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Media Alerts - Ross v. Varano--Third Circuit
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April 10, 2013
  Ross v. Varano--Third Circuit
Headline: Inmate abandoned by his lawyers files successful habeas corpus petition.

Area of Law: Antiterrorism and Effective Death Penalty Act

Issue(s) Presented: First, did the district court erred by finding that the criminal defendant had attempted to appeal his murder conviction for many years? Second, if the district court correctly determined that the criminal defendant had attempted to prosecute his appeal, was his attempt sufficient to show reasonable diligence for purposes of obtaining equitable tolling of the statute of limitations? And, third, if the reasonable diligence prong was satisfied, did extraordinary circumstances warrant the equitable tolling of the statute of limitations?

Brief Summary: Timothy J. Ross was convicted of first degree murder. As a result of ineffective trial counsel and the fact that his post-sentence counsel abandoned him, equitable tolling of the statute of limitations was properly granted by the district court. The Third Circuit held that Ross had diligently pursued his state appellate remedies but extraordinary circumstances beyond his control had thwarted his appeal. The Court thus affirmed the decision of the district court.

Extended Summary: On June 14, 2000, Ross was convicted of first degree murder by a jury in the Franklin County Court of Common Pleas. He was sentenced to life imprisonment. He was unable to obtain a state court appellate review on both his conviction and sentence. He subsequently brought a habeas corpus petition alleging that his attorney abandoned him on appeal and he was, therefore, denied his Sixth Amendment right to counsel.

After Ross was convicted of first degree murder, the same trial court appointed attorney Christopher Sheffield to "represent Ross on all post-sentence proceedings including appeal." The court also extended Ross's time for filing post-sentence motions by ten days. However, when Ross attempted to contact Sheffield regarding his appeal strategy and basic status information, he received no response. Ross's trial attorney also attempted to contact Sheffield without success. Furthermore, Sheffield did not file any post-sentence motions within the extended 10 day period.

On October 16, 2000, Ross wrote directly to the common pleas court to inquire about how to pursue an appeal. Five months after his appointment to represent Ross, Sheffield filed a motion for leave to appeal nunc pro tunc, but did not inform Ross of that filing. That court granted Sheffield's motion. In January of 2001, Ross submitted a motion for a new counsel. However, that court denied Ross's request because of Sheffield's December motion. Despite Ross's persistent pleas, Sheffield did not file an appeal until May 9, 2001, six months after the court granted him leave to do so and only after the court contacted him about the fact that no appeal had been filed. Sheffield never provided a copy of the appeal to Ross.

In the eight years that Sheffield represented Ross, he only met Ross once. During that meeting, he assured Ross that his appeal was going forward. However, Sheffield soon filed a motion to withdraw the appeal and instead attempted to establish an ineffective trial counsel claim. It was not until July 2, 2008, when Ross filed a pro se petition for post-conviction collateral relief, did Ross receive a new counsel. Even though Ross received new counsel, his appeals were denied. Ross eventually filed a pro se petition for habeas corpus in the district court.

The Attorney General of Pennsylvania ("Commonwealth") appealed the decision by the district court denying the Commonwealth's motion to dismiss Ross's habeas petition as untimely. The Commonwealth also appealed the decision by the district court granting equitable tolling from the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Finally, the Commonwealth appealed the district court's decision granting Ross substantive habeas corpus relief.

The Commonwealth argued on appeal that Ross did not diligently pursue his case between the years 2004 and 2008. As a result, the Commonwealth argued that the equitable tolling should not have been granted. Under the AEDPA, the statute of limitations requires petitioners to file for relief within a year after the judgment becomes final. However, in Holland v. Florida, the United States Supreme Court held that if a petitioner was diligent in his attempt to appeal and that there were extraordinary circumstances, then equitable tolling of the statute of limitations would be proper.

The Third Circuit held that although the AEDPA's statute of limitations would normally bar Ross's habeas petition, equitable tolling was warranted because Ross had been diligent in pursuing his state court appellate remedies but that extraordinary circumstances beyond his control prevented him from doing so. The evidence showed that Ross's attorney had neglected him, continuously missed court deadlines, misrepresented information regarding the status of the appeal, and failed to communicate with him. Furthermore, Ross's mental illness, limited education, and limited cognitive abilities amplified his problems.

The Third Circuit affirmed the district court's decision and remanded the case to the district court with instructions to modify its order to have Ross released within 90 days unless the Commonwealth reinstated his right to appeal from his conviction and sentence.

See full opinion at

Panel: Greenaway, Jr., Greenberg, and Cowen, Circuit Judges.

Argument Date: 12/13/2012

Argument Location:

Date of Issued Opinion: 4/5/2013

Docket Number: No. 12-2083

Decided: The Third Circuit affirmed the decision of the district court.

Case Alert Author: Tien Cheng

Counsel: Matthew D. Fogal, Esquire, Franklin County District Attorney, Zachary I. Mills, Esquire, David W. Rahauser, Esquire, Franklin County Office of District Attorney, for Appellant; James V. Wade, Esquire, Federal Public Defender, Frederick W. Ulrich, Esquire, Assistant Federal Public Defender, Office of Federal Public Defender, for Appellee.

Author of Opinion: Judge Greenberg

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 04/10/2013 01:37 PM     3rd Circuit  

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