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. e du/thir dc ir c uit_1998/10Filed 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 seOPINION OF THE COURT

BECKER, Circuit Judge.

The habeas petition of Steven Lovasz currently befo re us, on application for a certificate of appealability, presents the question whether a second or subsequent petition fo r postconviction relief, filed according to the procedura l rules of the state, constitutes "a properly filed applicatio n" for the purpose of triggering the tolling mechanism of 28 U .S.C. S 2244(d)(2) without regard to the merits of the pe tition. 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 co urt for
further consideration.

I.

In April 1988, Lovasz was sentenced in the Court of Common Pleas of Fayette County, Pennsylvania, to li fe in prison for murder. After his conviction was affirme d on direct appeal, Lovasz filed a petition for post-con viction relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541-9546. Aft er relief was denied, Lovasz filed a second PCRA petition, wh ich was dismissed on May 18, 1995. The Pennsylvania Superio r Court affirmed on March 4, 1996. The Pennsylvania Supreme Court denied Lovasz's petition for allowanc e of appeal on September 26, 1996.

On July 30, 1997, Lovasz filed in the district cour t the current petition for a writ of habeas corpus under 28 U.S.C. S 2254. The district court dismissed the petition a s timebarred under S 2244(d)(1), without discussing the t olling 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 19 96 ("AEDPA"), in relevant part provides:

2(1) A 1-year period of limitation shall appl y to an

application for a writ of habeas corpus by a person in custody pursuant to the judgment of a Sta te court. The limitation period shall run from the

latest of --

(A) the date on which the judgment became fi nal by the conclusion of direct review or the expir ation of the time for seeking such review;

. . .

(2) The time during which a properly filed a pplication for State post-conviction or other collatera l review with respect to the pertinent judgment or cl aim is pending shall not be counted toward any peri od of
limitation under this subsection.

28 U.S.C. S 2244(d). We have yet to consider what constitutes "a properly filed application" to trigg er the tolling mechanism of S 2244(d)(2).

Principles of comity inform our decision. In our fe deral system, "the States should have the first opportuni ty to address and correct alleged violations of state pri soner'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 n ot find a state prisoner's claims procedurally barred from fe deral 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, fe deral 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 cl aims in state court, even by means of a second or subsequen t

3petition for post-conviction relief where permissib le under

state law, before seeking habeas review in federal court.

We believe that "a properly filed application" is o ne submitted according to the state's procedural requi rements, such as the rules governing the time and place of f iling. A Pennsylvania PCRA petitioner, for example, must fil e a motion with the clerk of the court in which he was convicted and sentenced, Pa. R. Crim. P. 1501, gene rally within one year of the date the judgment becomes fi nal, 42 Pa. Cons. Stat. Ann. S 9545(b)(1). If a petitioner complies with these procedural requirements, or other proced ural requirements the state imposes, his petition, even a second or successive petition, is "a properly filed applic ation" for purposes of S 2244(d)(2). While we recognize that t he Pennsylvania Supreme Court has announced strict rul es regarding the granting of second and subsequent PCR A 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. A nn. 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 applic ation" under S 2244(d)(2). Rather, in considering whether a petition for post-conviction relief is properlyfile d, district courts should not inquire into its merits. A rule r equiring an inquiry into the merits of a second or subsequen t PCRA petition in order to determine if it was properlyfi led could become problematic, as exemplified in Hughes v. Irv in, 967 F. Supp. 775 (E.D.N.Y. 1997). In Hughes, the distri ct court considered whether a seventh motion for post-convic tion relief constituted "a properly filed application" u nder S 2244(d)(2). The state's lower court had denied th e motion without a hearing, but the state appeals court reve rsed and remanded for an evidentiary hearing. On remand, the lower court made findings of fact and again denied the mo tion.

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? Wa s it "improperly filed" because the lower court found it

4meritless? 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 b oth inappropriate and unnecessary in determining whethe r the petition for post-conviction relief was properlyfil ed. 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 calculat ed the untimeliness of Lovasz's habeas petition is unclear

. Apparently the magistrate judge was unaware that Lo vasz's petition for allowance of appeal in his second PCRA proceedings was pending before the Pennsylvania Sup reme Court until September 26, 1996. Lovasz did not brin g this to the court's attention until he filed objections to the magistrate judge's report and recommendation. The d istrict court adopted the report and recommendation without discussing whether Lovasz's second PCRA petition wa s properly filed for the purposes of S 2244(d)(2).

We conclude that Lovasz's habeas petition was timel y filed. When AEDPA took effect on April 24, 1996, Lo vasz's second PCRA petition was pending before the Pennsyl vania Supreme Court until September 26, 1996. Under S 2244(d)(2), this period of time "shall not be cou nted" as part of S 2244(d)(1)'s one-year period of limitatio n. Thus, Lovasz's one-year period did not expire until Septe mber 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 t imely filed under S 2244(d)(1) and (2), we grant the cert ificate of

5appealability and reverse and remand to the distric t court

for further consideration.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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