2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

9-14-2004 

# S chluet e r v . V a r ne r

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 03-3928

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. Re c omme nde d C it a t ion

" S chlue t e r v

. V a r ne r " (2004). 2004 D e cisio n s

. P ape r 280. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2004/280PRECEDENT IAL

UNITED S TATES COUR T OF APPEALS FOR THE THIRD CIRCUIT

No. 03-3928

PAUL GEORG E SCHLUETE R, III,

Appellant

v.

BENJAMIN VARNER; DISTRI CT ATTORNEY N ORTHAMPTO N COUNTY; ATTORNEY GENERAL OF T HE STATE OF PE NNSYLVANIA

On Appeal From the United States

District Court For the Eastern District of Pen nsylvania (D.C. Civi l No. 00-cv- 05179) District Judge: Honorable Ani

ta B. Brody

Argued June 25, 2004

Before: AMBR O, BECK ER, and GREENBE RG, Circuit

Judges

.
(Fil ed: Septe mber 14, 2004)

Michael M. Musto koff Stephen A. Ma

llozzi (argued) Cindy D. Hinkle DuaneMorri s LLP 1650 Market Street One Libert

y Pl ace, 37t

h Floor Philadel phia, PA 19103-7396

Attorney s for Appell ant

John M. Morgane lli (a

rgued) District Attorney Northam pton County

Governme

nt Center 669 Washington Street Easton, PA 18042

Attorney for Appellee s

OPINION OF THE COURT

GREEN BERG, Circuit

Judge

. Paul George Sch lueter, III, i s a Pennsyl vania i nmate servi ng a sentenc e of lif e in p rison for first d egr ee m urd er. He appeals from an or der of the district
court ent ered Septe mber 3, 2003, dismis sing hi s peti tion for a writ of habeas corpus on the ground t hat the applic able one- year

period of l imit ation barred t he peti tion. For the r easons that follow, w e will affirm th e district court’s order.

I. BACKGROUND

In 1985, Schlueter was arrested

an d c ha rg ed in No rt ha mp to n C ou nt y, Pennsylvania, with the criminal homici de of Carol Ann Bonne y. The2

Northampton County Public defender’s office assign ed part-time public defenders George Blasco and Lorenzo Crowe to re

present Schluete r and the district att

orney as signed James Narlesky , a part-time assistant district
attorne y t o prosecut

e the ca se. Rel

yi ng on his attorney s’ advice, Schlueter
entered a plea of nolo contendere to a charge of open degree homicide. 1 The trial court subs equently

conducted a hearing to determine Schlueter’s degree of guilt at which Schlueter pre sented a diminished capacity defen se based on h is level of i ntoxicat ion and drug use

on the night of the homicide. The trial court found Schluete

r guilty of murder

in the first degree an d sentenced h im to life in prison on May

5, 1987.

Following his

convicti on, Schlueter met with h is attorneys to discuss whether to pursue a direct appeal. Blasco and Crowe advised Schluete r that he would be eli gible for parole in approximately

20 years 2 and that there were no appealable i ssues that

could redu ce his degree o f guilt. Accordingl

y, Schluete

r decide d to forego a direct appeal . Blasc o died about one
yea r later on May

26, 1988. Schlueter contends that his attorneys’ parole advice

was err oneous as he

never wil l be eligible for parole. Apparently in part because of having found ou t his actual parole s ituati on, on August 16, 1988, Schluete r contacted Crowe r

equesti ng informa tion for the

purpose of pursuing state post-conviction revie w. Crowe, however, did not respond to Schlueter’s

1 Schlueter earlie

r had pleaded nolo contendere when repre sented by differen t attorneys from the public defender’s office but with the court’s permission had w ithdrawn th at plea. Consequ ently, we are concerned w ith events fol lowing his s econd nolo contendere plea.

2 Schlueter correctl

y acknowledges that the record c ontains c onflicti ng information regarding the parole advice he received. A ppellant’s br. at 1 2 n.11. In a let ter to Cr owe dated August 16, 1988, Schlueter stated that he was advised t hat he would be

eligibl e for parole in 20 yea

rs. Crowe, however, stated in an affidavit in 1998 that Blasco informe d Schluete

r that he would be eligibl e for parol e in 15 y ears. On the other hand, Schlueter stated in an affidavit in 1998 that Blasco informed him that he wou ld be eligible f or parole after 14 ye ars. In deny

ing Schlueter’s petiti on for post-c onviction r elief, the trial court found as a fact that Schlueter was advis ed that he

would be eli gible for parole after serv ing 20 years. See Commonwealth v. Schlueter , No. 0201- 1986 at 2 (Northampton County, Pa. Ct. Com. Pl. , Crim . Div., De c. 30, 1998, app. at 415 ). Schlueter ind icates in his brief on this appeal that “[f]or purposes of these habeas proceedi

ngs, the t erm of eligibi lity is irr elevant since [he ] was and is never eligible for parole. ” Appellant’s br. at 12.3

request.

Meanwhile , in Marc

h 1988, the victim ’s fam

ily initia ted a wrongful death action agai

nst Schlueter, who initially represented himself in the c ivil proceedings. Based on Schlueter’s criminal c onviction, the trial court entered a directed verdict against h im. In June 1994 Schlueter’s parents retained
attorne y Phi lip Lauer

of Easton, Northampton County, to represent th eir son in his c ivil appe al from the judgme

nt against him and to explore po ssible challenges to his conviction under Pennsylvania’ s Post Conviction Relief Act (“PCRA”). Lauer advised Schlueter to postpone pursuing PCRA remedies until the con clusion of

the civil proceedings. The Superior Court affirmed the judgment against Schlueter on his civil ap peal and his civ il appellate proceedings were termi

nated unsuccessfu lly when the Pennsylvania Supreme Court denie d his peti

tion for allowanc e of appeal

on November

28, 1994.

Two years l ater, prior to Schlueter filing a PC RA petition , he and his parents learned that the Penn sylvania legislature had a mended the PC RA to
prescr ibe a fil ing deadli

ne of Januar

y 16, 1997, in older cases such as Schlueter’s. 3 By l etter dated Novem

ber 10, 1996, Schluete r informed Lauer of t

he deadli ne and asked hi

m to fil e a tim

ely PCRA petition. Lauer replied by letter dated December 2, 19 96, that he w as “well aware” of the deadline and would file a petition “before year’s end.” App. at 783. By lette r dated De cembe

r 13, 1996, Lauer also inf

ormed Schlueter’ s parents that he wa s antic ipating fi ling a PCRA petition “prior to the end of this y ear.” App. at 790. Neverthel ess, La uer did not file a PCRA petition a

nd did not

comm unicate further wi

th Schluet

er or his pare nts. On Mar

ch 18, 1997, the Clerk of the Northampton County Court of Common P leas advised Sch lueter in response to his inquiry

that no one had file d a PCRA p etition o n his b ehal f.

On May 27, 1997, the Schlueters retained his current a

ttorney s’ law firm to explore

the possi bility of filing a PCRA p etition. After rep eated attempts, the new attorney s retrieved Schlueter ’s files from Laue r on Octob er 2, 1997

. Upon reviewing the files, they discover ed that t hey did not incl

ude certain files from

the Public Defender’s Office. A t Schlueter’s new attorneys’ request, the Public Defender’s Office locate d Schluete

r’s fil es and ar

ranged for them to review the file s and to interview Crowe on December 9, 1997. During the interview with Crowe, they learned that George Blasco and Assistant District

3 See Commonwealth v . Fenati
, 748 A.2d 205, 207 (Pa. 2000) (holding that PCRA pet

ition fil ed on Januar

y 16, 1997, was ti

mely filed wit hin one y ear of the PCRA amendments effective January

16, 1996).4

Attorney Nar

lesky had been “civil law partners” in Easton prior to Blasc o’s death. 4

Relying on this inf ormation, his
attorne ys filed a PCRA petition on Schluete r’s beha lf on Februar

y 2, 1998, allegi ng a conflict of inter

est ar ising from the Blasco/Narle sky ci vil law practi ce. Rec ognizing the apparent untime liness

of their PCRA petition, they a ttempted to invoke a stat

utory excepti on to the PCRA’s period of limi tation by arguing tha

t the facts of the Blasco/Narlesky

arrangement had been unknown and cou ld not have been

ascer tained t hrough the exe

rcise of due diligence. 5 They subsequently reviewed court records and filings and learned that Blasco a nd Narlesky pr

actic ed and shared fees in civil ca ses, together owned and shar

ed their office space, and shared ope

rating expenses a

nd personnel.

On June 22, 1998, m

ore than 11 years after he was convicted and while his PCRA peti

tion was pe

nding, Schluete r filed a motion s eeking restoration of

his appellate righ ts nunc pro tunc , arguing th at the court sho uld restore his right to a direct appeal d ue to his trial attorneys’ erroneou s parole advice. After conducting a hea ring, the PCRA court dismiss ed the PCRA peti tion as un timely an d, in the s ame opinion , denied Sch lueter’s motion to restore his right to appeal nunc pro tunc because Schluete r had “knowingl

y a nd voluntarily

waived his appellate rights. ” App. at 436. On a

ppeal, t he Pennsylvania Superior Court affirm ed the dism issal of Schluete

r’s PCRA petiti on as untim

ely without mentioning his motion to restore his

right to file a direct appeal fr om his c onviction nunc pro tunc

. 6 The Pen nsylva nia S upr eme Court denie d Schluete

r’s pet ition for allowanc e of appeal

without expl anation on August 28, 2000.

Through his attorneys, Schluet er filed a fed eral habeas corp us petition in the dist rict c ourt on Octobe

r 12, 2000. 7

4 The respondents deny that Bla sco and Narlesk y were partners and state they m erely were part of an office sharing a rrangem ent. For pur

poses of this appeal we will ass

ume that they were partners.

5 See 42 Pa. Cons. St

at. Ann. § 9545(b)(1)(ii) (West 1998). 6 Of course, the judgme nt of affirmance uphel d the denia l of the motion to app eal nunc pro tunc

.

7 In his fede

ral habe as corpus petiti on, Schluet

er art iculat ed the following claims for relie f: (1) his plea was involu ntary and unintelligen t due to an actual conflict of interest between Blasco and Narlesky ; (2) his trial attorney s’ erroneous parole advice denied him the right to file a dir ect appeal; (3) his tria

l attorneys rendered ineffective assist

ance due to the conflict of in te re st be tw ee n B la sc o a nd Na rl es ky;5

The responde

nts move d to dism

iss the habeas petition a s barre d by t he applicable on e-year period of limitation. The case was referred to the chief magistrat e judge who rejected Schluete r’s ar guments for equita

ble and statutory tolling, and recommended dismissing the habeas

petition as untimely. After hearing o ral argument, the district court a

dopted the chief magistrate

judge’s re

port and

recomme ndation and dismissed Schlueter’s hab eas petition as un timely. The court, h owever, gr anted a certificate of appea lability on the issue of eq uitable tolling. Th e district court sub sequently “ampl ified” t

he cert ificat e of appealability

to include the statutory tolling issues as w ell.

Schlueter has f

iled a timely appeal.

II. DISCUSS ION

A. Juris diction a

nd Standard of Review

The distr ict cour t had juris diction pursuant t

o 28 U.S.C. §§ 2241 and 2254 and our juris diction i s based on 28 U.S.C. §§ 1291 an d 2253 . We exercise plenary review over the district

court’s order dismissi

ng Schlueter’s habeas petition as time barred. See Douglas v. Horn , 359 F.3d 257, 259 (3d Cir. 2004).

B. One-Yea

r Period of Li

mita tion

In the Anti

terror ism a nd Effective Death Penalty

Act of 1996 (“AEDPA ”) Congress pr

escri bed a one-y

ear per iod of limitat ion for the filing of federal habeas corpus petitio ns by state prisoners. See Douglas , 359 F.3d at 261. Effective April 24, 1 996, the A EDPA p rovides in relevant part:

A 1-year per

iod of limitat ion shall apply

to an applica tion for a wr

it of habeas c orpus by

a person in custody

pursuant t

o the judgment o f a State cour t. The limitation perio d shall run from t

he late st of—

(A) the da

te on which t

he judgment be came

final by the conclusion of direct review or the expir ation of the time for seeking such revi ew; [o r]

. . . . (D) the da

te on which t

he factual predica te of the claim or cl aims prese

nted could have been discover ed through the and (4) the Pennsylvania

courts denied his right to d ue process by refusin g to allow him

to prese nt evidenc e supporti

ng the merits of his con flict of interest claim.6

exercise of due diligence.

28 U.S.C. § 2244(d)(1). 8

We first deter

mine t he date on which the one-yea

r period began running. Ordinarily undersection 2244(d)(1)(A), Schlueter’s oneye ar peri od of limi

tation woul d have begun running on Apri l 24, 1996, because his co nviction b ecame final well before the effective d ate of the AE DPA. See Burns v. Mort

on , 134 F.3d 109, 111 (3d Cir. 1998) (allowing a one-yea r grace period to petitioners w hose convicti ons becam

e final pr ior to the enactment of the AEDPA). Schlueter asserts, however, t

hat the one-year period began running under secti on 2244(d)(1)(D) on Decem ber 9, 1997, the dat

e on which his

current attorne ys discover ed the Bla sco/Nar

lesky
arrangement. Appellant ’s br. a t 51-53.

By its language, the one-year period of limitation com

mences under section 2244(d)(1)(D) when the factual predicate of a claim

could have been discover ed through the

exerci se of due diligence, not when it actually was discovered. See Ow en s v . B oyd , 235 F.3d 35 6, 359 (7 th Cir. 200 0). Due diligenc e does not r

equire “the ma

ximum feasible diligence,”

but it does require

reasona ble dili gence in t

he circumstances. Moore v. Knight , 368 F.3d 936, 940 (7th Ci r. 2004) (quot

ing Wims v. United State s , 225 F.3d 186, 190 n.4 (2d Cir. 2000)). Section 2244(d )(1)(D) pro vides a petition er with a later accrual date than section 224 4(d)(1)(A ) only “if vital facts could not have been known.” Owens
, 235 F.3d at 359.

We are convin ced that if Schlueter had exercised due diligence, he could have

discover ed the Blasco/ Narlesky a

rrangem ent long before the AEDPA became effective. Lauer testified at t

he PCRA hearing that it was common knowledge in the legal community

in Northampton County that Blasco and N arlesky shared office sp ace. Lauer also testifie d that he perso nally

was awar e of the ar

rangement when he
repres ented Schl

ueter i n 1994. Indeed, in our view, it is inconceivable that Blasco and Narlesky

could have hidden their arrangement f

rom the relatively small legal community or the public in No rt ha mp to n C ou nt y. 9

8 The omit ted subse ctions a

re not germane in this ca se. 9 We are not suggesting that they
attem pted to hide

their a rrangem ent or believe d that the

y ha d any reason t o do so during the time of their associa tion. Nevertheless, it

must be acknowledged that not e very attorne y i n Northam

pton County was awar

e of the dept

h and circumstance s of the Bla sco/Nar lesky arrangement as Cro we indicated to Schlueter’s current a

ttorney s that he was
not.7

Moreover, Schluete

r’s cur rent attorne ys learne d of the arr

angeme nt simply by interviewing Crowe wh o, with Blasco, repres ented Schl

ueter i n the crim inal proc eedings. Certai

nly , if he had exercised due diligence, Schlueter would have had Crowe interviewed
many yea rs before December 9, 1997, as it is a pparent i n view of his i

ncarce ration that Schlueter h ad every incentive to ha ve Cr ow e, hi s s ur vi vi ng tr ia l a tt or ne y, interviewed. After all, as early as August 16, 1988 , he ha

d writ ten Cr owe requesting in formation fo r the purpo se of pursu ing state post-co nviction rev iew. We also point o ut that the factu al basis for the cl aim of i

mpropri ety

based on the Blasco/Narlesky arrangement w as hardly obscu re for , after inter

viewi ng Crowe and discove

ring the Bl asco/Na

rlesky
arrangement, Schluete

r’s cur rent attorne ys learne d the deta

ils of the arrangement merely

by revie wing court records and filings, all of which were
matters of public record. Appellant’s br. at 24.

We realize

that Lauer advised Schluete r to postpone

pursuing PCRA review until the civil procee dings were concluded . But by the time that his parents retained Lauer al

most six y

ears had elapsed since the tim e that Schlueter first contemplated b ringing p ostco nv ic ti on re vi ew pr oc ee di ng s. Cl ea rl y, in allowing this time t

o pass Schlueter was not diligent. Moreover, Lauer’s advice, at most , could have delayed Schluete r for only about five m

onths from Lauer’s reten tion in Jun e 1994 u ntil November 28, 1994, when the Pennsylvania Sup reme Court refu sed to allow him to app eal.

Overall, we are sat

isfied that through the exercise of due diligence, Schlueter could have learned the factual predicate of

his conflict o f interest claim well before April 24, 1996. Therefore, the one-ye ar period of limitat ion began running under s ection 2244( d)(1)(A)on April 24, 1996. Inasmuch as Schlueter filed his federal habeas c orpus peti

tion four and one-half years la ter on October 12, 2000, in the

absence of tolling of t

he
one-yea r period of limitati on, his habeas

co rp us pe ti ti on wa s u nt im el y.

In re achi ng our r esul t, we recognize that Schlueter i s and has been incarcerate d for many y

ears and that physical confinement can limit a litiga nt’s abi lity

to exerc ise due diligence. See Moore v. Knight , 368 F.3d at 940. We observe from the record and re ferencesin Schlueter’ s bri ef, however, t

hat Schlueter’s

parents have been invo lved actively in their son’s c ase for several y

ears. Thus, Schlueter, unlike many other incarcerated litigants, has enjoyed the benefit of his fam ily ’s assistance, involv ement and resou rces. We also point out that Schlueter’s parents must be well

educated as they both are r eferre d to as “Doctor” in t he record in this case. Therefore, Schluete r’s inc arcer

ation does

not change our view that if he had exercised due diligence he would have discovered the f acts s upp orti ng h is PC RA c laims8

before A pril 24, 19 96.

C. Tolling of t

he One-Yea

r Period of Limit ation

The AEDPA’s one-ye ar peri od of limitation is not an ab solute limit. See Douglas , 359 F.3 d at 261. R ather, it is subject to two poss ible tol ling exceptions both of which Schlueter advances : (1) st

atutory tolling unde

r 28 U.S.C. § 2 244(d)(2 ) while a prop erly filed appl icati on for post-c onviction review i s pending in t

he stat e courts ; and (2) equitable to lling. See Merrit t v. Blaine , 326 F.3d 157, 161 (3d Cir. 2003). We examine

first t he period of time from Apri l 24, 1996, the date on which the one -year per

iod began to r

un, through December 9, 1997, the dat e on wh ic h S ch lu et er ’s cu rr en t a tt or ne ys discover ed the Bla sco/Nar

lesky arrangement, t

o determine whether ther e should be equi

table t olling duri

ng any portion of thi s period. 10 The one-y ear per iod should be equitably tolled “only

in the rare situation wh ere equitable to lling is demanded by s ound legal principles as well as the intere sts of justice.” Jones v. Morton , 195 F.3d 153, 159 (3d Cir. 1999). Equitable tolling is appropriate:

only when the pri

nciples of equity would make

the rigi d appl ica

tion o f a limitation period u nfair. General ly , this wi ll occur when the p etitioner has in some extraordinary

way been preve

nted from asserting his or h er rights. The petit ioner m ust show that he or she exercise d reasonable d iligence in investi gating and br

inging the claims.

Miller v. New Jersey

State De p’t of Corr. , 145 F.3d 616, 618 -19 (3d Cir. 1998) (inte

rnal ci tations and alte rations omitted).

Schlueter base s his equitable tolling a rgument on what he characterizes as attorney malfeasance. Specifically, he argues th at the delay in filing his PCRA petiti on (and by extensi on his feder

al habea s corpus petition) was due to Lauer’s m isconduct in affirm ativel y m isrepr esenti ng that he would file a

time ly PCRA petiti on on Schlueter’sbehal f. In t

his r egar d we point out tha

t if Lauer had filed t

he PCRA petiti on by t

he stat e deadli ne of January 16, 1997, there would have been 10 It is undi sputed tha

t the per iod of time from Apri l 24, 1996, thr ough February 2, 1998, cannot be tolled statutorily under section 2244(d)(2) as Schluete r did not fil e any

applica tion of any kind in the state cou rts from April 24, 1996, until

February 2, 1998, and he had not filed any applica

tion earlier that was pending during that period. In addition, Schluete

r concede s that t

he
one-y ear per iod was runni

ng from Decem ber 9, 1997, unt

il Februa ry 2, 1998. Appella

nt’s br. at 62.9

a period of t

olling under

secti on 2244(d)(2). In addition, Schlueter contends th at Blasco and N arleskys’ allege d misc onduct in not di sclosi ng their a rrangem ent com pounded the unfair effect of Lauer’s failure to file a PCRA petiti on after r

eprese nting that he would d o so. Generally, in a non-cap ital case such as Schlueter ’s, at

torney error i s not a suffici ent basi s for equit able tol ling of the AEDPA’s one -year per iod of limitation. See Johnson v. Hendr icks
, 314 F.3 d 159, 1 63 (3d C ir. 2002). Nevertheless, w e have held , albeit outside the habeas context, that t here are “narrow c ircum stance s in which t he misbehavior of

an attorney may m

erit” equitable tollin g. Seitzi

nger v. Rea

ding Hosp. & Med. Ctr. , 165 F.3d 236, 239 (3d Cir. 19 99). Seitzinger involved a Title VII plaintiff who asked her attorney prior to the ex piration of

an applicable 90-day period of lim

itations if he had filed a complaint o n her beha lf. Id. at 238. The att

orney falsel y stated t hat he had done so wher

eas, i n fact, he did not file a c omplai

nt until one

day after t he limitations period ex pired. Id. We held that the attorne y’ s affirm ative misrepres entation to his client, c oupled with the plain tiff’s extreme diligen ce in pursuing her

claim and the abs ence of prejudice to the defe

ndant, “create d a situation appropriate for tolling.” Id. at 242.

We find tha

t the materi al fact s of Seitzinger

are distinguish able from those present ed here. In Seitzinger , counsel misr eprese nted to his

client that he alrea dy ha d filed a t imel y c omplai nt and by the ti me the clie

nt discovered that her
attorne y ha d not done so the

period of limitations had exp ired. Here, in December 1996, Lauer informed Schluete r and his pa

rents t hat he anticipated filing a PCRA petition before the end of the year . When the year ended, Schlueter could have learned, as he did lat er, tha t Lauer ha

d not filed a PCRA petiti on. If he had done so he still

wou ld h ave h ad a s mall w ind ow o f time in which to fi le a pro s e petit ion and save his PCRA claims from dism issal as untimely . Thus, his situation differs sharply from that of the Seitzinger plainti ff who was mi sled by what the attorney said he had done, not by what he said he

would do. Moreover, it is apparent that Schluete r was full y a ware of his

PCRA rights in 1994 when he retained Lauer. 11 Schluete r knew that

Lauer had done little, if any

thing, to pursue PCRA relief for more than tw o years. Notwithstanding this knowledge, neither Schluete r nor his pa

rents t ook

11 The record reflects that Schlueter actua lly knew of his righ t to pursue state post-conviction revie w as early as August 16, 19 88, when he wrote to Crowe requesting information for that purpose. Cr

owe decli ned to res pond because he no longer represented Schluete r. Schlueter appa

rently took no further steps to challenge his conviction until he r etaine d Lauer in 1994.10

affirmative steps to e nsure the timely filing of a PCRA petition until Schlueter wrote his No vember 10, 19 96 letter to Lauer advi sing him

of the PCRA deadline and asking him to f ile a timely petiti on. Then afte

r the end of 1996 Schlueter did not attempt to ascertain from Laue

r prior t o the Janua

ry 16, 1997 deadline of which he was well aware whether La

uer, in fact, had fi led a PCRA petition. We also find it si gnificant that the period o f limitations at issue in Seitzinger

was a brief 90 daysand that the att orney filed the compla int only one day la te. Thus, the attorney ’s misc onduct warr

anted equi

tably tolling one day of a sho rt period of limitations. Here, the AE DPA’s limitation p eriod is one year, and did n ot begin to run until April 24, 1996, nearly nine y ears after Schlueter’s con viction became f inal in 1987. S chlueter did n ot initiate state post-convi ction proc eedings unt il 1998 and did not purs

ue federa l habeas corpus relief until 2000 even though he had been convicted in 1987. The circumstances in Schlu eter’s case simply do not warra

nt the appl icati on of equitabl e tolli

ng after such lengthy periods of t

ime ha d elapse d following his conviction before

he sought st

ate and feder al reli ef. 12

Schluete r also r elies on Spitsy

n v. Mo ore , 345 F.3d 796 ( 9th Cir. 2003), and

Balday aque v. Unit ed State s , 338 F.3d 145 (2d Cir. 2003), for

the propos iti on that attor ney mal feasance cons tit utes an
extrao rdinar y circum stance suff icient to warrant equi table toll ing of the one-y ear period of l imit ation. As these cas es amply de monstrat e, however, a findi ng that attor ney mal feasance i s an extraor dinary

circumst ance, wit

hout more, i s not suff

icie nt to warr ant
equ itabl e toll ing

. Sp its yn holds that egregious attor

ney mis conduct may just ify equita ble tol ling, but als o requir es district courts to exam ine the petitioner’s due dili gence in pur suing the matter under the s pecifi c circ umstances he fac ed. Sp its yn , 345 F.3 d at 8 02. Lik ew ise, Balday aque holds that “an
attorne y’s cond uct, if it is su fficien tly egregious , mayconsti tute t he sort of ‘extrao rdinar y circum stance s’ that w ould justify the a pplica tion of equita ble toll ing.” Balday aque , 338 F.3d at 152- 53. Balday aque , how ever, e xpre ssly states that the presenc e of extrao rdinary circumst ances “i s not enough” – a petitioner “must

also show that he act ed with reas onable di ligenc e, and t hat the
extrao rdinar y circum stance s cau sed h is petition to be untimely .” Id. at 153 (citat ion omitted). I n other words, neither Sp its yn nor Balday aque holds that attor ney mal feasance, standi ng alone, warrants equita

ble tol ling. 13

12 Inasm uch as we a

re not al lowing
any period of equi

table t olling we ha

ve no need to engage in a n intricate counting proc ess com

puting the hypot hetica l possibl e tolli

ng period. 13 We acknowledge Schlueter’s

relia nce on Boyd v. Myers , Civ. A. No. 97-7160, 1998 U.S. Di st. LEXIS 2025311

For these reasons, we conclude that the circum stance s prese nted in Sch lueter’s c ase d o no t war rant eq uitable tolling. W e are c onv inced that if Sch lueter h ad ex ercised reaso nable dili gence , he could h ave broug ht his claims i n a timely fashion, Lauer’s allege d misc onduct notwit hstanding. 14 According ly, we cannot equitab ly toll the peri od of time

from Apri l 24, 1996, until Dec ember 9, 1997, or duri

ng any portion thereof. We conclude, therefore, that the AEDPA’s one-y

ear per iod of limitat ion expired before Schlueter filed his PCRA petition, his motio n to reinstate his direct ap peal nunc pro tunc , or his fede

ral habe as corpus

petiti on. 15

In vie w of our d

ispos iti on we address only

briefly Schlueter’s arguments for equitable or st atutory tolling whi le eit

her his PCRA petition or his motion to reinstat

e his direct appeal

nunc pro tunc was pendin g in the state courts. We do n ote that Merrit t v. Blaine , 326 F.3d at 161-65, forecloses Schluete r’s ar gument for

statut ory tolling during the t

ime hi s untimely

PCRA petition was p ending as it h olds that a federal habeas c ourt for purpos es of (E.D. Pa. Dec. 21, 1998) , in which t he distri ct court

applied e quitable

tolling where the petitioner’s a

ttorney promised to file a time ly federal habeas petition, but filed i t five months lat

e. Quite aside from the circumstance th at Bo ydis not precede ntial, we find the c ase unhel pful to our current analysis as the distr ict court issued the opinion in 1998 befo re we had provide d much guida nce on the subject of equitable tolling in the habeas context. Co nsequently, the equitab le tolling standard ut

ilize d in Bo yd arguably does not com

port with our

more r ecent pr onounceme

nts requi ring a habeas petitione

r to demonstrat

e that he was “prevented in an extraordinary way from asserti

ng his rights.” Johnson , 314 F.3d at 163.

14 Our opinion shoul d not be misread to condone or excuse Lauer’s conduc t. To t

he con tra ry we acknowledge that arguably Lauer’s conduct was

unaccept able and fe ll below professional standards. On the other hand, fair nessto Lauer requir

es t hat we point out tha

t he could not

find what he
rega rded was a basi s fo r a PC RA c laim. 15 We disagree w ith the dissent’s posit ion that

we should remand to t

he district court t o consider

whether Sch luete r ex ercis ed r eas ona ble d ilige nce

. Diss enting opin ion at 7 . The mag istrate judg e con clude d that “ the de lay in learnin g of

an of fice sh aring r elation ship between the prosecutor and defense counsel did not demonstrate the exercise of due dil igence. ” App. at 15 n. 1. The issue of Schluete r’s di ligenc e also was rais ed at ora l argument

before the dist

rict judg e. Th e district ju dge s ubse quen tly
appr oved and a dop ted the mag istrate jud ge’ s rep ort a nd r eco mm end ation

. Because the di stri ct court alrea dy has ruled that Schlueter

did not exercise reasonabl e dili gence, a r emand would be pointless.12

section 224 4(d)(2) de fers to a state court’s ruling dismiss ing a PCRA
pe ti ti on as un ti me ly. 16 According ly it is clear that his untimely state PCRA claim cannot po ssibly help him. We also reject his

claim that somehow filin g his motion to restore his appellate rights on June 22, 1998, more than one y

ear after the AEDPA pe

riod of limitations had run , should lead to statut ory tolling on t

he basis that the motion wa s a “prope

rly filed” application for post-conviction review under section 2244(d)(2). Whil e he predicates this a

rgument on the theory that his motion wa s denied “ on the merits, ” appellant’s br. at 46, inasmuch as the state c ourt pointed out that Schluete r had “knowingl

y a nd voluntarily waived h is appellate rights,” it is c lear t

hat the a ppeal was

not permitted beca

use it would have been untimely and there was no basis to circumvent the time bar an d not becau se Schlueter could not have demonstrated that there had b een a reversible erro r in the trial proceedings so that an appeal would h ave been f

utile. We decline to adopt a construction of the AEDPA that permi ts a pet ition for ha

beas cor pus to be deeme d time ly

on the basi s of sect

ion 2244(d)(2) pr

oviding for tol ling for “properly filed app lication[s] f or state post-conv iction . . . review” merely because the petitioner unsucces sfully has sought th e right to app eal nunc pro tunc yea rs after his unexercis ed right to file a timely direct appeal has expired. See Douglas , 359 F.3 d at 261-6 3.

Finall y we recogni ze that the dissent contends t

hat the re is a str ong argument for

equita ble tol ling pr edicat ed

on v arious Pen nsylvan ia state ap pellate decisi ons based on Schl ueter’ s fil ing of the P CR A p etition an d his m otion to reinstate his dire ct app eal nunc pro tunc

. Dissenti ng opinion at

3-4 n.2. This point is critical in th e disse nt’s an alysis as it points out that

equita ble tol ling dur ing the pe riod fr om Ap ril 24, 19 96, un til Dece mber 9 , 1997, “sav es Schlue ter’s clai m only i f we also tol l pending resolution of the state-court proceedi ngs.” Id

. We need not discuss these s tate de cisions as he pursu ed bo th forms of rel ief aft er the AEDPA period of limi tati ons alr eady ha d run.

III . CONCLU SION

For th e fore going r

eas ons, w e 16 Schlueter cont

ends t hat we “wrongly decided” Merrit t v. Blai ne , appellant’s br. at 54, but this panel
cannot enter tain that argument. We alsonote that even if we held that the oneye ar peri od of limi

tation be gan running under section 2244(d)( 1)(D) on December 9, 19 97, in

view o f Merrit

t v. Blainethere would not have been
statut ory tolling of t

he one-y ear per iod of limitat ion governing Schlueter’s federal habeas c orpus act

ion while hi s PCRA petition was pending. Thus, inasmuch as he comm enced his federal action on October 12, 2000, it would have been untimely.13

conclude th at the district court p roperly dismi ssed Schl

ueter’ s habeas

corpus petition as time barred by the one-ye ar peri od of li

mit ati on. Ac cordi

ngly, we will affirm the dist

rict court’s order
entere d Septem

ber 3, 2003. Schlueter v. Varner, et al

No. 03-3928

Ambro
, Circuit

Judge , Disse

nting

It is a n underly ing assum

ption of our legal system that attorneys actively pursue the b est interests of their c lients. All too of ten, attorneys make mistakes. The sad re ality

is that there a re not enough willing def

ense attorneys to repres ent com

petentl y t he inter ests of t he many criminal defendants wh o cycle through the courts. An d thus, necessarily

, we afford substantial leeway to attorney s when it comes to “m ere ‘attorney error.’” Roe v. Flor

es-Ort ega , 528 U.S. 470, 482 (20 00).

But the distinction between mistake and malfeasance is p rofoun d. There can be little s emblance of justice when an a ttorney assigned to pro tect a defendant i gnores a bl atant c onflict of interest, and another counsel does nothing while promising more than once to protect the defe

ndant’s r ights. I f the facts are as Paul Schlueter has portray ed them, his tri al counse l (George Blasco) disregarded his civil law partn ership with the prosecutor (James Narlesky ), and his appellate counsel (Philip Lauer) affirmativel

y m isrepr esente d that he would timely file a petition f or relief in order to fo restall the inevitable accounti ng for his long-promis ed and14

paid-for leg al services. 17 Irony becomes Kafkaesque

when the la

tter a ct of malfe asance

shelte rs from review t he former act of ma

lfeasance. I cannot in good conscience bury Schluete r’s ca se before

it see s the li ght of day. AEDPA confers on federal courts the auth ority equitably to toll its limi tations period in t

he inter est of justice . If any

case i s ripe for

exerci se of that power, th is one is. Accord ingly, I respectfully dissent.

* * * * *

As the majority

explaine d, Schlueter’s habeas petition wo uld ordinari ly have been due

on April 23, 1997. See Doug las v. Horn , 359 F.3d 257, 26 1 (3d Cir. 2 004). He d id not file his peti tion, howeve

r, until October 12, 2000. T hus the petitio n was timely only if the li mita tions per iod was tol led.

The AED PA filing deadline is subject t o equitabl e tolli

ng “when the principles of

equity would make the rig id application of a limit

ation period unfair.” Miller v. N.J. State D ep’t of Corr. , 145 F.3d 616, 618 (3d C ir. 1998) (internal quotation omitted). While this prin ciple on its face is broad, it is

to be applied sparingly. Equitable to lling is appropriate when “the p etitioner has in some extraordinary

way been prevente d from as serti

ng his or her

rights. The petiti oner must show that he or she exercised reason able diligence in investigating and bringing the claims .” Id . at 618–19 (i

nternal quotations omitted); see also Jones v. Morton , 195 F.3d 15 3, 159 (3 d Cir. 199 9). We have concluded, as a general matter, that attorney error is not so “extraordin ary” as to justify equitable tolling. See, e. g. , Johnson v. Hendricks
, 314 F.3 d 159, 1 63 (3d C ir. 2002). T his rule makes sense, as attorn ey error is normally attributed to the client. See,
e.g. , United Sta tes v. Boyle , 469 U.S. 241, 250 (1985). But

it does not

follow that tol ling base d on decepti on of the kind alleged by Schlueter in this case is also foreclose d.

Schlueter and his parents wro te to and called Lauer on many occasions over a period of

several months. He f

alsely

assure d them t

hat he was

prepari ng a PCRA p etition and w ould timely file. But he made no such prepa rations. After al lowing the de adline t o pass, he 17 At the very least, I would

rema nd for a dete

rmina tion by the District Court w hether Lau er, reputed to be well qualified, did in fact affirmatively mislead his client. See, e. g. , United Stat

es v. W ynn , 292 F.3d 226, 230 (5th Cir. 2002) (rem

anding for hearing t o determ ine whethe

r defendant was obligated to undertake further inquiry upon recei

pt of a let ter from the
court st ating tha t no petit ion under the Anti-Terror ism and Effec tive Death Penalty Act (“AEDPA” ) had been fi led, when attor

ney allege dly told the defenda nt’s father tha t no record o f his filing existed because the peti tion was filed directly with the ju dge).15

cease d all com

munica tion with t

he Schluete rs. He di d not retur

n their m any phone calls o r letters, nor did h e timely return Schlueter’s file s despite repeate d requests from Schlueter

and his new counsel. Lauer’s intentional abandonme

nt of Schluet

er’s c ase ca

nnot plausibly be labeled “erro r.” His behavior, I b elieve, was suf ficiently egregious to bring it

“within t he narrow line of cases in which lawy er misconduct justifies equitable tolli

ng.” Seitzinger v. Reading Hosp. & Med. Ctr. , 165 F.3d 236, 23 8 (3d Cir. 1 999).

The law of

agency provides a useful fra mework for

understa nding the distinction betwe en error and misconduct. See Baldayaque v. United States , 338 F.3d 145, 154 (2d Ci r. 2003) (J ac ob s, J. , c on cu rr in g) . O rd in ar il y, “[a]ttorney

ignorance or inadvertence” does not exc

use a pet itioner ’s noncompli ance wit

h AEDPA, becaus e “the attorney is the petitioner’s

agent when acting, or faili

ng to act, in further

ance of the litigation.” Coleman v. Thomps on , 501 U.S. 722, 753 (1991)(rejecting
attorne y e rror as “cause ” for procedurally

defaulted habeas claim s); see also McCa rthy v. Recorde x Serv., Inc ., 80 F.3d 842, 853 (3d C ir. 1996) (“It is, of course, bey

ond cavil t

hat the attorney-client rela

tionship is an agent-principal rela

tionship.”). We assume, for bette

r or worse, that a lawy

er is act ing as the petiti oner’s a

gent, and t

he petiti oner ther

efore “be ar[s] the

risk of attorney error.” Coleman , 501 U.S. at 752–5 3; c f. Link v. W

abash R.R. Co.
, 370 U.S . 626, 63 4 (1962 ) (“[E]ach party is deemed boun d by the acts of his lawye r-agent . . . .”)

. But it is a fun damental principle of agency law that

the knowledge of an agent is not attributed to the princi pal when the agent is acting in a ma nner adverse to the interests of the p rincipal. Restat ement (Third) of Age

ncy § 5.04 (Tentative Dr aft No. 4 2 003) (“No tice is not imputed to the principal of a fact that an agent kn ows or has re ason to kn ow if the agent acts adverse ly t o the principal in a transaction or matter for the agent’s own purposes . . . .”). Mere att orney error does not constitute an “extraordinary

circumsta

nce” because a circumstance, to be ex traordinary, must be beyond the priso ner’s contro l. Harris v. Hutchi nson , 209 F.3 d 325, 3 30 (4th Cir. 2000 ). Thus, we h ave explaine d, a client who relie s on the faul

ty advice of his lawyer has not encountered an obstacle to filin g that is external to his conduct. Johnson , 314 F.3 d at 162– 63. Conversely, when, as here, an attorney

cease s altogether to s erve the intere sts of his client, the la

w of agency is cl ear that the attorney acts alone.

This central tenet—that

attorney malfeasance shou ld not be attrib uted to the client—paves any

number of parallel paths to t olling in t his cas e. We m

ight conclude t

hat Schlueter, ha

d Lauer not
repres ented tha

t he was acting on the
case, would timely

have file d a petit

ion under Pennsy

lvania’ s Post-Convi ction Relief Act (“PC RA”), 42 P a. Cons. Stat. Ann. § 9 541, et seq., prior to t he16

deadline that would have presented Blasco’s clear con flict as trial counsel. Thus we migh t equitably toll the statute from April 24 , 1996, th e day it began to run, to December 9, 1997, the day that Schluete r’s new c ounsel was

put on notice of the relationship between Blasc o

an d N ar le sk y. 18 We might hold th at

18 Tolling for t

his mi nimum duration sav es Schlueter’s claim on ly if we also t oll pending r

esoluti on of the state-court pro ceedings. Th e analysis is complex, but it can be sum marized as follows. On February 3, 1998, Schleuter filed a petition for post-conviction relie f under PC RA. He argued t hat his PCRA petition sho uld be deemed timely because the dela y i n filing was

based on ineffective assist

ance of counsel retained to file t he petit ion. In June

1998 he separately filed a petition to appeal nunc pro tunc. The PCR A Court denied the PCRA petition as untimely and rejected Schlueter’s req uest for an a ppeal nunc pro tunc . On October

22, 1999, the Pennsylvania Sup erior Court af firmed. Schleute r’s subs equent pet

ition for allowanc e of an appea

l was deni ed by the Pennsy

lvania Supr

eme Cour t on August 2 8, 2000

. I note first that

statut ory tolling will not s ave Schlueter’s

claim . 28 U.S.C. § 2244(d) (2) provide s that “ [t]he time during which a properly filed applica tion for Sta

te post- convicti on or other collateral rev iew with respec t to the pertinent j udgment or claim is pending shal l not be count ed toward a

ny period of limitation under th is subsect ion.” But ne ither t

he PCRA petition nor the nunc pro tunc petiti on was “prope

rly filed” for the purpose s of Pennsylvania l aw. Our Court has stated that “an untimely

PCRA petition does not toll the statute of lim

itations for a federal habeas corpus petition.” Merritt v. Blaine , 326 F.3d 157, 165 (3d Cir. 2003). N or is statutory tolling availab le based on the nunc pro tunc petiti on, notwithstan ding ou r recent decision in Dougla s v. Horn, 359 F.3d 257, 263 n.11 (3d Cir. 2004 ). Douglas suggested that st atutory tolling m ight apply

to nunc pro tunc petiti ons filed be fore the Pennsy lvania Supr

eme Cour t’s dec ision in Commo nwealth v. L antzy , 736 A.2d 564 (Pa. 1999), which reversed a series of decisions by Pennsy

lvania lower courts indicatin g that nunc pro tunc petiti ons were c ompati

ble with PCRA under app ropriate circumstances. See,
e.g. , Commo nwealth v. H all , 713 A.2d 650, 65 3 (Pa. Sup er. 1998), rev’d in part, vacatedin part , 771 A.2d 1232 (Pa. 2001). But in Commonwealth v. Eller , 807 A.2d 838 (Pa. 2002), the Pennsylvania Suprem

e Court held that Lantzy did not announce

a new rule

and thus applies retroact

ively . Therefore, though Schlueter’s nunc pro tunc petition was filed more t

han a yea r before Lantzy was deci ded, it wa s not properly filed for t

he purposes

of Pennsylvania law. Althoug h I would not statutorily17 equity require s us to tol l the st

atute t o the day that Schlueter’s habeus petition was finally filed. Or we might

even concl

ude that Schl ueter fa lls wit hin the am

bit of § 2244(d)(1)(D), beca

use the c onflict of interest, though discoverable by Lauer based on his

allege d knowledge of Blasco a nd Narlesky’ s office sharing arrangement, was n ot reasonably ascertainable by an incarcerated in mate who was f

orestalled fro m pursuing h is case by the false assurance s of a third
pa rt y. 19 toll the AEDPA limitations peri od under § 2244 (d)(2), a stron g argument exists for equitable tolling based on Schlueter’s good-faith e fforts to a

vail himself of
state post-convi ction re lief. I

n Merritt
, 326 F.3d at 170 n.10, we prese rved the possibil ity

that equi table t olling may

be appropria te where , as her

e, a PCRA petition is late based on newly discovered f

acts of a “legitimate” natu re. Id . (“Undoubtedly, ther

e will be other habeas petitioners who find themsel ves in similar situations wh ere their need to exhaust state rem

edies will crea

te a tension wi

th the one-ye ar sta

tute of limitat ions in AEDPA. . . . The federal courts shou ld seek ways to ameliorate the consequ ences for th ese petitioners in appropria te cas es.”) . This may

be the special case that pan el had in mind. The argument for equi

table t olling based on S chlueter’s nunc pro tuncpetiti on is even stronger. The Pennsy lvania Supe

rior Court ’s deci sion in Hall , 713 A.2d at 653, announcing that nunc pro tunc

petitions were permissible under ap propriate circumstance s despit

e the la nguage of PCRA, w as issued on Ju ne 3, 199 8. Based on that decision, Schlueter’s counsel concluded that Schlueter was eligible for nunc pro tunc relie f and would th erefore be o bligated to p ursue it under AE DPA in o rder to exha ust state

reme dies. He

simi larly relie d on Pennsylvania c ase law when he appealed the PCRA court’s decision in December 1998; although Lantzy had by then been decided, seve ral post- Lantzy en banc opinions of the Superior Court (which

wo ul d l at er be ov er ru le d b y Eller ) held that it would not apply retroactively. See, e. g. , Commo nwealth v. G arcia , 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).

19 The majority

is “convinced that if Schlueter had exercised due diligence, he could have

discover ed the Blasco/ Narlesky a

rrangem ent long before the AEDPA became effective.” But this task would have been harder than it s ounds. Whil e various individuals were aware of the office sharing arrangement, few (if any) knew the exte nt of the re lationship betwee n the two attorneys. The ev idence strong ly suggests that N arlesky affirmatively concealed th e relationship. A ccording to Schlueter, Nar lesky went so far as to misr eprese nt to the PCRA c ourt the18

Other courts have applied equitable tolling under circum stances like the se. In Baldayaque , 338 F.3d at 152, for example, an attorney failed timely to file a § 2255 motion requested by his client and made inade quate eff orts to comm unicate with him . The Second Circuit he ld tha

t the attorney , “[b] y refusing to do what w as requested b y his client on such a fundamenta l matter, . . . violated a basic d uty of an attorney to his client.” His actions, the Court continued, “were fa

r enough outsi de the range of behavior th at reasonably could be expected by

a clie nt that t hey may be consider ed ‘extr aordinar y’ ” and ther

eby “justify the application of equitab le tolling t o the one-y

ear li mita tions per iod of AEDPA.” Id . at 152–5 3. See also Spitsyn v. Mo ore , 345 F.3 d 796, 7 98 (9th Cir. 2003 ) (“Based up on the un ique facts of this case, where an att

orney was retai ned to prepa

re and fil e a peti

tion, failed to do so, and disreg arded requ ests to return the f

iles pertaining to petitioner’s case u ntil well after the d ate the petition was due, we agree that equitable tollin g of the d eadline is appropriate .”); United Stat es v. W ynn , 292 F.3d 226, 230 (5th Ci r. 2002) (“Wy nn’s allegation that he was deceive d by hi s attor

ney into beli eving that a time ly § 2255 motion had been filed on his

behalf pre sents a

‘rare and extraor

dinary circumstance ’ bey

ond petiti oner’s c ontrol tha

t could war

rant equitabl e tolli

ng of the sta

tute of limitations.”); cf. Doherty v. Tea msters Pension T

rust Fundof Phila. & Vicinity
, 16 F.3d 1386 (3d Cir. 1994) (toll ing based on the death of the petitioner’s attorney).

In our Circu it, the principal case on poin t is Seitzinger

. It involved a Title VII claim, though we have since applied its re asoning to habeas cases. See, e. g. , Brown v. Shannon , 322 F.3d 768, 774 (3d Cir. 2003). The Supreme Court has cautione d that in t

he Title VII context “the pri nciples of equitabl e tolli

ng . . . do not extend to what is at best a garden variety claim of excusable neg lect.” Irwin v. Dep’t V

eteran Affairs , 498 U.S. 89, 96 (1990). Our

task in Seitzinger was to dec ide whethe

r mis conduct by

the plaintiff’s attorney

was merely

“garden variety ” or, rather, was s omething more egregious . The plai

ntiff all eged that

she repeatedly

asked her

attorne y whether he had filed a

compla int, and e ach tim

e he misrepres ented to her that he had. Under these circum stances, we concluded that equitable tollin g was appro priate. Seitzinger , 165 F.3 d at 241.

Of course
, Seitzinger also requires that the client be “r easonably diligent” in pursuing his or her claims. But th e facts of Seitzinger leave little

doubt that Schlueter has met

that burden. In concluding t

hat the pl aintiff i

n Seitzinger was diligent, we emphasized that she: (1) hired an attorn ey to file her civil compla int; (2)“contacted him

before the character of h is partnership w ith Blasco. The conf lict was particularly difficu lt to discover because Blasco’ s death i

n 1988 dissolved th at partnership.19

filing dead line, which sh e knew ab out in broad terms, to ensure

that he had filed the complaint”; a

nd (3) repeatedly

called him in or der to obta

in a copy of the complaint and monitor the status of her

case. Id. at 241. All of these factors are true in Schlu eter’s case as well. In fact, Schlueter and his family were, if anything, m

ore diligent. They

apprised their a ttorney of the prec ise fil ing deadline (whereas Seitzinger was aware, “in broad t

erms ,” that

a deadli ne exist ed) with ample tim

e to prepare a petiti on. In addition t o their phone

calls , the Schluete rs wrote severa l lett ers se eking to ensure that th e PCRA p etition wou ld be filed prior to the deadline. And they received written assurances that a petition wo uld timely be filed.

Once the de adline ha

d passed, the Schlueters did everything that could reasonably

be expected of them. When their phone

calls from Laue

r were not returned, they

wrote to the clerk’s office direct ly . That offic e did not re spond 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, m atters were l argely

out of Schlueter and his counsel’s h ands. Lauer simply

did not turn over the files for many months. The majority

dismisses Schlueter’s efforts as i

nadequate. They suggest that h e was not entitled to rely on the two wri

tten as surance s by

the
attorne y whom he had hire d to pursue his cas e; rat

her, on New Ye ar’s Da

y of 1997, he should have ascertained

whether Lauer had indeed filed as promised. Never m

ind that Lauer had

cease d to retur

n phone call s on Schlueter’s behalf. Never m ind that when the Schl

ueters , having re ceived no word from Lauer for months, inquired with the c lerk’s

office whet

her a pet ition ha d b ee n f

il ed , i t w as ne ar ly f

or ty d ays before the y received a response. Schluete r, say s the majority

, might have done more. This, I supp ose, is theoretically true. But it blinks reali

ty t o suggest that Schlueter might h ave retained su bstitute counsel wi lling to pr

epare a petiti on within the

two short we eks betwe en the end of 1996 and the PCRA fi ling deadline. Still, h e might have filed his own PCRA petiti on pro se , just in case. That wou ld have bee n supremely diligent.
But suprem

e dilige nce is not required. On the contrary , the standard is a relati vely m odest one. Schlueter’s diligence need only

have been reasonable u nder the circu mstances. Cf. Baldayaque , 338 F.3d at 153 ( “The standar d is not ‘extreme dilige

nce’ or ‘exceptiona l diligence,’ it is reasonab le diligenc e.”) ( emphas is in text). I be lieve that Schlueter’s p rotracted eff orts handily qualify. But if the majo rity is
not conv inced, it seems to me better to remand for the District Court to consider this issue in the first

instance rather t

han dismiss outright h is habeus petition. See id.20

Still, the majority insists, Seitzinger is distinguish able. If that is so, it is because the u rgency of tolling is far str onger in Schl

ueter’ s case . The
attorne y i n Seitzinger

nearly cost his client the right to seek r ecovery for gender and age discriminat ion by her employer. But the stakes in this case are far higher —life im prisonment without the possibility of paro le. The gravity of Schlueter ’s sit uati on is s elf- evide

nt. “ Dism

iss al of a first habeas pe tition is a particularly serious matt

er, for that dismi ssal denies the petitioner the protect

ions of the Great Writ entirel

y, r isking injury to an important intere st in human liberty .” Lonchar v. Thomas , 517 U.S. 314, 324 (1996) (emph asis omitted). The majority de cl in es to ex er ci se it s p ow er to re ct if y a fundamental inequity

—that Schlueter’s appella te counse l, rat

her than a ssist

ing him in obtaining the relief he was retained to pursue, crippled Schluete r’s diligent eff

orts timely to obtain postconviction relief for the tainted representation he received f rom his defense attorney

at trial. Thus no court will ever pass on the merits of his habeas claim. Bec ause I believe that under these c ircum stance s “the pr inciple s of equity . . . make the r

igid appli cation of [the AEDPA] limitation period unfair,” Miller , 145 F.3d at 618 (internal quotation s omitted), I respectfu lly dissent.