been tolled during the
period in which Douglas’s petition for
allowance of appeal nunc pro tunc and
subsequent motion for reconsideration
were pending in the post conviction
relief proceedings in the Pennsylvania
Supreme Court. Nevertheless, the
district court would not toll the period
between January 28, 2000, when the
Supreme Court denied Douglas’s petition
for allowance of appeal nunc pro tunc,
and February 4, 2000, when he moved
for reconsideration of the denial.
Under the district court’s
calculations, Douglas’s petition was
almost timely as the court counted 374
untolled days after the effective date of
the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”) before Douglas
filed his federal habeas petition on
September 29, 2000. As will be seen
below, if Douglas had filed his habeas
corpus petition within one year of the
effective date of that statute (excluding
tolled periods), it would have been
timely. On the other hand, inasmuch as
the magistrate judge did not recommend
tolling during the period in which
Douglas’s petition for allowance of
appeal nunc pro tunc and the motion for
reconsideration of the order denying the
petition were pending, she calculated that
Douglas’s federal petition was almost
nine months late.
Douglas then appealed and we
treated his notice of appeal as a request
for a certificate of appealability under 28
U.S.C. § 2253(c)(1). On February 25,
2003, we issued a certificate of
appealability on the following question:
Whether the District
Court erred by
dismissing Appellant’s
petition for a writ of
habeas corpus as time-
barred by the one-year
period of limitation
prescribed in 28 U.S.C.
§ 2244(d)(1) without
statutorily tolling the
period of time from
September 10, 1999
(the date Appellant’s

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petition for allowance
of appeal nunc pro tunc
was filed with the
Pennsylvania Supreme
Court) through June 12,
2000 (the date the
Pennsylvania Supreme
Court denied
Appellant’s motion for
reconsideration).
A. 35.3 Notwithstanding the reference to
the period of September 10, 1999,
through June 12, 2000, in our certificate
of appealability, in fact, as we have
explained, the district court did toll the
running of the statute of limitations
during that period except for the time
between when the Supreme Court denied
Douglas’s petition for allowance of an
appeal nunc pro tunc and when he filed
his motion for reconsideration of that
denial. In view of our granting the
certificate of appealability, the appeal has
gone forward. See 28 U.S.C. §
2253(c)(1)(A). 3Douglas moved in this court for an
order expanding the scope of the
certificate of appealability but on July 21,
2003, we denied his motion.
Nevertheless, in our order we invited
supplemental briefing based on these
observations:
In conducting its statutory
tolling analysis, the District
Court ultimately concluded
that 374 days lapsed before
Appellant filed his federal
habeas petition. We are
persuaded that jurists of
reason would debate the
c o r r e c t n e s s o f t h i s
conclusion for the following
two reasons. First, the
District Court found that
236 days lapsed before
Appellant filed his petition
for postconviction relief
filed on Monday, December
16, 1996, without extending
Appellant the benefit of
P e n n s y l v a n i a ’ s p r i s o n
mailbox rule. See Brown v.
Shannon, 322 F.3d 768, 771
n.3 (3d Cir. 2003) (citing
Commonwealth v. Jones,
700 A.2d 423, 426 (Pa.
1997)). Additionally, the
District Court declined to
statutorily toll the six-day
period between January 28,
2000, and February 4, 2000.
See Nara v. Frank, 264 F.3d
310, 319 (3d Cir. 2001).
Supp. A. 1-2. Of course, in view of our
result there could not be any tolling
during the six-day period as that period
was nothing more than a gap in the nunc
pro tunc proceedings which themselves
did not trigger a tolling period. As we
explain below, we have no need to
consider the mailbox rule question. See
infra n.6.

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II. DISCUSSION
The AEDPA established a one-
year limitation period for the filing of
petitions of habeas corpus by state
prisoners which has been codified at 28
U.S.C. § 2244(d)(1) (“section
2244(d)(1)”).4 Douglas’s conviction
became “final” before the AEDPA came
into effect on April 24, 1996, and thus
his one-year period for filing a habeas
petition began running on that date. See
Burns v. Morton, 134 F.3d 109, 111 (3d
Cir. 1998) (establishing a one-year
“grace period” for petitioners whose
convictions became “final” before the
AEDPA became effective).
Accordingly, his petition would have
been due by April 23, 1997, absent any
tolling of the one-year clock.5
The one-year period is, however,
not an absolute limit. For example, 28
U.S.C. § 2244(d)(2) (“section
2244(d)(2)”), which is involved here,
provides for “statutory tolling” in the
following circumstance:
The time during which
a properly filed
application for State
post-conviction or other
collateral review with
respect to the pertinent
judgment or claim is
pending shall not be
counted toward any
period of limitation
under this subsection.
In this appeal, Douglas contends that he
was entitled to statutory tolling during
the entire pendency of his nunc pro tunc
petition in his post conviction relief
proceedings before the Pennsylvania
Supreme Court including the period the
district court excluded from tolling after
the Supreme Court denied his petition
4Section 2244(d)(1) 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.
5In Burns v. Morton, we indicated that
a petition filed “on or before April 23,
1997, may not be dismissed for failure to
comply with § 2244(d)(1)’s time limit.”
134 F.3d at 111. Arguably we should
have used April 24, 1997, rather than
April 23, 1997, as the cut-off date. See
Fed. R. Civ. P. 6(d). In these
proceedings, however, the one-day
discrepancy is not germane.

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and until he sought reconsideration from
that court and the period during which
his motion for reconsideration was
pending.
We calculate Douglas’s one-
year “grace period” as follows. The
period ran without interruption from
April 24, 1996, the effective date of the
AEDPA, to December 16, 1996, when
Douglas filed his PCRA petition. Thus,
without taking a potential four-day
tolling under Pennsylvania’s prisoner
mailbox rule into account, 236 days had
run on his clock.6 His PCRA petition
statutorily tolled the limitations period
until August 16, 1999, the last date by
which he timely could have appealed the
denial of his PCRA petition to the
Pennsylvania Supreme Court. See
Swartz v. Meyers, 204 F.3d 417, 424 (3d
Cir. 2000). The clock then ran from
August 16, 1999, to December 23, 1999,
thereby exhausting the 129 days
remaining on his 365-day grace period.
We therefore conclude that Douglas’s
habeas filing on September 29, 2000,
was more than nine months late.
We reject Douglas’s contention
that the clock should be tolled during the
following time-frames: (1) from the
filing of his nunc pro tunc petition in the
post conviction relief proceedings before
the Pennsylvania Supreme Court through
the denial of that petition; (2) from the
filing of his motion to reconsider the
denial of his nunc pro tunc petition
through the denial of the motion to
reconsider; and (3) during the time gap
between the denial of his nunc pro tunc
petition and the filing of his motion to
reconsider the denial of his nunc pro tunc
petition.7
We decline to toll any of these
time frames because we hold that
6Douglas argues that although his
PCRA petition was filed on December
16, 1999, according to the mailbox rule it
should be deemed to have been filed on
December 12, 1996, the day he gave it to
prison authorities for filing. Appellees
contend that the mailbox rule had not
been established under Pennsylvania law
at the time that Douglas submitted his
PCRA application. We decline to
address this issue because under our
conclusions, Douglas’s petition is
untimely regardless of whether he is
credited with these four days.
7Douglas also argues for equitable
tolling from August 16, 1999 (the last
date upon which he timely could have
appealed the denial of his PCRA petition
to the Pennsylvania Supreme Court) until
the date of filing of his nunc pro tunc
petition. His position is meritless
because he has made no showing of an
“extraordinary” circumstance that would
allow such tolling. See Miller v. New
Jersey State Dept. of Corr., 145 F.3d 616,
618 (3d Cir. 1998) (equitable basis for
tolling may be shown “when the
petitioner has in some extraordinary way
. . . been prevented from asserting his or
her rights”) (citation and internal
quotation marks omitted).

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Douglas’s nunc pro tunc petition was not
“properly filed” under the AEDPA. In
determining whether a petition is
“properly filed,” a federal court “must
look to state law governing when a
petition for collateral relief is properly
filed.” Fahy v. Horn, 240 F.3d 239, 243
(3d Cir. 2001). We recognized in Brown
v. Shannon, 322 F.3d 768 (3d Cir. 2003),
that a notice of appeal nunc pro tunc is
filed improperly as a matter of state law,
noting as follows:
Pennsylvania law thus
did not (and does not)
recognize extra-PCRA
petitions like Brown’s
notice of appeal nunc
pro tunc. Because such
petitions are improperly
filed as a matter of state
law, it seems doubtful
that they may be
deemed ‘properly filed’
within the meaning of §
2244(d)(2) . . . .
Permitting petitions not
recognized under state
law and improperly
filed as a matter of state
law to toll the limitation
period would not seem
to promote exhaustion
in the manner
contemplated by the
AEDPA.
Id. at 775 n.5 (citations omitted).8
Likewise, in Swartz v. Meyers, 204 F.3d
at 424 n.6, we noted that we “agree that
the time during which Swartz’s nunc pro
tunc request for allowance of appeal was
pending does not toll the statute of
limitation.”9 Consistently with these
views, we hold herein that Douglas’s
nunc pro tunc petition was not properly
filed, and thus did not toll the clock. By
extension, neither Douglas’s motion to
reconsider the denial of that petition, nor
the time between the two filings,
constituted grounds for statutory tolling.
We thus reject the district
court’s determination in Chhoeum v.
Shannon, 219 F. Supp. 2d 649, 652 (E.D.
Pa. 2002), that the petitioner’s
application in that case for allowance of
appeal nunc pro tunc tolled the statute of
8In Brown v. Shannon, we indicated
that we were not “address[ing]” certain
of the petitioner’s contentions but rather
merely making “several observations”
regarding them because even if we
accepted his arguments his petition
would have been untimely. 322 F.3d at
774-75.
9We recognize that in Swartz our
comments with respect to the statute of
limitations not being tolled during the
time that a nunc pro tunc request for
allowance of appeal was pending were
not necessary to our result inasmuch as
the petitioner’s petition for habeas corpus
was timely without regard for that period.
See Swartz, 204 F.3d at 424-25.

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limitations until that request had been
denied. We note that Nara v. Frank, 264
F.3d 310, 316 (3d Cir. 2001), in which
we held that a state-court motion to
withdraw a guilty plea nunc pro tunc was
“properly filed,” and on which the
district court relied in Chhoeum, is
distinguishable because Nara involved a
nunc pro tunc petition that was filed at
what reasonably may have been
considered the suggestion of the Superior
Court and because that motion was
denied for substantive reasons, rather
than a failure to follow the state’s filing
rules.10 See Merritt v. Blaine, 326 F.3d
157, 165-66 & n.6 (3d Cir. 2003) (noting
same and holding that because
petitioner’s second PCRA petition was
untimely under state law, it was not
“properly filed” for purposes of the
AEDPA).11 We certainly did not intend
that Nara be applied so broadly that by
filing a nunc pro tunc petition for leave
to appeal a petitioner could obtain further
tolling after the time for even
discretionary review of a judgment has
expired. See Kapral v. United States,
166 F.3d 565, 577 (3d Cir. 1999).
Accordingly, we conclude that
Douglas’s one-year grace period should
not be tolled during the pendency of his
nunc pro tunc petition from September
10, 1999, when he submitted it to the
prison officials, through June 12, 2000,
when the Pennsylvania Supreme Court
denied his motion for reconsideration of
its denial of his petition for allowance of
his appeal nunc pro tunc. Consequently,
his petition for habeas corpus was
untimely and the district court properly
denied it.
III. CONCLUSION
For the foregoing reasons, we
will affirm the order of the district court
dated April 12, 2002, and entered April
15, 2002.
10In Chhoeum the district court cited
Swartz but did not mention it for the
point in our quotation of that case above.
11We reject Douglas’s claim that his
nunc pro tunc petition should be
considered properly filed under
Commonwealth v. Hernandez, 817 A.2d
479 (Pa. 2003), which held that a nunc
pro tunc petition should not have been
dismissed as improper when it was filed
prior to the Pennsylvania Supreme
Court’s decision in Commonwealth v.
Lantzy, 736 A.2d 564 (Pa. 1999). Lantzy
held that “the PCRA provides the
exclusive remedy for post-conviction
claims seeking restoration of appellate
rights due to counsel’s failure to perfect a
direct appeal . . . .” Id. at 570. In our
view, Hernandez does not help Douglas
here because he filed his nunc pro tunc
petition approximately two months after
the Supreme Court decided Lantzy. By
that time, the window that Hernandez
retroactively opened for a pre-Lantzy
nunc pro tunc appeal had been closed.

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