Filed: Dec. 18, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 12-18-2003 Gale v. Vaughn Precedential or Non-Precedential: Non-Precedential Docket No. 03-1637 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Gale v. Vaughn" (2003). 2003 Decisions. Paper 45. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/45 This decision is brought to you for free and open access by the Opinions of the United State
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 12-18-2003 Gale v. Vaughn Precedential or Non-Precedential: Non-Precedential Docket No. 03-1637 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "Gale v. Vaughn" (2003). 2003 Decisions. Paper 45. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/45 This decision is brought to you for free and open access by the Opinions of the United States..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-18-2003
Gale v. Vaughn
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1637
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Gale v. Vaughn" (2003). 2003 Decisions. Paper 45.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/45
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 03-1637
EARL GALE,
Appellant
v.
DONALD T. VAUGHN
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 02-cv-05911)
District Judge: Hon. Charles R. Weiner
Submitted Under Third Circuit LAR 34.1(a)
December 2, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Filed: December 18, 2003)
OPINION OF THE COURT
_____________________
*
Hon. Daniel M. Friedman, United States Senior Circuit Judge for the Federal
Circuit, sitting by designation.
SLOVITER, Circuit Judge.
Before us is the appeal of Earl Gale from the order of the District Court dismissing
his petition for habeas corpus as time-barred.
I.
Facts and Procedural History
On July 20, 1993, appellant Earl Gale was convicted by a jury in the Delaware
County Court of Common Pleas, a Pennsylvania trial court, of first-degree murder,
aggravated assault, conspiracy, attempted homicide, recklessly endangering another
person, possession of a firearm without a license and possession of an instrument of
crime. He was sentenced to life imprisonment, plus 20 to 40 years. The Pennsylvania
Superior Court affirmed on April 25, 1995, and the Pennsylvania Supreme Court denied
allocatur on November 16, 1995.
Gale filed a petition under the Pennsylvania Post-Conviction Relief Act (PCRA)
on November 27, 1996. Following an evidentiary hearing, the Court of Common Pleas
denied his petition on the merits on December 12, 1998, which was affirmed by the
Superior Court on November 30, 1999. The state supreme court denied Gale’s request for
allowance of appeal by allocatur on May 17, 2000.
Gale filed a second PCRA petition pro se on August 25, 2000. Following a
hearing, the trial court denied his petition as untimely on January 22, 2001 and the
Superior Court affirmed on July 25, 2002. Gale did not seek allocatur in the Pennsylvania
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State Supreme Court nor did he seek certiorari in the United States Supreme Court.
Gale filed a federal habeas petition in the United States District Court for the
Eastern District of Pennsylvania on July 26, 2002, which was denied on February 28,
2003 as untimely. The District Court held that Gale’s first PCRA petition tolled
AEDPA’s statute of limitations but that Gale’s second PCRA petition did not satisfy
Pennsylvania’s timeliness requirements and therefore, was not a “properly filed” petition
that could toll AEDPA’s one-year statute of limitations. App. at 7. The District Court
also noted that in reviewing Gale’s second PCRA petition the Pennsylvania Superior
Court further determined that “Gale failed to allege let alone establish any lawful excuse
for its untimely filing under 42 Pa. C.S. § 9545 (b).” App. at 7. Nonetheless, the District
Court granted a certificate of appealability on the issue of whether Gale’s second PCRA
petition tolled the statue of limitations for filing this action. Gale timely appealed.
II.
Discussion
Gale filed a habeas corpus petition under 28 U.S.C. § 2254. The District Court
had jurisdiction under 28 U.S.C. § 2254(a) and this court has jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253. We have plenary review over issues involving statutes of
limitations. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003), cert. denied, 124 S.
Ct. 317 (2003).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §
3
2244(d), provides that a prisoner may file a petition seeking a writ of habeas corpus
within one year from the date on which the prisoner’s state conviction became final. See
Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). If a state prisoner’s conviction
became final prior to the enactment of AEDPA, the one-year period begins to run on the
effective date of AEDPA, April 24, 1996. See Sweger v. Chesney,
294 F.3d 506, 513 (3d
Cir. 2002). This applies to Gale, who was convicted prior to the enactment of AEDPA.
However, the one-year statute of limitations may be tolled for 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.” 28 U.S.C. § 2244(d)(2) (emphasis
added); see also Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000). Therefore, Gale’s statute
of limitations was tolled from November 27, 1996, the date on which Gale filed his
PCRA petition, to August 15, 2000, 90 days after the Pennsylvania Supreme Court denied
allocatur (the period for filing a petition for a writ of certiorari). Thus, Gale had until
January 10, 2001 to file a habeas petition.
The parties agree that Gale’s first PCRA petition tolled AEDPA’s statute of
limitations. The dispute is over Gale’s arguments that his second PCRA petition also
tolled AEDPA and that the period of time the second petition was pending in the state
court while that court determined if the applicability of any of the state’s exceptions to the
timeliness rule should toll the AEDPA limitations even though the state court found
Gale’s second PCRA application untimely.
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In Artuz v. Bennett, 531 U.S. 4 (2000), the Supreme Court addressed the question
whether an application for state post-conviction relief containing claims that are
procedurally barred under state law is “properly filed” under AEDPA. The Court
declared that “an application is 'properly filed' when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings,” including, but not
limited to “the time limits upon its delivery.”
Id. at 8 (emphasis in original).
We followed Artuz in Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, Horn v.
Fahy,
534 U.S. 944 (2001), where we stated that we must look to “state law governing
when a petition for collateral relief is properly filed” and “defer to a state's highest court
when it rules on an issue.”
Id. at 243-44. We stated that a “properly filed” application
must be filed “promptly and properly under state law in order to preserve [petitioners’]
right to litigate constitutional claims that are more than one year old in federal court.”
Id.
at 243. As such, a “properly filed” petition only tolls AEDPA’s statute of limitations if it
is “‘submitted according to the state's procedural requirements, such as the rules
governing the time and place of filing.’”
Id. (citation omitted). Because the Pennsylvania
Supreme Court dismissed Fahy’s petition as untimely, we held that we were bound by the
state court’s determination that the “PCRA petition was not properly filed as a matter of
state law” and held that Fahy’s petition did not toll AEDPA’s statute of limitations.
Id. at
244.
The Supreme Court next considered the AEDPA tolling issue in Carey v. Saffold,
5
536 U.S. 214 (2002), where the Court considered the question left open in Artuz as to
whether the petition is “pending” while the state court determines if the petitioner falls
into one of the state’s exceptions to the timeliness rule. California's post-conviction relief
statute at issue in Carey was unusual as it contained no specific time period because it
only required appealing petitioners to file a second, original petition in a higher state
court within a “reasonable” period of time. Thus, the holding of the Court on the issue of
“reasonableness” is not applicable here but other aspects of the Court’s opinion are
informative. First, the Court noted that a partial merits ruling did not automatically
transform an otherwise untimely petition into a timely one. See
id. at 225-26.
Furthermore, the Court stated that
If the California Supreme Court had clearly ruled that
[petitioner's] 4½-month delay was unreasonable, that would
be the end of the matter, regardless of whether it also
addressed the merits of the claim, or whether its timeliness
ruling was entangled with the merits.
Id. at 226 (quotation and citation omitted). Significant for our purposes is the Court’s
clear statement that if the state court ruled that the petitioner’s untimeliness were not
excused by a state exception, the federal courts should not toll AEDPA's statute of
limitations for that period. See
id. The Carey decision also disposes of Gale’s argument
that the state court’s consideration of a possible justification for the delay related to a
“condition to obtaining relief” and not to a “condition for filing.” The Supreme Court’s
holding that a state court’s conclusion that the application was untimely meant it had not
6
been properly filed necessarily means that a state court’s consideration of possible
justification is a condition for filing and not a condition for obtaining relief.
We followed Carey in our decision in Merritt, where we held that “an untimely
application for state post-conviction relief by a petitioner, who sought but was denied
application of a statutory exception to the PCRA's time bar, is not ‘properly filed’ under
28 U.S.C. § 2244(d)(2).” 326 F.3d at 159. That holding is dispositive here.
Merritt, like Gale, filed two unsuccessful PCRA petitions. Although there was no
dispute that Merritt’s first PCRA tolled AEDPA’s one-year statute of limitations, M erritt
argued that even if his second PCRA petition were untimely it was still “properly filed”
because the PCRA contained statutory exceptions to the time limit for filing. The state
courts determined that Merritt did not properly allege or prove that he fell within any of
the statutory exceptions to the timeliness rules. The federal District Court then denied
Merritt’s habeas petition as time-barred, reasoning that because the state courts found
Merritt’s second PCRA petition to be untimely it was not “properly filed” and did not toll
the statute of limitations under AEDPA.
We affirmed, emphasizing the “requirement of deference to the state court’s
decision” and stating that the panel was “bound by the state court's finding that M erritt's
second PCRA petition was untimely.” Id. at 166, 168; see
id. at 168 (“Once the
Pennsylvania court has so decided [that a petition is untimely and does not qualify for any
of the exceptions], it would be an undue interference for a federal district court to decide
7
otherwise.”). Because the highest state court held that Merritt’s petition was untimely, we
concluded that Merritt’s second PCRA petition was not “properly filed.” Id. at 166; see
id. at 168 (“[I]f a state's Supreme Court has determined that a petition was not timely,
then we must hold that it was not ‘properly filed.’”) (emphasis in original).
Gale does not dispute the symmetry between his case and Merritt. Instead, he
argues that Merritt was wrongly decided. He would have us adopt the holdings in
Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001), and Smith v. Ward,
209 F.3d
383, 385 (5th Cir. 2000), both of which were decided before the Supreme Court’s
decision in Carey. In Merritt, we explicitly declined to adopt the reasoning of those
decisions. We said that, “[w]e need not decide whether we would find the Ninth Circuit's
analysis persuasive because we are bound by our prior holding in
Fahy.” 326 F.3d at 165.
Gale’s reliance on Nara v. Frank, 264 F.3d 310 (3d Cir. 2001), is also unavailing.
In Merritt, we distinguished Nara and noted that “[a]fter Carey, Nara would be analyzed
differently.”
Merritt, 326 F.3d at 166 n.7. It follows that Gale’s arguments have already
been considered and rejected by this court.
III.
Conclusion
In conclusion, the weight of authority – from the Supreme Court’s decisions in
Artuz and Carey and this court’s decisions in Fahy and Merritt – makes clear that, if a
state court finds that a PCRA petition was untimely and ineligible for exceptions to the
8
timeliness rule, that petition was not “properly filed” and does not toll AEDPA’s statute
of limitations. Gale’s second untimely PCRA petition did not toll the AEDPA statute of
limitations. We will affirm the District Court’s order dismissing Gale’s petition for a writ
of habeas corpus as time-barred.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge
