2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-12-2011

Angel Pabon v. Superintendent SCI Mahanoy

Precedential or Non-Precedential: Precedential

Docket No. 08-1536

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 08-1536

_______________

ANGEL PABON,

Appellant

v.

SUPERINTENDENT S.C.I. MAHANOY; 

THE DISTRICT ATTORNEY 

OF THE COUNTY OF PHILADELPHIA; THE 

ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 07-cv-04199)

District Judge: Honorable Eduardo C. Robreno

_______________

Argued September 23, 2010

_______________

Before: MCKEE, Chief Judge, AMBRO 

and CHAGARES, Circuit Judges
2

(Opinion filed: July 12, 2011)

Elayne C. Bryn, Esquire (Argued)

1500 John F. Kennedy Boulevard

Suite 1230

Philadelphia, PA 19102

Counsel for Appellant

Thomas W. Dolgenos, Esquire

Anne Palmer, Esquire (Argued)

Office of the District Attorney

Three South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

AMBRO, Circuit Judge

I. OVERVIEW

Angel Pabon appeals the District Court‟s dismissal of 

his pro se petition for habeas corpus as untimely. He is 

serving consecutive life sentences for two related murder 

convictions in Pennsylvania state court. He concedes that his 

federal habeas petition was not timely under the one-year 

statute of limitations of the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, but 

contends that equitable tolling should be granted. 
3

Specifically, Pabon maintains that his inability to speak, read, 

or write English, coupled with the prison‟s lack of Spanishlanguage legal materials and repeated denials of translation 

assistance, are extraordinary circumstances that prevented 

him from timely filing his habeas petition despite diligent 

efforts to pursue his federal claims. 

The District Court dismissed Pabon‟s habeas petition 

as untimely and denied equitable tolling. We granted a 

certificate of appealability (“COA”) on that issue. We 

subsequently issued an order staying oral argument due to a 

potential defect in our COA, as it had not addressed whether 

Pabon had made a “substantial showing of the denial of a 

constitutional right,” a jurisdictional prerequisite before a 

COA may issue. 28 U.S.C. § 2253(c). Our jurisdiction turns 

on whether the trial court may have committed a Sixth 

Amendment Confrontation Clause violation under Bruton v. 

United States, 391 U.S. 123 (1968), by allowing a nontestifying codefendant‟s confession to be admitted into 

evidence despite its potential to prejudice Pabon‟s defense.

We conclude that Pabon has made a substantial 

showing that his Sixth Amendment right to confrontation may 

have been violated. On the equitable tolling issue, we hold 

that the facts Pabon alleges regarding his language inability

(if true), coupled with the prison system‟s lack of Spanishlanguage legal materials or interpreters, would be 

extraordinary circumstances. We also hold that Pabon 

exercised reasonable diligence in pursuing his claims. Thus, 

we reverse the District Court‟s ruling that Pabon was not 

reasonably diligent, vacate its order of dismissal, and remand 

for an evidentiary hearing on the factual issue of whether 

Pabon faced the extraordinary circumstances he claims.
4

II. BACKGROUND

A. The Crime

The back-story begins with Elias Pagan, a drug dealer 

who in 1997 controlled the corner of Eighth and Birch Streets 

in Philadelphia. Six men who worked for Pagan were 

involved in the crime at issue or the subsequent trial: Carlos 

Robles (“Guatauba”), Arisbel Ortiz, George Roman, José

DeJesus, Jonathan Hernandez, and the petitioner, Pabon. 

Aileen Centeno, Pagan‟s common-law wife, lived with him 

and knew these men. 

On March 18, 1997, Felix Vargas, a member of a rival 

drug group, shot and injured Guatauba, who vowed to kill 

Vargas. Elias Pagan witnessed the shooting and told 

Guatauba that he would pay him if he killed Vargas. On May 

30, 1997, Guatauba, Ortiz, Roman, Hernandez, DeJesus, 

Pabon and Centeno were present at Pagan‟s home when plans 

were made to kill Vargas later that night. Around 10:30 p.m., 

Ortiz reported to Pagan that he had found Vargas, and Pagan 

told Ortiz to come to Pagan‟s house with his car. At the 

house, Pagan provided the men with guns and black ski 

masks to wear during the planned shooting.1 Pagan

distributed three weapons: AK-47 rifles for Guatauba and 

DeJesus, and a handgun for Hernandez. Pabon was not 

provided a weapon. His confession, later taken by 

Philadelphia police, states that he already possessed a 9mm 

handgun that he used in the shooting.

 

1

Pabon is the only member of the group that was not alleged 

to have worn a mask.
5

After leaving Pagan‟s house, Ortiz drove his car to the 

intersection of Franklin and Indiana Streets, blocking the 

parked car in which Vargas was sitting. Guatauba allegedly 

was in the front passenger seat of Ortiz‟s car, while DeJesus, 

Pabon and Hernandez were in the back seat. Wearing their 

ski masks, Guatauba and two or three other men2got out of 

Ortiz‟s car and started shooting at Vargas. He was killed 

immediately and a bystander, Elizabeth Carrisquilla, was also 

fatally shot. Two other female bystanders, both on Franklin 

Street, were shot but survived their injuries. 

At trial, a ballistics expert testified that there were five 

firearms involved in the attack: two AK-47s, two 9mm semiautomatic handguns, and one .45 caliber handgun. 

Prosecutors contended that the assailants used four of those 

guns. The fifth gun, one of the two 9mm handguns, was used 

to shoot at the assailants by an unknown person who was 

never identified. A shot from that fifth gun injured Ortiz, 

who drove away with some of the other shooters, purportedly 

leaving Pabon and the other remaining shooter behind to flee 

on foot.

Back at Pagan‟s house on Birch Street, Pagan told 

Centeno to give two bundles of $2,500 each to Guatauba in 

payment for the murder. Guatauba kept one bundle and gave 

the other to DeJesus. A few days later, Pabon went with 

Pagan and Centeno and their kids, along with Hernandez and 

Roman, to Wildwood, New Jersey, for one week. On 

 

2

There was confusion at trial regarding how many shooters 

there were. Witnesses saw three shooters, all wearing masks. 

However, the prosecution alleged that there were four 

shooters, one of whom was not wearing a mask (Pabon). 
6

returning to Philadelphia, Pabon was shot in an unrelated 

incident. After being released from the hospital, he stayed 

with Pagan for a few days and then went to his home town in 

Puerto Rico. 

Police arrested Pabon in Puerto Rico on charges 

related to the murders of Vargas and the bystander, 

Carrisquilla, and read him his Miranda rights in Spanish. 

After his extradition to Philadelphia, Philadelphia Police 

interrogated him in Spanish.3 Pabon ultimately gave a 

confession, conducted in Spanish but translated into English 

by Detective Perez, in which he admitted to dealing drugs and 

to being one of the shooters in the attack on Vargas. 

B. The Structure of Pabon’s Joint Trial

The Philadelphia DA‟s Office, on behalf of the 

Commonwealth of Pennsylvania, prosecuted Pabon jointly 

with four codefendants for the murders of Vargas and 

Carrisquilla. His codefendants were: (1) Pagan, alleged to 

have planned and paid for the killing but not to have been one 

of the shooters; (2) Centeno, Pagan‟s common-law wife who 

the DA claimed was involved in the conspiracy to murder 

Vargas; (3) DeJesus, an alleged shooter; and (4) Hernandez, 

an alleged shooter. 

 

3

 Pabon has maintained from the time of his arrest that he 

reads, writes, and understands only Spanish. Detective Carlos 

Perez (who speaks Spanish) asked Pabon “[D]o you read, 

write and understand English?” Pabon‟s answer was “no.” 

Detective Perez then questioned Pabon in Spanish and 

answers were recorded by Detective John McDermott in 

English. 
7

Guatauba, also believed to be one of the shooters, was 

not apprehended by authorities at the time of trial. Ortiz, the 

purported driver, accepted a plea deal to avoid the death 

penalty and testified for the Commonwealth. Roman, a 

member of the drug group who was not involved in the 

shooting, also testified for the Commonwealth as part of a 

cooperation agreement regarding a different murder charge.

Judge Jane Greenspan presided over the joint jury trial. 

Each of the five defendants was represented by his or her own 

defense counsel. All of the defense attorneys moved for 

severance, but their motions were denied. The defense 

attorneys later moved for recusal of Judge Greenspan based 

on remarks made by her during voir dire, but those motions 

also were denied. Pabon used a court translator for pre-trial 

hearings and during the trial. 

The Commonwealth‟s decision to introduce 

confessions given by several of the non-testifying 

codefendants raised the potential for violations of the 

Confrontation Clause of the Sixth Amendment of the 

Constitution. Thus, the trial transcript reflects negotiated, 

line-by-line edits to these confessions, made by Judge 

Greenspan in discussion with prosecutors and several of the 

defense attorneys. 

Pabon‟s court-appointed counsel in this habeas appeal 

points to one passage in DeJesus‟s statement as a Bruton

violation. The relevant portion of his statement reads: 

Question: José, is there anything 

you would like to add to your 

statement? Answer, Yeah. I know 

that I didn‟t shoot the girl who got 
8

killed. Another should be 

arrested for this. He paid it off. 

He even gave me the Grand 

National for helping to do this 

besides the money that Guatauba 

paid me. 

(N.T. 8/2/99: 44) (emphasis added). The statement referred 

to Pagan, who employed the other men and was alleged to 

have paid for the killings. Pagan‟s attorney objected, asking 

that the statement be limited to “I know that I didn‟t shoot the 

girl who got killed” to avoid a violation of his client‟s Sixth 

Amendment rights. The Commonwealth argued that the 

statement should not be redacted because it did not name 

Pagan explicitly. Ultimately, his attorney and the DA agreed 

to limit the statement to “I know that I didn‟t shoot the girl 

who got killed. Another should be arrested for this.” Pabon‟s 

claim that this redacted statement, in the context of the trial, 

violated his Confrontation Clause rights is discussed in part 

III.B below. 

C. Evidence Admitted at Trial

In addition to Pabon and DeJesus‟s confessions, 

several of Pabon‟s codefendants gave statements to the police 

that were introduced at trial. Pagan‟s initial statement to the 

police implicated Guatauba, Hernandez, DeJesus and Ortiz in 

the murder, but did not implicate Pabon. However, Roman, 

who was not a codefendant but was part of the drug group, 

testified at trial that Pabon was involved in the conspiracy to 

kill Vargas, participated in the shooting, and fled 

Philadelphia. Ortiz, the driver, testified that he drove Pabon 

to the shooting, but he did not know if all of the men fired 

weapons when they got out of his car. Roman and Ortiz‟s 
9

testimony both conflicted with their past statements to the 

police.4 

Eyewitnesses at the scene saw a car fitting the 

description of Ortiz‟s car. They saw three males get out of 

the car, one from the driver‟s side and two from the 

passenger‟s side. All three were wearing black clothes and 

face masks.5 No eyewitness placed Pabon at the scene of the 

crime. Eyewitnesses testified that on returning to Birch Street 

after the murder, three males—identified as Ortiz, Hernandez, 

and Guatauba—got out of the car. Another witness testified 

that she saw Pagan, Centeno, Hernandez, and Guatauba 

celebrating after the shooting, but did not see Pabon. One 

witness testified about Pabon‟s involvement in drug dealing 

but did not link him to the shooting. 

Pabon‟s confession was the Commonwealth‟s 

strongest evidence against him at trial. In his statement to 

Philadelphia police, he admitted to dealing drugs, having a 

9mm handgun for protection, and participating in the 

 

4

Like Pagan, Roman did not implicate Pabon in his initial 

statement to the police, although he did implicate Guatauba, 

DeJesus, Hernandez, and Pagan in the shooting. Roman later 

testified against Pabon after taking a plea deal regarding a 

different homicide. Ortiz, who also pled guilty to avoid the 

death penalty, had previously stated that Guatauba and 

DeJesus got out of the car and shot Vargas, making no 

mention of Pabon.

5

The prosecution‟s theory was that a fourth man (Pabon) got 

out of the car but did so after the witnesses had ducked for 

cover. They also argued that Ortiz, the driver, never had a 

gun and thus it was likely that he did not get out of the car.
10

shooting. It also states: “While I was shooting at [Vargas], I 

heard [Ortiz] holler I am shot. I look at [Ortiz]. He was 

holding his head. The way his car was parked, I knew the 

shot that hit [Ortiz] came from Franklin Street, so I started 

firing in that direction.”

At trial, Pabon attempted to repudiate his confession. 

He presented testimony from a forensic document examiner 

that the signature on his confession was unlikely his own. 

Pabon also argued that there was no new information 

provided in his statement that the police did not already 

know. Additionally, he pointed out that questions commonly 

asked in such interviews, to which the police would not have 

known the answers, were not asked in Pabon‟s interrogation.6 

In rebuttal, however, the DA presented its own document 

examiner who testified that the signature on the confession 

was likely Pabon‟s. During deliberations, the jury requested 

to see, in their words, Pabon‟s “alleged confession.” Judge 

Greenspan informed them they could only have it read to 

them and see only the signatures.7 

 

6

For example, the question “what was the last grade you 

completed” appeared in DeJesus‟s confession, but not 

Pabon‟s.

7

Pabon‟s confession and the testimony of the two coconspirators who became state‟s witnesses, Roman and Ortiz, 

were the primary evidence that put Pabon at the scene of the 

crime. The DA‟s limited physical evidence consisted of 

Pabon‟s fingerprints on the outside of Ortiz‟s car. The DA 

argued that Pabon‟s own confession explains why 

eyewitnesses did not see him after the crime: after they killed 

Vargas, it states, “[Ortiz] then took off in his car down 
11

D. Pabon’s Conviction and State Court Appeals

At trial, the jury found Pabon guilty on all counts but 

could not agree on a sentence. Judge Greenspan imposed two 

consecutive life sentences for the murders of Vargas and 

Carisquilla, six to 20 years for conspiracy, concurrent terms 

of five to 20 years for each aggravated assault conviction, one 

to two years for possessing an instrument of crime, and one to 

two years for reckless endangerment.

Pabon‟s appeal to the Superior Court of Pennsylvania 

raised six substantive issues, including the Bruton issue into 

which we now make a threshold inquiry. The Superior Court 

adopted an opinion written by Judge Greenspan as its own 

and affirmed Pabon‟s convictions. Commonwealth v. Pabon, 

768 A.2d 886 (Pa. Super. 2002). The Pennsylvania Supreme 

Court then denied Pabon‟s petition for allowance of appeal. 

Pabon timely filed a pro se petition pursuant to the 

Post Conviction Relief Act (“PCRA”). Sondra Rodrigues 

was appointed counsel and filed an amended petition and 

memorandum of law. The PCRA Court, in an opinion written 

by Judge Greenspan, dismissed the petition on the merits 

without a hearing. 

Pabon appealed to the Pennsylvania Superior Court, 

which affirmed the PCRA Court‟s dismissal in an 

unpublished decision. The Pennsylvania Supreme Court 

again denied allowance of appeal. Pabon‟s subsequent 

 

Indiana [Street] with two guys, then I ran. We went to Birch 

Street.” It also stated that he changed his clothes in an 

abandoned house down the street and did not return to the 

area. 
12

petition for a writ of certiorari was denied by the United 

States Supreme Court. 

E. Pabon’s Pro Se Habeas Petition in the Eastern 

District of Pennsylvania 

Pabon filed a pro se petition for habeas corpus with 

the District Court for the Eastern District of Pennsylvania on 

September 20, 2007 and it was received by the Court on 

October 5, 2007.8 The District Court referred the matter to a 

Magistrate Judge for a Report and Recommendation 

(“R&R”). It concluded that Pabon‟s petition was filed ten 

months after AEDPA‟s one-year statutory deadline and was 

therefore time-barred under 28 U.S.C. § 2244. The R&R also 

concluded that there was no basis for equitable tolling of the 

limitations period.

Pabon filed hand-written objections to the R&R, 

arguing that he was entitled to have the time for filing 

equitably tolled because he does not read, write or speak 

English and he was repeatedly denied access to Spanish 

language materials or a translator while in prison. The Court 

overruled Pabon‟s objections, adopted the R&R, and 

dismissed the habeas petition as untimely. Pabon filed a 

timely notice of appeal in our Court and, subsequently, an 

application for a COA. 

We granted the COA on “whether the habeas petition 

was timely filed under 28 U.S.C. § 2244(d), including the 

 

8

The federal “prisoner mailbox rule” provides that a 

document is deemed filed on the date it is given to prison 

officials for mailing. See Burns v. Morton, 134 F.3d 109, 113

(3d Cir. 1998). 
13

question whether there is a basis for equitably tolling the 

limitations period.” We later issued an order staying oral 

argument, however, pending resolution of a possible 

jurisdictional defect in the COA. The order directed the 

parties to brief whether Pabon had made a substantial 

showing of the denial of a constitutional right as required by 

28 U.S.C. § 2253(c).

That jurisdictional issue and Pabon‟s equitable tolling 

claim are now before us. We conclude that Pabon has made a 

substantial showing of the denial of a constitutional right 

based on the alleged Bruton violation. Pabon‟s codefendant 

DeJesus‟s redacted confession, when combined with Pabon‟s 

own confession and the limited number of codefendants 

allegedly involved in the shooting, may have created a 

damaging inference that DeJesus was accusing Pabon of 

being a shooter in the crime and violated Pabon‟s Sixth 

Amendment right to confront witnesses testifying against 

him. 

Further, we hold that Pabon is entitled to an 

evidentiary hearing on his equitable tolling claim. The 

District Court misinterpreted the evidence before it, stating 

that Pabon had access to a Spanish speaking attorney when in 

fact he did not. Pabon‟s claim that he does not speak, read, or 

write in English exceeds the initial showing of extraordinary 

circumstances required by two other Courts of Appeals. See

Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008), and Mendoza v. 

Carey, 449 F.3d 1065 (9th Cir. 2006). He has also shown a 

significant degree of due diligence—including reaching out to 

an attorney he thought spoke Spanish (who did not) and 

requesting translation assistance multiple times despite the 

prison‟s repeated denials. While there is not enough evidence 

in the record to determine whether Pabon‟s language 
14

deficiency actually caused the delay in bringing his habeas

claim, an evidentiary hearing is warranted.

III. JURISDICTION

A. Standard of Review 

Before a circuit court may rule on an appeal from a 

district court, a state prisoner seeking federal habeas corpus

relief must obtain a COA as a “jurisdictional pre-requisite.” 

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing 28 

U.S.C. § 2253(c)(1)). Slack v. McDaniel, interpreting § 

2253(c), clarifies that when a district court denies a habeas

petition on procedural grounds without reaching the merits of 

the underlying constitutional claim, as here, a COA may issue 

only if the petitioner shows that: (1) “jurists of reason would 

find it debatable whether the district court was correct in its 

procedural ruling;” and (2) “jurists of reason would find it 

debatable whether the petition states a valid claim of the 

denial of a constitutional right.” 529 U.S. 473, 478 (2000).

An appellate court‟s “COA determination under § 

2253(c) requires an overview of the claims in the habeas 

petition and a general assessment of their merits.” Miller-El,

537 U.S. at 336. This is a “limit[ed],” “threshold inquiry” 

that “does not require full consideration of the factual or legal 

bases adduced in support of the claims.” Id.

9

 In Miller-El, 

 

9

The Commonwealth argues that we should use the AEDPA 

standard for deciding the merits of habeas claims brought by 

state prisoners in our COA determination. See 28 U.S.C. § 

2254(d) (claims “adjudicated on the merits in State court” 

must have “resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established 
15

the Supreme Court “reiterate[d] that a prisoner seeking a 

COA need only demonstrate „a substantial showing of the 

denial of a constitutional right.‟” Id. at 327 (citing 28 U.S.C. 

§ 2253(c)(2)). “A petitioner satisfies this standard by 

demonstrating that jurists of reason could disagree with the 

district court‟s resolution of his constitutional claims or that 

jurists could conclude the issues presented are adequate to 

deserve encouragement to proceed further.” Id. (citing Slack, 

529 U.S. at 484). While a state prisoner must show 

“„something more than the absence of frivolity‟ or the 

existence of mere „good faith‟ on his or her part,” he or she is 

not required “to prove, before the issuance of a COA, that 

some jurists would grant the petition for habeas corpus. 

Indeed, a claim can be debatable even though every jurist of 

reason might agree, after the COA has been granted and the 

case has received full consideration, that petitioner will not 

prevail.” Id. at 338 (internal citation omitted). 

 

Federal law” for relief to be granted). This attempt to raise 

our standard of review at the COA stage is precisely what the 

Supreme Court rejected in Miller-El. It noted that the Fifth 

Circuit Court had used “too demanding a standard on more 

than one level.” 537 U.S. at 341. “It was incorrect for the 

Court of Appeals” to import the standard from § 2254(d)(2), 

as it “applies to the granting of habeas relief rather than to the 

granting of a COA.” Id. at 341-42. It was also “incorrect for 

an even more fundamental reason. Before the issuance of a 

COA, the Court of Appeals had no jurisdiction to resolve the 

merits of petitioner‟s constitutional claims . . . . Deciding the 

substance of an appeal in what should only be a threshold 

inquiry undermines the concept of a COA. The question is 

the debatability of the underlying constitution claim, not the 

resolution of that debate.” Id. at 342.
16

We determined in our initial COA that reasonable 

jurists could dispute the District Court‟s dismissal of Pabon‟s 

habeas petition as untimely filed, also noting that the Second 

and Ninth Circuit Courts have concluded that there may be a 

basis for equitably tolling AEDPA‟s limitations period due to 

severe language barriers. See Diaz, 515 F.3d 149; Mendoza, 

449 F.3d 1065. We now decide that the second jurisdictional 

requirement, a substantial showing of the denial of a 

constitutional right, has been met. 

B. Pabon’s Confrontation Clause Claim

Pabon claims that the introduction at trial of the 

confession of DeJesus, Pabon‟s non-testifying codefendant, 

violated his Sixth Amendment Confrontation Clause right 

under Bruton. To resolve whether this claim is debatable, 

we make a threshold inquiry regarding the application of 

Bruton and its progeny to Pabon‟s trial and conviction. 

Miller-El, 537 U.S. at 338. 

1. Bruton and Progeny

Trials with multiple defendants create opportunities for 

violations of the Sixth Amendment right of crossexamination. Bruton held that, in a joint trial, a defendant‟s 

right under the Confrontation Clause of the Sixth Amendment 

is violated by introducing a non-testifying codefendant‟s 

confession that implicates the defendant as a participant in the 

crime. Such statements violate the Sixth Amendment even 

when the jury is explicitly instructed that the testimony at 

issue is only to be considered as evidence against the 
17

codefendant.10 This is because jurors in joint trials cannot be 

expected to “perform the overwhelming task of considering” 

a codefendant‟s confession “in determining the guilt or 

innocence of the declarant and then of ignoring it in 

determining the guilt or innocence of any codefendants . . . .” 

Bruton, 391 U.S. at 131.11 In these circumstances, jury 

instructions are “intrinsically ineffective” because the 

inadmissible confession “cannot be wiped from the brains of 

the jurors.” Id. at 129. 

The Supreme Court elaborated on Bruton‟s core 

holding in a case issued the same day, Cruz v. New York, 481 

U.S. 186, 194 (1987). When a defendant‟s confession 

substantially “interlocks” with the non-testifying 

codefendant‟s confession, this exacerbates the potential for a 

Bruton violation rather than rectifying it. Id. at 192. This is 

because it is not the reliability of the codefendant‟s 

confession that is at issue in Bruton situations, but the 

likelihood that the jury is not able to disregard it. Id. at 192-

93. The more “interlocking” the codefendant‟s confession, 

 

10 “Ordinarily, a witness whose testimony is introduced at a 

joint trial is not considered to be a witness „against‟ a 

defendant if the jury is instructed to consider that testimony 

only against a codefendant.” Richardson v. Marsh, 481 U.S. 

200, 206 (1987). This is based on the “assumption . . . that 

jurors follow their instructions.” Id. Bruton provides a 

narrow exception to that assumption.

11 As Justice Stewart wrote in his oft-quoted concurrence in

Bruton, those statements “are at once so damaging, so 

suspect, and yet so difficult to discount, that jurors cannot be 

trusted to give such evidence the minimal weight it logically 

deserves.” Id. at 138.
18

the less likely jurors will be capable of putting it out of their 

minds in deciding the defendant‟s guilt or innocence. Id. 

Thus, while a “codefendant‟s confession will be relatively 

harmless if the incriminating story it tells is different from 

that which the defendant himself is alleged to have told, [it 

would be] enormously damaging if it confirms, in all essential 

respects, the defendant‟s alleged confession.” Id. at 192. The 

damage to the defendant might be less “devastating” “if [he] 

were standing by his confession . . . .” Id. (emphasis in 

original). However, “in the real world of criminal litigation, 

[when] the defendant is seeking to avoid his confession,” the 

damage is significant, like that in Bruton. Id. (emphasis in 

original). 

Two subsequent cases addressed the thorny issue of 

redacted statements of non-testifying codefendants. In 

Richardson v. Marsh, the Court held that when “any reference 

to [the defendant‟s] existence” has been removed and the 

confession “bec[omes incriminating] only when linked with 

evidence introduced later at trial,” limiting instructions may 

cure what would otherwise be a Bruton violation. 481 U.S. 

200, 211, 208 (1987). While the testimony in Bruton directly 

named the defendant, in Richardson “the confession was not 

incriminating on its face, and became so only when linked 

with” the defendant‟s testimony. Id. at 208. The Court noted 

that “[w]here the necessity of such linkage is involved, it is a 

less valid generalization that the jury will not likely obey the 

instruction to disregard the evidence.” Id.

However, the distinction between directly naming a 

codefendant and indirect linkage is not rigid. Even redacted 

confessions that remove the defendant‟s name completely, 

using a blank space or neutral pronoun instead, may 

sometimes violate Bruton. Gray v. Maryland, 523 U.S. 189 
19

(1998). “Redactions that simply replace a name with an 

obvious blank space or a word such as „deleted‟ or a symbol 

or other similarly obvious indications of alteration . . . so 

closely resemble Bruton‟s unredacted statements that . . . the 

law must require the same result.” Id. at 192. An “obvious 

deletion” is likely to “call the jurors‟ attention specifically to 

the removed name” and may “overemphasize the importance 

of the confession‟s accusation.” Id. at 193. Jury instructions 

are likely to exacerbate the situation, as the instruction itself 

“will provide an obvious reason for the [redaction].” Id. 

In limiting Richardson, Gray noted that “inference 

[connecting a codefendant‟s statement to the defendant] pure 

and simple cannot make the critical difference” between a 

Bruton violation and permissible testimony under

Richardson. Id. at 195. It is the “kind of, not the simple fact

of, inference” that might lead a jury to infer that testimony 

incriminated a codefendant in some redacted statements but 

not others. Id. at 196 (emphases in original). Thus, context is 

relevant to determining whether a Bruton violation has 

occurred, regardless whether the challenged testimony has 

been redacted or curative instructions given.

For example, our Court held in Vazquez v. Wilson, 550 

F.3d 270 (3d Cir. 2008), that even when neutral pronoun 

substitution or its equivalent is used (in that case, “my boy” 

or “the other guy”), if there is a strong implication that the 

non-testifying codefendant‟s confession refers to the 

defendant, it may still violate Bruton despite the substitution 

and use of jury instructions.12 In addition, the number of 

 

12 Similarly, in United States v. Hardwick we determined that 

substituting the phrase “others in the van” was not adequately 

protective, as the phrase clearly referred to only two of the 
20

codefendants that could be implicated in a Gray analysis, 

where redactions or substitutions have been used, is also 

important. Compare United States v. Richards, 241 F.3d 335, 

341 (3d Cir. 2001) (Bruton violated where only three people 

were involved in crime) with Priester v. Vaughn, 382 F.3d 

394, 400-01 (3d Cir. 2004) (“another guy” did not implicate 

any particular person given that at least 15 persons were 

involved in the crime, and the placeholder used was “bereft of 

any innuendo [linking] them” to particular defendants, in 

contrast to Richards in which redactions “were tantamount to 

an explicit reference” to a codefendant). 

Under AEDPA‟s deferential review standard, our 

Court in Vazquez rejected the Pennsylvania Supreme Court‟s 

seeming “bright-line rule that when terms like „my boy,‟ the 

„other guy,‟ or the „other man‟ are used [as substitutions,] . . . 

there cannot be a Bruton violation.” Vazquez, 550 F.3d at 

281. Rather, as Vazquez instructs, using a bright line is “an 

unreasonable application „of clearly established Federal law 

under the decisions of the Supreme Court of the United 

States‟” given the necessity of determining how strongly a 

codefendant‟s statement implicates the defendant and the 

likelihood that it would be disregarded by the jury. Id. at 282.

 

multiple codefendants on trial. 544 F.3d 565, 573 (3d Cir. 

2008). We “underscore[d] . . . that the nature of the linkage 

between the redacted statement and the other evidence in the 

record is vitally important in determining whether a 

defendant's Confrontation Clause right has been violated.” 

Id.
21

2. DeJesus‟s Confession in the Context of Pabon‟s 

Joint Trial

Pabon‟s codefendant DeJesus confessed to the crime 

(from the conspiracy to murder Vargas through payment he 

received for the murder) in a statement recorded by Detective 

McDermott. The relevant portion of DeJesus‟s confession 

that Detective McDermott read to the jury at trial follows: 

Question, José, when the 

shootings happened, how many

times did you shoot? Answer, 

like a good twelve times. I was 

standing in front of [Vargas]‟s car 

shooting into it.

Question, did you see a female 

standing near [Vargas]‟s car when 

you were shooting? Answer, 

yeah. She was on the side of the 

car. I screamed at her, yo, get the 

fuck out of here. She moved 

away, and that is how I know I 

didn‟t hit the girl. I am standing 

real close to [Vargas]‟s car, so I 

know that everything I shot was at 

[Vargas]. How could I miss, I 

was so close.

Question, do you know how the 

two females who were standing on 

Franklin Street were shot? 

Answer, no, I didn‟t even see 

them.
22

. . .

Question, José, is there anything 

you would like to add to your 

statement? Answer, Yeah. I 

know that I didn’t shoot the girl 

who got killed. Another should be 

arrested for this. 

(N.T. 8/2/99: 42-44) (emphases added).

As noted above, DeJesus‟s statement initially 

implicated Pagan. It stated that the person who should be 

arrested for Carisquilla‟s shooting should be the person who 

“paid it off” (i.e., provided money and weapons). (N.T. 

8/2/99: 22-23). However, it was truncated to stop at “another 

should be arrested for this,” with all further references to 

Pagan‟s identity and role deleted, as Pagan‟s counsel 

requested because of his own client‟s Bruton rights. (N.T. 

8/2/99: 1-33). The prosecution, defense counsel, and trial 

court were involved in redacting DeJesus‟s statement. Judge 

Greenspan instructed the jury that DeJesus‟s confession could 

only be used as evidence against him, not any of his 

codefendants. (N.T. 8/2/99: 38-39). She repeated this 

caution at the end of trial in regard to Pabon in particular. 

Though DeJesus‟s confession did not identify Pabon 

by name, he argues that the use of “another” (in the statement

“[a]nother should be arrested for this”) was an “unnatural 

locution” that revealed reference to a codefendant‟s 

participation in the shooting. See Gray, 523 U.S. at 192 

(“obvious indications of alteration” may cause a Bruton

violation even in a redacted statement). He claims that 

DeJesus‟s confession would have implicated Pagan, had it 
23

not been truncated, but was altered to implicate Pabon (or 

Hernandez or Gautauba) as read to the jury at trial. 

In context, DeJesus‟s statement that “another” should 

be arrested for Carrisquilla‟s death does seem to refer to 

“another” of the alleged shooters.13 It is in a passage of 

DeJesus‟s confession discussing how the shooting occurred, 

making the natural inference from the cropped statement that 

DeJesus was implicating another shooter. Of the five 

codefendants, two were not alleged to have been shooters, 

Pagan and Centeno. That leaves only Pabon, Hernandez, and 

Guatauba (with DeJesus the fourth alleged shooter) as the 

person referred to as “another.” If the jury credited DeJesus‟s

confession that he shot Vargas but “another” should be 

arrested for shooting Carisquilla, Pabon and Hernandez are 

the only two codefendants to whom he plausibly could have 

referred in this passage of his confession (three persons in all 

could have been referenced, but one was not a codefendant14). 

While this is not so clear-cut a situation that only one 

defendant is implicated by a codefendant‟s statement, it is 

also a far cry from the situation in Priester, for example, in 

which 15 codefendants were all equally implicated. 382 F.3d 

at 401. Here, because one of three persons was implicated by 

the statement, it is possible that attempting to avoid a Bruton

violation for one codefendant may have created one for two 

 

13 We note that, even were this an “unnatural locution,” 

“another” was the word DeJesus used. It is the context, and 

the truncation of DeJesus‟s explanation, that implicates Pabon 

(or the other alleged shooters) rather than Pagan. 

14 Guatauba was not one of the codefendants, as he had not 

been apprehended at the time of trial. However, he was 

referenced at trial as an alleged shooter. 
24

of the others.15

In addition, as noted above, Pabon allegedly confessed 

to shooting toward “Franklin Street,” the street from which 

shots were fired at Ortiz. (N.T. 7/30/99: 64). This increases 

the likelihood that DeJesus‟s statement regarding the shooting 

of “two females who were standing on Franklin Street” was 

particularly damaging to Pabon (rather than Hernandez or 

Guatauba, the other alleged shooters). Pabon claims that his 

challenged confession “is cumulative to the harm suffered . . . 

because of the admission of the DeJesus statement . . . .” 

Pabon Br. 22. The potential corroboration of Pabon‟s 

confession by DeJesus‟s does raise flags under Cruz. That is, 

the “interlocking” nature of these two confessions makes it 

less likely, not more, that curative instructions would solve 

the Bruton problem. Reinforcing this point, Pabon also 

argues that the prosecutor‟s closing argument to the jury 

contended that Pabon and DeJesus‟s confessions corroborated 

each other. (N.T. 8/4/99: 94). In these ways, DeJesus‟s 

confession may have prejudiced Pabon by increasing the 

likelihood that the jury would believe he was one of the 

shooters.

3. Pennsylvania Superior Court‟s Analysis of Pabon‟s 

Bruton Claim

The DA asserts that the state trial court reasonably 

concluded that Pabon‟s Bruton claim “is plainly meritless.” 

 

15 This is also not a case in which the statement at issue was 

scrubbed of all reference to codefendants. As in Gray, the 

“statement . . . obviously refer[s] directly to someone . . . .” 

523 U.S. at 196. 
25

Supp. Br. for Appellees 28. As noted, however, in Vazquez

we rejected explicitly the bright-line approach taken by the 

Pennsylvania Supreme Court, under which a substitution of a 

pronoun for a name is adequate provided no specific name 

was used and limiting instructions were given. Vazquez, 550 

F.3d at 282. That same flawed, bright-line approach was 

applied in deciding Pabon‟s direct appeal. This implies that 

Pabon‟s Bruton claim was decided under Pennsylvania case 

law that is an “unreasonable application of Federal law.” Id.

In addition, Judge Greenspan repeatedly emphasized 

the “curative” instructions issued at several times during the 

trial. These instructions, however, are beside the point. The 

central premise of Bruton is that “[l]imiting instructions may 

not in fact erase the prejudice” created by a codefendant‟s 

confession. Bruton, 391 U.S. at 132. Moreover, as Cruz

noted, under Bruton it is the “likelihood that the instruction 

will be disregarded,” not the quality of the instruction or its 

repetition, that is relevant in determining whether a Bruton

violation has occurred. Cruz, 481 U.S. 186. The United 

States Supreme Court has reaffirmed that instructions can 

exacerbate the problem jurors face in trying to segregate 

evidence that is admissible as to one codefendant but not 

another. See Gray, 523 U.S. at 193. Thus, the Court that 

decided Pabon‟s direct appeal should have focused on the 

degree to which DeJesus‟s confession implicated Pabon and 

the extent of any resulting prejudice in the particular 

circumstances of the trial, rather than the quality or number of 

jury instructions given.
26

C. Pabon’s Bruton Claim is Debatable for the 

Purposes of a COA

Under the Miller-El standard, Pabon‟s alleged Bruton

violation need only be debatable. For the reasons explained 

above, we conclude that reasonable jurists could debate 

whether Pabon has a meritorious claim regarding the 

introduction of DeJesus‟s confession at their joint trial and 

that claim deserves developing.16 See Miller-El, 537 U.S. at 

327.

IV. EQUITABLE TOLLING

A.The R&R and the District Court’s Ruling

As noted earlier, the District Court adopted the 

Magistrate Judge‟s R&R, which denied Pabon‟s habeas

petition as untimely. Under AEDPA, a prisoner has one year 

from the date a state court conviction becomes final, not 

including the time during which state post-conviction appeals 

are pending, to file an application for a writ of habeas corpus. 

28 U.S.C. § 2244(d)(1). Judgment becomes final at “the 

conclusion of direct review or the expiration of the time for 

seeking such review.” Id. 

Pabon‟s conviction became final on August 12, 2002, 

when the time expired for seeking certiorari for direct review 

 

16 We note that Pabon‟s pro se habeas petition raised four 

claims. Although his appointed counsel deals with only one 

of those claims (the Bruton claim) for COA purposes, that 

does not foreclose consideration of his other claims in the 

District Court were Pabon to succeed on his equitable tolling 

claim.
27

by the United States Supreme Court. See Kapral v. United 

States, 166 F.3d 565, 567 (3d Cir. 1999). About nine months 

later (May 12, 2003),17 statutory tolling of the limitations 

period began when Pabon filed his PCRA petition in the 

Court of Common Pleas. On August 8, 2006, the Supreme 

Court of Pennsylvania denied allowance of appeal, ending the 

statutory tolling period.18 As about nine months had passed 

before Pabon filed his PCRA petition, he had three months 

left before AEDPA‟s one-year filing deadline. His habeas

petition was filed on September 20, 2007, well past the oneyear mark.

The R&R stated that “Pabon does not allege 

circumstances which prevent him in some extraordinary way 

from filing a timely habeas petition.” R&R at 7. It also 

stated that Pabon “fails to allege circumstances indicating that 

he exercised reasonable diligence.” Id.

Pabon filed objections (handwritten by a fellow 

inmate) to the R&R. They were that: (1) timely filing of his 

habeas petition was unlawfully impeded by state action and 

 

17 As with federal law, see supra note 8, under Pennsylvania 

law the “prisoner mailbox rule” provides that prisoner filings 

are deemed filed on the date they are delivered to authorities 

for mailing. See Commonwealth v. Castro, 766 A.2d 1283, 

1287 (Pa. Super. 2001). Pabon‟s petition appears to have 

been postmarked on May 12, 2003. See Br. for Appellees 7 

n.1. 

18 Pabon filed a petition for certiorari in the Supreme Court 

following denial of his PCRA appeal, but statutory tolling did 

not continue while that petition was pending. See Lawrence 

v. Florida, 549 U.S. 327, 329 (2007).
28

AEDPA allows a habeas petition to be submitted up to one 

year after an unlawful impediment to filing created by state 

action has been lifted, see § 2244(d)(1)(B), so, he contends,

his petition was timely under AEDPA; and/or (2) equitable 

tolling should apply. As to his second argument, he asserts 

that he should have been entitled to equitable tolling from 

September 7, 2006 (the date he initially requested legal 

assistance from a prison paralegal) to September 20, 2007 

(the deemed filing date of his habeas petition) due to his 

inability to read, write, or understand English, the lack of

Spanish-language legal materials in the prison‟s restricted 

housing unit (the “RHU”), and repeated denials of requests 

for legal or translation assistance.19 

The District Court concluded that there was no basis 

for equitable tolling of the statutory limitations period. In 

doing so, it did not hold an evidentiary hearing with respect to 

Pabon‟s language ability, his access to Spanish-language 

legal materials in prison, or how he may have been affected 

by his inability to obtain legal or translation assistance. As 

noted, Pabon appealed and we granted his application for a 

COA. 

B.The Standard for Equitable Tolling

In determining whether equitable tolling should be 

granted, we address two questions: (1) whether the petitioner 

faced extraordinary circumstances that stood in the way of 

timely filing; and (2) whether he or she exercised reasonable 

diligence. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); 

see also Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003) 

 

19 Pabon also objected to the denial of his motion for counsel. 
29

(same). In Holland v. Florida the Supreme Court confirmed 

that equitable tolling may be applied to AEDPA‟s statutory 

limitations period. 130 S. Ct. 2549, 2560 (2010).20

There are no bright lines in determining whether 

equitable tolling is warranted in a given case. Rather, the

particular circumstances of each petitioner must be taken into 

account. Id. at 2563. As Holland explains, while prior 

decisions provide guidance, rigid reliance on precedent 

should be avoided. Id. In each case, there is a need for 

“flexibility,” “avoiding „mechanical rules,‟” and “awareness . 

. . that specific circumstances, often hard to predict in 

advance, could warrant special treatment in an appropriate 

case.” Id. (internal citation omitted).21 In sum, equitable 

tolling is appropriate when “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); 

see also LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005). 

 

20 Holland confirms our Court‟s rulings that AEDPA‟s statute 

of limitations is subject to equitable tolling. See, e.g., LaCava 

v. Kyler, 398 F.3d 271 (3d Cir. 2005); Miller v. N.J. State 

Dep’t of Corr., 145 F.3d 616 (3d Cir. 1998).

21 The Commonwealth urges an approach that defies the 

fundamentals of equity, asking us to conclude that a certain 

type of circumstance can never be extraordinary. Despite 

Holland’s admonition against bright-line rules, the 

Commonwealth continues to argue that Pabon “has failed to 

state even potentially extraordinary circumstances,” 

suggesting that similar circumstances as those alleged in 

Mendoza and Diaz could not potentially be extraordinary. 

(DA‟s Rule 28(j) letter at 3). That kind of rigid rule is 

precisely what Holland warns against. 
30

However, courts need to be “sparing in their use of” the 

doctrine. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). 

C. Equitable Tolling Analysis

1. Extraordinary Circumstances

Our Court has not yet addressed whether a language 

deficiency may constitute an extraordinary circumstance for 

the purposes of equitable tolling. We find it persuasive that 

the Second and Ninth Circuit Courts of Appeals have both 

determined that equitable tolling might be warranted when a 

non-English speaking petitioner could not comply with 

AEDPA‟s statute of limitations because the prison did not 

provide access to AEDPA-related materials, translation, or 

legal assistance in his or her language. 

In Mendoza, the petitioner asserted that he did not 

speak English and that “the prison law library possessed no 

Spanish books, no Spanish-English legal dictionaries, and no 

postings about the AEDPA time limitations in any language.” 

449 F.3d at 1067. The Ninth Circuit held that the 

“combination of (1) a prison law library‟s lack of Spanishlanguage legal materials, and (2) a petitioner‟s inability to 

obtain translation assistance before the one-year deadline, 

could constitute extraordinary circumstances.” Id. at 1069. 

Mendoza‟s case was remanded for an evidentiary hearing on 

his equitable tolling claim in light of that holding. Id. at 

1071.

Pabon has alleged almost identical extraordinary 

circumstances as the petitioner in Mendoza (indeed, Pabon‟s 

are perhaps more extraordinary given his confinement in the 

RHU). In Mendoza, the petitioner eventually “found a newly-
31

arrived, bilingual inmate willing to offer assistance” for a fee, 

and was able to file a habeas petition (though only after the 

AEDPA deadline had passed). Id. at 1069. Again similar to 

Mendoza, Pabon eventually received help from an Englishspeaking inmate in filing his habeas petition, but after the 

AEDPA deadline. 

Second, in Diaz, the Second Circuit adopted a similar 

approach to that used in Mendoza. 515 F.3d at 154 (holding 

that “English language deficiency can warrant tolling of the 

AEDPA limitations period”). The petitioners in Diaz—Angel 

Diaz and Yoke Yew Tan—had asserted, respectively, being 

“„primarily a Spanish speaker‟” and having “a lack of „a 

working knowledge‟ of English and „difficult[y]‟ in finding 

interpreters in the Department of Correctional Services.” Id.

at 151-52 (alterations in original). The Diaz Court noted that 

“the proper inquiry is not how unusual the circumstance

alleged to warrant tolling is among the universe of prisoners,” 

as the State had argued (and the Commonwealth urges in 

Pabon‟s appeal), “but rather how severe an obstacle it is for 

the prisoner endeavoring to comply with AEDPA‟s 

limitations period.” Id. at 154 (emphases added). “For the 

prisoner who cannot read English, the obstacle is undoubtedly 

serious . . . and can, in some circumstances, justify equitable 

tolling.” Id. In that case, however, the petitioners failed on 

the reasonable diligence prong. Neither had made efforts “to 

learn of [AEDPA‟s] requirements within their places of 

confinement.” Id.

As these Circuit Courts did in Mendoza and Diaz, we 

now hold that inability to read or understand English, 

combined with denial of access to translation or legal 

assistance, can constitute extraordinary circumstances that 
32

trigger equitable tolling.22 In addition, as the Diaz Court did, 

we note that the relevant inquiry is not whether the 

circumstance alleged to be extraordinary is unique to the 

petitioner, but how severe an obstacle it creates with respect 

to meeting AEDPA‟s one-year deadline. 

In light of this holding, we conclude that the District 

Court erred in rejecting Pabon‟s claim without an evidentiary 

hearing. First, it erred in concluding that Pabon had not 

explained why his inability to read, speak, or write English 

caused his inability to timely file his habeas petition. Pabon 

explained that there were no Spanish-language legal 

materials, and there was no notice of AEDPA in Spanish, in 

the RHU where he was housed for five years. These facts, he 

 

22 The Commonwealth argues that Cobas v. Burgess, 306 

F.3d 441 (6th Cir. 2002), supports its position that a language 

barrier cannot constitute an extraordinary circumstance. First, 

as explained above, Holland throws into serious doubt the 

notion that there exist types of circumstances that can never

be extraordinary, as courts must use a case-by-case analysis 

rather than bright lines in this inquiry. 130 S.Ct. at 2563. In 

any event, Cobas did not hold that language barriers can 

never be “extraordinary” for equitable tolling purposes—it 

merely concluded that in that case, while the petitioner had 

alleged an inability to speak or understand English, he 

appeared to have access to an interpreter, so his language 

inability had not created a language barrier. 306 F.3d at 444. 

Thus, Cobas is consistent with the approach we adopt today. 

See also Mendoza, 449 F.3d at 1069-70 (citing Cobas to 

support the holding that language inability, coupled with 

denial of translation assistance, can constitute an 

extraordinary circumstance). 
33

argued, coupled with repeated denials of legal or translation 

assistance from prison officials despite efforts on his part, 

were “extraordinary circumstances” that prevented him from 

timely filing his habeas petition. See Pabon Br. 18-19. He

asserted quite clearly that language inability, coupled with 

denials of assistance, created a barrier to timely filing. 

The District Court also assumed that Pabon‟s potential 

language barrier was negated by his communication with a 

“Spanish-speaking attorney.” Op. at 2 n.1. We disagree, as 

the evidence currently before us supports the contrary 

conclusion—that Pabon continued to face a language barrier 

until his habeas petition was filed, as he had been unable to 

obtain legal or translation assistance despite continuing 

efforts. The record also reflects that Pabon required a 

Spanish-language translator in trial and pre-trial proceedings. 

A129-130. A Spanish-speaking detective (Detective Perez) 

testified at trial that he read Pabon his Miranda rights in 

Spanish, questioned him in Spanish, and asked him (in 

Spanish) whether he reads, writes, or understands English, to 

which Pabon answered “no.” (N.T. 7/30/99: 52-62).23 

In sum, there is substantial evidence in the record that 

Pabon may have faced an extraordinary circumstance: he has 

 

23 The Commonwealth argues that Pabon‟s “proficiency [in 

English] when he gave his confession and was tried, between 

1997 and 1999, are simply immaterial to his proficiency in 

November 2006, the time of the AEDPA deadline.” Br. for 

Appellees 50 (emphasis omitted). It may be that Pabon‟s 

language proficiency has changed while in prison, but that is 

precisely the type of factual inquiry for which an evidentiary 

hearing is required. 
34

consistently claimed to be a non-English speaker, required a 

translator in his interactions with police and the court system, 

lacked access to legal materials or notice of AEDPA in 

Spanish in the RHU where he was housed for five years, and 

was repeatedly denied legal materials in Spanish or 

translation assistance.24 As the District Court did not hold an 

evidentiary hearing on this issue, we reverse and remand for it 

to do so. 

 

24 Although the Commonwealth urges otherwise, Br. for 

Appellees 43-45, we emphasize that the assistance Pabon 

eventually received from another inmate does not bar the 

possibility that he had faced extraordinary circumstances up 

to that point. To conclude otherwise would yield the perverse 

result of leaving prisoners at the mercy of fellow inmates. 

This presents many problems. For example, an inmate who at 

first might be willing to provide translation or legal help 

could change his or her mind, being under no obligation to 

assist fellow inmates, or could be transferred at any time. 

Moreover, an inmate who understood enough of the 

petitioner‟s language to translate a two-paragraph grievance, 

such as the one prepared for Pabon by José Ortiz, might not 

have enough language skills (or might not be willing) to help 

a petitioner decipher federal statutes, let alone prepare an 

entire petition for habeas corpus requiring legal research and 

a considerable investment of time. For these reasons, we 

reject the Commonwealth‟s argument that eventually 

receiving help from an inmate bars the potential for equitable 

tolling. We also reject the Commonwealth‟s conclusory 

assertion that equitable tolling based on a language barrier is 

improper because Pabon “commit[ed] crime” in Philadelphia 

“with considerable speed and ease.” Id. at 43. 
35

2. Reasonable Diligence

Even if a petitioner has faced extraordinary 

circumstances, he must also “exercise[] reasonable diligence 

in . . . bringing [the] claims.” Miller, 145 F.3d at 618-619 

(internal quotation marks omitted). The Supreme Court 

addressed reasonable diligence in Holland, explaining that 

“[t]he diligence required for equitable tolling purposes is 

„reasonable diligence,‟ . . . not „maximum feasible 

diligence.‟” 130 S.Ct. at 2565 (internal citations omitted). 

Our Court has established a similar standard. “Due diligence 

does not require „the maximum feasible diligence;‟” “it does 

require reasonable diligence in the circumstances.” Schlueter 

v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (internal citations 

omitted); see also LaCava, 398 F.3d at 277. 

Here, based on the documents Pabon submitted with 

his objections to the R&R, we count ten or more efforts 

where he sought assistance, both before and after the AEDPA 

deadline. After ascertaining that there were no Spanishlanguage legal materials in the RHU, Pabon wrote to his 

PCRA attorney, in Spanish, before October 28, 2004. He 

wrote a second letter seeking help from that attorney before 

November 30, 2004. At various times before September 7, 

2006, he submitted “numerous written requests” seeking legal 

materials or assistance within the prison system.25 While in 

the RHU, he submitted a letter to the general population law 

library, with help from an English-speaking inmate, 

 

25 The prison paralegal‟s denial of Pabon‟s subsequent 

request states that he had already submitted “numerous 

written requests,” A-55, and his appeal of that denial also 

notes that he had submitted prior request slips. A-56.
36

requesting assistance from the staff paralegal, but was denied 

assistance on September 19, 2006. On November 6, 2006, 

Pabon filed an “Official Inmate Grievance,” with the 

assistance of inmate José Ortiz, again requesting access to 

legal services and stating that he does not speak, read, or 

write in English.26 That grievance was denied without 

explanation.27 All of these efforts occurred before the 

AEDPA filing deadline of November 6, 2006. 

Pabon‟s efforts did not stop there. Before December 

22, 2006, he again sought help from an attorney. He 

submitted a second appeal for access to paralegal services 

before January 23, 2007. On February 4, 2007, he requested 

the appointment of an Inmate Legal Reference Aide, but 

never received a response to his request. Thereafter, he found 

a bilingual inmate who agreed to help him with his pro se 

habeas petition. That petition was signed (and, as noted, 

delivered to prison officials) on September 20, 2007. 

The District Court‟s conclusion that Pabon did not 

demonstrate diligence is based, at least in part, on the 

 

26 The grievance explained that “[i]t appears that the paralegal 

referred to prior request slips written by other inmates, but 

sent by me, to base her decision in not to help me [sic].” A-56 

(emphases in original). 

27 The response to Pabon‟s Official Inmate Grievance merely 

states who made the previous decision to deny his request. It 

does not state why it was denied or review the paralegal‟s 

decision in any manner: “It was [the paralegal‟s] decision 

that you did not require legal assistance in accordance with 

DC ADM 007. It is not the decision of the SCI-Mahanoy 

Library Staff.” A-57.
37

assumption that he had a Spanish-speaking attorney. In its 

Order dismissing Pabon‟s habeas petition, the Court stated 

that he “has made no attempt to explain why, in light of the 

fact that he contacted a Spanish speaking attorney, his 

petition was close to one year late.” Op. at 2 n.1. The record 

belies that statement. The attorney the Court references 

seems to be Pabon‟s post-conviction (PCRA) attorney, who 

did not speak Spanish. She wrote the following letter to 

Pabon on October 28, 2004: 

Dear Mr. Pabon: 

You have sent a letter to me in 

Spanish. I do not understand it. 

If you are asking about your 

appeal, there will not be a 

decision on it until some time next 

year (or longer). You must 

correspond with me in English in 

the future if you expect me to 

comprehend what you are saying. 

Thank you. 

Sincerely, 

Sondra R. Rodrigues, Esq. 

A-51 (emphases added).28 

 

28 In response to further requests for assistance from Pabon, 

Ms. Rodrigues later wrote him another letter containing about 

two paragraphs of broken Spanish and one paragraph in 

English, again reiterating that she does not speak Spanish and 
38

Thus, unlike the Diaz petitioners who had made no 

efforts to communicate with anyone outside of prison or learn 

of next steps to pursue their legal claims within their places of 

confinement, 515 F.3d at 154, Pabon attempted to pursue his 

claims repeatedly. Moreover, within prison he sought access 

to legal materials in Spanish or translation assistance, but was 

denied or left without a response each time he did so. Under 

these circumstances, we hold that Pabon was reasonably 

diligent. 

Because we hold that language inability, when coupled

with lack of translation assistance, may constitute an 

extraordinary circumstance, and because Pabon was 

reasonably diligent in pursuing his claims, we conclude that 

the District Court erred in dismissing Pabon‟s equitable 

tolling claim without considering the evidence he offered. 

The Commonwealth should also have an opportunity to 

submit evidence in response. Thus, we remand for an 

evidentiary hearing on the extraordinary circumstances prong 

of Pabon‟s equitable tolling claim.

 

attempting to explain that her great-grandparents were from 

Portugal. A-54. It appears that the District Court did not 

consider this correspondence regarding Ms. Rodrigues‟s 

language abilities (or lack thereof), but instead may have 

assumed based on her last name that she would have Spanishlanguage proficiency (as Pabon himself may have done). We 

see no other basis for the conclusion that Pabon “contacted a 

Spanish-speaking attorney.” Op at 2 n.1.
39

D. Timeliness under § 2244(d)(1)(B): “Impediment 

to Filing” 

AEDPA provides that “a one-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.” 

28 U.S.C. § 2244(d)(1). Sub-parts to that section provide 

four possible starting dates for the tolling period. “The 

limitation period shall run from the latest” date of those four 

options. Id.

Under § 2244(d)(1)(A), the limitations period runs 

from “the date on which the judgment became final by the 

conclusion of direct review of the expiration of the time for 

seeking review.”29 However, Pabon argued in his application 

for a COA that § 2244(d)(1)(B) applies. Under it, the 

limitation period runs from “the date on which the 

impediment to filing an application created by State action in 

violation of the Constitution or laws of the United States is 

removed, if the applicant was prevented from filing by such 

State action.” § 2244(d)(1)(B). Pabon claims that the 

Commonwealth‟s denial of Spanish-language legal assistance 

or notice of AEDPA in Spanish is an “impediment to filing” 

within the meaning of § 2244(d)(1)(B). Our Court has not 

addressed the meaning of “impediment to filing” under § 

2244(d)(1)(B). We do not reach the issue here because the 

impediment Pabon argues prevented him from filing 

 

29 The District Court concluded that the AEDPA limitations 

period began running for Pabon on the date on which his 

judgment became final (August 12, 2003). No party disputes 

that August 12, 2003 is the correct starting date if § 

2244(d)(1)(A) is applicable.
40

remained un-removed: As far as we know, and as Pabon 

himself argues, at the time that he filed his habeas petition he 

was still denied Spanish-language materials, translation and 

legal assistance.

V. CONCLUSION

We hold that language inability, when coupled with 

denial of legal or translation assistance, can be an 

extraordinary circumstance for equitable tolling purposes in 

the habeas context. We also hold that Pabon was reasonably 

diligent in pursuing his claims. Thus, Pabon‟s equitable 

tolling claim merits an evidentiary hearing. We thus reverse 

the District Court‟s ruling, vacate its order of dismissal, and 

remand for an evidentiary hearing on the extraordinary 

circumstances Pabon has alleged in his equitable tolling 

claim.