NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 09-1636
                                  _______________

                               DERRICK G. RAGAN
                                          Appellant

                                          v.

     COMMISSIONER MARTIN HORN, PENNSYLVANIA DEPARTMENT OF
      CORRECTIONS; DONALD T. VAUGH, SUPERINTENDENT OF THE
         STATE CORRECTIONAL INSTITUTION AT GRATERFORD

                                  _______________

                   On Appeal from the United States District Court
                      For the Eastern District of Pennsylvania
                       (D.C. Civil Action No. 2-00-cv-02092)
                     District Judge: Honorable Anita B. Brody
                                 _______________

                              Argued November 17, 2010
                                  _______________

            Before: AMBRO, FISHER and GREENBERG, Circuit Judges

                           (Opinion filed: January 19, 2011)

Mary E. Hanssens, Esquire
Jerome H. Nickerson, Esquire
Michael Wiseman, Esquire (Argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106-0000

      Counsel for Appellant
Thomas W. Dolgenos, Esquire
Helen T. Kane, Esquire (Argued)
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107

         Counsel for Appellees
                                        _______________

                                           OPINION
                                        _______________

AMBRO, Circuit Judge


         Derrick Ragan is currently serving a term of life imprisonment for a first-degree murder

conviction in 1991.1 At the time of the homicide, Ragan was driving a car with Jerry Burden in

the passenger seat. They pulled up next to a car driven by Anthony Thomas, who had Steven

Guilford in the passenger seat. According to Guilford, the only eyewitness to testify at trial,

Ragan leaned over Burden and shot Thomas through the passenger-side window. Ragan

contends, however, that it was Burden who shot Thomas. During their investigation, detectives

interviewed another eyewitness, a bystander named Martino Crews, who initially reported that he

saw Burden get out of Ragan‟s car and shoot Thomas, as Ragan claims, but later told them that

he thought Ragan was the shooter. The parties dispute whether the prosecution disclosed

Crews‟s statements to the defense. Neither party introduced the statements or called Crews to

testify at trial.

         Ragan pursued his direct and post-conviction appeals in state court to no avail. On April

21, 2000, he filed the counseled habeas petition that we now review. Ragan raises claims of

1
 Ragan was also convicted of a second, unrelated murder in 1991, for which he was
sentenced to death. The murder conviction before us in this appeal served as the sole
aggravating factor for the death sentence he received in the second case.

                                                 2
actual innocence, prosecutorial misconduct, and that either the prosecution violated Brady v.

Maryland, 

(1963), by failing to disclose the Crews statements, or alternatively, if the

prosecution disclosed them, that his trial counsel was ineffective under Strickland v. Washington,

(1984), for failing to investigate and call Crews to testify.

       Ragan conceded that his habeas petition was untimely under the one-year statute of

limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2244(d)(1)(A), but argued that equitable tolling should be granted because the attorney he first

retained to file the petition misled and abandoned him. The District Court granted Ragan‟s new

counsel 60 days to file habeas petitions in his capital and non-capital cases, but both petitions

were filed approximately 12 days after that deadline. After an evidentiary hearing, the Court

ruled that Ragan‟s petition was timely because his prior counsel‟s conduct (amounting to

abandonment of his client) was an extraordinary circumstance warranting equitable tolling.

Ragan filed a motion to modify the Court‟s order, pointing out certain errors that the Court had

made in its calculations. The Court then entered an Amended Memorandum and Order on June

24, 2008 (the “Amended Order”), determining that Ragan was not entitled to equitable tolling

because he failed to act with reasonable diligence after he learned of his prior counsel‟s

abandonment.

       Ragan filed another motion for reconsideration seeking to modify the Court‟s Amended

Order. He argued that equitable tolling was warranted because he exercised reasonable diligence

in attempting to file his habeas petition, and alternately that AEDPA‟s one-year limitations

period should not apply because Crews‟s first statement and a subsequent statement by Guilford

show him to be actually innocent. The Court rejected both arguments and denied Ragan‟s

motion by an “Explanation and Order” entered on February 10, 2009. However, it granted a


                                                 3
certificate of appealability on the issue of whether Ragan exercised sufficient diligence to

warrant equitable tolling. (Expl. & Ord. at 15).2 In the Court‟s view, “reasonable jurists could

disagree” because the “period of delay in this case is neither so short as to be unassailably

diligent, nor so long as to be unequivocally dilatory.” 

the District Court‟s Order and conclude that Ragan did exercise reasonable

diligence under the circumstances. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

We review de novo the District Court‟s legal ruling that Ragan‟s habeas petition is time-barred

under AEDPA. See, e.g., Taylor v. Horn, 

, 427 (3d Cir. 2007); Merritt v. Blaine,

, 161 (3d Cir. 2003).

          The District Court concluded, and Ragan does not dispute, that his habeas petition was

not filed within the one-year AEDPA limitations period. See 28 U.S.C. § 2244(d)(1)(A). The

issue before us is whether he should be entitled to equitable tolling. “[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 way.” Pace v.

DiGuglielmo, 

, 418 (2005); see also Satterfield v. Johnson, 

, 195 (3d

Cir. 2006). The Supreme Court has instructed that “[t]he diligence required for equitable tolling

purposes is „reasonable diligence,‟ . . . not „maximum feasible diligence.‟” Holland v. Florida,

, 2565 (2010) (internal citations omitted). Our Court has similarly held that

“[d]ue diligence does not require „the maximum feasible diligence,‟ but it does require

reasonable diligence in the circumstances.” Schlueter v. Varner, 

, 74 (3d Cir. 2004)

(internal citations omitted); see also Baldayaque v. United States, 

, 153 (2d Cir.

2003) (“The standard is not „extreme diligence‟ or „exceptional diligence,‟ it is reasonable


2
    The District Court did not grant a certificate of appealability on the actual innocence issue.

                                                    4
diligence. On remand, the district court should ask: did the petitioner act as diligently as

reasonably could have been expected under the circumstances?”) (emphases in original).

       The District Court never changed its determination that the attorney abandonment Ragan

faced was an extraordinary circumstance for equitable tolling purposes.3 However, it ruled in its

Explanation and Order that Ragan did not act with sufficient diligence after his extraordinary

circumstance was resolved. We think that Ragan did act with reasonable diligence, and we

therefore reverse and remand for a hearing on the merits of Ragan‟s habeas petition.

       Ragan‟s new Federal Defenders Capital Habeas Corpus Unit (“CHU”) attorneys were

reasonably diligent under the circumstances, particularly in light of the following three

considerations: (1) the District Court was made aware of the reason why CHU counsel had not

filed within the Court‟s 60-day period before that deadline had passed; (2) the Court was actively

involved in the process it directed of obtaining missing state court materials required for Ragan‟s

habeas filings during and after those 60 days; and (3) the Court signed an order requiring the

Commonwealth to turn over missing state court materials seven days after its 60-day deadline

(April 17, 2000). The missing materials were collected three days later (April 20, 2000), and the

habeas petitions were filed the next day (April 21, 2000).4


3
  “Ragan was … abandoned by his attorney while he was diligently pursuing his rights. Based
on the egregious acts of Ragan‟s attorney, I found that „extraordinary circumstances‟ existed to
warrant equitable tolling.” (Expl. & Ord. at 2).
4
  The relevant events from February to April 2000 are as follows: On February 9, 2000, the
Court granted Ragan‟s in forma pauperis motion and allocated his new CHU attorneys 60 days
to file his habeas petitions in his capital and life cases. Fifty-seven days later, on April 6, 2000,
CHU counsel wrote to the Court (copying the Commonwealth) asking the Court to convene a
conference regarding “a matter that is preventing us from completing our work on Petitioner‟s
habeas corpus filings.” (A289-92). The Commonwealth had declined to provide state court
records that Ragan had already sought by several other means to CHU counsel without a court
order. On the 60th day—April 10, 2000—the Court issued an order that a conference be
conducted four days later regarding the missing materials. At the April 14, 2000 conference,
CHU counsel appeared and the Commonwealth did not. Three days later, on April 17, 2000, the
                                                  5
       While the District Court did note the 60-day window it had granted petitioner‟s new

attorneys in its Explanation and Order denying equitable tolling, it omitted any mention of the

series of events described herein. Instead, without noting the intervening events that it had

supervised, it stated that “Ragan carelessly disregarded the deadline and did not file his Petition

until nearly two weeks later . . . .” (Expl. & Ord. at 8). This record does not reflect careless

disregard. The petition was filed only one day after crucial missing state court documents were

provided to Ragan‟s attorneys pursuant to the Court‟s order.

       In sum, Ragan and his attorneys did not simply sit on their rights. Rather, they were

actively involved in seeking—with the District Court‟s assistance—the documents they believed

were necessary to pursue Ragan‟s claims adequately. As noted above, we expect only

reasonable diligence for equitable tolling once extraordinary circumstances have been found.

Although Ragan‟s habeas petition was filed 12 days after the Court‟s deadline, the reasons for

the delay, the Court‟s involvement in managing the procurement of the missing materials, and

the subsequent speed with which the petition was filed (one day after obtaining the materials),

easily meet the reasonable diligence bar. Thus, we reverse the judgment to the contrary,

conclude that Ragan‟s habeas petition is not time-barred, and remand for further proceedings.5




Court signed an order directing the Commonwealth to provide the missing materials. Three days
after the Court‟s order (April 20), the CHU attorneys were able to collect the materials at issue.
One day later (April 21), they filed Ragan‟s habeas petitions in both the life and capital cases.
5
  We note that our ruling on the reasonable diligence issue resolves whether Ragan‟s habeas
petition is time-barred, but because the District Court reached a different conclusion on that
issue, it dealt with Ragan‟s actual innocence claim that we have not addressed here. Because the
Court addressed the actual innocence issue only in order to determine whether it would have
been an alternative basis to defeat untimeliness under AEDPA, rather than on its merits after
additional briefing and an evidentiary hearing, this issue may be raised in further proceedings on
remand.
                                                  6