NOT PRECEDENT I AL
UN I TED STATES COURT OF APPEALS FOR THE TH I RD C I RCU I T

_____________ No. 10

- 2745

_____________ RONALD GRANT CHAMPNEY, Appellant v. *SECRETARY PENNSYLVAN I A DEPARTMENT OF COR RECT I ONS; LOU I S S. FOL I NO, Super i ntendent of the State Correct i onal I nst i tut i on at Greene; SCHUYLK I LL COUNTY D I STR I CT ATTORNEY; GERALD J. PAPPERT

*(Pursuant to Rule 43(c), Fed. R. App. P.)

____________ On Appeal from the Un i ted States D i str i ct Court fo r the Middle D i str i ct of Pennsylvan i a (D.C. Civil No. 1

- 04

- cv - 0 0502 ) D i str i ct Judge: Honorable William W. Caldwell

____________ Subm i tted Under Th i rd C i rcu i t LAR 34.1(a)

October 25, 2011 Before: VANASK I E , WE I S, and ROTH , C i rcu i t Judges

.

(F i led : March 21, 2012 )

____________ OP I N I ON OF THE COURT

____________ VANASK I E , C i rcu i t Judge

. Ronald Champney appeals the D i str i ct Court ’ s den i al of h i s pet i t i on for habeas
corpus ar i s i ng out of a 1998 Pennsylvan i a state court conv i ct i on for burglary, robbery,2

theft, assault, t error i st i c threats, recklessly endanger i ng another person, and cr i m i nal
consp i racy. Champney was sentenced to fourteen and a half to forty years i n pr i son . Champney ra i ses two issues on appeal: 1) h i s i neffect i ve ass i stance of counsel habeas cla i m was t i mely under the newly

- d i scovered ev i dence except i on to the habeas
statute of l i m i tat i ons i n 28 U.S.C. § 2244 (d)(1)(D) , and 2) f i ve other habeas cla i ms were
t i mely under 28 U.S.C. § 2244 ( d)(1)(D) because he was ent i tled to equ i table toll i ng due to h i s cogn i t i ve i mpa i rments. 1 For the reasons stated below, we w i ll aff i rm the D i str i ct Court ’ s d i sm i ssal of Champney ’ s cla i ms as unt i mely.
I

. We wr i te pr i mar i l y for the part i es, who are fam i l i ar w i th the factual context and legal h i story of th i s case. Wh i le the procedural h i story underly i ng Champney ’ s appeal i s somewhat complex, we w i ll set forth only those matters necessary to our analys i s. After Champney was conv i cted i n 1998 by a Schuylk i ll County , Pennsylvan i a jury for burglary, robbery, theft, assault, terroristic threats, recklessly endangering another person, and criminal conspiracy , he requested that h i s tr i al counsel, Frank Cor i , f i le an appeal

. Cor i refused and i nstead perm i tted the deadl i ne to exp i re because Champney had not pa i d h i m. Champney attempted to f i le h i s appeal pro se , but the court rejected i t because he was represented by counsel. After approx i mately three years of post

-

1 The District Court had jurisdiction over Champney ’s habeas petition pursuant to 28 U.S.C. §§ 1331 and 2254. We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.3

conv i ct i on proc eed i ngs, the Super i or Court of Pennsylvan i a re i nstated Champney ’ s r i ght to f i le a d i rect appeal. Champney ’ s counsel then f i led an Anders br i ef on appeal, argu i ng that Champney had no non

- fr i volous arguments. The Pennsylvan i a Super i or Court d i sagreed th at Champney had no non

- fr i volous arguments, but i t nevertheless aff i rmed Champney ’ s

conv i ct i o ns w i thout further br i ef i ng. Ju dgment became f

i nal on December 7, 2002 when Champney ’ s deadl i ne to appeal to the Supreme Court of Pennsylvan i a exp i red. The Antit errorism and Effective Death Penalty Act of 1996 ( “ AEDPA ” ) provides that “ [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.” 28 U.S.C. § 2244(d)(1). The refore, Champney’s deadline for f i l i ng a wr i t of habeas corpus exp i red on December 7, 2003, one year after his state court judgment became final. Champney f

i led a habeas pet i t i on i n the Middle D i str i ct of Pennsylvan i a under 28 § 2254 (the “ Pet i t i on ” ) on March 8, 2004, n i nety days after the statute of l i m i tat i ons
exp i red. The Pet i t i on asserted twenty cla i ms, i nclud i ng several cla i ms that the Pennsylvan i a Super i or Court den i ed Champney ’ s r i ght to effect i ve ass i stance of counsel by d i spos i ng of h i s appeal on the mer i ts desp i te Champney ’ s counsel ’ s i mproper Anders br i ef. On Apr i l 5, 2008, Champney f i led an amendment to the Pet i t i on to add Cla i m 21 based on add i t i onal i nformat i on he d i scovered i n an unrelated cap i tal post

- conv i ct i on4

proceed i ng . 2 Ev i dent i ary hear i ngs were held May 8 and May 26, 2009, on the i ssue of whether Champney was ent i tled to equ i table toll i ng because of alleged mental def i c i ency. On August 11, 2008, Champney filed a “Supplemental and Amended” petition for writ of habeas corpus to raise new claims 22 through 27. On January 5, 2010, th e D i str i ct Court d i sm i ssed Champney’s Pet i t i on as t i me barred, and add i t i onally d i sm i ssed h i s
mot i on to f

i le a supplemental pet i t i on advanc i ng c la i ms 21 through 27. On

recons i derat i on, the D i str i ct Court granted a certificate of appealability (“COA”) as to the d i sm i ssal of Cla i m 21 ( i neffect i ve ass i stance of counsel) on l i m i tat i ons grounds. Champney bro ught th i s appeal and further requested that th i s Court enlarge the
COA to i nclude the i ssue of whether the t i me to f i le c la i ms 14, 15, 18, 22 and 24 should be equ i tably tolled because of h i s alleged mental i ncompetence. Th i s Court enlarged the
COA as Cham pney requested. 3

2 Champney was convicted of the first degree murder of Roy Bensinger on October 25, 1999 in the Court of Common Pleas of Schuylkill County, Pennsylvania. He was sentenced to death on November 17, 1999. Judgment of Sentence was affirmed. See Commonwealth v. Champney , 832 A.2d 403 (Pa. 2003) . Champney obtained a new trial through the grant of post

- conviction relief. The Commonwealth appealed the ruling an d Champney filed a cross

- appeal. These appeals are pending before the Supreme Court of Pennsylvania.

3 Appellees moved to strike from Champney’s brief Issues III and IV as beyond the scope of the COA because they present arguments on the mer its of cons titutional claims. The decision to issue a COA is independent of the merits of the claim. See Miller

- el v. Cockrell , 537 U.S. 322, 331 (2003)

. We will grant the motion to strike because Issues III and IV inject non

- relevant matters into the determination of whether Champney should be granted statutory or equitable tolling.5 II

. We exercise plenary review over statute of limitations issues. See Merritt v. Blaine , 326 F.3d 157, 161 (3d Cir. 2003). Although it does not appear that we have definitively decided the standard of review applicable to the question of equitable tolling where there is a dispute concerning the petitioner’s mental competence, we have applied de novo review where the underlying facts are undisputed. See Brinson v. Vaughn , 398 F.3d 225, 231 (3d Cir. 2005). Compare Robertson v. Simpson , 624 F.3d 781, 784 (6th Cir. 2010) (“where the facts are undisputed or the district court rules as a matter of law that equitable tolling is unavailable, we apply the de novo standard of review to a district court's refusal to apply the doctrine of equita ble tolling; in all other cases, we apply the abuse of discretion standard.”) (quoting Dunlap v. United States , 250 F.3d 1001, 1007 n. 2 (6th Cir.2001)). In this case, there is a dispute as to Champney’s competence. In the context of determining a defend ant’s competence to stand trial, we have held that the district court’s factual findings concerning competency are reviewed for clear error. See,
e.g. , United States v

. Leggett , 162 F.3d 237, 241 (3d Cir. 1998). Because we find that equitable tolling is not warranted in this case under a de novo standard of review, we need not decide whether a more deferential standard applies to the D istrict C ourt’s factual findings in this case

. A.
I n Cla i m 21 of the Pet i t i on, Champney argue s that the S i xth Amendment
i neffect i ve ass i stance of counsel cla i m was t i mely because he d i scovered the relevant6

i nformat i on for br i ng i ng the cla i m dur i ng h i s unrelated cap i tal post

- conv i ct i on proceed i ngs. Champney uncovered i nformat i on i nd i cat i ng that h i s tr i al counsel, Frank
Cor i , had a confl i ct of i nterest based on a long

- term fr i endsh i p and cr i m i nal partnersh i p

w i th Dav i d Bl i ckley, an i n i t i al suspect i n Champney ’ s murder case and the pr i nc i pal

w i tness aga i nst Champney at h i s murder tr i al.
Dur i ng Champney ’ s cap i tal post

- conv i ct i on proceed i ngs, he subpoenaed
i nformat i on from the Federal Bureau of I nvest i gat i on concern i ng i ts i nterv i ews w i th
Bl i ckley. On Apr i l 6, 2007, the FB I turned over an i nterv i ew report to Champney deta i l i ng FB I d i scuss i ons w i th Bl i ckley concern i ng alleged cr i m i nal undertak i ngs between Bl i ckley and Cor i . Champney d i scovered that Cor i cont i nued to represent
Bl i ckley i n obta i n i ng an agreement w i th the pol i ce to prov i de i nformat i on concern i ng the
murder i n wh i ch Champney was stand i ng tr i al wh i le Cor i was repr esent i ng Champney.
A habeas pet i t i oner must f i le w i th i n one year from “ the date on wh i ch the factual pred i cate of the cla i m or cla i ms presented could have been d i scovered through the

exerc i se of due d i l i gence. ” 28 U.S.C. § 2244(d)(1)(D)

. The D i str i ct Court held that Cla i m 21 was unt i mely because Champney fa i led to show that he could not have d i scovered the i nformat i on from the FB I report earl i er . We agree with the District Court’s conclusion , but for slightly differe nt reason s . 4

4 We also reject Champney’s argument that we should allow equitable tolling because Champney’s convi ctions may affect the sentence in his capital case. We agree with the District Court’s conclusion that Champney’s instant appeal is not a capital case and therefore is not entitled to any special leniency.7

A pet i t i oner must f

i le a habeas pet i t i on w i th i n one year of learn i ng the v i tal facts necessary t o make out h i s or her cla i m. See McAleese v. Brennan , 483 F.3d 206, 214 (3d
C i r. 2007)

. T o “delay the triggering of the running of the limitations period until all evidence in support of a petition is secured,” would create “a result which surely would run contrary to the intent of Congress through its enactm ent of the AEDPA to promote the finality of convictions.” Id. at 215

. T he requ i s i te “factual pred i cate” of a cla i m i s the set of “v i tal facts” underly i ng the cla i m . I d. at 214

. Champney knew of the factua l pred i cate of h i s tr i al counsel ’ s poss i ble confl i ct of i nterest well before rece i v i ng the FB I report i n 2007 because he already ra i sed the cla i m i n Pennsylvan i a state courts i n 2005 and i n 2006. The precise claim that Attorney Cori rendered ineffective a ssistance of counsel due to a conflict of interest caused by his relationship with David Blickley
ap pears in a counseled state post

- convi ction petition filed on Champney’ s behalf on February 28, 2005, in the Court of Common Pleas of Schuylkill County, in a collateral challenge to the conviction at issue here. In this 2005 filing, Champney averred that Cori had multiple conflicts of interest arising from various relationships, including Cori’ s relationship with Blickley. In a brief filed in the Pennsylvani a Sup erior Court on March 13, 2006

– more than a year be fore receipt of the FBI report

– Champney again argued that Cori was conflicted in his representation because Cori had, at one time, represented Blickley. The FB I report may have prov i ded greater ev i dent i ary support for Champney ’ s cla i m, but i t d i d not alert Champney to the cla i m i tself. Champney ’ s Pet i t i on was8

unt i mely because he f

i led it more than one year after recogn i z i ng the v i tal facts

– Cori’s conflict of interest caused by his relationship wi th Blickley

– underly i ng h i s cla i m. B. Champney also argue s that f i ve other habeas cla i ms were t i mely based on
equ i table toll i ng because he suffers from mental i mpa i rments that prevented h i m from
f i l i ng the P et i t i on on t i me. 5 I n determ i n i ng whether equ i table toll i ng should be granted,

we ask whether the pet i t i oner faced extraord i nary c i rcumstances that stood i n the way of
t i mely f i l i ng and whether he or she exercised reasonable diligence. See Pabon v. Mahanoy , 654 F.3d 385, 399 (3d C i r. 2011)

. We , however, ha ve made clear that “ [t] he remedy of equ i table toll i ng i s extraord i nary, and we extend i t only spar i ngly. ” Santos v.
Un i ted States , 559 F.3d 189, 197 (3d C i r. 2009 ) ( i nternal quotat i on marks om i tted).
M ental i ncompetence i s not a per se cause for equ i table toll i ng. See Nara v. Frank , 264 F.3d 310 , 320 (3d C i r. 2001)

. For toll i ng to be appropr i ate, “the alleged
mental i ncompetence must somehow have affected the pet i t i oner ’ s ab i l i ty to f i le” a

t i mely act i on. I

d. ; see als o Bolar i nwa v. W i ll i ams , 593 F.3d 226, 23 2 (2d C i r. 2010) (plac i ng the burden on the pet i t i oner to demonstrate w i th part i cular i zed descr i pt i on the causal relat i onsh i p between the mental def i c i ency and fa i lure to t i mely f i le the pet i t i on ).
I n May 2009, the D i str i ct Court held an ev i dent i ary hear i ng concern i ng Champney’s mental competence, at wh i ch Dr. Dan i el Ragland and Dr. Jul i e Kessel

5 The one

- year filing requirement is not a jur isdictional rule. See Day v. McDonough , 547 U.S. 198, 205 (2006). Section 2244(d) is subject to equitable tolling in appropriate circumstances. Holland v. Florida , __U.S.__, 130 S. Ct. 2549, 2554 (2010).9

test i f i ed for Champney. Champne y’s experts found his cogn i t i ve ab i l i ty diminished , that he was i mpa i red by neurodevelopmental brain dysfunction , and that he suffered from anxiety disorder . T he Commonwealth responded w i th an expert w i tness to rebut the conclus i on and d i sput e the rel i ab i l i ty of the measures used to i nterpret Champney ’ s
cogn i t i ve ab i l i ty. 6 We w i ll not engage i n the debate concern i ng the methodology of the experts ’ evaluat i ons, as we f i nd Champney ’ s h i story of t i mely f i l i ng documents in court suff i c i ent to negate the prem i se that h i s mental status const i tuted an “ extraord i nary

c i rcumstance ” that impaired h i s ability to timely f i l e the i nstant Pet i t i on. We have not previously provided clear direction on what may constitute extraordinary circumstance s for purposes of tollin g the statute of limitations based on mental incompetence

. District Courts within our Circuit take a totality of the circumstances approach when presented with an equitable tolling argument premised on the pe titioner ’ s mental incompetency. See Passmore v . Pennsylvania , No. 08

- 705, 2008 WL 2518108 at *3 (M.D. Pa., 2008). A non

- exclusive list of factors to consider includes:

(1) [ whether ] the petitioner [ was ] a djudicated incompetent and, if so, when did the adjudication occur in relation to the habeas sta tutory period; (2) [ w hether ] the petitioner [ was ] institutionalized for his mental impairment; (3) [whether] the petitioner handled or assisted in other legal matters which required action during the federal limitations period; and (4) [whether] the petiti oner supported his allegations of impairment with extrinsic evidence such as evaluations and/or medications.

6 The Commonwealth’s expert found that Champney is able to reason and think abstractly, reads at an eighth grade level, and has the capacity to remember information in a very superior range (as high as the 98th percentile).10

Id . (citing McCray v. Oxley , 553 F. Supp

. 2d. 368, 372 (D. Del. 2008)). There is no evidence in this case that Champney has ever been adjudicat ed incompetent or institutionalized for his alleged m ental impairments. And while Ch ampney has supplied extrinsic evidence consisting of mental health evaluations, the Commonwealth presented countervailing evidence. Significantly, however, Champney’s
par ticipation in court proceedings over an extended period of time compel the conclusion that the extraordinary remedy of equitable tolling is not warranted here. Champney successfully f i led a ser i es of pro se pet i t i ons in 1998 and 1999

. Champney i n i t i all y sought state court rel i ef a week after h i s November 13, 1998,

conv i ct i on . I n a pro se f

i l i ng docke ted November 20, 1998, Champney ra i sed cla i ms of
Cor i ’ s i neffect i ve ass i stance i n not call i ng w i tnesses and not present i ng other favorable

ev i dence

. Appro x i mately two weeks after h i s January 6, 1999 sentenc i ng, Champney,
aga i n act i ng pro se , f

i led a pet i t i on to d i sm i ss counsel, and a pet i t i on for post conv i ct i on rel i ef and notice of appeal

. I n th i s f i l i ng, Champney renewed h i s earl i er cla i m that Cor i

was i neffect i ve for fa i l i ng to call w i tnesses and i n know i ngly w i thhold i ng ev i dence of h i s i nnocence. I n February, 1999, Champney, aga i n pro se , f i led a pet i t i on to d i sm i ss counsel; a pet i t i on f

or post conv i ct i on rel i ef and notice of appeal ; and a statement se ek i ng leave to proceed i n forma pauper i s . Champney presents no ev i dence t o suggest that h i s mental capac i ty deter i orated

s i nce f i l i ng h i s i n i t i al pro se pet i t i on i n 1998

. To the contrary, Champ n ey ’ s own expert ,11

Dr. Ragland, found h i s mental status t o h ave been stable over t i me . 7 Champney d i d not suffer any new mental i mpa i rment or i njury between the late 1990s, when he was able to act on h i s own behalf i n state court, and dur i ng the t i me when a habeas pet i t i on could have been t i mely f

i led. 8 Champney ’s ab i l i ty to f i le mult i ple pet i t i ons on h i s own behalf
i n 1998 and 1999 , which was described as a “ tenac i ous effort ” by h i s counsel, cannot be

reconc i led w i th the not i on that he i s so mentally impaired as to have been unable to f i ll out the form necessary t o i n i t i ate a t i mely habeas f i l i ng i n 2003. Compare Brown v. Shannon , 322 F.3d 768, 774 (3d C i r. 2003) (deny i ng equ i table toll i ng based, i n part, on the pet i t i oner ’ s h i sto ry of pro se filings w i th i n t he appropr i ate t i me) w i th Hunter v. Ferrell , 587 F.3d 1304, 1308

- 09 (11th C i r. 2009) (f i nd i ng pet i t i oner ’ s well

- documented,
i rrevers i ble mental retardat i on was severe enough that pet i t i oner was unable to understand and comply w i th the AEDPA ’ s f i l i ng requ i rements based, i n part , on the
recogn i t i on that pet i t i oner never prev i ously f i led court documents). The record conta i ns i ncons i ste n cies concerning Champney ’ s mental competency. Although Champney ’ s experts testified to his inability to navigate the procedural rules for

7 Dr. Kessel indicated that Champney had an increased level of anxiety during the relevant time period due to his unrelated capital case proceedings. However, as the District Court noted, and we agree, anxiety and depression would not have disabled Champney from filing the Petition in a timely manner.

8 Champney suggests that h e was only able , according to Dr. Ragland , to file the petitions in 1998 and 1999 with the assistance of a fellow inmate. Because Champney’s mental state did not deteriorate from that time, we agree with the District Court’s conclusion that Champney could have similarly sought assistance for filing the instant Petition.12

habeas relief , the record contains countervailing evidence indicating that any mental impairments would not have so affected his ability to make a timely filing as to warrant the extraordinary relief of equitable tolling. The District Court undertook an extensive analysis of the evidence and found that “Champney was sufficiently functional to have filed a timely 2254 p etition.” (A. 34.) This finding by the able District Judge is certainly not clearly erroneous. Moreover, our plenary review of the record lea ds us to the same conclusion. The Commonwealth’s expert ’ s conclus i on about Champ n ey ’ s mental status, coupled w i th Champney ’ s h i story of f i l i ng pro se compla i nts, compels us to f i nd that no extraord i nary c i rcumstance stood i n the way of t i mely f i l i ng the Petition

. III

. For the forego i ng reasons, we w i ll aff i rm the judgment of D i str i ct Court.