Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2008

Williams v. Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5182




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                                                   NOT PRECEDENTIAL
                   THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                      No. 06-5182
                                     _____________

                           CHRISTOPHER WILLIAMS,

                                           Appellant

                                            v.

            JEFFREY BEARD, 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. No. 01-cv-4947)
                   District Judge: Honorable Mary A. McLaughlin
                                  _______________

                           Argued: September 25, 2008

              Before: BARRY, AMBRO, and JORDAN, Circuit Judges

                             (Filed: October 17, 2008)
                                 _______________

Maureen Rowley
Stuart B. Lev [ARGUED]
Victor J. Abreu
Federal Community Defender Office
Eastern District of Pennsylvania
Capital Habeas Corpus Unit
The Curtis Center - Suite 545 West
Independence Square West
Philadelphia, PA 19106
      Counsel for Appellant

Marilyn F. Murray [ARGUED]
Thomas W. Dolgenos
Ronald Eisenberg
Arnold H. Gordon
Lynne Abraham
Three South Penn Square
Corner of Juniper & S. Penn Square
Philadelphia, PA 19107-3499
      Counsel for Appellees
                                  _______________

                                OPINION OF THE COURT
                                    _______________

JORDAN, Circuit Judge.

       Christopher Williams appeals the District Court’s order dismissing his federal

habeas petition as untimely. Although he concedes that he is statutorily barred under the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244,

from asserting his habeas claims, he argues that his petition is entitled to equitable tolling.

For the following reasons, we will affirm the District Court’s order dismissing his

petition.




                                              2
I.       Facts and Procedural History

         On January 22, 1992, Williams was convicted of first degree murder, kidnaping,

robbery, possession of an instrument of crime, and conspiracy to commit murder.1 His

trial counsel filed post-verdict motions. After argument on those motions, Williams

requested new counsel because he wanted to challenge trial counsel’s effectiveness, and

another lawyer (“post-verdict counsel”) was ultimately appointed. On September 12,

1994, after an evidentiary hearing at which trial counsel testified, the trial court denied

Williams’s post-verdict motions and sentenced him to life imprisonment without parole

for the first degree murder conviction, with consecutive terms of five to ten years of

imprisonment on each of the robbery, kidnaping, and conspiracy charges.

         Through letters and phone messages, Williams asked post-verdict counsel to

appeal his conviction. Although he sent post-verdict counsel numerous letters asking

about the status of his appeal, Williams allegedly never received a response. Thirty days

after he was sentenced, Williams’s judgments of sentence became final. Approximately

one and a half years later, Williams wrote a letter to the Pennsylvania Superior Court

asking whether an appeal had been filed, to which the Superior Court replied that no

appeal had been filed on his behalf.




     1
   These convictions resulted from Williams and his co-defendants luring nineteen-year-
old Michael Haynesworth to an apartment, robbing him, beating him with a hammer, and
eventually killing him with a bullet to the head.

                                              3
       After attempting to contact post-verdict counsel again, Williams filed a petition in

the Pennsylvania Superior Court to have new counsel appointed. The Superior Court

denied his petition “without prejudice to seek relief in the trial court,” and Williams filed

a pro se petition for relief under Pennsylvania’s Post Conviction Collateral Relief Act

(“PCRA”). In his PCRA petition, he alleged that his right to appeal had been denied due

to ineffective assistance of counsel, and he asked that either his appellate rights be

reinstated nunc pro tunc or, in the alternative, that he be granted a new trial based on

ineffective assistance of counsel. He also requested that new counsel be appointed.

       The trial court did appoint new counsel (“first PCRA counsel”) to represent

Williams in the PCRA proceedings, and that lawyer filed an “Amended Petition for Post

Conviction Collateral Relief in the Form of a Petition to Appeal Nunc Pro Tunc to

Superior Court” and a supplemental amended petition. Both amendments included

allegations that post-verdict counsel was ineffective for failing to file a direct appeal and

that trial counsel was ineffective for a number of reasons. The trial court dismissed the

amended PCRA petition, determining that the claims were without merit.

       Williams, still represented by his first PCRA counsel, appealed the trial court’s

decision to the Pennsylvania Superior Court, claiming that the trial court erred in denying

his PCRA petition without a hearing and that his claims of ineffectiveness were

appropriate bases for relief.




                                              4
       While that appeal was pending, the Pennsylvania Supreme Court decided

Commonwealth v. Lantzy, 

(Pa. 1999). In Lantzy, the court held that a

lawyer’s failure to file a requested direct appeal constitutes ineffective assistance of

counsel and entitles a PCRA petitioner to restoration of his direct appeal rights nunc pro

tunc. 

Therefore, under Lantzy, in the special circumstance of a failure to

file a requested appeal, a petitioner is not required to establish his innocence or

demonstrate the merits of the issues he would have raised on appeal in order for his direct

appeal rights to be reinstated nunc pro tunc, 

even though a review of the merits

is usually essential to an ineffective assistance of counsel claim.

       On November 24, 1999, the Pennsylvania Superior Court, without citing Lantzy,

affirmed the PCRA court’s denial of Williams’s request for relief. The Superior Court

analyzed Williams’s claims of ineffective assistance of counsel by using the Pennsylvania

Supreme Court’s test in Commonwealth v. Kimball, 

(Pa. 1999), which does

require petitioners to demonstrate the merits of the arguments they would have raised on

appeal.3 The Pennsylvania Supreme Court denied Williams’s timely Petition for

  2
    Prior to Lantzy, the procedure under Pennsylvania law for requesting reinstatement of
appeal rights was to file a Petition for Leave to Appeal nunc pro tunc (NPT Petition)
rather than a PCRA petition. See Commonwealth v. Hernandez, 

, 482-83
(Pa. 2003) (discussing pre-Lantzy law).
  3
    A few months after the Superior Court affirmed the denial of PCRA relief in
Williams’s case, it held in two cases decided en banc that the rule of law announced in
Lantzy could not be retroactively applied. Commonwealth v. Hitchcock, 

(Pa. Super. 2000); Commonwealth v. Garcia, 

(Pa. Super. 2000). Two years
later, however, the Pennsylvania Supreme Court held in Commonwealth v. Eller, 807

                                              5
Allowance of Appeal on June 29, 2000. Commonwealth v. Williams, 

(Pa.

2000) (table).

       On August 28, 2000, Williams, represented by new counsel again, filed a second

PCRA petition. In that petition, he argued that, because he had previously been denied

his constitutional right to a direct appeal, his prior PCRA petition should be treated as a

direct appeal and his newly filed petition should be accepted as a timely, first PCRA

petition.4 The PCRA court dismissed the new petition as untimely on April 16, 2001.

Williams appealed that decision to the Pennsylvania Superior Court, which affirmed the

dismissal on February 12, 2003. The Pennsylvania Supreme Court denied allowance of

appeal on August 6, 2003.

       While his appeal of the dismissal of his second PCRA petition was pending in the

Superior Court, Williams filed a Petition for Writ of Habeas Corpus in the United States

District Court for the Eastern District of Pennsylvania, alleging violations of his Fifth,

Sixth, Eighth, and Fourteenth Amendment constitutional rights. On October 12, 2001,

Williams filed a petition to hold the federal proceedings in abeyance pending final



A.2d 838, 844 (Pa. 2002), that Lantzy was not a new rule of law and, therefore, should be
applied “retroactively” as a correct interpretation of previously existing law.
  4
    Although Williams’s second PCRA petition is not in the record, the claims in that
petition are described as including ineffective assistance of post-verdict counsel for
failing to file an appeal, ineffective assistance of first PCRA counsel, and a mixture of
allegations involving ineffective assistance of trial counsel, prosecutorial misconduct, and
ineffective assistance of all prior counsel on a number of grounds relating to events at
trial.

                                              6
disposition of his state court appeal of the dismissal of his second PCRA petition. The

case was referred to United States Magistrate Judge Carol Sandra Moore Wells for a

recommendation. On February 19, 2002, Judge Wells issued a Report and

Recommendation that concluded that Williams’s habeas petition should be dismissed

without prejudice for presenting both exhausted and unexhausted claims. The Magistrate

Judge also addressed the government’s argument that the petition should be dismissed

with prejudice for being time-barred under the applicable statute of limitations in

AEDPA. She rejected the government’s argument and concluded that Williams was

entitled to statutory tolling while his second PCRA petition was pending, even if the state

courts ultimately ruled it was procedurally defaulted. Cf. 28 U.S.C. § 2244(d)(2) (“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.” (emphasis added)). Judge Wells

stated that, under then-existing Third Circuit and Supreme Court precedent, “the fact that

a petitioner’s claims, ultimately, may be procedurally defaulted is not relevant to the

appropriateness of the filing.” (App. at 70.) She still recommended that the petition be

dismissed without prejudice, rather than be held in abeyance, because Williams’s stated

concern in filing his federal petition before proceedings were concluded on his second

PCRA petition – namely, that the AEDPA deadline would expire – was unfounded since




                                             7
his second PCRA petition should, she said, toll the limitations period. Both parties filed

objections.

       On September 5, 2002, the District Court approved and adopted the Magistrate

Judge’s Report and Recommendation except to the extent that it concluded that

Williams’s untimely second PCRA petition was “properly filed” and served to toll the

AEDPA statute of limitations. The District Court expressly declined to decide whether

the second PCRA petition was “properly filed,” but it agreed that Williams’s petition to

hold the federal proceedings in abeyance should be denied, and it dismissed the habeas

petition without prejudice and declined to issue a certificate of appealability. Williams

filed a timely notice of appeal.

       By the time we reviewed Williams’s appeal, the state court proceedings on his

second PCRA petition had concluded. We then asked the parties to show cause why the

District Court’s September 5, 2002 order should not be vacated and the case remanded for

a determination of whether the habeas petition was timely filed, and, if so, whether the

claims were exhausted or procedurally barred. On February 4, 2004, following the

parties’ submissions, we granted a certificate of appealability, vacated the District Court’s

order dismissing the habeas petition, and remanded the case to the District Court for

disposition.

       The District Court again referred the case to Magistrate Judge Wells for a Report

and Recommendation. After holding the petition in abeyance pending the United States


                                             8
Supreme Court’s decision in Pace v. DiGuglielmo, 

(2005), Judge Wells

issued a Report and Recommendation concluding that Williams’s petition should be

dismissed as untimely. Her decision was largely based on the Supreme Court’s decision

in Pace, in which the Court held that state post-conviction petitions rejected by state

courts as untimely are not “properly filed” within the meaning of AEDPA. 

Because the state courts had determined that Williams’s second PCRA petition was

untimely filed,5 Judge Wells concluded that that petition could not toll the AEDPA

limitations period. Williams’s habeas petition was therefore untimely. The Magistrate

Judge also determined that equitable tolling of AEDPA’s limitations period was improper

in this case because Williams could not establish that “extraordinary circumstances”

prevented the timely filing of his petition.6 Williams filed objections to that Report and

Recommendation.

       On December 1, 2006, the District Court ruled on the objections and, in a thorough

and well-reasoned opinion, dismissed Williams’s habeas petition as untimely. Williams v.

Beard, No. 01-4947, 

(E.D. Pa. Dec. 1, 2006). The Court rejected



  5
     The PCRA states that “[a]ny petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the judgment becomes final
... .” 42 Pa.C.S. § 9545(b)(1). Williams filed his second PCRA petition on August 28,
2000, which was almost six years after his judgment became final.
  6
    In Pace, the Supreme Court stated that “[g]enerally, a litigant seeking equitable tolling
bears the burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his 

.

                                              9
Williams’s arguments that extraordinary circumstances prevented him from filing a

timely habeas petition. Williams had argued that he had been prevented from filing a

timely petition because the state courts failed to follow clearly established law and

because federal habeas relief was unavailable.7 In his view, both of those circumstances

were “extraordinary” and warranted equitable tolling of AEDPA’s statute of limitations.

He further argued that, even if there were no extraordinary circumstances, the Court

should still equitably toll the limitations period because his conviction in this case was

used as an aggravating factor in a subsequent capital case.8

       As to Williams’s first assertion, that the state courts failed to follow clearly

established law, Williams argued that the state courts dismissed his first PCRA petition

without reinstating his direct appeal rights nunc pro tunc because they mistakenly applied

the Pennsylvania Supreme Court’s decision in Kimball, instead of applying the more

recent decision in Lantzy.9 According to Williams, had the state courts applied the


  7
   Before the District Court, Williams cited a total of four extraordinary circumstances
that prevented him from timely filing his federal habeas petition. On appeal he only
pursues the two arguments stated, namely that the state courts failed to follow clearly
established law and that habeas relief was effectively unavailable.
  8
   Another panel of this Court has recently described some of Williams’s crimes in
detail. See Wilson v. Vaughn, 

(3d Cir. 2008).
  9
   In Kimball, the Court held that the test for determining ineffective assistance of
counsel under the PCRA is the same as the test applied on direct 

.
According to Kimball, that test requires the defendant to show, “by a preponderance of
the evidence, ineffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place. This requires the petitioner to show: (1) that

                                              10
holding in Lantzy, they would have treated his first PCRA proceedings as a direct appeal,

which would in turn have made his second PCRA petition timely and thus “properly

filed” for purposes of tolling AEDPA’s limitations period.

       In reviewing Williams’s argument that the state courts misapplied Pennsylvania

law, the District Court held that it was not clearly established state law that Williams’s

second PCRA petition should be treated as being his first while the first PCRA petition

should be treated as his direct appeal. The District Court agreed with Williams that the

state courts had misapplied the law by failing to follow Lantzy, since Williams had clearly

asked his counsel to file an appeal. But the District Court noted that no Pennsylvania

case had ever held that when a PCRA petition requesting reinstatement of direct appeal

rights is erroneously denied, the accompanying PCRA proceedings should be considered

a direct appeal. To the contrary, the District Court found that Lantzy actually made clear

that a petition requesting reinstatement of appeal rights should be treated as a PCRA

petition, because PCRA proceedings are the sole means of requesting reinstatement of

appeal rights. See 

(“[T]he PCRA provides the exclusive remedy




the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or
her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been different.”

the Court held that the unjustified failure to file a requested direct appeal
satisfies the test for ineffective assistance of counsel, without the need to inquire into the
merits of the petitioner’s planned arguments on 

.

                                              11
for post-conviction claims seeking restoration of appellate rights due to counsel’s failure

to perfect a direct appeal ... .”).

       Under these circumstances, the District Court held that Williams had failed to

demonstrate that extraordinary circumstances prevented him from timely filing a habeas

petition:

       Although the state courts erred in dismissing his first PCRA petition without
       reinstating his appeal rights, the petitioner was nevertheless free to file a timely
       habeas petition after this dismissal. The petitioner instead decided to file a
       second PCRA petition, gambling that the state courts would consider the prior
       proceedings to be his direct appeal. The petitioner’s failure to file a timely
       habeas petition therefore resulted from a strategic decision, not an
       “extraordinary circumstance.”

Williams, 

, at *5.

       Williams’s second argument is that he was entitled to equitable tolling because

habeas relief was unavailable to him when he filed his second PCRA petition.

Essentially, Williams argues that he was entitled to equitable tolling because he could not

file a timely habeas petition due to having unexhausted claims.

       The District Court rejected that argument too, holding that Williams could have

filed a timely habeas petition that included only his exhausted claims. The Court stated

that, in the alternative, Williams could have filed a habeas petition that included all of his

claims and then sought relief from the Court to protect the unexhausted claims. The

District Court pointed to Morris v. Horn, 

(3d Cir. 1999), in which a district

court dismissed the habeas petition without prejudice to the petitioner’s right to file an


                                               12
amended petition under the relation-back doctrine, as an example of a federal court

protecting a petitioner’s unexhausted claims. But see Jones v. Morton, 

,

160-61 (3d Cir. 1999) (“[C]ourts have recognized that, if a petition is dismissed for

failure to exhaust state remedies, a subsequent petition filed after exhaustion is completed

cannot be considered an amendment to the prior petition, but must be considered a new

action.”). The Court also stated that Williams could have filed his habeas petition and

then asked the Court to stay review and hold the petition in abeyance until the

unexhausted claims were presented to the state courts. Although we did not approve of

that procedure until 2004, the District Court asserted that it was recognized in other

circuits and that Williams could have attempted it. Because Williams was not prevented

from filing a petition containing only his exhausted claims or a “protective” habeas

petition, the Court held that no “extraordinary circumstance” prevented the filing of his

habeas petition. Thus, it found that he was not entitled to equitable tolling.10




  10
     Having found that no extraordinary circumstance existed to warrant equitable tolling,
the District Court did not reach the merits of Williams’s argument that he exercised
reasonable diligence in attempting to investigate and bring his claims. The Court did
address, however, Williams’s argument that he was entitled to equitable tolling regardless
of the existence of an extraordinary circumstance. According to Williams, because his
conviction in this case, a non-capital case, was used as an aggravating factor in a
subsequent capital case, he was entitled to equitable tolling because the threshold for
tolling is lower in capital cases. The District Court rejected that argument. It held that
our case law makes clear that AEDPA’s statute of limitations should be equitably tolled
for less than extraordinary circumstances only when the petitioner faces the death penalty.
Because this case is not a capital case, the District Court refused to apply the exception.
Williams’s counsel acknowledged at oral argument that the District Court’s refusal to

                                             13
           Williams filed a notice of appeal and moved for a certificate of appealability with

this court. On August 21, 2007, we granted his motion on the issue of whether he was

entitled to equitable tolling.

II.        Standard of Review

           Our review of the timeliness of a federal habeas petition is plenary. Hartmann v.

Carroll, 

, 480 (3d Cir. 2007). Where, as here, the facts supporting the

petitioner’s claim for equitable tolling are undisputed, our review of a district court’s

decision to grant or deny equitable tolling is de novo. Taylor v. Horn, 

, 427

n.6 (3d Cir. 2007) (quoting Brinson v. Vaughn, 

, 231 (3d Cir. 2005)).11

III.       Discussion

           Williams argues that the District Court’s refusal to equitably toll AEDPA’s statute

of limitations was erroneous. He maintains that he meets the requirements for equitable

tolling because he pursued his rights with reasonable diligence but, due to extraordinary

circumstances, was prevented from asserting his rights. See Brown v. Shannon, 

, 773 (3d Cir. 2003) (describing two-part test for equitable tolling). As earlier

discussed, Williams argues that two extraordinary circumstances prevented the timely



treat this as a capital case was likely correct and that Williams does not take issue with
that ruling on appeal.
      11
     Although Brinson does not clearly establish our standard of review in equitable
tolling cases, as the Brinson court declined to definitively resolve the question, we cited
Brinson in Taylor, a precedential opinion, and in several non-precedential opinions, for
establishing a de novo standard of review.

                                                14
filing of his habeas petition: first, the state courts’ failure to apply clear Pennsylvania law,

and, second, the unexhausted nature of some of his claims when AEDPA’s statute of

limitations period expired.

       AEDPA’s one-year statute of limitations period should be equitably tolled “‘only

in the rare situation where equitable tolling is demanded by sound legal principles as well

as the interests of justice.’” Schlueter v. Varner, 

, 75 (3d Cir. 2004) (quoting

Jones v. Morton, 

, 159 (3d Cir. 1999)). “Mere excusable neglect is not

sufficient.” Miller v. New Jersey State Dep’t of Corr., 

, 619 (3d Cir. 1998).

       A.     State Courts’ Application of Pennsylvania Law

       Williams claims that the state courts considering his PCRA petitions misapplied

Pennsylvania law in at least two instances and that those errors worked together to create

“extraordinary circumstances” that prevented his filing of a timely federal habeas petition.

First, he claims that the Court of Common Pleas erroneously viewed his petition for

reinstatement of appellate rights nunc pro tunc, including his subsequent amendments to

that petition, as a PCRA petition and thus that the court inappropriately reached the merits

of his claims. Essentially, Williams argues that that error caused the state courts that

considered his second PCRA petition to likewise view his first petition as a PCRA

petition rather than a direct appeal. Second, Williams alleges that, in the appeal from the

denial of his first PCRA petition, the Superior Court should have reinstated his direct

appellate rights nunc pro tunc, in accordance with the Pennsylvania Supreme Court’s


                                              15
intervening decision in Lantzy, because his petition met all of the requirements for that

relief.

          We agree with the District Court’s conclusion that Williams’s “failure to file a

timely habeas petition ... resulted from a strategic decision, not an ‘extraordinary

circumstance.’” Williams, 

, at *5. In fact, Williams made at least two

decisions to file PCRA petitions rather than pursue other courses that, under then-existing

law, may have been more fruitful.

          First, Williams chose to file and twice amend an initial petition seeking

reinstatement of his appellate rights nunc pro tunc within the framework of the PCRA.

As previously 

at n. 2, Pennsylvania law at the time required a petitioner who

sought reinstatement of his appellate rights nunc pro tunc to file a motion with the Court

of Common Pleas. A request to reinstate those rights was not cognizable under the PCRA

unless the petitioner showed actual innocence or demonstrated the merits of the issues he

would have raised on appeal. See Commonwealth v. Petroski, 

, 844 (Pa.

Super. 1997) (applying pre-Lantzy law and holding that “the Post Conviction Relief Act

requires that a petitioner both plead and prove facts establishing that the violation of the

constitutional right or the ineffectiveness of counsel so undermined the truth-determining

process as to render a finding of guilt unreliable.”). Thus, contrary to Williams’s




                                               16
argument, the Court of Common Pleas did not “refuse[] to apply clearly established law”

when it decided his first PCRA petition on the merits.12

       Second, Williams took a known risk when he filed his second PCRA petition,

evidently hoping that the state courts would view his first petition as a direct appeal. Like

the District Court, we have been unable to find any Pennsylvania case that stands for the

proposition that a PCRA proceeding seeking reinstatement of direct appellate rights

should be considered a direct appeal when that PCRA petition has been denied.13 To the

contrary, as the District Court noted, Lantzy itself explains that “the Pennsylvania PCRA

provides the sole means of obtaining collateral review[,] ... including requests for



  12
    Williams’s counsel’s theme at oral argument, namely that the state courts deprived
him of the two opportunities – direct review and post-conviction review – to which state
law entitles him, rings hollow because he and his counsel presented his first set of claims
within the PCRA framework. Even if it were unclear whether, pre-Lantzy, a petitioner
seeking to have his direct appeal rights reinstated nunc pro tunc was to file an NPT
petition rather than a PCRA petition, the state courts cannot be faulted for viewing
Williams’s petition as it was presented to them.
  13
     Williams cites Commonwealth v. Lewis, 

(Pa. Super. 1998),
Commonwealth v. Karanicolas, 

(Pa. Super. 2003), Commonwealth v.
O’Bidos, 

(Pa. Super. 2004), and Commonwealth v. Fowler, 

(Pa. Super. 2007). However, Williams’s case is different. In the cited cases, the
defendants’ PCRA petitions requesting reinstatement of direct appeal rights nunc pro tunc
were granted. Thereafter, the defendants filed second PCRA petitions. The Pennsylvania
Superior Court held in all four cases that these second PCRA petitions should be treated
as if they were actually the defendants’ first PCRA petitions because the original PCRA
petitions were never considered on the merits. In the present case, Williams was never
granted relief nunc pro tunc and his first PCRA petition was considered on its merits by
the state courts. The concern expressed in Lewis, Karanicolas, O’Bidos, and Fowler, that
the defendants would not receive post-conviction review if their second petitions were to
be dismissed as untimely, does not exist here.

                                             17
reinstatement of appeal rights.” Williams, 

, at *5 (citing 

). In light of the case law, it was not reasonable for Williams to think that

his first PCRA petition was going to be treated as a direct appeal, even though the

Superior Court arguably acted erroneously in failing to follow Lantzy.14

       In sum, Williams has failed to point us to an instance where the state courts

neglected to follow clearly established law so as to create an extraordinary circumstance

preventing him from filing a timely habeas petition after his first PCRA proceedings

concluded.

       B.     Failure to Exhaust Claims in State Court Prior to Expiration of AEDPA’s
              Statute of Limitations Period

       Williams’s second alleged extraordinary circumstance is that, after the state courts

refused to reinstate his appellate rights, he had no other way of preserving his right to

habeas review of the additional claims he wanted to bring other than to file a second

PCRA petition.

       Williams claims he had three options, and none of them were good. First, he could

have filed a mixed habeas petition including both his exhausted and unexhausted claims

and requested a stay from the District Court. At that time, however, case law suggested

that mixed habeas petitions would be dismissed. It was not until 2004 that we



  14
    We need not determine whether the Superior Court’s failure to apply Lantzy when
deciding Williams’s first post-conviction appeal was error, though it is true that Eller
would require the Superior Court to apply Lantzy if it were faced with Williams’s first
PCRA petition today.

                                             18
established, in Crews v. Horn, 

(3d Cir. 2004), that district courts could stay

habeas petitions pending exhaustion of state remedies. Williams asserts that his second

option would have been to file a habeas petition raising only his exhausted claims, while

simultaneously trying to exhaust his other claims in state court. By the time he exhausted

his second set of claims, however, the federal habeas statute of limitations would have

precluded review of a second habeas petition with his new claims. According to

Williams, his third option, the one he finally chose, was to file a second PCRA petition

asking that the state courts correct their prior “error” in failing to reinstate his appellate

rights. Although risky, this was his best option, Williams contends, because of our pre-

Crews jurisprudence.15

       Williams argues that the dilemma he faced is similar to the one faced by the

petitioner in Slutzker v. Johnson, 

(3d Cir. 2004), in which we excused a




  15
     Williams’s respect for our precedent is admirable but seems less than genuine
because, when he did eventually file his habeas petition in 2001, our law had not changed.
Crews was decided three years after he filed his petition. Williams’s assertion that he
filed the habeas petition in light of the Supreme Court’s plurality decision in Duncan v.
Walker, 

, 182-83 (2001) (Stevens, J., concurring), is belied by his failure to
mention Duncan in the habeas petition itself. Instead, Williams cited a number of Third
Circuit and District Court decisions decided before he filed his second PCRA petition.
(Supp. App. at 80-82 (citing Duffey v. Lehman, No. 94-9003, 

at *7 (3d
Cir. Jan. 16, 1996) vacated as moot, 

(3d Cir. 1996); Carpenter v. Vaughan,
No. 95-9001 (3d Cir. Oct. 17, 1995); Lloyd v. Mazurkiewicz, No. 94-CV-5544, 

(E.D. Pa. July 14, 1995)).) These cases, as well as other persuasive, pre-existing
precedent from other circuits, see Freeman v. Page, 

, 577 (7 th Cir. 2000) and
Brewer v. Johnson, 

, 493 (5 th Cir. 1998), suggested that a mixed habeas
petition was a viable option in certain circumstances in the Third Circuit.

                                               19
petitioner’s procedural default. Williams, however, has put himself in an entirely

different situation than that faced by the petitioner in Slutzker. In that case, petitioner

Slutzker, acting pro se, filed a timely federal habeas 

. It was not

until two years later that Slutzker, still acting pro se, discovered police reports that the

prosecution had failed to previously disclose. 

In light of those new reports,

he then filed an amended habeas petition that included claims under Brady v. Maryland,

(1963). He did not, however, first exhaust those claims in state court, nor did

he move for a stay of the federal proceeding so that he could do so. 

       Nonetheless, we held that Slutzker had established cause excusing his procedural

default in failing to exhaust his Brady claims. 

Slutzker faced a dilemma

because, while “a conscientious attorney in Slutzker’s position might have considered the

‘stay-and-abey’ procedure as a possibility,” no then-existing Supreme Court or Third

Circuit precedent approved of that procedure. 

Had we ordered the district

court to dismiss Slutzker’s amended habeas petition, a re-filing of his exhausted claims

would have been untimely, thus preventing review of all but his Brady claims. 

case, rather than file a timely habeas petition, Williams, with advice from

counsel, gambled by filing a second, time-barred PCRA petition in the hope that the state

courts would view his first PCRA proceedings as a direct appeal. When Williams

eventually filed his protective habeas petition, it, too, was untimely.




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       Moreover, Slutzker did not know about his new claims until he discovered, after

he had already exhausted his other claims and filed his habeas petition, that the

government had failed to produce Brady evidence. 

Williams, in contrast,

does not argue that he discovered new evidence. The only undeniably “new” claim he

included in his second PCRA petition that could not have been in the first was his

allegation that he received ineffective assistance from his first PCRA counsel. As to the

other claims in his second PCRA petition, it appears that he simply neglected to bring

them earlier. The logical extension of the “extraordinary circumstances” argument

Williams would have us accept would be to allow a petitioner to toll the AEDPA statute

of limitations indefinitely simply by obtaining new counsel, claiming ineffective

assistance of previous counsel, and alleging new claims based on a fresh review of an old

record.

       Williams had opportunities to seek federal habeas relief. As the District Court

found, he “could have abandoned his unexhausted claims and filed a habeas petition

containing only those claims he had exhausted in his first PCRA petition [or] filed a

habeas petition and sought protection for his unexhausted claims from the federal court.”

Williams, 

, at *6; see also Schlueter v. Varner, 

, 76 (3d Cir.

2004) (“Generally, in a non-capital case ... attorney error is not a sufficient basis for

equitable tolling of AEDPA’s one-year period of limitation.”). In short, nothing

extraordinary prevented Williams from filing a habeas petition.


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IV. Conclusion

       Since no extraordinary circumstance warrants the tolling of the AEDPA statute of

limitations, we will affirm the District Court’s order dismissing Williams’s petition.16




  16
     Because we agree with the District Court that there were no extraordinary
circumstances, we need not reach the question of whether Williams exercised reasonable
diligence in pursuing his rights.

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