2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2004

Schlueter v. Varner

Precedential or Non-Precedential: Precedential

Docket No. 03-3928

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-3928

 

PAUL GEORGE SCHLUETER, III,

Appellant

v.

BENJAMIN VARNER; DISTRICT

ATTORNEY NORTHAMPTON

COUNTY;

ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

 

On Appeal From the United States

District Court

For the Eastern District of Pennsylvania

(D.C. Civil No. 00-cv-05179)

District Judge: 

Honorable Anita B. Brody

 

Argued June 25, 2004

Before: AMBRO, BECKER, and

GREENBERG, Circuit Judges.

(Filed: September 14, 2004)

 

Michael M. Mustokoff

Stephen A. Mallozzi (argued)

Cindy D. Hinkle

Duane Morris LLP

1650 Market Street

One Liberty Place, 37th Floor

Philadelphia, PA 19103-7396

 Attorneys for Appellant

John M. Morganelli (argued)

District Attorney

Northampton County Government

Center

669 Washington Street

Easton, PA 18042

 Attorney for Appellees

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

Paul George Schlueter, III, is a

Pennsylvania inmate serving a sentence

of life in prison for first degree murder. 

He appeals from an order of the district

court entered September 3, 2003,

dismissing his petition for a writ of

habeas corpus on the ground that the

applicable one-year period of limitation

barred the petition. For the reasons that

follow, we will affirm the district court’s

order.

I. BACKGROUND

In 1985, Schlueter was arrested

and charged in Northampton County,

Pennsylvania, with the criminal

homicide of Carol Ann Bonney. The
2

Northampton County Public defender’s

office assigned part-time public

defenders George Blasco and Lorenzo

Crowe to represent Schlueter and the

district attorney assigned James

Narlesky, a part-time assistant district

attorney to prosecute the case. Relying

on his attorneys’ advice, Schlueter

entered a plea of nolo contendere to a

charge of open degree homicide.1 The

trial court subsequently conducted a

hearing to determine Schlueter’s degree

of guilt at which Schlueter presented a

diminished capacity defense based on his

level of intoxication and drug use on the

night of the homicide. The trial court

found Schlueter guilty of murder in the

first degree and sentenced him to life in

prison on May 5, 1987.

Following his conviction,

Schlueter met with his attorneys to

discuss whether to pursue a direct

appeal. Blasco and Crowe advised

Schlueter that he would be eligible for

parole in approximately 20 years2 and

that there were no appealable issues that

could reduce his degree of guilt. 

Accordingly, Schlueter decided to forego

a direct appeal. Blasco died about one

year later on May 26, 1988. Schlueter

contends that his attorneys’ parole advice

was erroneous as he never will be

eligible for parole. Apparently in part

because of having found out his actual

parole situation, on August 16, 1988,

Schlueter contacted Crowe requesting

information for the purpose of pursuing

state post-conviction review. Crowe,

however, did not respond to Schlueter’s

1Schlueter earlier had pleaded

nolo contendere when represented by

different attorneys from the public

defender’s office but with the court’s

permission had withdrawn that plea. 

Consequently, we are concerned with

events following his second nolo

contendere plea.

2Schlueter correctly acknowledges

that the record contains conflicting

information regarding the parole advice

he received. Appellant’s br. at 12 n.11. 

In a letter to Crowe dated August 16,

1988, Schlueter stated that he was

advised that he would be eligible for

parole in 20 years. Crowe, however,

stated in an affidavit in 1998 that Blasco

informed Schlueter that he would be

eligible for parole in 15 years. On the

other hand, Schlueter stated in an

affidavit in 1998 that Blasco informed

him that he would be eligible for parole

after 14 years. In denying Schlueter’s

petition for post-conviction relief, the

trial court found as a fact that Schlueter

was advised that he would be eligible for

parole after serving 20 years. See

Commonwealth v. Schlueter, No. 0201-

1986 at 2 (Northampton County, Pa. Ct.

Com. Pl., Crim. Div., Dec. 30, 1998,

app. at 415). Schlueter indicates in his

brief on this appeal that “[f]or purposes

of these habeas proceedings, the term of

eligibility is irrelevant since [he] was and

is never eligible for parole.” Appellant’s

br. at 12.
3

request.

Meanwhile, in March 1988, the

victim’s family initiated a wrongful

death action against Schlueter, who

initially represented himself in the civil

proceedings. Based on Schlueter’s

criminal conviction, the trial court

entered a directed verdict against him. 

In June 1994 Schlueter’s parents retained

attorney Philip Lauer of Easton,

Northampton County, to represent their

son in his civil appeal from the judgment

against him and to explore possible

challenges to his conviction under

Pennsylvania’s Post Conviction Relief

Act (“PCRA”). Lauer advised Schlueter

to postpone pursuing PCRA remedies

until the conclusion of the civil

proceedings. The Superior Court

affirmed the judgment against Schlueter

on his civil appeal and his civil appellate

proceedings were terminated

unsuccessfully when the Pennsylvania

Supreme Court denied his petition for

allowance of appeal on November 28,

1994.

Two years later, prior to Schlueter

filing a PCRA petition, he and his

parents learned that the Pennsylvania

legislature had amended the PCRA to

prescribe a filing deadline of January 16,

1997, in older cases such as Schlueter’s.3

By letter dated November 10, 1996,

Schlueter informed Lauer of the deadline

and asked him to file a timely PCRA

petition. Lauer replied by letter dated

December 2, 1996, that he was “well

aware” of the deadline and would file a

petition “before year’s end.” App. at

783. By letter dated December 13, 1996,

Lauer also informed Schlueter’s parents

that he was anticipating filing a PCRA

petition “prior to the end of this year.” 

App. at 790. Nevertheless, Lauer did not

file a PCRA petition and did not

communicate further with Schlueter or

his parents. On March 18, 1997, the

Clerk of the Northampton County Court

of Common Pleas advised Schlueter in

response to his inquiry that no one had

filed a PCRA petition on his behalf.

On May 27, 1997, the Schlueters

retained his current attorneys’ law firm

to explore the possibility of filing a

PCRA petition. After repeated attempts,

the new attorneys retrieved Schlueter’s

files from Lauer on October 2, 1997. 

Upon reviewing the files, they

discovered that they did not include

certain files from the Public Defender’s

Office. At Schlueter’s new attorneys’

request, the Public Defender’s Office

located Schlueter’s files and arranged for

them to review the files and to interview

Crowe on December 9, 1997. During

the interview with Crowe, they learned

that George Blasco and Assistant District

3See Commonwealth v. Fenati,

748 A.2d 205, 207 (Pa. 2000) (holding

that PCRA petition filed on January 16,

1997, was timely filed within one year of

the PCRA amendments effective January

16, 1996).
4

Attorney Narlesky had been “civil law

partners” in Easton prior to Blasco’s

death.4

Relying on this information, his

attorneys filed a PCRA petition on

Schlueter’s behalf on February 2, 1998,

alleging a conflict of interest arising

from the Blasco/Narlesky civil law

practice. Recognizing the apparent

untimeliness of their PCRA petition,

they attempted to invoke a statutory

exception to the PCRA’s period of

limitation by arguing that the facts of the

Blasco/Narlesky arrangement had been

unknown and could not have been

ascertained through the exercise of due

diligence.5 They subsequently reviewed

court records and filings and learned that

Blasco and Narlesky practiced and

shared fees in civil cases, together

owned and shared their office space, and

shared operating expenses and

personnel.

On June 22, 1998, more than 11

years after he was convicted and while

his PCRA petition was pending,

Schlueter filed a motion seeking

restoration of his appellate rights nunc

pro tunc, arguing that the court should

restore his right to a direct appeal due to

his trial attorneys’ erroneous parole

advice. After conducting a hearing, the

PCRA court dismissed the PCRA

petition as untimely and, in the same

opinion, denied Schlueter’s motion to

restore his right to appeal nunc pro tunc

because Schlueter had “knowingly and

voluntarily waived his appellate rights.” 

App. at 436. On appeal, the

Pennsylvania Superior Court affirmed

the dismissal of Schlueter’s PCRA

petition as untimely without mentioning

his motion to restore his right to file a

direct appeal from his conviction nunc

pro tunc.

6

 The Pennsylvania Supreme

Court denied Schlueter’s petition for

allowance of appeal without explanation

on August 28, 2000.

Through his attorneys, Schlueter

filed a federal habeas corpus petition in

the district court on October 12, 2000.7

4The respondents deny that Blasco

and Narlesky were partners and state

they merely were part of an office

sharing arrangement. For purposes of

this appeal we will assume that they

were partners.

5See 42 Pa. Cons. Stat. Ann.

§ 9545(b)(1)(ii) (West 1998).

6Of course, the judgment of

affirmance upheld the denial of the

motion to appeal nunc pro tunc. 

7

In his federal habeas corpus

petition, Schlueter articulated the

following claims for relief: (1) his plea

was involuntary and unintelligent due to

an actual conflict of interest between

Blasco and Narlesky; (2) his trial

attorneys’ erroneous parole advice

denied him the right to file a direct

appeal; (3) his trial attorneys rendered

ineffective assistance due to the conflict

of interest between Blasco and Narlesky;
5

The respondents moved to dismiss the

habeas petition as barred by the

applicable one-year period of limitation. 

The case was referred to the chief

magistrate judge who rejected

Schlueter’s arguments for equitable and

statutory tolling, and recommended

dismissing the habeas petition as

untimely. After hearing oral argument,

the district court adopted the chief

magistrate judge’s report and

recommendation and dismissed

Schlueter’s habeas petition as untimely. 

The court, however, granted a certificate

of appealability on the issue of equitable

tolling. The district court subsequently

“amplified” the certificate of

appealability to include the statutory

tolling issues as well.

Schlueter has filed a timely

appeal.

II. DISCUSSION

A. Jurisdiction and Standard of

Review

The district court had jurisdiction

pursuant to 28 U.S.C. §§ 2241 and 2254

and our jurisdiction is based on 28

U.S.C. §§ 1291 and 2253. We exercise

plenary review over the district court’s

order dismissing Schlueter’s habeas

petition as time barred. See Douglas v.

Horn, 359 F.3d 257, 259 (3d Cir. 2004).

B. One-Year Period of Limitation

In the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”)

Congress prescribed a one-year period of

limitation for the filing of federal habeas

corpus petitions by state prisoners. See

Douglas, 359 F.3d at 261. Effective

April 24, 1996, the AEDPA provides in

relevant part:

A 1-year period of

limitation shall apply to an

application for a writ of

habeas corpus by a person

in custody pursuant to the

judgment of a State court. 

The limitation period shall

run from the latest of— 

(A) the date on which the

judgment became final by

the conclusion of direct

review or the expiration of

the time for seeking such

review; [or] 

. . . .

(D) the date on which the

factual predicate of the

claim or claims presented

could have been

discovered through the

and (4) the Pennsylvania courts denied

his right to due process by refusing to

allow him to present evidence supporting

the merits of his conflict of interest

claim.
6

exercise of due diligence.

28 U.S.C. § 2244(d)(1).8

We first determine the date on

which the one-year period began

running. Ordinarily under

section 2244(d)(1)(A), Schlueter’s oneyear period of limitation would have

begun running on April 24, 1996,

because his conviction became final well

before the effective date of the AEDPA. 

See Burns v. Morton, 134 F.3d 109, 111

(3d Cir. 1998) (allowing a one-year

grace period to petitioners whose

convictions became final prior to the

enactment of the AEDPA). Schlueter

asserts, however, that the one-year

period began running under

section 2244(d)(1)(D) on December 9,

1997, the date on which his current

attorneys discovered the Blasco/Narlesky

arrangement. Appellant’s br. at 51-53.

By its language, the one-year

period of limitation commences under

section 2244(d)(1)(D) when the factual

predicate of a claim could have been

discovered through the exercise of due

diligence, not when it actually was

discovered. See Owens v. Boyd, 235

F.3d 356, 359 (7th Cir. 2000). Due

diligence does not require “the maximum

feasible diligence,” but it does require

reasonable diligence in the

circumstances. Moore v. Knight, 368

F.3d 936, 940 (7th Cir. 2004) (quoting

Wims v. United States, 225 F.3d 186,

190 n.4 (2d Cir. 2000)). Section

2244(d)(1)(D) provides a petitioner with

a later accrual date than

section 2244(d)(1)(A) only “if vital facts

could not have been known.” Owens,

235 F.3d at 359.

We are convinced that if

Schlueter had exercised due diligence,

he could have discovered the

Blasco/Narlesky arrangement long

before the AEDPA became effective. 

Lauer testified at the PCRA hearing that

it was common knowledge in the legal

community in Northampton County that

Blasco and Narlesky shared office space. 

Lauer also testified that he personally

was aware of the arrangement when he

represented Schlueter in 1994. Indeed,

in our view, it is inconceivable that

Blasco and Narlesky could have hidden

their arrangement from the relatively

small legal community or the public in

Northampton County.9

8The omitted subsections are not

germane in this case.

9We are not suggesting that they

attempted to hide their arrangement or

believed that they had any reason to do

so during the time of their association. 

Nevertheless, it must be acknowledged

that not every attorney in Northampton

County was aware of the depth and

circumstances of the Blasco/Narlesky

arrangement as Crowe indicated to

Schlueter’s current attorneys that he was

not.
7

Moreover, Schlueter’s current

attorneys learned of the arrangement

simply by interviewing Crowe who, with

Blasco, represented Schlueter in the

criminal proceedings. Certainly, if he

had exercised due diligence, Schlueter

would have had Crowe interviewed

many years before December 9, 1997, as

it is apparent in view of his incarceration

that Schlueter had every incentive to

have Crowe, his surviving trial attorney,

interviewed. After all, as early as

August 16, 1988, he had written Crowe

requesting information for the purpose

of pursuing state post-conviction review. 

We also point out that the factual basis

for the claim of impropriety based on the

Blasco/Narlesky arrangement was hardly

obscure for, after interviewing Crowe

and discovering the Blasco/Narlesky

arrangement, Schlueter’s current

attorneys learned the details of the

arrangement merely by reviewing court

records and filings, all of which were

matters of public record. Appellant’s br.

at 24.

We realize that Lauer advised

Schlueter to postpone pursuing PCRA

review until the civil proceedings were

concluded. But by the time that his

parents retained Lauer almost six years

had elapsed since the time that Schlueter

first contemplated bringing postconviction review proceedings. Clearly,

in allowing this time to pass Schlueter

was not diligent. Moreover, Lauer’s

advice, at most, could have delayed

Schlueter for only about five months

from Lauer’s retention in June 1994 until

November 28, 1994, when the

Pennsylvania Supreme Court refused to

allow him to appeal. 

Overall, we are satisfied that

through the exercise of due diligence,

Schlueter could have learned the factual

predicate of his conflict of interest claim

well before April 24, 1996. Therefore,

the one-year period of limitation began

running under section 2244(d)(1)(A) on

April 24, 1996. Inasmuch as Schlueter

filed his federal habeas corpus petition

four and one-half years later on October

12, 2000, in the absence of tolling of the

one-year period of limitation, his habeas

corpus petition was untimely.

In reaching our result, we

recognize that Schlueter is and has been

incarcerated for many years and that

physical confinement can limit a

litigant’s ability to exercise due

diligence. See Moore v. Knight, 368

F.3d at 940. We observe from the record

and references in Schlueter’s brief,

however, that Schlueter’s parents have

been involved actively in their son’s case

for several years. Thus, Schlueter,

unlike many other incarcerated litigants,

has enjoyed the benefit of his family’s

assistance, involvement and resources. 

We also point out that Schlueter’s

parents must be well educated as they

both are referred to as “Doctor” in the

record in this case. Therefore,

Schlueter’s incarceration does not

change our view that if he had exercised

due diligence he would have discovered

the facts supporting his PCRA claims
8

before April 24, 1996. 

C. Tolling of the One-Year Period of

Limitation

The AEDPA’s one-year period of

limitation is not an absolute limit. 

See Douglas, 359 F.3d at 261. Rather, it

is subject to two possible tolling

exceptions both of which Schlueter

advances: (1) statutory tolling under 28

U.S.C. § 2244(d)(2) while a properly

filed application for post-conviction

review is pending in the state courts; and

(2) equitable tolling. See Merritt v.

Blaine, 326 F.3d 157, 161 (3d Cir.

2003). We examine first the period of

time from April 24, 1996, the date on

which the one-year period began to run,

through December 9, 1997, the date on

which Schlueter’s current attorneys

discovered the Blasco/Narlesky

arrangement, to determine whether there

should be equitable tolling during any

portion of this period.10

The one-year 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.” Jones v.

Morton, 195 F.3d 153, 159 (3d Cir.

1999). Equitable tolling is appropriate:

only when the principles of

equity would make the

rigid application of a

limitation period unfair. 

Generally, this will occur

when the petitioner has in

some extraordinary way

been prevented from

asserting his or her rights. 

The petitioner must show

that he or she exercised

reasonable diligence in

investigating and bringing

the claims.

Miller v. New Jersey State Dep’t of

Corr., 145 F.3d 616, 618-19 (3d Cir.

1998) (internal citations and alterations

omitted).

Schlueter bases his equitable

tolling argument on what he

characterizes as attorney malfeasance. 

Specifically, he argues that the delay in

filing his PCRA petition (and by

extension his federal habeas corpus

petition) was due to Lauer’s misconduct

in affirmatively misrepresenting that he

would file a timely PCRA petition on

Schlueter’s behalf. In this regard we

point out that if Lauer had filed the

PCRA petition by the state deadline of

January 16, 1997, there would have been

10It is undisputed that the period

of time from April 24, 1996, through

February 2, 1998, cannot be tolled

statutorily under section 2244(d)(2) as

Schlueter did not file any application of

any kind in the state courts from April

24, 1996, until February 2, 1998, and he

had not filed any application earlier that

was pending during that period. In

addition, Schlueter concedes that the

one-year period was running from

December 9, 1997, until February 2,

1998. Appellant’s br. at 62.
9

a period of tolling under section

2244(d)(2). In addition, Schlueter

contends that Blasco and Narleskys’

alleged misconduct in not disclosing

their arrangement compounded the

unfair effect of Lauer’s failure to file a

PCRA petition after representing that he

would do so. 

Generally, in a non-capital case

such as Schlueter’s, attorney error is not

a sufficient basis for equitable tolling of

the AEDPA’s one-year period of

limitation. See Johnson v. Hendricks,

314 F.3d 159, 163 (3d Cir. 2002). 

Nevertheless, we have held, albeit

outside the habeas context, that there are

“narrow circumstances in which the

misbehavior of an attorney may merit”

equitable tolling. Seitzinger v. Reading

Hosp. & Med. Ctr., 165 F.3d 236, 239

(3d Cir. 1999). Seitzinger involved a

Title VII plaintiff who asked her attorney

prior to the expiration of an applicable

90-day period of limitations if he had

filed a complaint on her behalf. Id. at

238. The attorney falsely stated that he

had done so whereas, in fact, he did not

file a complaint until one day after the

limitations period expired. Id. We held

that the attorney’s affirmative

misrepresentation to his client, coupled

with the plaintiff’s extreme diligence in

pursuing her claim and the absence of

prejudice to the defendant, “created a

situation appropriate for tolling.” Id. at

242.

We find that the material facts of

Seitzinger are distinguishable from those

presented here. In Seitzinger, counsel

misrepresented to his client that he

already had filed a timely complaint and

by the time the client discovered that her

attorney had not done so the period of

limitations had expired. Here, in

December 1996, Lauer informed

Schlueter and his parents that he

anticipated filing a PCRA petition before

the end of the year. When the year

ended, Schlueter could have learned, as

he did later, that Lauer had not filed a

PCRA petition. If he had done so he still

would have had a small window of time

in which to file a pro se petition and save

his PCRA claims from dismissal as

untimely. Thus, his situation differs

sharply from that of the Seitzinger

plaintiff who was misled by what the

attorney said he had done, not by what

he said he would do.

Moreover, it is apparent that

Schlueter was fully aware of his PCRA

rights in 1994 when he retained Lauer.11

Schlueter knew that Lauer had done

little, if anything, to pursue PCRA relief

for more than two years. 

Notwithstanding this knowledge, neither

Schlueter nor his parents took

11The record reflects that

Schlueter actually knew of his right to

pursue state post-conviction review as

early as August 16, 1988, when he wrote

to Crowe requesting information for that

purpose. Crowe declined to respond

because he no longer represented

Schlueter. Schlueter apparently took no

further steps to challenge his conviction

until he retained Lauer in 1994.
10

affirmative steps to ensure the timely

filing of a PCRA petition until Schlueter

wrote his November 10, 1996 letter to

Lauer advising him of the PCRA

deadline and asking him to file a timely

petition. Then after the end of 1996

Schlueter did not attempt to ascertain

from Lauer prior to the January 16, 1997

deadline of which he was well aware

whether Lauer, in fact, had filed a PCRA

petition. We also find it significant that

the period of limitations at issue in

Seitzinger was a brief 90 days and that

the attorney filed the complaint only one

day late. Thus, the attorney’s

misconduct warranted equitably tolling

one day of a short period of limitations. 

Here, the AEDPA’s limitation period is

one year, and did not begin to run until

April 24, 1996, nearly nine years after

Schlueter’s conviction became final in

1987. Schlueter did not initiate state

post-conviction proceedings until 1998

and did not pursue federal habeas corpus

relief until 2000 even though he had

been convicted in 1987. The

circumstances in Schlueter’s case simply

do not warrant the application of

equitable tolling after such lengthy

periods of time had elapsed following

his conviction before he sought state and

federal relief.12

Schlueter also relies on Spitsyn v.

Moore, 345 F.3d 796 (9th Cir. 2003), and

Baldayaque v. United States, 338 F.3d

145 (2d Cir. 2003), for the proposition

that attorney malfeasance constitutes an

extraordinary circumstance sufficient to

warrant equitable tolling of the one-year

period of limitation. As these cases

amply demonstrate, however, a finding

that attorney malfeasance is an

extraordinary circumstance, without

more, is not sufficient to warrant

equitable tolling. Spitsyn holds that

egregious attorney misconduct may

justify equitable tolling, but also requires

district courts to examine the petitioner’s

due diligence in pursuing the matter

under the specific circumstances he

faced. Spitsyn, 345 F.3d at 802. 

Likewise, Baldayaque holds that “an

attorney’s conduct, if it is sufficiently

egregious, may constitute the sort of

‘extraordinary circumstances’ that would

justify the application of equitable

tolling.” Baldayaque, 338 F.3d at 152-

53. Baldayaque, however, expressly

states that the presence of extraordinary

circumstances “is not enough” – a

petitioner “must also show that he acted

with reasonable diligence, and that the

extraordinary circumstances caused his

petition to be untimely.” Id. at 153

(citation omitted). In other words,

neither Spitsyn nor Baldayaque holds

that attorney malfeasance, standing

alone, warrants equitable tolling.13

12Inasmuch as we are not allowing

any period of equitable tolling we have

no need to engage in an intricate

counting process computing the

hypothetical possible tolling period.

13We acknowledge Schlueter’s

reliance on Boyd v. Myers, Civ. A. No.

97-7160, 1998 U.S. Dist. LEXIS 20253
11

For these reasons, we conclude

that the circumstances presented in

Schlueter’s case do not warrant equitable

tolling. We are convinced that if

Schlueter had exercised reasonable

diligence, he could have brought his

claims in a timely fashion, Lauer’s

alleged misconduct notwithstanding.14

Accordingly, we cannot equitably toll

the period of time from April 24, 1996,

until December 9, 1997, or during any

portion thereof. We conclude, therefore,

that the AEDPA’s one-year period of

limitation expired before Schlueter filed

his PCRA petition, his motion to

reinstate his direct appeal nunc pro tunc,

or his federal habeas corpus petition.15

In view of our disposition we

address only briefly Schlueter’s

arguments for equitable or statutory

tolling while either his PCRA petition or

his motion to reinstate his direct appeal

nunc pro tunc was pending in the state

courts. We do note that Merritt v.

Blaine, 326 F.3d at 161-65, forecloses

Schlueter’s argument for statutory tolling

during the time his untimely PCRA

petition was pending as it holds that a

federal habeas court for purposes of

(E.D. Pa. Dec. 21, 1998), in which the

district court applied equitable tolling

where the petitioner’s attorney promised

to file a timely federal habeas petition,

but filed it five months late. Quite aside

from the circumstance that Boyd is not

precedential, we find the case unhelpful

to our current analysis as the district

court issued the opinion in 1998 before

we had provided much guidance on the

subject of equitable tolling in the habeas

context. Consequently, the equitable

tolling standard utilized in Boyd

arguably does not comport with our

more recent pronouncements requiring a

habeas petitioner to demonstrate that he

was “prevented in an extraordinary way

from asserting his rights.” Johnson, 314

F.3d at 163.

14Our opinion should not be

misread to condone or excuse Lauer’s

conduct. To the contrary we

acknowledge that arguably Lauer’s

conduct was unacceptable and fell below

professional standards. On the other

hand, fairness to Lauer requires that we

point out that he could not find what he

regarded was a basis for a PCRA claim.

15We disagree with the dissent’s

position that we should remand to the

district court to consider whether

Schlueter exercised reasonable diligence. 

Dissenting opinion at 7. The magistrate

judge concluded that “the delay in

learning of an office sharing relationship

between the prosecutor and defense

counsel did not demonstrate the exercise

of due diligence.” App. at 15 n.1. The

issue of Schlueter’s diligence also was

raised at oral argument before the district

judge. The district judge subsequently

approved and adopted the magistrate

judge’s report and recommendation. 

Because the district court already has

ruled that Schlueter did not exercise

reasonable diligence, a remand would be

pointless.
12

section 2244(d)(2) defers to a state

court’s ruling dismissing a PCRA

petition as untimely.16 Accordingly it is

clear that his untimely state PCRA claim

cannot possibly help him. 

We also reject his claim that

somehow filing his motion to restore his

appellate rights on June 22, 1998, more

than one year after the AEDPA period of

limitations had run, should lead to

statutory tolling on the basis that the

motion was a “properly filed”

application for post-conviction review

under section 2244(d)(2). While he

predicates this argument on the theory

that his motion was denied “on the

merits,” appellant’s br. at 46, inasmuch

as the state court pointed out that

Schlueter had “knowingly and

voluntarily waived his appellate rights,”

it is clear that the appeal was not

permitted because it would have been

untimely and there was no basis to

circumvent the time bar and not because

Schlueter could not have demonstrated

that there had been a reversible error in

the trial proceedings so that an appeal

would have been futile. We decline to

adopt a construction of the AEDPA that

permits a petition for habeas corpus to be

deemed timely on the basis of section

2244(d)(2) providing for tolling for

“properly filed application[s] for state

post-conviction . . . review” merely

because the petitioner unsuccessfully has

sought the right to appeal nunc pro tunc

years after his unexercised right to file a

timely direct appeal has expired. See

Douglas, 359 F.3d at 261-63. 

Finally we recognize that the

dissent contends that there is a strong

argument for equitable tolling predicated

on various Pennsylvania state appellate

decisions based on Schlueter’s filing of

the PCRA petition and his motion to

reinstate his direct appeal nunc pro tunc. 

Dissenting opinion at 3-4 n.2. This point

is critical in the dissent’s analysis as it

points out that equitable tolling during

the period from April 24, 1996, until

December 9, 1997, “saves Schlueter’s

claim only if we also toll pending

resolution of the state-court

proceedings.” Id. We need not discuss

these state decisions as he pursued both

forms of relief after the AEDPA period

of limitations already had run.

III. CONCLUSION

For the foregoing reasons, we

16Schlueter contends that we

“wrongly decided” Merritt v. Blaine,

appellant’s br. at 54, but this panel

cannot entertain that argument. We also

note that even if we held that the oneyear period of limitation began running

under section 2244(d)(1)(D) on

December 9, 1997, in view of Merritt v.

Blaine there would not have been

statutory tolling of the one-year period of

limitation governing Schlueter’s federal

habeas corpus action while his PCRA

petition was pending. Thus, inasmuch as

he commenced his federal action on

October 12, 2000, it would have been

untimely. 
13

conclude that the district court properly

dismissed Schlueter’s habeas corpus

petition as time barred by the one-year

period of limitation. Accordingly, we

will affirm the district court’s order

entered September 3, 2003.

Schlueter v. Varner, et al

No. 03-3928

 

Ambro, Circuit Judge, Dissenting

It is an underlying assumption of

our legal system that attorneys actively

pursue the best interests of their clients. 

All too often, attorneys make mistakes. 

The sad reality is that there are not

enough willing defense attorneys to

represent competently the interests of the

many criminal defendants who cycle

through the courts. And thus,

necessarily, we afford substantial leeway

to attorneys when it comes to “mere

‘attorney error.’” Roe v. Flores-Ortega,

528 U.S. 470, 482 (2000).

But the distinction between

mistake and malfeasance is profound. 

There can be little semblance of justice

when an attorney assigned to protect a

defendant ignores a blatant conflict of

interest, and another counsel does

nothing while promising more than once

to protect the defendant’s rights. If the

facts are as Paul Schlueter has portrayed

them, his trial counsel (George Blasco)

disregarded his civil law partnership

with the prosecutor (James Narlesky),

and his appellate counsel (Philip Lauer)

affirmatively misrepresented that he

would timely file a petition for relief in

order to forestall the inevitable

accounting for his long-promised and
14

paid-for legal services.17 Irony becomes

Kafkaesque when the latter act of

malfeasance shelters from review the

former act of malfeasance.

I cannot in good conscience bury

Schlueter’s case before it sees the light

of day. AEDPA confers on federal

courts the authority equitably to toll its

limitations period in the interest of

justice. If any case is ripe for exercise of

that power, this one is. Accordingly, I

respectfully dissent.

* * * * * 

As the majority explained,

Schlueter’s habeas petition would

ordinarily have been due on April 23,

1997. See Douglas v. Horn, 359 F.3d

257, 261 (3d Cir. 2004). He did not file

his petition, however, until October 12,

2000. Thus the petition was timely only

if the limitations period was tolled.

The AEDPA filing deadline is

subject to equitable tolling “when the

principles of equity would make the rigid

application of a limitation period unfair.” 

Miller v. N.J. State Dep’t of Corr., 145

F.3d 616, 618 (3d Cir. 1998) (internal

quotation omitted). While this principle

on its face is broad, it is to be applied

sparingly. Equitable tolling is

appropriate when “the petitioner has in

some extraordinary way been prevented

from asserting his or her rights. The

petitioner must show that he or she

exercised reasonable diligence in

investigating and bringing the claims.” 

Id. at 618–19 (internal quotations

omitted); see also Jones v. Morton, 195

F.3d 153, 159 (3d Cir. 1999). 

We have concluded, as a general

matter, that attorney error is not so

“extraordinary” as to justify equitable

tolling. See, e.g., Johnson v. Hendricks,

314 F.3d 159, 163 (3d Cir. 2002). This

rule makes sense, as attorney error is

normally attributed to the client. See,

e.g., United States v. Boyle, 469 U.S.

241, 250 (1985). But it does not follow

that tolling based on deception of the

kind alleged by Schlueter in this case is

also foreclosed. 

Schlueter and his parents wrote to

and called Lauer on many occasions over

a period of several months. He falsely

assured them that he was preparing a

PCRA petition and would timely file. 

But he made no such preparations. 

After allowing the deadline to pass, he

17At the very least, I would

remand for a determination by the

District Court whether Lauer, reputed to

be well qualified, did in fact

affirmatively mislead his client. See, e.g.,

United States v. Wynn, 292 F.3d 226,

230 (5th Cir. 2002) (remanding for

hearing to determine whether defendant

was obligated to undertake further

inquiry upon receipt of a letter from the

court stating that no petition under the

Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”) had been filed,

when attorney allegedly told the

defendant’s father that no record of his

filing existed because the petition was

filed directly with the judge). 
15

ceased all communication with the

Schlueters. He did not return their many

phone calls or letters, nor did he timely

return Schlueter’s files despite repeated

requests from Schlueter and his new

counsel. Lauer’s intentional

abandonment of Schlueter’s case cannot

plausibly be labeled “error.” His

behavior, I believe, was sufficiently

egregious to bring it “within the narrow

line of cases in which lawyer misconduct

justifies equitable tolling.” Seitzinger v.

Reading Hosp. & Med. Ctr., 165 F.3d

236, 238 (3d Cir. 1999). 

The law of agency provides a

useful framework for understanding the

distinction between error and

misconduct. See Baldayaque v. United

States, 338 F.3d 145, 154 (2d Cir. 2003)

(Jacobs, J., concurring). Ordinarily,

“[a]ttorney ignorance or inadvertence”

does not excuse a petitioner’s noncompliance with AEDPA, because “the

attorney is the petitioner’s agent when

acting, or failing to act, in furtherance of

the litigation.” Coleman v. Thompson,

501 U.S. 722, 753 (1991) (rejecting

attorney error as “cause” for

procedurally defaulted habeas claims);

see also McCarthy v. Recordex Serv.,

Inc., 80 F.3d 842, 853 (3d Cir. 1996) (“It

is, of course, beyond cavil that the

attorney-client relationship is an

agent-principal relationship.”). We

assume, for better or worse, that a lawyer

is acting as the petitioner’s agent, and the

petitioner therefore “bear[s] the risk of

attorney error.” Coleman, 501 U.S. at

752–53; cf. Link v. Wabash R.R. Co.,

370 U.S. 626, 634 (1962) (“[E]ach party

is deemed bound by the acts of his

lawyer-agent . . . .”).

But it is a fundamental principle

of agency law that the knowledge of an

agent is not attributed to the principal

when the agent is acting in a manner

adverse to the interests of the principal. 

Restatement (Third) of Agency § 5.04

(Tentative Draft No. 4 2003) (“Notice is

not imputed to the principal of a fact that

an agent knows or has reason to know if

the agent acts adversely to the principal

in a transaction or matter for the agent’s

own purposes . . . .”). Mere attorney

error does not constitute an

“extraordinary circumstance” because a

circumstance, to be extraordinary, must

be beyond the prisoner’s control. Harris

v. Hutchinson, 209 F.3d 325, 330 (4th

Cir. 2000). Thus, we have explained, a

client who relies on the faulty advice of

his lawyer has not encountered an

obstacle to filing that is external to his

conduct. Johnson, 314 F.3d at 162–63. 

Conversely, when, as here, an attorney

ceases altogether to serve the interests of

his client, the law of agency is clear that

the attorney acts alone. 

This central tenet—that attorney

malfeasance should not be attributed to

the client—paves any number of parallel

paths to tolling in this case. We might

conclude that Schlueter, had Lauer not

represented that he was acting on the

case, would timely have filed a petition

under Pennsylvania’s Post-Conviction

Relief Act (“PCRA”), 42 Pa. Cons. Stat.

Ann. § 9541, et seq., prior to the
16

deadline that would have presented

Blasco’s clear conflict as trial counsel. 

Thus we might equitably toll the statute

from April 24, 1996, the day it began to

run, to December 9, 1997, the day that

Schlueter’s new counsel was put on

notice of the relationship between Blasco

and Narlesky.18 We might hold that 

18Tolling for this minimum

duration saves Schlueter’s claim only if

we also toll pending resolution of the

state-court proceedings. The analysis is

complex, but it can be summarized as

follows. 

On February 3, 1998, Schleuter

filed a petition for post-conviction relief

under PCRA. He argued that his PCRA

petition should be deemed timely

because the delay in filing was based on

ineffective assistance of counsel retained

to file the petition. In June 1998 he

separately filed a petition to appeal nunc

pro tunc. The PCRA Court denied the

PCRA petition as untimely and rejected

Schlueter’s request for an appeal nunc

pro tunc. On October 22, 1999, the

Pennsylvania Superior Court affirmed. 

Schleuter’s subsequent petition for

allowance of an appeal was denied by

the Pennsylvania Supreme Court on

August 28, 2000. 

I note first that statutory tolling

will not save Schlueter’s claim. 28

U.S.C. § 2244(d)(2) provides that “[t]he

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.” But neither the PCRA

petition nor the nunc pro tunc petition

was “properly filed” for the purposes of

Pennsylvania law. Our Court has stated

that “an untimely PCRA petition does

not toll the statute of limitations for a

federal habeas corpus petition.” Merritt

v. Blaine, 326 F.3d 157, 165 (3d Cir.

2003). Nor is statutory tolling available

based on the nunc pro tunc petition,

notwithstanding our recent decision in

Douglas v. Horn, 359 F.3d 257, 263

n.11 (3d Cir. 2004). Douglas suggested

that statutory tolling might apply to nunc

pro tunc petitions filed before the

Pennsylvania Supreme Court’s decision

in Commonwealth v. Lantzy, 736 A.2d

564 (Pa. 1999), which reversed a series

of decisions by Pennsylvania lower

courts indicating that nunc pro tunc

petitions were compatible with PCRA

under appropriate circumstances. See,

e.g., Commonwealth v. Hall, 713 A.2d

650, 653 (Pa. Super. 1998), rev’d in

part, vacated in part, 771 A.2d 1232

(Pa. 2001). But in Commonwealth v.

Eller, 807 A.2d 838 (Pa. 2002), the

Pennsylvania Supreme Court held that

Lantzy did not announce a new rule and

thus applies retroactively. Therefore,

though Schlueter’s nunc pro tunc

petition was filed more than a year

before Lantzy was decided, it was not

properly filed for the purposes of

Pennsylvania law. 

Although I would not statutorily
17

equity requires us to toll the statute to the

day that Schlueter’s habeus petition was

finally filed. Or we might even conclude

that Schlueter falls within the ambit of

§ 2244(d)(1)(D), because the conflict of

interest, though discoverable by Lauer

based on his alleged knowledge of

Blasco and Narlesky’s office sharing

arrangement, was not reasonably

ascertainable by an incarcerated inmate

who was forestalled from pursuing his

case by the false assurances of a third

party.19

toll the AEDPA limitations period under

§ 2244(d)(2), a strong argument exists

for equitable tolling based on Schlueter’s

good-faith efforts to avail himself of

state post-conviction relief. In Merritt,

326 F.3d at 170 n.10, we preserved the

possibility that equitable tolling may be

appropriate where, as here, a PCRA

petition is late based on newly

discovered facts of a “legitimate” nature. 

Id. (“Undoubtedly, there will be other

habeas petitioners who find themselves

in similar situations where their need to

exhaust state remedies will create a

tension with the one-year statute of

limitations in AEDPA. . . . The federal

courts should seek ways to ameliorate

the consequences for these petitioners in

appropriate cases.”). This may be the

special case that panel had in mind. 

The argument for equitable tolling

based on Schlueter’s nunc pro

tunc petition is even stronger. The

Pennsylvania Superior Court’s decision

in Hall, 713 A.2d at 653, announcing

that nunc pro tunc petitions were

permissible under appropriate

circumstances despite the language of

PCRA, was issued on June 3, 1998. 

Based on that decision, Schlueter’s

counsel concluded that Schlueter was

eligible for nunc pro tunc relief and

would therefore be obligated to pursue it

under AEDPA in order to exhaust state

remedies. He similarly relied on

Pennsylvania case law when he appealed

the PCRA court’s decision in December

1998; although Lantzy had by then been

decided, several post-Lantzy en banc

opinions of the Superior Court (which

would later be overruled by Eller) held

that it would not apply retroactively. 

See, e.g., Commonwealth v. Garcia, 749

A.2d 928, 933 (Pa. Super. Ct. 2000) (en

banc), rev’d, 811A.2d 994 (Pa. 2002);

Commonwealth v. Hitchcock, 749 A.2d

935, 939-40 (Pa. Super. Ct. 2000) (en

banc).

19The majority is “convinced that

if Schlueter had exercised due diligence,

he could have discovered the

Blasco/Narlesky arrangement long

before the AEDPA became effective.” 

But this task would have been harder

than it sounds. While various

individuals were aware of the office

sharing arrangement, few (if any) knew

the extent of the relationship between the

two attorneys. The evidence strongly

suggests that Narlesky affirmatively

concealed the relationship. According to

Schlueter, Narlesky went so far as to

misrepresent to the PCRA court the
18

Other courts have applied

equitable tolling under circumstances

like these. In Baldayaque, 338 F.3d at

152, for example, an attorney failed

timely to file a § 2255 motion requested

by his client and made inadequate efforts

to communicate with him. The Second

Circuit held that the attorney, “[b]y

refusing to do what was requested by his

client on such a fundamental matter, . . .

violated a basic duty of an attorney to his

client.” His actions, the Court

continued, “were far enough outside the

range of behavior that reasonably could

be expected by a client that they may be

considered ‘extraordinary’” and thereby

“justify the application of equitable

tolling to the one-year limitations period

of AEDPA.” Id. at 152–53. See also

Spitsyn v. Moore, 345 F.3d 796, 798 (9th

Cir. 2003) (“Based upon the unique facts

of this case, where an attorney was

retained to prepare and file a petition,

failed to do so, and disregarded requests

to return the files pertaining to

petitioner’s case until well after the date

the petition was due, we agree that

equitable tolling of the deadline is

appropriate.”); United States v. Wynn,

292 F.3d 226, 230 (5th Cir. 2002)

(“Wynn’s allegation that he was

deceived by his attorney into believing

that a timely § 2255 motion had been

filed on his behalf presents a ‘rare and

extraordinary circumstance’ beyond

petitioner’s control that could warrant

equitable tolling of the statute of

limitations.”); cf. Doherty v. Teamsters

Pension Trust Fund of Phila. & Vicinity,

16 F.3d 1386 (3d Cir. 1994) (tolling

based on the death of the petitioner’s

attorney). 

In our Circuit, the principal case

on point is Seitzinger. It involved a Title

VII claim, though we have since applied

its reasoning to habeas cases. See, e.g.,

Brown v. Shannon, 322 F.3d 768, 774

(3d Cir. 2003). The Supreme Court has

cautioned that in the Title VII context

“the principles of equitable tolling . . . do

not extend to what is at best a garden

variety claim of excusable neglect.”

Irwin v. Dep’t Veteran Affairs, 498 U.S.

89, 96 (1990). Our task in Seitzinger

was to decide whether misconduct by the

plaintiff’s attorney was merely “garden

variety” or, rather, was something more

egregious. The plaintiff alleged that she

repeatedly asked her attorney whether he

had filed a complaint, and each time he

misrepresented to her that he had. Under

these circumstances, we concluded that

equitable tolling was appropriate. 

Seitzinger, 165 F.3d at 241. 

Of course, Seitzinger also requires

that the client be “reasonably diligent” in

pursuing his or her claims. But the facts

of Seitzinger leave little doubt that

Schlueter has met that burden. In

concluding that the plaintiff in Seitzinger

was diligent, we emphasized that she: (1) 

hired an attorney to file her civil

complaint; (2) “contacted him before the

character of his partnership with Blasco. 

The conflict was particularly difficult to

discover because Blasco’s death in 1988

dissolved that partnership. 
19

filing deadline, which she knew about in

broad terms, to ensure that he had filed

the complaint”; and (3) repeatedly called

him in order to obtain a copy of the

complaint and monitor the status of her

case. Id. at 241. All of these factors are

true in Schlueter’s case as well. In fact,

Schlueter and his family were, if

anything, more diligent. They apprised

their attorney of the precise filing

deadline (whereas Seitzinger was aware,

“in broad terms,” that a deadline existed)

with ample time to prepare a petition. In

addition to their phone calls, the

Schlueters wrote several letters seeking

to ensure that the PCRA petition would

be filed prior to the deadline. And they

received written assurances that a

petition would timely be filed. 

Once the deadline had passed, the

Schlueters did everything that could

reasonably be expected of them. When

their phone calls from Lauer were not

returned, they wrote to the clerk’s office

directly. That office did not respond

until March 18, 1997. The time between

the Schlueters’ discovery of Lauer’s

failure to file and their retaining new

counsel was just over two months. After

that, matters were largely out of

Schlueter and his counsel’s hands. 

Lauer simply did not turn over the files

for many months.

The majority dismisses

Schlueter’s efforts as inadequate. They

suggest that he was not entitled to rely

on the two written assurances by the

attorney whom he had hired to pursue

his case; rather, on New Year’s Day of

1997, he should have ascertained

whether Lauer had indeed filed as

promised. Never mind that Lauer had

ceased to return phone calls on

Schlueter’s behalf. Never mind that

when the Schlueters, having received no

word from Lauer for months, inquired

with the clerk’s office whether a petition

had been filed, it was nearly forty days

before they received a response. 

Schlueter, says the majority, might have

done more. 

This, I suppose, is theoretically

true. But it blinks reality to suggest that

Schlueter might have retained substitute

counsel willing to prepare a petition

within the two short weeks between the

end of 1996 and the PCRA filing

deadline. Still, he might have filed his

own PCRA petition pro se, just in case. 

That would have been supremely

diligent. 

But supreme diligence is not

required. On the contrary, the standard

is a relatively modest one. Schlueter’s

diligence need only have been

reasonable under the circumstances. Cf.

Baldayaque, 338 F.3d at 153 (“The

standard is not ‘extreme diligence’ or

‘exceptional diligence,’ it is reasonable

diligence.”) (emphasis in text). I believe

that Schlueter’s protracted efforts

handily qualify. But if the majority is

not convinced, it seems to me better to

remand for the District Court to consider

this issue in the first instance rather than

dismiss outright his habeus petition. See

id. 
20

Still, the majority insists,

Seitzinger is distinguishable. If that is

so, it is because the urgency of tolling is

far stronger in Schlueter’s case. The

attorney in Seitzinger nearly cost his

client the right to seek recovery for

gender and age discrimination by her

employer. But the stakes in this case are

far higher—life imprisonment without

the possibility of parole. 

The gravity of Schlueter’s

situation is self-evident. “Dismissal of a

first habeas petition is a particularly

serious matter, for that dismissal denies

the petitioner the protections of the Great

Writ entirely, risking injury to an

important interest in human liberty.” 

Lonchar v. Thomas, 517 U.S. 314, 324

(1996) (emphasis omitted). The majority

declines to exercise its power to rectify a

fundamental inequity—that Schlueter’s

appellate counsel, rather than assisting

him in obtaining the relief he was

retained to pursue, crippled Schlueter’s

diligent efforts timely to obtain postconviction relief for the tainted

representation he received from his

defense attorney at trial. Thus no court

will ever pass on the merits of his habeas

claim. Because I believe that under

these circumstances “the principles of

equity . . . make the rigid application of

[the AEDPA] limitation period unfair,” 

Miller, 145 F.3d at 618 (internal

quotations omitted), I respectfully

dissent.