Many cases hold that mere erroneous advice from a defense lawyer, as opposed to outrageously incompetent representation, is not a ground for equitable tolling, see e.g.,Urena v. U.S., No. 03 Civ. 6722, 2005 WL 1653888 (S.D.N.Y. Jul. 13, 2005) (alleged erroneous or deceptive advice concerning time to file petition for certiorari inadequate for equitable tolling), and it is questionable whether petitioner's motion for leave to file a late notice of appeal was a regular state court filing that could toll the one year period. See Satterfield v. Johnson, 434 F.3d 185 (3d Cir. 2006) (despite discretionary authority to allow late state court challenge, out of time challenge was not "properly filed" so as to obtain toll); Stokes v. Vaughn, 293 F.Supp.2d 525 (E.D.Pa. 2003), aff'd, 132 Fed.Appx. 971 (3d Cir. 2005) (attempt to appeal nunc pro tunc insufficient to toll one year period). Excluding this much time may be particularly inappropriate because at least from April 16, 2002, petitioner knew of his attorney's erroneous advice and thus had actual or constructive knowledge that his one-year period to file his federal habeas petition might be running.

See Huang v. Nish, 2006 WL 2177948 at *5 (No. 05-CV-6754) (E.D. Pa., Jul.31, 2006) (Pennsylvania Superior Court's denial of a nunc pro tunc petition for allowance of appeal meant "the time during which [it] w[as] pending in state court is not tolled for AEDPA purposes"); Grave v. Folino, 2006 WL 1371188 at *2 (No. 05-CV-6294) (E.D. Pa. 2006) (unsuccessful petition for leave to file petition for allowance of appeal nunc pro tunc did not toll AEDPA statute of limitations); Maraj v. Gillis, 2004 WL 2429847 at *3 (04-CV-1544) (E.D. Pa. 2004); Stokes v. Vaughn, 293 F. Supp. 2d 525 (E.D. Pa. 2003) (aff'd Stokes v. Vaughn, 132 Fed. Appx. 971, 973 (3d Cir. 2005)). In each case, the courts reasoned, either explicitly or implicitly, that the nunc pro tunc petition in question could not toll the statute of limitations because a Pennsylvania court found it untimely and thus improperly filed.