Filed: Aug. 09, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-9-2004 Fielder v. Varner Precedential or Non-Precedential: Precedential Docket No. 01-1463 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Fielder v. Varner" (2004). 2004 Decisions. Paper 376. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/376 This decision is brought to you for free and open access by the Opinions of the United Sta
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-9-2004 Fielder v. Varner Precedential or Non-Precedential: Precedential Docket No. 01-1463 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Fielder v. Varner" (2004). 2004 Decisions. Paper 376. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/376 This decision is brought to you for free and open access by the Opinions of the United Stat..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-9-2004
Fielder v. Varner
Precedential or Non-Precedential: Precedential
Docket No. 01-1463
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Fielder v. Varner" (2004). 2004 Decisions. Paper 376.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/376
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PRECEDENTIAL J. Scott O’Keefe (argued)
Suite 1100
UNITED STATES COURT OF 1500 Walnut Street
APPEALS Philadelphia, PA 19102
FOR THE THIRD CIRCUIT Attorney for Appellant
David C. Glebe (argued)
No. 01-1463 Thomas W. Dolgenos
Robert M. Falin
Office of the District Attorney
ANTHONY FIELDER, 1421 Arch Street
Philadelphia, PA 19102
Appellant Attorney for Appellee
v.
BENJAMIN VARNER; OPINION OF THE COURT
THE DISTRICT ATTORNEY OF
COUNTY OF PHILADELPHIA;
ATTORNEY GENERAL OF THE
ALITO, Circuit Judge:
STATE OF PENNSYLVANIA
Anthony Fielder, a state prisoner
serving a life sentence, appeals the
dismissal of his application for a writ of
ON APPEAL FROM THE UNITED habeas corpus. The District Court
STATES DISTRICT COURT FOR THE approved and adopted the report and
EASTERN DISTRICT OF recommendation of a Magistrate Judge
PENNSYLVANIA who concluded that Fielder’s petition in its
entirety was untimely under 28 U.S.C. §
(Dist. Court No. 00-cv-02599) 2244(d)(1). We hold that one of Fielder’s
District Court Judge: Honorable Louis claims (his claim of prosecutorial
Charles Bechtle misconduct) was untimely and that his
other claim (which sought a new trial
based on newly discovered evidence) is
Argued: January 12, 2004 not cognizable under the federal habeas
statute. We therefore affirm the order of
Before: ALITO, CHERTOFF, and the District Court, albeit in part on
BECKER, Circuit Judges. different grounds.
(Opinion Filed: August 9, 2004)
1
I. the prosecutor had committed acts of
misconduct during the trial. However, the
In 1990, Fielder was arrested and
Superior Court affirmed, and the state
charged with murdering Jack Fauntleroy
supre m e c o u r t d e n ie d a lloca tu r.
outside a bar at 52nd and Market Streets in
Commonwealth v. Fielder, 612 A.2d 1028
Philadelphia in September 1989. As
(Pa. Super. 1992), allocatur denied, 621
summarized by the trial judge, the
A.2d 577 (Pa. 1993) (table).
evidence showed the following. Shortly
before Fauntleroy was killed, he became Fielder initiated a proceeding under
involved in an argument with a man Pennsylvania’s Post Conviction Relief Act
named Stefan. Stefan then went into the (PCRA) in which claims of ineffective
bar and emerged with Fielder, who began assistance of counsel and after-discovered
to argue with Fauntleroy. Several minutes evidence were raised. Fielder’s after-
later, Antonio Goldsmith, a friend of discovered evidence claim was based on
Fauntleroy, entered into the argument as the discovery of an alleged eyewitness to
well. After the parties came to blows, the shooting, Daran Brown, who stated
Fielder reentered the bar and returned to that a man whom he knew by the name of
the street with a .38 caliber handgun. As Nike was the one who actually shot
Fauntleroy was fleeing, Fielder shot and Fauntleroy. According to Brown, Fielder
fatally wounded him. and Fauntleroy were walking down Market
Street when “Nike came running down the
Two witnesses gave testimony that
street” behind them and “started shooting
tended to show that Fielder was the one
in their direction.” He continued:
who shot Fauntleroy. Latonia Shawyer,
who was waiting for a bus and did not T his is whe n Za rk
previously know either Fauntleroy or [Fauntleroy] was shot and
Fielder, testified that she saw Fielder shoot fell down in the middle of
Fauntleroy. Goldsmith testified that he ran Market Street. After Zark
from the scene when Fielder came out of got shot another guy who I
the bar with a gun. Goldsmith stated that, didn’t know chased Nike up
while running, he heard two shots and that the street with a gun. At
when he turned around, he saw that Fielder this point I left the scene.
was chasing him with the gun in his hand.
App. 16.
The jury found Fielder guilty of
Brown stated that he did not come
first-degree murder and possession of an
forward with this information at the time
instrument of crime, and he was sentenced
of the shooting because he did want to get
to imprisonment for life on the murder
involved and because on the street “the
conviction and to a lesser concurrent term
general feeling is that it is best if you mind
for the weapons conviction. Fielder
your own business.” App. 16. According
appealed, claiming among other things that
to Brown, he did not learn that Fielder had
2
been convicted for the shooting until Eastern District of Pennsylvania. Fielder
October 1997. Id. argued, first, that the Pennsylvania courts
erred when they rejected his claim of
The PCRA court denied the
newly-discovered evidence and, second,
petition, and Fielder appealed and
that the prosecutor engaged in misconduct
advanced two arguments. First, he
at trial. The Magistrate Judge to whom the
contended that the PCRA court should
petition was referred concluded that the
have conducted an evidentiary hearing
entire petition was untimely. The
regarding the after-discovered evidence.
Magistrate Judge began by noting that
Second, he argued that the attorney who
Fielder’s conviction had become final
represented him in the trial court during
before April 24, 1996, the effective date of
the PCRA proceeding was ineffective for
the Antiterrorism and Effective Death
failing to contact Brown. The Superior
Penalty Act of 1996 (AEDPA), which
Court rejected both arguments. The Court
imposed the present statute of limitations
held that it was not likely that Brown’s
for federal habeas petitions, 28 U.S.C. §
testimony would have compelled a
2244(d)(1). As a consequence, the
different result if it had been offered at
Magistrate Judge stated, Fielder’s time to
trial and that therefore the standard under
file his petition began to run one year
Pennsylvania law for granting a new trial
thereafter, on April 24, 1997. See Burns v.
based on after-discovered evidence was
Morton, 134 F.3d 109, 110 (3d Cir. 1998).
not met. The Court then concluded that
The Magistrate Judge concluded that the
because the underlying after-discovered
one-year period for filing the petition was
evidence claim lacked merit, Fielder’s
tolled under 28 U.S.C. §2244(d)(2) from
lawyer could not be deemed ineffective
the date when Fielder filed his PCRA
“for failing in his efforts to find Daran
petition (January 14, 1997) until the date
Brown.”
when the Superior Court affirmed the
The Superior Court’s decision was dismissal of that petition (June 10, 1999).
issued on June 10, 1999, and Fielder failed When the time again began to run after
to file a timely allocatur petition with in this period, the M agistrate Judge
the Pennsylvania Supreme Court. Instead, calculated, approximately three and one-
after the expiration of the time for filing an half months of the one-year period
allocatur petition, he submitted a request remained, and therefore Fielder had until
for permission to seek allocatur on a nunc “the end of October 1999” to file the
pro tunc basis. The state supreme court federal petition. Because he did not file
dismissed that request in an order dated until May 2000, the Magistrate held, the
October 25, 1999. petition was time-barred.
On May 17, 2000, Fielder filed an The District Court approved and
application for a writ of habeas corpus in adopted the report and recommendation
the United States District Court for the without elaboration and therefore
3
dismissed the application. The District (A) the date on which
Court also denied a certificate of the judgment became final
appealability, but a motions panel of our by the conclusion of direct
Court granted a certificate and set out review or the expiration of
issues to be addressed in the briefs. The the time for seeking such
order of the motions panel stated: review;
The parties shall address (B) the date on which
whether appellant’s § 2254 the impediment to filing an
petition was timely filed. application created by State
Specifically, the parties shall action in violation of the
address (1) whether the Constitution or laws of the
cognizability of Fielder’s United States is removed, if
claim of newly discovered the applicant was prevented
evidence affects the from filing by such State
application of § action;
2244(d )(1)(D), and (2)
(C) the date on which
whether § 2244(d)(1)(D)
the constitutional right
applies to the entire petition
a s s e r te d wa s initially
if the time period under §
recognized by the Supreme
2244(d)(1)(A) for trial
Court, if the right has been
claims had not expired at the
newly recognized by the
time of the discovery of the
Supreme Court and made
factual predicate of the
retroactively applicable to
claim of new evidence.
cases on collateral review;
App. at 10. or
II. (D) the date on which
the factual predicate of the
A.
claim or claims presented
The timeliness of Fielder’s federal could have been discovered
habeas petition turns on the meaning of 28 through the exercise of due
U.S.C.. § 2244(d)(1) and thus presents a diligence.
question of law subject to plenary review.
28 U.S.C. § 2244(d)(1).
See Merritt v. Blaine, 326 F.3d 157, 161
(3d. Cir. 2003). Under 28 U.S.C. § Subsection (A) specifies the date
2244(d)(1), the one-year period for filing when the one-year period for filing a
a federal habeas application runs from the federal habeas petition begins in most
latest of the four dates set out in cases (at the end of the direct appeals).
subsections (A) through (D). These are: Subsection (B) provides a later starting
4
date when a state has unlawfully prevented was filed within one year after the date on
the petitioner from filing, and subsections which the factual predicate for the after-
(C) and (D) provide later filing dates in discovered evidence claim could have
two circumstances in which claims could been discovered, i.e., the date of Daran
not have been litigated within one year Brown’s affidavit, April 25, 1998. Thus,
after the end of direct review, i.e., where on Fielder’s reading of 28 U.S.C.
the claim is based on a new, retroactive §2244(d)(1), both his after-discovered
rule of constitutional law subsequently evidence claim and his prosecutorial
recognized by the Supreme Court and misconduct were timely even though the
where the factual predicate of the claim latter claim, if asserted alone, would have
did not arise or was not discoverable until been time-barred.
after the conclusion of the direct review
An argument very similar to
period.
Fielder’s was adopted by the Eleventh
B. Circuit in Walker v. Crosby, 341 F.3d
1240 (11th Cir. 2003). 2 There, the Court
Fielder argues that we should apply
held that “[t]he statute of limitations in §
these provisions to the present case in the
2244(d)(1) applies to the application as a
following manner. He begins by noting
whole; individual claims within an
that “an application for a writ of habeas
application cannot be reviewed separately
corpus” by a person in state custody must
for timeliness.” Id. at 1245. In reaching
be filed within one year after “the latest
this conclusion, the Court relied primarily
of” the four dates set out in subsections
on the language of 28 U.S.C. § 2244(d)(1).
(A) through (D). 28 U.S.C. § 2244(d)(1)
The Court wrote:
(emphasis added). He then points to
subsection (D), which refers to “the date The statute directs the court
on which the factual predicate of the claim to look at whether the
or claims presented could have been “application” is timely, not
discovered through the exercise of due whether the individual
diligence.” Fielder then argues that his “claims” w ithin the
entire application was timely because
(taking into account the tolling rule set out
in 28 U.S.C. § 2244(d)(2)) 1 his application proceeding tolled the statute until the
PCRA litigation ended on July 10, 1999.
Fielder argues that since the federal habeas
petition was filed within one year
1
On the date of Brown’s affidavit, thereafter, in May 2000, it was timely.
and, indeed, on the date when Brown
2
claims he first became aware of Fielder’s See also Shuckra v. Armstrong,
predicament, Fielder’s PCRA petition was No. 3:02cv583(JBA), 2003 U.S. Dist.
pending, and under 28 U.S.C. § LEXIS 4408, 2003 WL 1562097 (D.
2244(d)(2), the pendency of that Conn. M arch 2003).
5
application are timely. The interpretation advanced by Fielder and the
statute provides a single Walker Court. Although Fielder and the
statute of limitations, with a Walker Court claim that this interpretation
single filing date, to be is dictated by the language of 28 U.S.C. §
applied to the application as 2244(d)(1), their interpretation (which, for
a whole. convenience, we will simply call the
Walker interpretation) actually disregards
Id. at 1243.
the language used in the portion of §
The Court added that its 2244(d)(1) that is most critical for present
interpretation of § 2244(d)(1) was “guided purposes, i.e., subsection (D). Subsection
by the distinction between an application (D), as noted, refers to “the date on which
and claims within an application, and by the factual predicate of the claim or claims
the presumption that Congress understood presented could have been discovered
the difference when drafting AEDPA.” Id. through the exercise of due diligence.” 28
at 1243-44. The Court continued: U.S.C. § 2244(d)(1)(D) (emphasis added).
Applying this language in a case in which
Section 2244(d)(1) states the multiple claims are presented poses a
limitation period shall apply problem, as Fielder’s case illustrates.
to “an application for a writ
of habeas corpus.” Contrast Fielder’s application, as noted,
the language in § 2244(d) presented two claims, a prosecutorial
creating a statute of misconduct claim and an after-discovered
limitations with the evidence claim. The factual predicate of
language in § 2244(b) the prosecutorial misconduct claim was
requiring dism issal o f presumably known to Fielder at the time of
certain claims presented in a trial, but the factual predicate of the after-
s e c o n d o r s u ccess iv e discovered evidence claim was not
application. The former reasonably discoverable until years later.
speaks only to the timeliness So which of these two dates should
of the “application,” while control?
the latter allows for the If § 2244(d)(1) is applied, as we
dismissal of “claims” within believe it must be, on a claim-by-claim
a second or successive basis, there is no problem, but if, as the
application if they were or Walker interpretation prescribes, the
could have been presented claim-by-claim approach is rejected, there
in a prior application. is nothing in § 2244(d)(1) that provides a
Id. ground for picking one date over the other.
The Walker interpretation implicitly reads
III. subsection (D) as if it refers to “the latest
We do not agree with the date on which the factual predicate of any
6
claim presented could have been IV.
discovered through the exercise of due
If we look beyond the words of the
diligence.” But that is not what subsection
statute, as we believe we must in this case,
(D) says.
we see two strong reasons for concluding
Although neither Fielder nor the that the statute of limitations set out in §
Walker Court explains the ground for their 2244(d)(1) should be applied on a claim-
implicit conclusion that subsection (D) by-claim basis.
requires a court to pick the latest date
A.
when the factual predicate of a claim was
reasonably discoverable, it is possible that First, this is the way that statutes of
their analysis is based on the statement in limitations are generally applied, and there
§ 2244(d)(1) that the application runs from is no reason to suppose that Congress
“the latest of” the four dates specified in intended to make a radical departure from
subsections (A) through (D). However, this approach in § 2244(d)(1). In both
this reference to “the latest” date does not civil and criminal cases, statutes of
appear in subsection (D) and it does not limitations are applied on a claim-by-claim
pertain to the issue at hand. The reference or count-by-count basis. When a statute of
to “the latest” date in § 2244(d)(1) tells a limitations defense is raised in a case with
court how to choose from among the four a multi-claim civil complaint or a multi-
dates specified in subsections (A) through count criminal indictment, the court
(D) once those dates are identified. This determines the date on which the statute
language does not tell a court how to began to run for each of the claims or
identify the date specified in subsection counts at issue, not just the latest date on
(D) in a case in which the application which the statute began to run for any of
contains multiple claims. Accordingly, the claims or counts. See, e.g., King v.
there is nothing in § 2244(d) that suggests Otasco, Inc., 861 F.2d 438, 441 (5th Cir.
that a court should follow the Walker 1988) (“When a suit alleges several
interpretation and select the latest date on distinct causes of action, even if they arise
which the factual predicate of any claim from a single event, the applicable
presented in a multi-claim application limitations period must be determined by
could have reasonably been discovered. It analyzing each cause of ac tion
would be just as consistent with the separately.”); Home Indem. Co. v. Ball-Co
statutory language to pick the earliest date. Contractors, Inc.,
819 F.2d 1053, 1054
(11th Cir. 1987) (holding that the District
For these reasons, we believe that
Court had erred in dismissing the
the Walker interpretation fails on its own
appellant’s separate but related claim on
terms. It purports to be based on the
statute of limitations grounds because it
language of § 2244(d)(1) but actually
was in fact governed by a different statute
neglects to pay close attention to the
of limitations); Barnebey v. E.F. Hutton &
statutory language.
7
Co., 715 F. Supp. 1512, 1525 (M.D. Fla. § 2244(d)(1) forecloses a claim-by-claim
1989) (establishing different statute of approach because it refers to the period
limitations for the different civil claims within which “an application,” rather than
against the defendant); Weeks v. a “claim,” must be filed. But there is
Remington Arms Co.,
733 F.2d 1485, nothing unusual about the wording of §
1486 (11th Cir. 1984) (affirming the 2244(d)(1). It is common for statute of
District Court’s dism issal of the limitations provisions to be framed using
appellant’s strict liability claims but the model of a single-claim case. For
reversing the District Court’s directed example, the general statute of limitations
verdict on the appellant’s negligence for federal claims, 28 U.S.C. § 1658,
claims); Contract Buyers League v. F & F prescribes the date by which “a civil
Inv.,
300 F. Supp. 210, 221 (N.D. Ill. action” must be commenced. State
1969) (applying antitrust statute of statutes often use similar wording. The
limitations to the antitrust counts but New Jersey statutes speak of the time
determining what limitation applied to the within “an action of law” must be
other Civil Rights counts); United States v. commenced. N.J.S.A. § 2A:14-1 et seq.
Spector,
1994 U.S. Dist. LEXIS 12500, The Pennsylvania statutes generally refer
1994 WL 470554 (D.N.H. Aug. 31, 1994) to the time within which an “action” or
(dismissing several counts of a multiple- “proceeding” must be begun. See 42 Pa.
count indictment as time-barred but Cons. Stat. Ann. §§ 5501, 5522 et seq.
sustaining other counts of the indictment); Although these provisions are
People v. Kelly,
299 Ill. App. 3d 222, 225 framed on the model of the one-claim
(Ill. App. Ct. 1998) (describing the seven- complaint, it is understood that they must
count information under which the be applied separately to each claim when
defendant was charged and the fact that more than one is asserted. To take 28
the defendant’s motion to dismiss three U.S.C. § 1658 as an example, one could
counts because they charged crimes whose say of the wording of that provision
statutes of limitations had run was precisely what the Walker Court said of
granted); State v. Stansberry, 2001 Ohio the wording of 28 U.S.C. § 2244(d)(1):
App. LEXIS 3014,
2001 WL 755898
(Ohio Ct. App. July 5, 2001) (denying The statute directs the court
defendant’s argument that his felony to look at whether the [“civil
murder conviction should have been action”] is timely, not
barred by the statute of limitations because wh ether the individual
the underlying felony, aggravated robbery, “claims” within the
was time-barred). [complaint] are timely. The
statute provides a single
statute of limitations, with a
The Walker interpreta tion, single filing date, to be
recounted above, holds that the wording of applied to the [“civil
8
action”] as a whole. retroactively applicable constitutional
Walker, 341 F.3d at 1243 (bracketed right regarding the conduct of police
material added). Yet no one, we assume, interrogations, and it appears that this
would argue that, in a civil case with right might have been violated in Doe’s
multiple federal claims, the statute of case. Doe unsuccessfully pursues
limitations must begin on the same date for collateral review in state court, but he does
every claim. Rather, each claim must be not file a federal habeas petition, and
analyzed separately. We believe that § another five years pass. At this point, ten
2244(d)(1) was not intended to be applied years after the conclusion of the direct
in a similar fashion. review process, both the self-incrimination
and unlawful interrogation claims are
B. time-barred by 28 U.S.C. § 2244(d)(1).
Second, we believe that a claim-by- Suppose, however, that a short time later
claim approach is necessary in order to Doe discovers the factual predicate for an
avoid results that we are confident entirely different federal constitutional
Congress did not want to produce. issue, namely, that the prosecution may
Specifically, the Walker interpretation has have violated Brady v. Maryland, 373 U.S.
the strange effect of permitting a late- 83 (1963), because it had in its possession
accruing federal habeas claim to open the at the time of trial, but did not disclose,
door for the assertion of other claims that certain arguably exculpatory evidence.
had become time-barred years earlier. Doe promptly attempts to exhaust state
An example illustrates this point. remedies with respect to this new claim,
Suppose that on direct appeal a criminal and as soon as those efforts prove
defendant in a state case (Doe) raises only unfruitful, he files a federal habeas
one federal constitutional claim, say, that petition asserting both the Brady claim and
his Fifth Amendment right to be free from the previously barred self-incrimination
compelled self-incrimination was violated and unlawful interrogation claims. Under
when the prosecutor made statements in the Walker interpretation of 28 U.S.C. §
summation that Doe interprets as 2244(d)(1), the one-year statute begins to
commenting on his failure to take the run on the date of the discovery of the
stand. Doe is unsuccessful on direct factual predicate of the Brady claim, and
appeal and chooses not to pursue state the fo rmerly barred claims are
collateral relief. Doe then has one year miraculously revived.
from the conclusion of direct review to We cannot think of any reason why
file a federal habeas petition asserting this Congress would have wanted to produce
claim, but he elects not to file a federal such a result. It makes sense to give Doe
habeas petition, and five years pass. At time to petition for habeas review of the
the end of that five-year period, the new Brady claim, but why should he be
Supreme Court of the United States hands allowed to raise the self-incrimination
down a decision that recognizes a new, claim, which had been time-barred for the
9
past nine years? Why should he be
permitted to raise the unlawful
interrogation claim, which had been time- in effect, the prisoner certainly should not
barred for the past four years? Why wait before filing a petition raising the
should the late discovery of the Brady direct review claims. Without knowing
claim revive these unrelated, previously that he should subsequently have a ground
barred claims? Neither Fielder nor the for the late accruing claim, he will file a
Walker Court has explained why Congress petition raising the direct review claims
might have wanted to produce such before the end of the one-year period and
results, and we cannot think of any should later file a second petition under 28
plausible explanation.3 U.S.C. § 2244(b)(2) raising the late
accruing claim.
In the second situation, the prisoner
3
A treatise argues that the Walker learns that he has a basis for the late
interpretation of 28 U.S.C. § 2244(d)(1) accruing claim during the one-year period
avoids unwarranted “piecemeal” habeas after the end of direct review, and he also
litigation, 1 RANDY HERTZ & JAMES S. begins a state collateral proceeding raising
LIEBMAN, FEDERAL HABEAS CORPUS the late accruing claim during this period.
PRACTICE AND PROCEDURE § 5.2b at 266- In this situation, the prisoner’s options will
67 & n.70 (4th ed. 2001), but we find this be the same no matter whether our
argument unconvincing because the interpretation or the Walker interpretation
circumstances in which the Walker of § 2244(d)(1) is in effect. In either
interpretation would lead to fewer event, the prisoner will have two choices.
successive petitions are quite limited. He will be able to file an initial federal
The category of cases that must be petition raising the direct review claims
considered are those in which a state and then seek to file a second petition
prisoner exhausts some federal claims on raising the late accruing claim under 28
direct review (“the direct review claims”) U.S.C. § 2244(b)(2). He will also have the
and discovers another federal claim (“the option of waiting until the end of the state
late accruing claim”) that cannot be raised collateral proceeding (which tolls the time
on direct review and that falls within § for filing a federal petition raising the
2244(d)(1)(C) or (D). Within this category direct review claims) and then filing a
of cases, there are three relevant single petition raising both the direct
subcategories. review claims and the late accruing claim.
In the first, the prisoner does not
learn that he has any basis for asserting the In the third situation, the prisoner
late accruing claim until more than one learns that he has a basis for the late
year after the conclusion of direct review. accruing claim during the one-year period
In this situation, no matter which after the end of direct review but he does
interpretation of 28 U.S.C. § 2244(d)(1) is not begin a state collateral proceeding
10
C. That interpretation of § 2244(d)(2)
In support of his interpretation of obviously does not require us in this case
28 U.S.C. § 2244(d )(1), Fielder to adopt the Walker interpretation of 28
understandably relies on language in U.S.C. § 2244(d)(1).
Sweger v. Chesney, 294 F.3d 506 (3d Cir. Nor is there any logical
2002), but we are not persuaded by this inconsistency between the holding in
argument. We note, first, that Sweger did Sweger and our holding here. The heart of
not concern the issue presented here. our reasoning in Sweger was as follows:
Sweger did not decide when the habeas Section 2244(d)(2) states,
statute of limitations begins to run under “the time during which a
28 U.S.C. § 2244(d)(1). Instead, Sweger properly filed application
concerned the interpretation of 28 U.S.C. for State post-conviction or
§ 2244(d)(2), which provides for the other collateral review with
tolling of the statute of limitations while a respect to the pertinent
state post-conviction proceeding is judgment or claim is
pending. The question in Sweger was pending shall not be counted
whether under § 2244(d)(2) a state toward any period of
proceeding tolls the statute with respect to l i m i ta t i o n u n d e r t h i s
just the claims at issue in the state subsection.” 28 U.S.C. §
proceeding or with respect to all the claims 2244(d)(2) (emphasis
included in a subsequently filed federal added). Reading this
petition. We held that the statute is tolled language to require that the
for all of the claims in the federal petition. state post-conv iction
proceeding raise the claims
contained in the habeas
during this period. In this situation, the petition ignores the use of
choice between the Walker interpretation the word “judgment” in the
and ours would make a difference, but we statute. See Carter [v.
believe that very few cases will fall into Litscher, 275 F.3d 663, 665
this category. As a result, we do not think (7th Cir. 2001)] (“Austin [v.
that our interpretation will lead to any Mitchell,
200 F.3d 391 (6th
significant increase in the number of Cir. 1999)] reads the word
successive federal habeas applications. In ‘ju dgm ent’ out o f §
addition, the mild impact on judicial 2244(d)(2) and tolls the time
economy of a few successive federal only while a particular
habeas applications would be far less than ‘claim’ . . . is before the
the impact on state courts of a rule that state court. That is just not
allows all claims of error to be resuscitated what the statute says. Any
through the happenstance of reviving a properly filed collateral
single claim under Subsection (c) or (d).
11
challenge to the judgment Fielder filed his federal petition long after
tolls the time to seek federal the date specified under subsection (A).
c o l l at e r a l rev iew .”) Accordingly, Fielder’s claim of
(emphasis in original). prosecutorial conduct is time-barred, and
294 F.3d at 516-17 (bracketed material it was properly dismissed by the District
added ). We thus relied on a Court.
straightforward applic ation o f the By contrast, Fielder’s after-
particular language of 28 U.S.C. § discovered evidence claim is timely under
2244(d)(2), and there is no tension § 2244(d)(1)(D). Nevertheless, we can
b e tw e e n t h i s an a l ys i s a n d o ur affirm the decision of the District Court on
interpretation in this case of 28 U.S.C. § the alternative ground that this claim is not
2244(d)(1). cognizable under the federal habeas statute
As Fielder stresses, however, our because it rests on state, rather than
opinion in Sweger does contain statements federal, law. It has long been recognized
concerning 28 U.S.C. § 2244(d)(1) that that “[c]laims of actual innocence based on
support his position here. In particular, newly discovered evidence” are never
Sweger stated that the 28 U.S.C. § grounds for “federal habeas relief absent
2244(d)(1) must be applied to a habeas an independent constitutional violation.”
petition as a whole and not on a claim-by- Herrera v. Collins, 506 U.S. 390, 400
claim basis. 294 F.3d at 514-15, 517. The (1993). Therefore, Fielder’s after-
Sweger Court used this interpretation of 28 discovered evidence claim was properly
U.S.C. § 2244(d)(1) as non-claim-specific dismissed by the District Court.
to bolster its interpretation of 28 U.S.C. § IV.
2244(d)(2) as likewise non-claim-specific. For the reasons set out above, we
Because these statements were dicta, affirm the District Court’s order.
however, they do not bind us, and for the
reasons explained above, we conclude that
28 U.S.C. § 2244(d)(1), like other statute
of limitations provisions, must be applied
on a claim-by-claim basis.
V.
Applying our interpretation of §
2244(d)(1) to the present case, it is clear
that Fielder’s prosecutorial misconduct
claim was not filed on time. Subsection
(D) does not save this claim because the
factual basis for the prosecutorial
misconduct claim was known many years
earlier. Thus, subsection (A) governs.
Even with tolling, there is no dispute that
