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w . v i l l a no v a . e du/thir dc ir c uit_2011/352NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 09

- 4576

_______________ ROBERT STANLEY REED,

Appellant

v. MICHAEL HARLOW; DISTRICT ATTORNEY OF THE COUNTY OF LANCASTER;

ATTORNEY GENERAL OF PENNSYLVANIA

_ ______________ On Appeal from the United States District Court F or the Eastern District of Pennsylvania (D.C. C ivi l Action No. 5

- 0 9

- c v - 0 3870 ) District Judge: Honorable Mitchell S. Goldberg

_______________ Argued September 20 , 2011

_______________ Before: AMBRO , CHAGARES, and ROTH , Circuit Judges

(Opinion filed : October 17, 2011 ) Theresa A. Kennedy, Esquire (Argued) 130 Mansfield Street Belvidere, NJ 07823 Counsel for Appellant Craig W. Stedman District Attorney Andrew J. Gonzalez (Argued) Assistant District Attorney Joshua G. Parsons, Esquire Lancaster County Office of District Attorney2

50 North Duke Street Lancaster, PA 17608 Counsel for Appellees

_______________ OPINION

_______________ AMBRO, Circuit Judge Robert Stanley Reed appeals from the District Court‟s order dismissing his petition for writ of habeas corpus as time

- barred by the one

- year period of limitation applicable to such petitions under the Antiterrorism and Effective Death Penalty Act (“AEDPA” )

. See 28 U.S.C. § 2244(d)(1). For the reasons stated below, we affirm.
I. Because we write solely for the parties, we recite only those facts necessary for our decision. On November 18, 1999, following a jury trial in the Court of Common Pleas of Lanc aster County, Reed was convicted of involuntary deviate sexual intercourse, aggravated indecent assault, indecent exposure, and corruption of minors. Reed was sentenced to nine to eighteen years in prison, followed by seven years of probation. On January 19, 2001, the Superior Court of Pennsylvania affirmed the judgment of sentence, and the Supreme Court of Pennsylvania denied allowance of appeal on August 16, 2001. Reed did not file a petition for writ of certiorari in the United States Supreme Court. On August 14, 2002, Reed filed his first petition under Pennsylvania‟s
Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541

- 46. On June 17, 2003, the PCRA Court denied the petition, and the Superior Court of Pennsylvania affirmed the3

denial of PCR A relief on June 14, 2004. Reed did not appeal to the Supreme Court of Pennsylvania

. Reed filed three more PCRA petitions, all of which wer e denied as untimely under state law.
On August 12, 2009, Reed filed a petition for writ of habeas corpus pr emised on a claim of ineffective assistance of trial counsel. Reed allege d that , prior to trial , he directed his a ttorney , Charles Mackin , to retain Dr. Robert E. Fay as an expert witness to testify on Reed‟s behalf. According to Reed, Dr. Fay was “ to re view a videotape of the examination of the alleged victim‟s genital area by the Commonwealth [e]xpert[.]” However, “on o r about the first day of trial, a ttorney Mackin informed . . . Reed that he was not going to call [Dr. Fa y] to testify, claiming that [ Dr. Fay‟s] report and testimony would not be favorable” to Reed ‟s defense

. Reed alleges that, unbeknownst to him at the time, no report was ever prepared by Dr. Fay. Reed contends that Mackin had no further communication with Dr. Fay after sending hi m the videotape , and that Dr. Fay never provided Mackin with his expert opinion concerning it

. In February 2006, Reed wrote to Dr. Fay to request information concerning the videotape and the opinion he formed after reviewing it. In June 2006, Dr. Fay w rote back to Reed stating that the case “died on the vine” from his standpoint, and that he was “left in the dark” by Mackin. Dr. Fay wrote Reed again in July 2006, and also in August 2006. In the August letter, dated August 7, 2006, Dr. Fay informed Ree d that he had found the videotape of the alleged victim‟s genital examination, had reviewed it, and was of the opinion that her genitalia appeared “normal and uninjured[.]” Thereafter, in September4

2006, Dr. Fay provided a n affidavit to Reed wherein Fay a ttested that he had recently reviewed the videotape and was of the opinion that the alleged victim‟s genitalia appeared to be “completely normal.” Reed asserts that Dr. Fay‟s opinion, had Mackin offered it at trial, would have been favorable to Reed‟s d efense and would have rebutted the expert testimony presented by the Commonwealth. Reed thus contends that Mackin‟s “conduct may amount to extraordinary circumstance[s], because he knowingly and willfully disregarded alleged exculpatory evidence.” Conseq uently, Reed avers that the one - year limitation period applicable to his habeas corpus petition should be equitably tolled until August 7, 2006, the date on or about which he learned of his trial counsel ‟s alleged misconduct

. II. Reed filed his petitio n for a writ of habeas corpus under 28 U.S.C. § 2254. The District Court exercised jurisdiction over the petition pursuant to 28 U.S.C. § 2254(a).
We ha ve jurisdiction pursuant to 28 U.S .C. §§ 1291 and 2253. We review de novo the District Court‟s lega l ruling that Reed‟s habeas corpus petition is time

- barred by
AEDPA

. See Taylor v. Horn , 504 F .3d 416, 427 n.6 (3d Cir. 2007).
I II

. Under AEDPA, “[a] 1

- year period of limitation shall apply to an application for a writ of habeas corpus by a person in cus tody pursuant to a judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitation period “begins to run from „the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.‟” M erritt v. Blaine , 326 F.3d 157, 161 (3d Cir. 2003) (quoting5

28 U.S.C. § 2244(d)(1)(A)). This limitation period “ is subject to two tolling exceptions: (1) statutory tolling during the time a „properly filed‟ application for state post

- conviction review is pending in state court [;] and (2) equitable tolling, a judicially crafted exception.” Id. (citing Jones v. Morton , 195 F.3d 153, 158 (3d Cir. 1999) ). 1 “Equitable tolling is appropriate when „the principles of equity would make the rigid application of a limitation period unfair[.]‟” LaCava v. Kyler , 398 F.3d 271, 275 (3d Cir. 2005) (quoting Miller v. N.J. State Dep’t of Corr. , 145 F.3d 616, 618 (3d Cir. 1998) ). Such may be the case “when a state prisoner faces extraordinary circumstances that prevent hi m from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims.” Id. at 276 (emphasis in original). Importantly, “the presence of extraordinar y circumstanc es „is not enough‟− a petitioner „must also show that he acted with reasonable diligence, and that the extraordinary circumstances caused his petition to be untimely.‟” Schlueter v.
Varner , 384 F.3d 69, 7 7 (3d Cir. 2004) (quoting Baldayaque v. U nited State s , 338 F.3d 145, 153 (2d Cir. 2003) ). Here, even assuming Mackin‟s alleged ineffective assistance constitute s extraordinary circumstances , at best Reed would only be entitled to equitable tolling until August 7, 2006, the date on or about which he learn ed of Mackin‟s putative misconduct

. Indeed, Reed himself acknowledges that , even if we accepted his argument that equitable

1 Reed was entitled to statutory tolling from August 14, 2002 until July 14, 2004, the time period during which his first PCRA petition was pending. See Merritt , 326 F.3d at 161. Reed‟s subseq uent PCRA petitions all were held to be untimely under state law. As such, those petitions were not “properly filed , ” and they thus do not entitle him to any further statutory tolling. See Pace v. DiGuglielmo , 544 U.S. 408, 417 (2005).6

tolling applies, “ the [one

- year] Statute of Limitations would begin on August 7, 2006

. ” (Reed Br. at 9.) Reed would not be entitl ed to equitable tolling beyond that date because
he was not reasonably diligent in pursuing his rights , as m ore than three years expired between August 7, 2006, when he learned of his trial counsel‟s alleged ineffective assistance, and August 12, 2009, whe n he filed his habeas corpus petition. Thus, b ecause
t he one

- year limitation period under 28 U.S.C. § 2244(d)(1) had long expired prior to the filing of Reed‟s habeas petition in 2009 , that petition is untimely. 2
I V.
W e thus affirm the District Court‟s order dismissing Reed‟s petition for writ of habeas corpus

.

2 Reed‟s habea s petition still would be untimely to the extent , if any, that it is premised on a claim of actual innocence. While we have not decided whether a claim of actual innocence in a habeas petition may equitably toll the one

- year statute of limitations under 2 8 U.S.C. § 2244(d), see McKeever v. Warden SCI

- Graterford , 486 F.3d 81, 84 n.5 (3d Cir. 2007), even if we did recognize such a tolling exception, Reed would still have the burden of demonstrating that he exercised reasonable diligence in bringing his claim

. Miller , 145 F.3d at 618

- 19. As discussed above, Reed has failed to make this necessary showing, having waited more than three years after receiving Dr. Fay‟s letter in August 2006 before filing his habeas petition.