MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

FRANCIS CAIAZZA, Chief Magistrate Judge

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus commenced by Joseph George Nara be considered as being timely filed in accordance with the doctrine of equitable tolling. Because of this determination, the Petitioner will be provided with an additional period of time during which he may file an Amended Petition for Writ of Habeas Corpus, through the assistance of his appointed counsel. An appropriate order will be subsequently filed.

II. REPORT

The Petitioner, Joseph George Nara (the Petitioner or Nara), a prisoner presently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania, filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254, wherein he challenged his guilty pleas to two counts of Murder in the First Degree.

A. Relevant Procedural History

On June 20, 1984, in the Court of Common Pleas of Fayette County, Pennsylvania, Nara pleaded guilty to two counts of Murder in the First Degree for the deaths of his wife and mother-in-law. After accepting Nara's guilty pleas, the Honorable William J. Franks sentenced Nara to two concurrent terms of life imprisonment. Nara did not file any post-verdict motions nor did he file a direct appeal.

On April 25, 1988, Nara filed a petition for relief pursuant to the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §§ 9541, et. seq., wherein he raised claims of ineffective assistance of counsel. By Opinion and Order dated October 17, 1988, the PCHA court denied Nara's petition for post-conviction relief. Nara filed a timely appeal to the Pennsylvania Superior Court. By Order dated March 29, 1989, the Superior Court affirmed the Order of the PCHA court and dismissed Nara's appeal. The Pennsylvania Supreme Court denied Nara's Petition for Allowance of Appeal by Order dated September 21, 1989.

On May 15, 1990, Nara filed a second PCRA petition wherein he sought to withdraw his guilty pleas based on a claim of mental incompetency. Following the hearings, the PCRA court granted the relief which Nara sought in his petition and, by Order dated January 30, 1991, directed that Nara's guilty pleas be withdrawn. Following an appeal by the Commonwealth, through a Memorandum Opinion and Order dated April 30, 1992, the Pennsylvania Superior Court vacated the Order of the PCRA court and reinstated Nara's guilty pleas, finding that the issue of Nara's competence had been waived because he had failed to raise it in his first post-conviction hearing. The Pennsylvania Supreme Court denied Nara's Petition for Allowance of Appeal by Order dated October 7, 1992. Subsequently, the United States Supreme Court denied Nara's petition for certiorari.

On December 21, 1995, Nara filed a third PCRA petition, alleging that he was incompetent at the time he entered his guilty plea. The court appointed attorney Phyllis Jin to represent Nara and then scheduled a hearing for April 30, 1996.

At the hearing, Nara's counsel asked to withdraw his third PCRA petition because the issue he raised was "previously litigated" in favor of filing a motion to withdraw his guilty plea nunc pro tunc pursuant to Pennsylvania Rule of Criminal Procedure 321. The Court granted Nara's motion and issued a briefing schedule. On June 23, 1996, Attorney Jin filed a memorandum in support of Nara's motion to withdraw his guilty plea. By Opinion and Order dated September 30, 1996, the Court of Common Pleas of Fayette County denied Nara's motion to withdraw his pleas, concluding that Nara had been advised at his sentencing hearing in 1984 of his right to move to withdraw the pleas within ten days. The court found that Nara failed to state a compelling reason which explained his decision to wait twelve years before he sought to withdraw his guilty plea. By Memorandum Opinion and Order dated July 9, 1997, the Superior Court affirmed the trial court's decision which denied Nara's motion to withdraw his guilty pleas. Finally, by Order dated December 8, 1997, the Pennsylvania Supreme Court denied Nara's Petition for Allowance of Appeal.

On or about January 4, 1999, this Court received Nara's federal habeas corpus petition. The certificate of mailing indicates that prison personnel mailed the petition on December 15, 1998; however, Nara's habeas petition is signed and dated December 12, 1998, and his cover letter appended to the petition is dated December 12, 1998.

The District Court referred the case to Magistrate Judge Francis X. Caiazza, who recommended that Nara's petition be dismissed because it was filed untimely and that a certificate of appealability be likewise denied. The District Court adopted the Magistrate Judge's Recommendations, dismissed Nara's federal habeas petition as being filed untimely and likewise denied the certificate of appealability.

Nara filed a timely appeal to the Court of Appeals for the Third Circuit. On August 30, 2001, the Court of Appeals issued a written opinion in Nara v. Frank, 264 F.3d 310, 319-20 (3d Cir. 2001), overruled in part by Carey v. Saffold, 536 U.S. 214 (2002). Specifically, the Court of Appeals agreed with the District Court that Nara's petition was commenced untimely under the provisions of 28 U.S.C. § 2244(d). Notwithstanding, the Third Circuit Court vacated the dismissal of the habeas petition as being filed untimely and remanded it to the District Court with directions to conduct an evidentiary hearing to determine whether the circumstances, described more particularity infra, warranted the equitable tolling of the limitations period.

Specifically, the Court of Appeals ordered the District Court to conduct an evidentiary hearing based on Nara's assertions with respect to two issues: 1) whether he suffered from mental health problems at the time that he entered his guilty plea, and 2) whether his attorney in the third PCRA proceeding effectively abandoned him and prevented him from filing a timely federal habeas petition.

In his application for a certificate of appealability, he listed a myriad of ways in which he was allegedly prejudiced by his attorney's conduct: 1) he was not informed that the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal; 2) his attorney refused to remove herself as appointed counsel after the Pennsylvania Supreme Court's decision, thus preventing him from moving his case forward; 3) his attorney led him to believe that she would file a federal habeas petition on his behalf; and 4) he was told by his attorney that there were no time constraints applicable to the commencement of a federal habeas petition. In addressing Nara's argument, the Court of Appeals wrote:

These allegations may constitute extraordinary circumstances to justify equitable tolling. As we held in Miller and other cases, courts have discretion to apply principles of equity when the petitioner has been unfairly prevented from asserting his rights in a timely fashion. We believe that an evidentiary hearing on these allegations is warranted.

The District Court held evidentiary hearings on October 31, 2002 and January 28, 2003. The evidence adduced at the hearings, as well as the clarification of the law as set out by the Court of Appeals for the Third Circuit after its decision in Nara in 1999, requires this Court to conclude that the doctrine of equitable tolling is applicable to Nara's case. And, as the discussion infra demonstrates, Nara's federal habeas petition should be considered to have been timely filed under the doctrine of equitable tolling.

B. Limitations Period for Federal Habeas Corpus Petitions

The first consideration which a district court must necessarily consider in reviewing a federal habeas corpus petition is whether it was timely filed under the one-year limitations period.

The federal habeas corpus laws were amended pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 142 Cong. Rec. H3305-01 (April 24, 1996). In section 101 of AEDPA, Congress imposed a new, one-year limitations period which is applicable to state prisoners. It provides in relevant part as follows:

(d) 1) 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. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) 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;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

In analyzing whether a petition for writ of habeas corpus has been timely filed under the new one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the date on which the petitioner's direct review concluded and the judgment became "final" for purposes of triggering the one-year period under section § 2244(d)(1)(A). Second, the court must determine whether any "properly filed" applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Third, the court must determine whether any of the other statutory exceptions or whether the doctrine of equitable tolling should be applied with respect to the relevant facts.

Here, Nara pleaded guilty and was sentenced on June 20, 1984. He did not file any motions to withdraw his pleas nor did he file a direct appeal from his conviction, as was his right. As a result, direct review of Nara's conviction and sentence concluded, at the latest, on July 19, 1995, following the expiration of the time period allowed under Pennsylvania law for filing a post-verdict motion to withdraw a plea (ten days) and the expiration of the time period allowed for filing an appeal of a criminal sentence (thirty days). See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review, including the time limit (ninety days) for filing a writ of certiorari in the United States Supreme Court);Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (same for 28 U.S.C. § 2255 motions).

Nara's judgment became final before the April 24, 1996 effective date of the AEDPA. In Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998), the United States Court of Appeals for the Third Circuit agreed with other courts of appeals in holding that habeas petitions filed on or before April 23, 1997-one year from AEDPA's effective date-may not be dismissed for failure to comply with the one-year limitations period. Consequently, under the new one-year limitations period in AEDPA, Nara had until April 23, 1997 to file a federal habeas corpus petition challenging his state conviction.

Nara did not file his federal habeas petition by April 23, 1997. Instead, his habeas petition was signed and dated December 12, 1998 but it was not filed with this Court until January 4, 1999. As a result, this Court must determine whether Nara can take advantage of the "tolling" provision in section 2244(d)(2). As stated supra, section 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).

In Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002), the Supreme Court held that in order to be "properly filed" pursuant to the provisions of 28 U.S.C. § 2244(d)(2), an application for collateral review in state court must satisfy the state's procedural timeliness requirements. See also Artuz v. Bennett, 531 U.S. 4 (2000). Moreover, the Court of Appeals for the Third Circuit specifically has found that untimely PCRA petitions do not statutorily toll the AEDPA one-year limitations period. See Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001). Similarly, the Court of Appeals for the Third Circuit has determined that an untimely application for state post-conviction relief by a petitioner, who unsuccessfully sought to invoke an exception to the PCRA time bar, is not "properly filed" under 28 U.S.C. § 2244(d)(2). See Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003). Furthermore, in Brown v. Shannon, 322 F.3d 768, 775, n. 5 (3d Cir. 2003), the Court of Appeals for the Third Circuit recognized that an appeal nunc pro tunc is not "properly filed" under 28 U.S.C. § 2244(d)(2). Parenthetically, under state law, a late pleading is considered to be filed improperly. Accord Douglas v. Horn, ___ F.3d ___, 2004 WL 231207 (3d Cir. Jan. 12, 2004) (holding that the petitioner's nunc pro tunc petition was not properly filed, and that, by extension, neither his motion to reconsider the denial of that petition, nor the time lapse between the two filings, constituted grounds for statutory tolling); Swartz, 204 F.3d at 424 n. 6 ("we agree that the time during which Swartz's nunc pro tunc request for allowance of appeal was pending does not toll the statute of limitation").

Here, Nara's third PCRA petition was ordered withdrawn pursuant to his own motion on April 30, 1996; it subsequently was filed as a motion seeking permission to withdraw his guilty pleas nunc pro tunc ( nunc pro tunc motion). On review, the trial court determined that Nara had waived his right to withdraw his guilty pleas because he failed to file a motion within ten days, as is required under Pennsylvania procedural law, and he failed to diligently pursue the issue in the state courts. The Pennsylvania Superior Court affirmed the decision of the trial court and the Pennsylvania Supreme Court denied review by Order dated December 8, 1998.

On appeal from this Court's previous Order dismissing Nara's Petition as being untimely, the Court of Appeals for the Third Circuit determined that Nara's nunc pro tunc motion was a "properly filed application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2). Nara, 264 at 316. Construing Nara's nunc pro tunc motion as a "properly filed" application for State post-conviction or other collateral review, the period that Nara's nunc pro tunc motion was pending in the Pennsylvania courts statutorily tolls the one-year limitations period.

By Order dated December 8, 1997, the Pennsylvania Supreme Court denied Nara's Petition for Allowance of Appeal with respect to the disposition of his nunc pro tunc motion. Thus, the latest date that Nara's nunc pro tunc motion was pending is December 8, 1997. See Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir. 1998) (limitations period is tolled under 28 U.S.C. § 2244(d)(2) until the date that the Pennsylvania Supreme Court denied Petition for allowance of appeal with respect to the second PCRA petition).

Nara's federal habeas corpus petition was received and docketed by the Clerk of Courts for the United States District Court for the Western District of Pennsylvania on January 4, 1999, almost one month after the expiration of the limitations period. Even after applying the "mailbox rule," Nara's federal habeas corpus petition was unfortunately filed after the one-year limitations period had expired. That said, both the federal and the Pennsylvania courts have adopted the "mailbox rule" with respect to pro se prisoner filings. The "mailbox rule" tolls statutes of limitations and other filing deadlines on the date that prisoners relinquish control over court documents and deliver them to prison officials for mailing. In other words, such documents are "deemed" filed on the date that the prisoner deposits the filing with prison authorities or places it in a prison mailbox. See Houston v. Lack, 487 U.S. 266, 271 (1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998) (applying mailbox rule to habeas corpus one-year limitations period for filing petition); Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423 (1997) (applying prisoner mailbox rule to pro se direct appeal from criminal conviction); Commonwealth v. Little, 716 A.2d 1287 (Pa.Super. 1998) (applying mailbox rule to PCRA petition).

However, the mailbox rule does not help Nara. On the last page of his federal habeas corpus petition, Nara was required to sign a declaration with respect to the veracity of the facts stated in his petition. Nara's declaration is dated "December 12, 1998." The latest date that Nara's one-year statute of limitations period expired would have been December 7, 1998. Thus, Nara's Petition was not timely filed, even after applying the prison mailbox rule.

C. Equitable Tolling

As recognized by the Court of Appeals for the Third Circuit, AEDPA's one-year limitation period as set out in § 2244(d) is a statute of limitations, not a jurisdictional bar, and, therefore, may be equitably tolled. The court explained, however, the legal constraints imposed upon the doctrine of equitable tolling in this way:

[e]quitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair. Generally, this will occur when the petitioner has in some extraordinary way been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing the claims. Mere excusable neglect is not sufficient.

The United States Court of Appeals for the Third Circuit has held that equitable tolling of the AEDPA statute of limitations is permitted if: "(1) the defendant has actively misled the plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.) (internal citation omitted), cert. denied, 534 U.S. 944 (2001).

The evidentiary hearings in Nara's action revealed the following. Attorney Phyllis Jin was appointed to represent Nara in his third PCRA petition, which was refiled as a motion to withdraw his guilty pleas nunc pro tunc. Sometime after the trial court denied his motion, Attorney Jin advised Nara in writing that oral argument was scheduled in his case in the Superior Court of Pennsylvania on April 23, 1997. Evidentiary Hearing Hr'g (Hr'g) Ex. J-2. After discussing the situation with Nara, it was agreed that Attorney Jin would travel to Cambria County and personally argue his case. The following day, on April 24, 1997, Attorney Jin wrote a letter to Nara in which she set out her thoughts and explained to him the status of the case. In her letter, Attorney Jin said:

I am not sure how long it will take the Superior Court to make a decision. I will let you know as soon as I hear something. I do feel satisfied with how the arguments went, but as you know, I can make no promises as to what they will do. All we can do is hope and pray that the Superior Court will reverse the lower court. If they do not, please be aware that I will continue to fight this case through the Supreme Court of Pennsylvania first and then I believe we would be on our way to a Federal habeas corpus. Just try to hang in there and do the best you can while we are waiting.

Hr'g Ex. J-3 (emphasis added).

Attorney Jin again corresponded with Nara on July 14, 1997, following the Superior Court's decision which affirmed the trial court's denial of his motion to withdraw his guilty pleas. In that letter, Attorney Jin said:

Enclosed please find a copy of the Superior Court Opinion which, unfortunately the Court affirmed. I cannot tell you how disappointed I am. But, I am ready to move past this and file an appeal to the Supreme Court. If that is not successful, the Federal appeals are next.

Hr'g Ex. J-5 (emphasis added).

On December 10, 1997, Nara contacted his brother who informed him that his criminal case recently was the subject of a newspaper article. Hr'g Tr. at 81-82. Immediately afterwards he contacted Attorney Jin to determine the status of his case. He was only able, however, to speak with Attorney Jin's secretary who told him that the Supreme Court of Pennsylvania had denied his Petition for Allowance of Appeal. Hr'g Tr. at 82. When Nara asked the date on which the petition was denied, the secretary informed him that it would be necessary for him to speak directly with Attorney Jin, who was unavailable at that time.

On the date of the Evidentiary Hearing, i.e., on October 31, 2002, Attorney Jin produced a letter in her file dated December 10, 1997, which purportedly shows that she forwarded to Nara the order of the Pennsylvania Supreme Court which denied his Petition for Allowance of Appeal. This letter was not a part of the file that was provided to Nara's counsel prior to the hearing. Moreover, it was discovered during the evidentiary hearing that Attorney Jin's letterhead had printed on it an incorrect telephone area code. The record shows that Attorney Jin's area code was changed from 412 to 724 code sometime in mid to late 1998. All of the correspondence from Attorney Jin's office to Nara dating from April 1, 1997 up until November 5, 1998 had the 412 area code on the letterhead. Nara testified that he never received the December 10, 1997 letter from Attorney Jin's office.

Next, on December 15, 1997, Nara wrote a letter to Attorney Jin and requested that she file a motion for reconsideration in the Pennsylvania Supreme Court's with respect to the court's decision not to review his case; he also stated that he informed her that she had only fourteen days to seek reconsideration. Hr'g Ex. K-1. In addition, in the letter he requested that Attorney Jin file a post conviction petition regarding newly discovered evidence. Finally, Nara stated that because it was difficult for him to contact Attorney Jin by phone, he requested a personal meeting to discuss strategy.

The phone logs from the State Correctional Institution at Huntingdon show that from December 15, 1997 through January 1, 1998, Nara attempted to contact Attorney Jin by telephone on numerous occasions; none of these calls, however, were accepted by Attorney Jin. On January 2, 1998, Attorney Jin directed a letter to Nara and informed him that she wanted to meet with him personally and to discuss his case. In that letter, she told Nara: "I am thinking the next step is federal relief, unless you feel we have not exhausted our other remedies." Hr'g. Ex. J-6. On January 19, 1998, Attorney Jin directed another letter to Nara and informed him that she still planned to visit him at Huntingdon. Hr'g Ex. J-7. Three months later, on April 15, 1998, Attorney Jin once again wrote Nara and expressed her intention to personally visit him at Huntington. Hr'g. Ex. J-8. In that letter, Attorney Jin said: "I don't believe that there are any time restraints that could concern us or the District Attorney. The question is what is our next step — federal?" She ended the letter by telling Nara that she would visit him as soon as possible.

The phone logs from Huntingdon indicate that Nara continued his attempts to contact Attorney Jin, but his efforts were unavailing. None of his calls were accepted by Attorney Jin's office. Turning to the court, on June 29, 1993, Nara directed a letter to President Judge Franks who appointed Attorney Jin to be his attorney in the state collateral relief proceedings. In the letter, Nara told Judge Franks that he had written several letters to Attorney Jin and that he had, on numerous occasions, unsuccessfully attempted to contact her by telephone. Essentially, he asked Judge Franks to instruct Attorney Jin to represent him in a manner which would expedite the resolution of the unresolved issues in his case. Hr'g Ex. k-5.

After further failed attempts to communicate with Attorney Jin, on August 21, 1998, Nara, pro se, filed a Motion for Withdrawal of Attorney Jin as his counsel and requested the appointment of new counsel. Hr'g. Ex. L-1. On August 29, 1998, Nara wrote a letter to Attorney Jin and requested the return of his personal file. Hr'g Ex. K-3. On September 23, 1998, Attorney Jin placed a telephone call to Huntingdon and requested that Nara be asked to contact her office and that she would pay the toll charges. Hr'g. Ex. C. When Nara contacted Jin's office by telephone, he spoke with her secretary who informed him that Attorney Jin was willing to continue to represent him, if he would withdraw his motion which requested her withdrawal from the case as his counsel. Hr'g. Tr. at 96. Relenting to her offer, on September 24, 1998, Nara filed a petition to discontinue his motion for withdrawal of counsel. Hr'g. Ex. L-2.

After further repeated and unavailing attempts to contact Attorney Jin, on November 2, 1998, in the Court of Common Pleas of Fayette County, Nara filed another motion seeking her withdrawal from the case as his counsel; again, he requested the appointment of new counsel. Hr'g. Ex. L-3. On November 17, 1998, Judge Frank issued an order which stated that because Nara already had counsel, the court would not consider his petition seeking Attorney Jin's dismissal from the case because hybrid representation was not an acceptable practice under Pennsylvania law. Hr'g Ex. L-4. When Nara received this order, it was his understanding that Attorney Jin remained as his court-appointed attorney and that she would file his federal habeas corpus petition. Hr'g. Tr. at 99. In addition, Nara testified that Attorney Jin personally told him that she would file his federal habeas petition. Hr'g Tr. at 115.

On November 27, 1998, Nara directed another letter to Attorney Jin and requested that she return to him his personal file. Hr'g. Ex. K-4. He specifically stated that, due to her failure to respond to his certified letters and numerous telephone calls, it was in his best interest that she provide him with his personal files, including any petitions filed on his behalf, so that he could pursue his case pro se. Nara received his file from Attorney Jin in two separate packages sometime in January of 1999. Hr'g Tr. at 117.

Nara testified that he had difficulty reading and writing and that Ray Steffan, an assistant in the law library, helped him prepare and file his federal habeas corpus petition. Hr'g Tr. at 109. He further testified that it was his belief that he had an additional fourteen days to file his federal habeas corpus petition because he assumed that Attorney Jin, pursuant to the request he made in his December 15, 1997 letter, had filed a motion for reconsideration with the Pennsylvania Supreme Court. Because he had no further personal contact with her after that time, he did not know that she still had not filed the petition. Hr'g Tr. at 115. It was not until he received his file from Attorney Jin that he discovered that no motion seeking a reconsideration had been filed. Hr'g Tr. at 116.

The Courts of Appeals have held that, in non-capital cases, attorney neglect and mistake by counsel may not rise to the level of extraordinary circumstances that permit equity relief. See, e.g., Johnson v. Hendricks, 314 F.3d 159 (3d Cir. 2002) (agreeing with other circuits in holding that in non-capital cases, an attorney's failure to comply with a petitioner's one-year limitations period does not rise to the level of extraordinary circumstances for the purposes of equitable tolling). Notwithstanding, the Court of Appeals for the Third Circuit has recognized, as it did in this case, that equitable relief may be proper where an attorney has actively misled a petitioner.

For example, in Seitzinger v. The Reading Hospital and Medical Center, 165 F.3d 236 (3d Cir. 1999), the Court of Appeals reversed the District Court's decision granting summary judgment and remanded the case for further consideration of the Plaintiff's claim in which he argued that the statute of limitations should be equitably tolled. Referring to counsel's failure to timely file an appeal, the Court of Appeals explained that "the principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect." Id. at 241 (internal quotation omitted). Notwithstanding, the appeals court found that counsel's "level of misbehavior went well beyond the garden variety, because [counsel] affirmatively lied to his client." Id. See also Doherty v. Teamsters Pension Trust Fund of Phila. Vicinity, 16 F.3d 1386 (3d Cir. 1994) (remanding action to apply equitable tolling factors because of the death of petitioner's attorney).

In a more recent opinion, Brown v. Shannon, 322 F.3d 768 (3d Cir. 2003), the Court of Appeals for the Third Circuit again reviewed the availability of equitable tolling in the case of attorney misadventure. In Brown, the petitioner filed a second pro se PCRA petition on December 24, 1996 and retained Daniel Silverman, Esquire as his counsel. The PCRA court denied the relief sought by the petitioner in his collateral relief proceeding on March 26, 1997. Although Brown asked Silverman to file an appeal, by letter dated April 16, 1997, Silverman responded as follows:

It is my strong recommendation that you not pursue an appeal before the Pennsylvania Superior Court. I believe that paying me money to pursue that appeal would be a [sic] inefficient use of your resources. With the record before it as it now stands, the Superior Court would almost certainly affirm Judge Sabo's decision. It is my recommendation that you pursue your remedies in federal district court via a writ for petition of habeas corpus [sic]. . . . Consequently, I will not file a Notice of Appeal to the Superior Court, although you are certainly permitted to do so.

On appeal Brown sought equitable tolling for the period from April 26, 1997, (the day the second PCRA ceased to be pending) through July 29, 1997 (the date that Silverman withdrew representation). In refusing to apply the doctrine of equitable tolling to this sequence of time, the Court of Appeals stated that:

We disagree with Brown insofar as he contends that he is entitled to equitable tolling because Silverman ineffectively failed to file an appeal from the denial of the second PCRA petition. From the outset, Silverman was forthright about not filing an appeal. In fact, the record reflects that Brown agreed to pursue federal habeas relief instead of an appeal in state court. Significantly, he could have timely filed a pro se notice of appeal in state court after receiving Silverman's letter on April 21, 1997. He had five days in which to do so. He was aware of the filing deadline (the PCRA court had informed him of the 30-day appeal period). Given his history of pro se filings, there is no reason to believe that Brown could not prepare and submit a notice of appeal, a simple one-paragraph document, within that time. It appears that he simply chose to not do so. Under these circumstances, equitable tolling is not warranted. Insofar as Silverman's advice to pursue federal habeas relief instead of an appeal in state court may have been unsound, his negligence in giving that advice is an insufficient basis for equitable tolling. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.) ("attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling"), cert. denied sub nom., 534 U.S. 944 (2001).

We also disagree with Brown insofar as he contends that he is entitled to equitable tolling because Silverman "abandoned" him by withdrawing representation without filing a federal habeas petition. Silverman informed Brown that he was withdrawing because he was unable to obtain a complete set of the trial transcripts and felt that he could no longer properly represent Brown. Prior to withdrawing, he had made diligent efforts to obtain the trial transcripts and had been forthright with Brown regarding his lack of success in obtaining them. He had also been forthright with Brown regarding his lack of progress in drafting a habeas petition. The record simply does not reflect that Silverman misbehaved or acted so irresponsibly that his withdrawal can be said to be an "extraordinary" circumstance warranting equitable tolling.

Unlike the situation in Brown, the facts presented at the evidentiary hearings here clearly show that Nara's attorney did more than simply provide negligent assistance; she affirmatively misled him into believing that she would represent him throughout his post conviction proceedings, up to and including the filing of a federal habeas petition. Specifically, Attorney Jin actively prevented Nara from moving his case forward by: 1) failing to inform him of the specific date that the Pennsylvania Supreme Court had denied review of his motion to remove his guilty plea; 2) failing to specifically inform him that she had not filed a motion for reconsideration as he had requested; 3) repeatedly asking his advice about the applicability of initiating federal proceedings; 4) leading him to believe that she would continue to represent him in future proceedings after the Supreme Court of Pennsylvania had denied review of his motion to withdraw his guilty pleas; 5) leading him to believe that she would file the federal habeas petition on his behalf; 6) telling him there were no time constraints for filing a federal habeas petition; and 7) actively misleading him by referring to the federal habeas corpus action as an "appeal," and by repeatedly telling him that she planned to visit him at Huntington to discuss his case after the Supreme Court of Pennsylvania denied his petition for review in December of 1997.

The record shows that Attorney Jin actively misled Nara not only with respect to the limitations period but, in addition, she informed him that she would file a federal habeas corpus petition on his behalf; also, in the letters that she did finally write to Nara she repeatedly referred to the next potential step in the process as the "federal appeal." Nor did Attorney Jin explain to Nara that the federal proceeding is distinct from the state PCRA proceeding. Also telling is the fact that many of Attorney Jin's letters were written to Nara after the state proceedings had been concluded. In these letters-written after the Supreme Court denied his petition seeking review-Attorney Jin indicated to Nara on at least three occasions that she planned to visit him at Huntington to discuss his case. Unless Attorney Jin intended to represent Nara pro bono, it would have been reasonable for Attorney Jin to inform Nara that he had to formally retain her to represent him in the federal action. However, except as to her self-serving testimony, there is no record evidence which shows that Attorney Jin advised Nara that she would not proceed to represent him in the federal proceeding, unless she was formally retained as his counsel. In fact, Nara testified that he never personally spoke to Attorney Jin after the Supreme Court of Pennsylvania denied his petition for review on December 8, 1997. Moreover, he further testified that Attorney Jin never informed him that he would be required to personally retain her in order for her to file his federal habeas petition; to the contrary, he testified that she told him that she would file his federal habeas petition and that he relied on her promise. Parenthetically, Attorney Jin's correspondence to Nara, in which she repeatedly refers to the next step as the "federal appeal", supports Nara's expectation.

In diligently pursuing his action, Nara made numerous written and telephonic attempts to contact Attorney Jin. Next, because his efforts bore no fruit, he directed a letter to Judge Franks and solicited his assistance. Finally, when all reasonable attempts resulted in nothing but failure, Nara resorted to a final recourse. He filed a motion asking for Attorney Jin's withdrawal from the case. Immediately upon receipt of that motion, Attorney Jin requested that Nara contact her. He complied and Attorney Jin's secretary informed him that she promised to proceed with his case. The only possible interpretation that Nara could place on Attorney Jin's decision was that she planned to file his federal petition. Placing credence and trust in her decision, the following day Nara withdrew his motion for withdrawal of counsel. Unfortunately, Attorney Jin, in keeping with her past practice, continually refused to communicate with her client.

Nevertheless, Nara continued to act diligently. He again filed a motion seeking the dismissal of Attorney Jin as his counsel. The trial court, however, refused his application, finding that he was already represented by an attorney and that hybrid representation was not favored by the law. In the meantime, Nara finally was able to contact Attorney Jin's office and he spoke with her secretary in November of 1998. At that time, Nara directed that she forward to him his files so that he could proceed with his federal habeas action pro se. Shortly thereafter, on December 12, 1998, only five days following the expiration of his one-year statutory limitations period, Nara filed his federal habeas petition after soliciting the aid of the library assistant at Huntingdon.

Under these facts, it is this court's considered opinion that the one-year statute of limitations in 28 U.S.C. § 2244(d) should be equitably tolled. Cf. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (holding that a prisoner's allegation that he was deceived by his attorney into believing that a timely § 2255 motion had been filed on his behalf presents a "rare and extraordinary circumstance" beyond a petitioner's control that should warrant equitable tolling of the statute of limitations).

III. CONCLUSION

It is respectfully recommended that the Petition for Writ of Habeas Corpus be considered timely filed in accordance with the doctrine of equitable tolling. Consequently, this Court should permit Nara to file an amended Petition for Writ of Habeas Corpus through the assistance of his appointed counsel. An appropriate order will be filed.

In accordance with the Magistrate's Act, 28 U.S.C. § 636 (b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, objections to this Report and Recommendation are due by March 26, 2004. Responses to objections are due by April 5, 2004. Failure to file timely objections may constitute a waiver of any appellate rights.