2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
10-21-2004 

# G at es v . L a v a n P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1764

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UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT
No. 03-1764
RICARDOHERASHI O GATES ,

Appellant
v. THOMAS LAVAN; ATTORNEY GEN ERAL OF T HE S TAT E OF PE NNS YLVA NIA

On Appeal from the United States Distri ct Court for the Middle District o f Pennsylvania (District Court N o. 02-cv-02262) District Judge: H onorable Yvette Ka ne
Argued: Septem

ber 30, 2004 Before: ROTH , BARRY and CHERTOFF , Circuit Judges
.

(Filed October 21, 2004) THOMAS A. DONOVAN JULIE S. GREENBERG (Ar gued) Kirkp atr ick & Lockha rt LLP Henry W. Olive r Building 535 Smithf ield St. Pittsbur gh, PA 152222

Counsel for

Appellant JAMES P. BARKER (Argued) Deputy Distr

ict Attorney Dauphin County Court H ouse Front and Market Streets Harrisburg, PA 17101 Counsel for Appellees

OPINI ON
CHERTOFF , Circuit

Judge
. Appellant R icardo Gates w as convicted o f murder in the D auphin C ounty (Pennsy lvania) Court of Comm

on Pleas in January , 1994. His a ppeal wasaffirm

ed by the S upe rior Cou rt th at year, a nd h e did not seek app eal to the P enn sylvan ia Su preme Court. Hissentenc e becam e final in Septem

ber, 1994. Gates filed his first pet

ition in state court for post-convicti on relief in November, 2000. It was di smis sed as unt imel y. After tha

t dism issal was affir med on appe al, and after application to the state Supreme Court for a Petiti on for Allowance of Appeal was denied, Gate s filed a Petition for a Writ of Habeas Corp us in the District C ourt. Just over three weeks after t he petition was filed–and before the time for a response by t he Comm onwealth ha

d arrive d–the Magis trate

Judge rec omme

nded that t

he petition be d ismissed. First, the Magistrate Ju dge held th at Gates had no t exhausted all3

remedies a

vailable in the stat

e courts, and that because any further state court proceeding s were time-barred, Gates’s claims were p rocedurally defaulted
. See 28 U.S.C. § 2 254(b)(1 )(A). The M agistrate Judge r ejected Gates’s arg ument that the def ault should be excused for ca

use beca use the fa ilure t o pursue appellate

and post-c onviction relief was the f ault of his co unsel. See generally Colema n v. Thompson , 501 U.S. 722, 750 (1991). As an alternative ground for dismissal, t he Magistrate Judge determ ined that the habeas petition was tim e-barred under 28 U.S.C. § 2244 (d)(1), which sets a one-y ear statute of limitations. S ince Gates’s jud gment of con viction preced ed the effective date of § 2244(d)(1)–Ap ril 24, 1996–the limitations peri od expired in April, 1997, over three years before Gates filed h is habeas petition
. Gates filed no object

ions to the

Magistr ate Judge ’s Report

and Recom

mendat ion, and it wasadopted by

the Dist rict Cour t. A notic e of appeal

was filed. On remand from this Court , the Dis trict

Court grant

ed a cer tifica te of appea

lability only on the quest

ion whether Ga tes could establish cause and p rejudice to ex cuse his proce dural defa ult. On appea l, Gates raises two arg uments. First, he asserts that h e has cause fo r his failure to timely r

aise claims before the state Suprem e Court and on state collatera l review, based on alleged ineffective assis tance of hi s appointed counsel. Second, he
asser ts that the Dist rict Cour t should not ha

ve dism issed t he petit ion on lim

itati ons ground s sua spon te , noting tha t a sta tute of limita

tions m ust be ra ised asan affirm

ative defense “and, if not pleaded in the answer, [it] must be raised at the ea

rliest pract

icable1 We note t hat Gate s did not cha

llenge t he stat ute of lim itati ons recom

mendat ion before the

Distri ct Judge a

nd, prior t

o this appe al, hasnot asse rted any basis for tolling the sta tute of limita

tions for t he three ye ars bet ween the expirati on of the lim itati ons period and the date his petition was filed. At ora l argument, Gates ’s counsel argued that 4 moment there after.” Robinson v. Johns on , 313 F.3 d 128, 1 37 (3d C ir. 2002); see Stewart v. Hendricks , 71 Fed. Appx. 904 ( 3d Cir. 2003) ( revers ing sua spon te dismi ssal on limitat ions grounds granted six months after Commonwealt h answered on the merits)
. Gates br iefed the statut e of lim itati ons issue

without fir st see

king or obtaining from this Cou rt a broader certificate of app ealability that would enco mpass that claim. Under our rules, therefore, the appeal i s limited to the single issue cert ified by the Dis trict Court. 3d Cir . LAR 22.1(b) ( 1997) (mot ions panel

must gr ant broade

r cert ificat e or merits panel

must di rect br iefing of othe

r issue s). The c ertifi cate defines the limit of our jurisdiction
. See United States v. Cepero , 224 F.3 d 256, 2 62 (3d C ir. 2000) (en banc). While we might a rguably have the a

uthority to broaden t

he cert ificat e even at this point of the pro ceedings, see generally Jones v. United States , 224 F.3 d 1251 , 1254-5 6 (11th Cir. 2000 ), we would not do so in any event here. Th ere is no basis to co ntend that a limitations defense is w aived becau se the Magistrate Jud ge raised it sua spon te before the Commonwealth w as required to f ile an answer. T here was simply no earlier opp ortunity for the Com

monweal th to ass ert the

defense, nor did the r

espondent’ s subseque

nt conduct ev ince a desire to w aive that defe nse. Stewart is entirely distinguishable b ecause that case dealt

with the District Court’s a ssertion of the limitations defense months after the respond ent filed an an swer on the merits. 1 According ly, the standards for a certificatethe statute of lim itations should be equitably tolled due to Gates’s err

oneous belief that his trial att

orney had pursued his appeal. As we have previously noted, “ In non-capital cases , attor

ney error, misc alcula

tion, ina dequate r esear ch, or othe

r mis takes ha

ve not been found to rise to the ‘extraordinary ’ circumst ances required for equitable tolling.” Fahy v. Horn , 240 F.3d 239, 244 (3d Cir. 2001). 5 of appea lability on this point are n ot met. Miller-El v. Co ckrell , 537 U.S. 322, 327 (2003). The expira tion of th e statute of limitations w arrants dismissal of the p etition. Accordingl

y, any ruling on the

procedura

l default issue whi ch was ce

rtified by t

he District Court w ould be ad visory only, since it could not af fect the outco me of the case. According ly, we will dismiss the appeal for w ant of ju risdiction. See Cepero , 224 F.3d at 262.