1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-1998

Lovasz v. Vaughn

Precedential or Non-Precedential:

Docket 97-3505

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Recommended Citation

"Lovasz v. Vaughn" (1998). 1998 Decisions. Paper 10.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/10
Filed January 14, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-3505 

STEVEN R. LOVASZ, 

 Appellant 

v. 

SCIG SUPT. DONALD T. VAUGHN 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civil No. 97-cv-01389) 

Submitted by the Clerk for a certificate of 

appealability pursuant to 28 U.S.C. S 2253 

October 23, 1997 

Before: BECKER, NYGAARD, and ROTH, Circuit Judges. 

(MOTIONS PANEL A) 

(Filed January 14, 1998) 

 STEVEN ROBERT LOVASZ #AJ-1800 

 Graterford SCI 

 P.O. Box 244 

 Graterford, PA 19426 

 Pro se 
OPINION OF THE COURT 

BECKER, Circuit Judge. 

The habeas petition of Steven Lovasz currently before us, 

on application for a certificate of appealability, presents the 

question whether a second or subsequent petition for postconviction relief, filed according to the procedural rules of 

the state, constitutes "a properly filed application" for the 

purpose of triggering the tolling mechanism of 28 U.S.C. 

S 2244(d)(2) without regard to the merits of the petition. 

Because we conclude that it does, we will grant the

certificate of appealability, reverse the dismissal of Lovasz's 

petition, and remand this matter to the district court for 

further consideration. 

I. 

In April 1988, Lovasz was sentenced in the Court of

Common Pleas of Fayette County, Pennsylvania, to life in 

prison for murder. After his conviction was affirmed on 

direct appeal, Lovasz filed a petition for post-conviction 

relief under Pennsylvania's Post Conviction Relief Act 

("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541-9546. After relief 

was denied, Lovasz filed a second PCRA petition, which was 

dismissed on May 18, 1995. The Pennsylvania Superior 

Court affirmed on March 4, 1996. The Pennsylvania 

Supreme Court denied Lovasz's petition for allowance of 

appeal on September 26, 1996. 

On July 30, 1997, Lovasz filed in the district court the 

current petition for a writ of habeas corpus under 28 U.S.C. 

S 2254. The district court dismissed the petition as timebarred under S 2244(d)(1), without discussing the tolling 

mechanism of 28 U.S.C. S 2244(d)(2). Before us now is 

Lovasz's request for a certificate of appealability to appeal 

from this dismissal. 

II. 

Title 28 U.S.C. S 2244(d), enacted as part of the 

Antiterrorism and Effective Death Penalty Act of 1996 

("AEDPA"), in relevant part provides: 

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 (1) 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; 

 . . . 

 (2) The time during which a properly filed application 

 for State post-conviction or other collateral review 

 with respect to the pertinent judgment or claim is 

 pending shall not be counted toward any period of 

 limitation under this subsection. 

28 U.S.C. S 2244(d). We have yet to consider what 

constitutes "a properly filed application" to trigger the 

tolling mechanism of S 2244(d)(2). 

Principles of comity inform our decision. In our federal 

system, "the States should have the first opportunity to 

address and correct alleged violations of state prisoner's 

federal rights." Coleman v. Thompson, 501 U.S. 722, 731 

(1991). Such respect for the states has given rise to the 

well-established rule that a federal court should not find a 

state prisoner's claims procedurally barred from federal 

habeas review unless state law "clearly foreclose[s]" review 

of the claims. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 

1993); see Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 

1997); Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996). 

Moreover, in enacting AEDPA, of which S 2244(d) is a part, 

Congress intended to "reduce federal intrusion into state 

criminal proceedings." Banks, 126 F.3d at 213. 

Thus, if a state allows petitioners to file second or 

subsequent petitions for post-conviction relief, federal 

courts should not undermine the state's decision by

refusing to toll the one-year period of limitation of 

S 2244(d)(1) where a second or subsequent petition is 

pending in the state court system. Nor should we 

discourage petitioners from exhausting all their claims in 

state court, even by means of a second or subsequent 

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petition for post-conviction relief where permissible under 

state law, before seeking habeas review in federal court. 

We believe that "a properly filed application" is one 

submitted according to the state's procedural requirements, 

such as the rules governing the time and place of filing. A 

Pennsylvania PCRA petitioner, for example, must file a 

motion with the clerk of the court in which he was 

convicted and sentenced, Pa. R. Crim. P. 1501, generally 

within one year of the date the judgment becomes final, 42 

Pa. Cons. Stat. Ann. S 9545(b)(1). If a petitioner complies 

with these procedural requirements, or other procedural 

requirements the state imposes, his petition, even a second 

or successive petition, is "a properly filed application" for 

purposes of S 2244(d)(2). While we recognize that the 

Pennsylvania Supreme Court has announced strict rules 

regarding the granting of second and subsequent PCRA 

petitions, see Commonwealth v. Lawson, 549 A.2d 107 (Pa. 

1988), Pennsylvania allows for the filing of second or 

subsequent PCRA petitions, see 42 Pa. Cons. Stat. Ann. 

S 9545(b)(1), and courts occasionally grant relief in such 

proceedings, see e.g., Commonwealth v. Morales, 701 A.2d 

516 (Pa. 1997). 

Further, we reject the notion that a meritless PCRA

petition cannot constitute "a properly filed application" 

under S 2244(d)(2). Rather, in considering whether a 

petition for post-conviction relief is properlyfiled, district 

courts should not inquire into its merits. A rule requiring 

an inquiry into the merits of a second or subsequent PCRA 

petition in order to determine if it was properlyfiled could 

become problematic, as exemplified in Hughes v. Irvin, 967 

F. Supp. 775 (E.D.N.Y. 1997). In Hughes, the district court 

considered whether a seventh motion for post-conviction 

relief constituted "a properly filed application" under 

S 2244(d)(2). The state's lower court had denied the motion 

without a hearing, but the state appeals court reversed and 

remanded for an evidentiary hearing. On remand, the lower 

court made findings of fact and again denied the motion. 

If it were to consider the merits, the Hughes court

mused, was the seventh motion "a properly filed 

application," and if so, at what points in time? Was it 

"improperly filed" because the lower court found it

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meritless? Did it become "properly filed" when the state 

appellate court reversed and remanded, only to lose that 

status when the lower court again denied it on the merits? 

Id. at 779. While such questions may be intriguing or 

provocative, we, like the Hughes court, find them both 

inappropriate and unnecessary in determining whether the 

petition for post-conviction relief was properlyfiled. After 

all, Congress chose the phrase "a properly filed 

application," one into which we do not read any 

requirement that the application be non-frivolous. But see 

Valentine v. Senkowski, 966 F. Supp. 239, 241 (S.D.N.Y. 

1997) (assuming that an application for collateral review 

must be non-frivolous in order to be properly filed under 

S 2244(d)(2)). 

In the case at bar, how the district court calculated the 

untimeliness of Lovasz's habeas petition is unclear. 

Apparently the magistrate judge was unaware that Lovasz's 

petition for allowance of appeal in his second PCRA

proceedings was pending before the Pennsylvania Supreme 

Court until September 26, 1996. Lovasz did not bring this 

to the court's attention until he filed objections to the 

magistrate judge's report and recommendation. The district 

court adopted the report and recommendation without

discussing whether Lovasz's second PCRA petition was 

properly filed for the purposes of S 2244(d)(2). 

We conclude that Lovasz's habeas petition was timely 

filed. When AEDPA took effect on April 24, 1996, Lovasz's 

second PCRA petition was pending before the Pennsylvania 

Supreme Court until September 26, 1996. Under 

S 2244(d)(2), this period of time "shall not be counted" as 

part of S 2244(d)(1)'s one-year period of limitation. Thus, 

Lovasz's one-year period did not expire until September 26, 

1997. Lovasz filed his habeas petition on July 31, 1997, 

well within S 2244(d)(1)'s time limitation, and the district 

court erred in dismissing it as untimely. 

III. 

Because we find that Lovasz's habeas petition was timely 

filed under S 2244(d)(1) and (2), we grant the certificate of 

 5 
appealability and reverse and remand to the district court 

for further consideration. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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