Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2000

Swartz v. Meyers
Precedential or Non-Precedential:

Docket 98-7282




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Filed February 25, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7282

DALE SWARTZ,
       Appellant

v.

MEYERS, Superintendent;
PENNSYLVANIA ATTORNEY GENERAL

On Appeal from the United States District Court
for the Middle District of Pennsylvania
D.C. Civil Action No. 98-cv-00574
(Honorable Malcolm Muir)

Submitted Pursuant to Third Circuit LAR 34.1(a)
November 1, 1999

Before: GREENBERG, SCIRICA and RENDELL,
Circuit Judges

(Filed February 25, 2000)

       THOMAS F. DORN, JR., ESQUIRE
       Sinins & Bross
       201 Washington Street
       Newark, New Jersey 07102

        Attorney for Appellant

       MARK S. SMITH, ESQUIRE
       RAY F. GRICAR, ESQUIRE
       Office of District Attorney
       Centre County Courthouse
       Bellefonte, Pennsylvania 16823

        Attorneys for Appellees
OPINION OF THE COURT

SCIRICA, Circuit Judge.

Dale Swartz appeals from the District Court's order
dismissing as untimely his petition for a writ of habeas
corpus pursuant to 28 U.S.C. S 2254. The Anti-Terrorism
and Effective Death Penalty Act of 1996 ("AEDPA") provides
for the tolling of its one year period of limitation during
"[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 ." See 28
U.S.C. S 2244(d)(2) (emphasis added). This appeal requires
us to interpret the language "properly filed" and "pending."
More specifically, we must decide whether a petition
brought under the Pennsylvania Post Conviction Relief Act
("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541-9546, is
"properly filed" and "pending" during the time between the
Pennsylvania Superior Court's ruling and the expiration of
time for seeking an allowance of appeal from the
Pennsylvania Supreme Court when the petitioner did not
file a timely request for allowance of appeal. We conclude
that a PCRA petition is "properly filed" and"pending"
during that time. Therefore, we hold that Swartz's petition
was timely.

I. Background

In 1989, appellant Dale Swartz was sentenced to a term
of imprisonment of ten to twenty years after pleading guilty
to rape and involuntary deviate sexual intercourse. In 1990,
the Pennsylvania Superior Court affirmed the trial court.
Swartz did not seek allowance of appeal from the
Pennsylvania Supreme Court.

In 1993, Swartz sought PCRA relief. On November 1,
1995, after an evidentiary hearing, the PCRA court denied
relief. On November 29, 1995, Swartz filed an appeal. On
April 24, 1996, while the appeal was pending in the
Superior Court, AEDPA was signed into law. On October
18, 1996, the Superior Court affirmed the PCRA court.

                               2
Swartz did not file a timely petition for allowance of appeal
in the Pennsylvania Supreme Court. But, on March 4,
1997, Swartz filed a "Motion for Permission to File Petition
for Allowance of Appeal Nunc Pro Tunc." On May 2, 1997,
the Pennsylvania Supreme Court denied his motion.

On October 29, 1997, Swartz filed a petition for a writ of
habeas corpus under 28 U.S.C. S 2254. The District Court
for the Eastern District of Pennsylvania transferred the
petition to the District Court for the Middle District of
Pennsylvania. There, the District Court read his petition as
stating that his judgment became final on November 22,
1995. It found, therefore, that under Burns v. Morton, 

(3d Cir. 1998), Swartz had until one year from
AEDPA's enactment (April 24, 1997) to file his habeas
petition. Accordingly, it dismissed the petition as untimely
without consideration of applicable tolling provisions.1

Swartz appealed and submitted an application for a
certificate of appealability. We granted the certificate of
appealability on: "whether Swartz's time to file a federal
habeas corpus petition under 28 U.S.C. S 2244(d)(1) was
tolled under 28 U.S.C. S 2244(d)(2), and, if so, on what date
did the tolling period end." The District Court had
jurisdiction under 28 U.S.C. S 2254(a). We have jurisdiction
under 28 U.S.C. SS 1291, 2253. We exercise plenary review
over the statute of limitations issue. See Jones v. Morton,

, 156 (3d Cir. 1999).

II. Discussion

AEDPA places a one-year period of limitation on all
habeas petitions.2 See 28 U.S.C. S 2244(d). That period has
_________________________________________________________________

1. It appears that the District Court may have misidentified some of the
relevant dates, but in fairness, Swartz's habeas petition, especially the
procedural history, is confusing and incomplete.

2. The relevant section of AEDPA codified at 28 U.S.C. S 2244(d)
provides:

        (1) A 1-year period of limitation shall apply to a n 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--

                                3
four potential starting points. See 

case, the
applicable starting point is the date on which the judgment
became final by the conclusion of direct review or the
expiration of time for seeking such review, including the
time for filing a writ of certiorari in the Supreme Court. See
Morris v. Horn, 

, 337 n. 1 (3d Cir. 1999);
Kapral v. United States, 

, 575, 577 (3d Cir.
1999).

Swartz's judgment became final well before AEDPA took
effect. Consequently, he had at least one year from April 24,
1996 (the date AEDPA took effect) to file his petition for a
writ of habeas corpus. See 

. Swartz
filed his habeas petition on October 29, 1997. But, because
his PCRA appeal to the Pennsylvania Superior Court was
under review at the time AEDPA took effect, his petition
was not necessarily untimely. The period of limitation was
tolled from the date AEDPA took effect (April 24, 1996) until
his "properly filed application" for state post-conviction
relief was no longer "pending." See 28 U.S.C. S 2244(d)(2);
Lovasz v. Vaughn, 

, 149 (3d Cir. 1998). He
_________________________________________________________________

        (A) the date on which the judgment becamefinal by the
       conclusion of direct review or the expiration of the time for
seeking
       such review;

          (B) the date on which the impediment to fili ng 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.

         (2) The time during which a properly filed appli cation 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.

                                 4
had one year from that date to file his federal habeas
petition.

The question presented on appeal is what date was
 831Swartz's "properly filed" PCRA application no longer

"pending:" October 18, 1996 (the date the Pennsylvania
Superior Court ruled dismissing his petition), November 18,
1996 (the date his time for seeking allowance of appeal in
the Pennsylvania Supreme Court expired), or on May 2,
1997 (the date the Pennsylvania Supreme Court denied his
nunc pro tunc request for allowance of appeal). Swartz
argues for May 2, 1997. The Commonwealth argues for
October 18, 1996. But, we conclude that the proper reading
of the statute favors the alternative date of November 18,
1996.

A. Does the period of limitation toll during the time between
       a court's ruling and the timely filing of an appeal or
       request for allowance of appeal?

As a starting point in our analysis we first look at
whether a state post-conviction petition is "properly filed"
and "pending" during the time between the date of one
appellate court's decision and the petitioner'sfiling of a
further appeal, thereby tolling the period of limitation.
Several courts of appeals have considered this question and
found that the period of limitation does toll during this
time. See Taylor v. Lee, 

(4th Cir. 1999); Nino
v. Galaza, 

(9th Cir. 1999); Barnett v.
Lemaster, 

(10th Cir. 1999); see also Gaskins
v. Duval, 

(1st Cir. 1999) (tolling the period of
limitation, but noting that it would not have altered the
disposition of the case); Guenther v. Holt, 

(11th Cir.), cert. denied, ___ U.S. ___, 

(2000)
(tolling the period of limitation although it did not affect the
ultimate disposition). The holdings in Taylor , Nino, and
Barnett are rooted in two principles. First,"a contrary
construction would be antithetical to the entire theory of
state remedy exhaustion and would inevitably lead to the
filing of protective federal habeas petitions." 

; see 

("[W]e believe that
tolling the entire period of state proceedings upholds `the
principle of comity that underlies the exhaustion
doctrine.' ") (brackets and citation omitted); Barnett, 

("We conclude the term "pending" must be
construed more broadly to encompass all of the time during
which a state prisoner is attempting, through proper use of
state court procedures, to exhaust state court remedies
with regard to a particular post-conviction application.").
Second, such a construction is consistent with the
definition of the term "pending." See 

-1006; 

.

For the reasons discussed in detail in those opinions, we
find this view persuasive. Tolling the period of limitation
between the time a state court denies post-conviction relief
and the timely appeal or request for allowance of appeal is
consistent with the plain meaning of the statutory language
as well as the firmly rooted principle of state-remedy
exhaustion. That being established, we turn to the ultimate
issue in this appeal.

B. Does the period of limitation toll during the time between
       one appellate court's ruling and the deadline forfiling a
       timely request for allowance of appeal when a timely
       request for allowance of appeal is not filed?

To determine whether the period of limitation tolls when
a timely PCRA appeal is not filed, we again need to ask
whether the PCRA application is "properly filed" and
"pending." However, whether the PCRA application was
"properly filed" is not really an issue in this case. It is clear
that Swartz's PCRA application was "properlyfiled."3 On
November 1, 1995, the PCRA court denied Swartz's
application. On November 29, 1995, Swartz appealed the
_________________________________________________________________

3. In Lovasz, we addressed the meaning of"a properly filed application"
which triggers the tolling mechanism of S 

.
We held that a " `properly filed application' is one submitted according
to
the state's procedural requirements, such as the rules governing the
time and place of filing." 

not clear from the statute whether
the
term "properly filed application" refers only to the initial PCRA
application, or whether it also applies to all related applications for
appeal. Nevertheless, even assuming arguendo that an untimely request
for allowance of appeal is considered not "properly filed," that does not
settle the issue of whether a previously filed application (or appeal) was
"pending" during the time a petitioner could have sought review of the
appellate court's decision.

                               6
PCRA court's decision. That appeal was denied by the
Superior Court on October 18, 1996. The question is at
what point after the Superior Court's decision did the
appeal cease to be pending.

Thus, we turn our attention to the term "pending."
"Pending" is not defined in the statute. Black's Law
Dictionary, 6th ed. P. 1134 (1990) defines "pending" as,

       [b]egun, but not yet completed; during; before the
       conclusion of; prior to the completion of; unsettled;
       undetermined; in process of settlement or adjustment.
       Awaiting an occurrence or conclusion of action, period
       of continuance or indeterminacy. Thus, an action or
       suit is "pending" from its inception until the rendition
       of final judgment. An action is "pending" after it is
       commenced by either filing a complaint with the court
       or by the service of a summons. (emphasis added).

This definition reflects the term's common usage. See
Deerwester v. Carter, 

, 1082 (C.D.Ill.
1998).

In Kapral v. United States, 

, 577 (3d Cir.
1999), we defined when a judgment becomes final for
purposes of S 2255. We also took the opportunity to
consider its meaning in the context of S 2244(d)(1).4 See 

n. 6, 575. We concluded a judgment becomesfinal
after the time for seeking discretionary review expires, even
when discretionary review is not sought. See 

577. Applying the Kapral definition for when a judgment
becomes final, to the dictionary definition of"pending,"
leads to the conclusion that for purposes of S 2244(d)(2)
"pending" includes the time for seeking discretionary
_________________________________________________________________

4. Although the matter before the Court in Kapral technically required
only the interpretation of what is a "final judgment" for purposes of
S 2255, we addressed the meaning of "final judgment" as it pertains to
S 2244(d)(1). See 

, 575. It has become our
custom when wading through AEDPA that when we interpret a provision
which applies to federal prisoners, we will also consider a parallel
provision which applies to state prisoners, and vice versa. See 

n. 6; 

. Since Kapral, we have applied the
definition of "final judgment" announced in Kapral to S 2244(d)(1). See
e.g. 

n. 1.

                               7
review, whether or not discretionary review is sought. Thus,
the time between when the Pennsylvania Superior Court
ruled and the deadline for filing a timely request for
allowance of appeal in the Pennsylvania Supreme Court
should toll.5

This interpretation of S 2244(d)(2) also finds support in
the principle of state-remedy exhaustion. In Mills v. Norris,

(8th Cir. 1999), the Court of Appeals for the
Eighth Circuit applied the principle of exhaustion to a
somewhat similar factual scenario. Mills had filed a petition
for post-conviction relief before the enactment of AEDPA.
On August 15, 1996, the trial court denied his petition.
Four days later Mills filed a notice of appeal with the
Arkansas Supreme Court, but failed to file the record on
appeal within the requisite ninety days as provided by
Arkansas' procedural rules. The Arkansas Supreme Court
took no action on the appeal. Then, on October 9, 1997,
Mills filed a federal habeas petition. The issue before the
Eighth Circuit was, in light of Mills' failure to perfect his
appeal, on what date did his post-conviction relief motion
cease "pending." See 

884.

Mills argued that the period was tolled until the end of
the 90 days to perfect his appeal. The State argued that the
appeal was not pending because Mills failed to timely file
the record on appeal as required by the appellate rules.
After reviewing the principles of exhaustion and comity, the
court concluded:

        In this case, if Mills had filed his federal petition
       during the ninety days following the filing of his notice
       to appeal to the Supreme Court of Arkansas, the
_________________________________________________________________

5. We need not delve into the issue whether "pending" includes the time
to file a petition for a writ of certiorari in the United States Supreme
Court because that question is not presented by this appeal. Other
courts have addressed this issue and found that the time does not toll.
See Ott v. Johnson, 

, 513 (5th Cir. 1999); Rhine v. Boone,

, 1155 (10th Cir.), pet. for cert.filed, (U.S. October 4,
1999).
Their primary reason is that S 2244(d)(2) provides that the limitation
period is tolled while a petitioner's State post-conviction remedies are
pending and a certiorari petition is not part of the state post-conviction
process. See Ott, 

at * 2.

                               8
       federal petition would surely have been dismissed for
       failure to exhaust state remedies, because there was
       still time to perfect his state appeal by filing the record
       with the Clerk of the Arkansas Supreme Court. That
       being so, we conclude the state postconviction appeal
       was `pending' for purposes of S 2244(d)(2) until at least
       November 17, 1996, the end of that ninety-day period.
       Thus, Mills timely filed his federal habeas petition on
       October 9, 1997.

We find these reasons convincing. If Swartz had
attempted to seek federal habeas corpus relief while there
was still time to seek allowance of appeal, the petition
would automatically be dismissed for failure to exhaust
state remedies. See 28 U.S.C. S 2254(c) (under AEDPA, a
habeas petitioner "shall not be deemed to have exhausted
the remedies available in the courts of the State . . . if he
has the right under the law of the state to raise, by any
available procedure, the question presented"); O'Sullivan v.
Boerckel, ___ U.S. ___, ___, 

, 1734 (1999)
(requiring petitioner to seek discretionary review from
state's highest court to exhaust); 

.

We note that other courts of appeals have reached a
similar conclusion. The Court of Appeals for the Fourth
Circuit in Taylor stated that "underS 2244(d)(2) the entire
period of state post-conviction proceedings, from the initial
filing to the final disposition by the highest court (whether
decision on the merits, denial of certiorari, or the expiration
of the period of time to seek further appellate review), is
tolled." 

(emphasis added) (dicta).
Likewise, the Court of Appeals for the Second Circuit in
Bennett v. Artuz, 

(2d Cir. 1999), relying on
the principle of exhaustion, stated that "[w]e therefore hold
that a state-court petition is `pending' from the time it is
first filed until finally disposed of and further appellate
review is unavailable under the state's particular
procedures." 

(dicta). We recognize that portions
of these self proclaimed "holdings" in Bennett and Taylor
are actually dicta. Nevertheless, it appears from the tenor of
the opinions that those Courts employed broad language in
interpreting S 2244(d)(2), possibly to instruct the District

                               9
Courts on the proper tolling procedures. See 

(stating that is has "determined the
circumstances during which a state-court petition may be
considered `pending.' "); 

(speaking
in broad terms).

Several District Courts have also read S 2244(d)(2) to
include the time for filing an appeal even when a timely
appeal or request for allowance of appeal was notfiled,
although without much discussion. In Cotto v. Price, No.
Civ. A. 98-6479, 

, at * 3 (E.D. Pa. Aug. 10,
1999) (unpublished), for example, the court concluded that
a PCRA petition is pending until "the date on which the
time for appealing the . . . denial of [the] PCRA petition
expired." In that case, the petitioner did notfile a timely
appeal of the PCRA court's ruling to the Pennsylvania
Superior Court. Instead, he filed a petition for leave to
appeal nunc pro tunc. In dismissing the petition as
untimely, the District Court found that because the nunc
pro tunc appeal was not properly filed it did not toll the
limitation period, but nevertheless tolled the time during
which the petitioner could have sought appellate review.
See id.; see also United States ex rel. Noel v. Clark, 

, 802 (N.D. Ill. 1999) (finding that the
"limitations period began to run . . . when the time expired
for him to seek review in the Illinois Supreme Court of the
decision on his state habeas petition . . ."); United States ex
rel. Morgan v. Gilmore, 

, 1038, 1039
(N.D. Ill. 1998) (where a petitioner failed to file timely
appeal, limitation period began to run after the time
petitioner could not longer seek timely appellate review);
Neal v. Ahitow, 

, 1119-1120 (C.D. Ill.
1998) ("once a post-conviction relief petition is initially filed
in State court then that petition is "pending" for purposes
of section 2244(d)(2) as long as the state court or the state
post-conviction procedures allow for review."); United States
ex rel. Fernandez v. Washington, No. 98-C-1332, 

at * 4 (N.D. Ill. Mar. 30, 1999) (unpublished) (where
late petition for leave to appeal is granted, time period tolls
from time intermediate appellate court rules until the time
for seeking review of that order expires, but not during the
time the application for permission to file untimely appeal
is pending); United States ex rel. Jefferson v. Gilmore, No.

                               10
98-C-3342, 

at * 3 n. 3 (N.D. Ill. Apr. 19,
1999) (unpublished) ("Jefferson's statute of limitation clock
did not truly begin to run, however, until thirty days after
the Illinois Appellate Court affirmed the Circuit Court's
ruling [which denied Jefferson's post-conviction petition.]").

Without explanation or elaboration the Commonwealth
argues that Swartz's PCRA application "concluded in state
court" when the Superior Court ruled.6 We assume that the
_________________________________________________________________

6. Although dicta in some opinions appear to support the government's
view, those cases are readily distinguishable. See e.g. 

; Dreher v. Hargett, 

(10th Cir. 1999) (table); Hoggro
v. Boone, 

, 1227 n.4 (10th Cir. 1998).

In Barnett, which was 

for the proposition that the time
between the denial of a state PCRA application and the timely filing of a
notice of appeal is tolled by S 2244(d)(2), the court concluded that the
term "pending" "must be construed more broadly to encompass all of the
time during which a state prisoner is attempting, though proper use of
state court procedures, to exhaust state court remedies." 

. Under that rule, Swartz's time forfiling a habeas petition
arguably should not be tolled because when he failed to file a timely
appeal he was not "through the proper use of state-court procedures[ ]
[attempting] to exhaust state court remedies." But, unlike the Bennett
and Taylor courts, there is no indication in the Barnett court's opinion
that it considered whether the time for filing an appeal should be tolled
when the petitioner failed to file a timely appeal. Certainly, the time
period for filing an appeal is included in the"proper use of state court
procedure." Moreover, there was no need for the court in Barnett to
consider that issue under the facts of that case.

Similarly, in Hoggro v. Boone, 

, 1227 n.4 (10th Cir.
1998), the Court of Appeals for the Tenth Circuit stated in dicta that the
court may not count the additional time during which a petitioner
"appealed the denial of his application for state post-conviction relief
if
that appeal was untimely. Section 2244(d)(2) requires a court to subtract
the time only for the period when a petitioner's`properly filed' post-
conviction application is being pursued." 

It is
unclear from the quoted language whether the court's dicta was focused
on only the time the court spent deliberating over an untimely appeal or
also the time during which appeal could have been sought. We read it as
applying to only the former and 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. Nevertheless, even though Swartz's
properly filed PCRA petition was not "pending" for S 2244(d)(2) purposes

                               11
Commonwealth contends the word "pending" should be
read to include only the time when a court is actively
considering a PCRA application or an appeal from the
denial of PCRA relief; therefore, there is no application
"pending" during the time which a petitioner could have,
but did not seek appellate review.

This reading of S 2244(d)(2) is problematic. We cannot
reconcile it with our view that the period of limitation is
tolled when a timely appeal is filed. If an application for
post-conviction relief is "pending" only when it is being
actively reviewed by a court, then the time between when a
court rules and a timely appeal or request for allowance of
appeal is filed should never toll because there is nothing
actively before the court. For the reasons already set forth,
reading the word "pending" to discount the time between a
lower court's ruling and a timely appeal would not be a
sensible construction of S 2244(d)(2). See 

(rejecting a theory that the period of limitation does
not toll during the time between a court's ruling and the
timely filing of an appeal); 

-1006
(broadly defining the word "pending" to include the time
between a court's ruling and timely filing of an appeal);

(same). Because we believe the
term "pending" must include the time between a court's
ruling and the timely filing of an appeal, we also believe
"pending" must include the time during which an appeal
could be filed even if the appeal is not eventually filed.
_________________________________________________________________

during the time his nunc pro tunc request for allowance of appeal was
pending, the question of whether S 2244(d)(2)'s tolling period includes
the time in which he could have filed a timely request for allowance of
appeal still remains. Even if the quoted language is broader and includes
the time during which appeal could have been sought, it is dicta. The
Hoggro court had no need to reach that conclusion as the habeas
petition was timely as a result of the tolling of the limitation period
between the time the prisoner filed for post-conviction relief and the
time
the state district court denied the application. 

We also note that we have found at least one example of a court that
has stopped tolling at the time of a lower court's order when no timely
appeal was taken. See 

. But, it did so without
consideration of the issues presented on this appeal. Moreover, its
decision to stop tolling at that time had no effect on the outcome.

                               12
Furthermore, the Commonwealth's view would require a
prisoner to file a request for allowance of appeal as a matter
of course in order to protect a future habeas petition from
the statute of limitation. This could lead to needless
petitions for allowance of appeal in the State's highest court.7

III. Conclusion

We hold that the interpretation of S 2244(d)(2) that best
comports with the language of S 2244(d)(2), the principles of
exhaustion, and the prevailing view that the statute of
limitation should toll between the time a court rules and
the petitioner timely appeals that ruling, is that the period
of limitation tolls during the time a prisoner has to seek
review of the Pennsylvania Superior Court's decision
whether or not review is actually sought. Swartz's petition
filed on October 29, 1997 was timely because it was filed
within one year of November 18, 1996 (the expiration of
time to seek appellate review). The District Court's
judgment will be vacated and the case remanded so that
the District Court can consider whether the claims are
procedurally defaulted and, if so, whether Swartz can
demonstrate "cause and prejudice" for any default.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

7. Swartz makes additional arguments: that the one year statute of
limitation should toll from the time the Pennsylvania Superior Court
ruled until the time the Pennsylvania Supreme Court rejected his
request for allowance of appeal nunc pro tunc; that the one-year period
should toll while his request for permission tofile a timely appeal was
actually before the court; and the one-year period should be equitably
tolled under Miller v. New Jersey State Dep't of Corr., 

(3d
Cir. 1998). As noted, we read S 2244(d)(2) as tolling the statute of
limitation during the time Swartz could have sought allowance of appeal.
Therefore, Swartz's habeas petition is timely, so we need not consider
these arguments.

                               13