FISHER, Circuit Judge.
Robert Jenkins, a Pennsylvania prisoner at State Correctional Institution — Laurel Highlands, seeks federal habeas relief pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The District Court ordered the dismissal of Jenkins's habeas petition as untimely under 28 U.S.C. § 2244(d). For the reasons stated below, we hold that Jenkins is eligible for statutory tolling of AEDPA's limitation period. Accordingly, we will reverse the District Court's order.
The resolution of this appeal turns on its detailed procedural history. Jenkins was convicted by a jury of several drug-related offenses for which he was sentenced by the York County Common Pleas Court to a multi-year term of incarceration. He timely filed a notice of appeal, but the Pennsylvania Superior Court affirmed his conviction. Commonwealth v. Jenkins, 928 A.2d 1124 (Pa.Super.Ct.2007). He also timely filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on September 28, 2007. Commonwealth v. Jenkins, 594 Pa. 676, 932 A.2d 1286 (2007). He did not petition for certiorari to the United States Supreme Court.
On October 1, 2008, Jenkins timely filed a petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. § 9541 et seq., which the Common Pleas Court denied.
On December 2, 2009, Jenkins filed a pro se pleading with the Pennsylvania Supreme Court entitled, "Motion to File Petition for Allowance of Appeal Nunc Pro Tunc, and for the Appointment of Counsel." In his pleading, he acknowledged that the deadline to file a petition for allowance of appeal was December 10, 2009. He also admitted that the Superior Court had allowed his attorney to withdraw. Finally, he claimed: (1) "I do not have the legal understanding to adequately file my own petition for allowance of appeal[,]" and (2) "[t]he person helping me with this filing is expecting to be transferred, and there is nobody else I can trust." (App. at 117a).
The Pennsylvania Supreme Court notified the Superior Court that Jenkins had filed a petition for allowance of appeal. However, on December 16, 2009, the Supreme Court issued Jenkins a defective filing notice, which stated that his pleading failed to comply with certain Pennsylvania Rules of Appellate Procedure unrelated to timing. Jenkins promptly perfected his pleading on December 29, 2009. Nonetheless, on April 27, 2010, the Supreme Court
On May 7, 2010, Jenkins filed a pro se habeas petition pursuant to 28 U.S.C. § 2254.
The District Court had jurisdiction over Jenkins's habeas petition pursuant to 28 U.S.C. §§ 2241 and 2254. We have jurisdiction over Jenkins's appeal pursuant to 28 U.S.C. §§ 1291 and 2253. We exercise plenary review over the District Court's refusal to toll AEDPA's limitation period. Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.2003).
AEDPA imposes a one-year limitation period for a state prisoner to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). As applicable here, AEDPA's limitation period runs from "the date on which the judgment became final by... the expiration of the time for seeking [direct] review[.]" § 2244(d)(1)(A). Also as applicable here, the expiration of the time for seeking direct review is the deadline for petitioning for certiorari to the United States Supreme Court. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012).
On direct review, the Pennsylvania Supreme Court denied Jenkins's petition for allowance of appeal on September 28, 2007. Jenkins, 932 A.2d 1286. Because Jenkins had ninety days to petition for certiorari to the United States Supreme Court, his conviction became final on December 27, 2007. Sup.Ct. R. 13.1. Jenkins did not file his habeas petition until well over a year later on May 7, 2010; thus, it is untimely unless AEDPA's limitation period was tolled.
AEDPA's limitation period "does not set forth `an inflexible rule requiring dismissal whenever' its `clock has run.'" Holland v. Florida, ___ U.S. ___, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (quoting Day v. McDonough, 547 U.S. 198, 208, 126 S.Ct. 1675, 164 L.Ed.2d 376
We first analyze whether Jenkins should benefit from statutory tolling. A prisoner's "properly filed" application for state collateral review statutorily tolls AEDPA's limitation period during the time it is "pending." 28 U.S.C. § 2244(d)(2). Here, the following facts are undisputed: (1) Jenkins's October 1, 2008 PCRA petition was properly filed; (2) his PCRA petition was pending from October 1, 2008, the date he filed it, to December 10, 2009, the expiration date for him to file a petition for allowance of appeal;
The answer to this question will determine whether Jenkins's habeas petition was timely. Between the date his conviction became final, December 27, 2007, and the date he filed his PCRA petition, October 1, 2008, 279 days of AEDPA's 365-day limitation period ran. Additionally, between the date the Pennsylvania Supreme Court denied his pleading, April 27, 2010, and the date he filed his habeas petition, May 7, 2010, 10 more days ran. As a result, if his pleading was properly filed, then only those 289 days would have run, and his habeas petition would be timely by 76 days. However, if his pleading was not properly filed, then the additional 138 days between the expiration date for him to file a petition for allowance of appeal, December 10, 2009, and the date the Pennsylvania Supreme Court denied his pleading, April 27, 2010, would be added to the 289 days already accrued. In this scenario, 427 days would have run, and his habeas petition would be untimely by 62 days.
A prisoner's application for state collateral review is "`properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings[,]" Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (emphasis omitted), including "time limits, no matter their form," Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Thus, if a state court determines that an application is untimely, "`that [is] the end of the matter' for purposes of" statutory tolling of AEDPAs limitation period, id. at 414, 125 S.Ct. 1807 (quoting Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002)), "regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was `entangled' with the merits[,]" Carey, 536 U.S. at 226, 122 S.Ct. 2134. But if a state court
At oral argument, Jenkins asserted that the Pennsylvania Supreme Court had not held that his pleading was untimely or otherwise not properly filed. The Commonwealth, in turn, conceded that the Supreme Court may have denied Jenkins's pleading on the merits. We agree that the Supreme Court's order provides no indication about whether it denied Jenkins's pleading as untimely, as otherwise not properly filed, or on the merits. See Jenkins, 2010 Pa. LEXIS 921, at *1 ("[T]he Motion to File Petition for Allowance of Appeal Nunc Pro Tunc and for the Appointment of Counsel is denied.") (formatting omitted). Thus, we "must look to state law governing when a petition for collateral relief is properly filed." Douglas v. Horn, 359 F.3d 257, 262 (3rd Cir. 2004) (quoting Fahy v. Horn, 240 F.3d 239, 243 (3d Cir.2001)).
The Commonwealth acknowledges that Jenkins filed his pleading before the deadline to file a petition for allowance of appeal. Pennsylvania Rule of Appellate Procedure 1113(a) provides that "a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court ... sought to be reviewed." Jenkins filed his pleading on December 2, 2009, only twenty-two days after the Superior Court entered its order on November 10, 2009. Thus, the nunc pro tunc title of his pleading is a misnomer; in reality, Jenkins filed a motion to extend the time to file a petition for allowance of appeal.
The Commonwealth argues, however, that Jenkins's pleading was not properly filed because it was merely a procedural motion to enlarge the time for filing a petition rather than an actual substantive petition. The Commonwealth bases its argument exclusively on Pennsylvania Rule of Appellate Procedure 105(b), which provides that a court "may not enlarge the time for filing ... a petition for allowance of appeal[.]" The District Court agreed with the Commonwealth and, consequently, held that Jenkins's pleading was not properly filed and that AEDPA's limitation period was not statutorily tolled during its pendency.
Although the "[t]ime limitations on the taking of appeals are strictly construed and cannot be extended as a matter of grace[,]" Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa.Super.Ct.2007) (quoting Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.Super.Ct.2002)), Rule 105(b) is not unyielding. First, it "is not intended to affect the power of a court to grant relief in the case of fraud or breakdown in
Significantly, the Pennsylvania Supreme Court frequently grants — without mention of Rule 105(b) — motions to extend the time to file petitions for allowance of appeal,
In sum, we are presented with a situation in which: (1) the Pennsylvania Supreme Court did not hold that Jenkins's pleading was untimely or otherwise not properly filed; (2) the Supreme Court may have denied Jenkins's pleading on the merits; (3) Jenkins's pleading was timely filed; and (4) the Supreme Court has a common practice of granting motions to extend the time to file petitions for allowance of appeal notwithstanding Rule 105(b). In these circumstances, we conclude that Jenkins's pleading was properly filed. Therefore, we hold that Jenkins's pleading did statutorily toll AEDPA's limitation period and that his habeas petition was timely.
Although we base our decision that Jenkins's habeas petition was timely on statutory tolling, we also note that this appeal presents a compelling case for the application of equitable tolling.
A prisoner "is `entitled to equitable tolling' only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 130 S.Ct. at 2562 (quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807). Here, the Commonwealth does not suggest that Jenkins has not been pursuing his rights diligently. Such a contention would be untenable. Jenkins timely filed his: (1) notice of direct appeal; (2) petition for allowance of direct appeal; (3) PCRA petition; (4) PCRA notice of appeal; and (5) pleading. Jenkins also perfected his pleading within thirteen days of the Pennsylvania Supreme Court's issuance of its defective filing notice,
The Commonwealth argues, however, that Jenkins has not shown that he "has in some extraordinary way been prevented from asserting his ... rights." Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005) (quoting Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.2003)). One potentially extraordinary circumstance is where a prisoner is "effectively abandoned" by his attorney. Holland, 130 S.Ct. at 2564 (quoting Nara, 264 F.3d at 320).
Jenkins first claims that his attorney abandoned him. However, Jenkins's attorney withdrew pursuant to the judicially sanctioned Turner/Finley process, which, among other requirements, mandates that an attorney serve a client with the "application to withdraw[,] ... the `no-merit' letter[,] and a statement advising the petitioner that, in the event that the court grants the application of counsel to withdraw, he ... has the right to proceed pro se or with the assistance of privately retained counsel."
Jenkins next contends that the Pennsylvania Supreme Court's defective filing notice misled him into believing that his pleading was holding a place for him on its allocatur docket. We resolved a similar claim in Munchinski, 694 F.3d 308. There, the Common Pleas Court erroneously dismissed the prisoner's second PCRA petition for lack of jurisdiction because his first habeas appeal was pending before us. Id. at 319. The Common Pleas Court thereby implicitly suggested that the prisoner could later reassert his claims in a third PCRA petition. Id. at 319-20. The prisoner relied on this advice, id., but on the appeal of his third PCRA petition, the Superior Court concluded that the allegations that he had previously raised had become untimely, id. at 328. Under these facts, we held that the Common Pleas Court's implicit suggestion "was sufficiently misleading as to constitute an extraordinary circumstance because `it later operate[d] to prevent [the prisoner] from pursuing his rights.'" Id. at 330 (quoting Urcinoli, 546 F.3d at 275).
If Jenkins were not already entitled to statutory tolling of AEDPA's limitation period, the same analysis would appear to apply here. The Pennsylvania Supreme Court's defective filing notice informed Jenkins that his pleading failed to comply with certain Pennsylvania Rules of Appellate Procedure. Importantly, the notice did not indicate that Jenkins's pleading was untimely. In other words, by explicitly directing Jenkins to cure certain filing defects, the notice implied that his pleading otherwise satisfied the Rules not referenced therein, including Rule 105(b). Relying on the notice, Jenkins promptly perfected his pleading and reasonably waited for the Supreme Court's decision.
For the reasons stated above, we hold that Jenkins is entitled to statutory tolling of AEDPA's limitation period. Therefore, we will reverse the District Court's order dismissing Jenkins's habeas petition as untimely and remand the case to the District Court for further proceedings.
Additionally, in 2012 alone, the Pennsylvania Supreme Court published orders without explanation granting petitions for leave to file petitions for allowance of appeal nunc pro tunc in the following criminal cases: Commonwealth v. Holloway, 54 A.3d 11 (Pa.2012); Commonwealth v. Medina, 52 A.3d 1212 (Pa. 2012); Commonwealth v. Anderson, 52 A.3d 219 (Pa.2012); Commonwealth v. Lynch, 51 A.3d 179 (Pa.2012); Commonwealth v. Sulcaj, 47 A.3d 1179 (Pa.2012); Commonwealth v. Brown, 47 A.3d 1178 (Pa.2012); Commonwealth v. Person, 44 A.3d 653 (Pa.2012); Commonwealth v. Orr, 44 A.3d 652 (Pa.2012); Commonwealth v. Swanson, 43 A.3d 1288 (Pa. 2012); Commonwealth v. Kabbah, 43 A.3d 1286 (Pa.2012); Commonwealth v. Saunders, 41 A.3d 1285 (Pa.2012); Commonwealth v. Clark, 40 A.3d 1232 (Pa.2012); Commonwealth v. Sanders, 37 A.3d 587 (Pa.2012); Commonwealth v. Taylor, 37 A.3d 587 (Pa. 2012); Commonwealth v. Harris, 36 A.3d 1097 (Pa.2012).
Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa.Super.Ct.2011) (quoting Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875, 876 n. 1 (2009)).