WALLACE v. KERESTES et al
MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 7/13/16. 7/13/16 ENTERED AND COPIES MAILED TO PRO SE PEITIONER AND E-MAILED(jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN KERESTES, et al.,
MEMORANDUM AND ORDER
MARILYN HEFFLEY, U.S.M.J.
July 13, 2016
Joseph Wallace (“Wallace” or “Petitioner”), a prisoner incarcerated at the State
Correctional Institution at Mahanoy (“SCI Mahanoy”) in Frackville, Pennsylvania, has filed a
pro se unopposed motion and amended motion for appointment of counsel pursuant to 28 U.S.C.
§ 1915(d) on the grounds that he is unable to pay for an attorney. See Mot. for App’t of Counsel
(Doc. No. 2); Am. Mot. for App’t of Counsel (Doc. No. 7). Subsequent to the submission of
those motions, a certified legal reference aide at SCI Mahanoy, David Pollard, filed an amended
motion for the appointment of counsel on Wallace’s behalf stating that apart from Wallace’s
financial eligibility for counsel, Wallace has “difficulty staying on task” and is unable to submit
filings on his own behalf. Am. Mot. for App’t of Counsel by Next Friend (Doc. No. 9). For the
reasons set forth below, Wallace’s motion for appointment of counsel shall be granted.
Although indigent litigants have no constitutional or statutory rights to appointment of
counsel in a civil case, a court has broad discretionary power to appoint counsel under 28 U.S.C.
§ 1915(e)(1). Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). The Tabron court noted that “the
district court must consider as a threshold matter the merits of the plaintiff’s claim.” Id. at 155.
If a claim has arguable merit, “[t]he plaintiff’s ability to present his or her claim is, of course, a
significant factor that must be considered in determining whether to appoint counsel.” Id. at 156.
“If it appears that an indigent plaintiff with a claim of arguable merit is incapable of presenting
his or her case, serious consideration should be given to the appointing of counsel . . . and if such
a plaintiff’s claim is truly substantial, counsel should ordinarily be appointed.” Id. Factors to be
considered in determining whether to appoint counsel include: “the difficulty of the particular
legal issues”; “the degree to which factual investigation will be required and the ability of the
indigent plaintiff to pursue such investigation”; whether “a case is likely to turn on credibility
determinations”; “where the case will require testimony from expert witnesses”; and “whether an
indigent plaintiff could obtain counsel on his or her own behalf.” Id. at 156, 157 n.5.
Upon consideration of the above factors, the Court has determined that appointment of
counsel is warranted for further evaluation of Wallace’s claims. In particular, Wallace has
argued that he is entitled to equitable tolling of the habeas corpus statute of limitations because
the “psychotropic medications . . . received from the time of [his] arrest ha[ve] affected [his]
ability to reason and function normally” and represent “extraordinary circumstances” that
prohibited him from making timely filings with the court. 1 Pet’r’s Traverse (Doc. No. 12) at 9-
Wallace entered a plea of guilty but mentally ill on December 6, 2000 to the crime of
murder in the third degree in connection with the stabbing death of his wife, Eileen, and was
sentenced to 23 ½ to 47 years’ imprisonment. Commonwealth v. Wallace, No. 1266-00 (Pa. Ct.
C.P. Dec. 6, 2000). He did not appeal the judgment of sentence, which became final 30 days
after his time to file a direct appeal expired, on January 5, 2001. See Pa. R. App. P. 903(c).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Wallace had one
year from this date, or until January 5, 2002, in which to file for state post-conviction relief or
other collateral review. 28 U.S.C. § 2244(d)(1)(A). However, Wallace did not file his state postconviction petition until September 3, 2013, approximately 11 years after his sentence became
final. See PCRA Petition, Commonwealth v. Wallace, No. 1266-200 (Pa. Ct. C.P. Sept. 3,
2013). Consequently, Wallace’s request for collateral review was untimely. See Pace v.
(Footnote continued on next page)
The United States Court of Appeals for the Third Circuit has held that “equitable 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.’” Miller v. N.J. State Dep’t of Corr., 145 F.3d
616, 618-19 (3d Cir. 1998) (internal citations omitted). “A prisoner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80, 89 (3d Cir. 2013) (quoting Holland v. Florida,
560 U.S. 631, 649 (2010)) (internal quotation marks omitted). Although the Third Circuit has
held that mental incompetence is not a per se basis for tolling a statute of limitations, equitable
tolling is justified where “mental incompetency . . . somehow . . . affected the petitioner’s ability
to file a timely habeas petition.” Nara v. Frank, 264 F.3d 310, 319-20 (3d Cir. 2001), overruled
in part on other grounds by Carey v. Saffold, 536 U.S. 214 (2002); see also Laws v. Lamarque,
351 F.3d 919, 923 (9th Cir. 2003) (“Where a habeas petitioner’s mental incompetence in fact
caused him to fail to meet the AEDPA filing deadline, his delay was caused by an extraordinary
circumstance beyond his control, and the deadline should be equitably tolled.”) (internal
quotation marks omitted). Specific factors to be considered with regard to claims of equitable
tolling based on mental conditions include:
[W]hether the petitioner has been adjudicated incompetent, and if so, when in
relation to the habeas statutory period; whether petitioner has been
institutionalized for his/her mental impairment; whether petitioner has handled or
DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post[-]conviction petition is untimely under
state law, that is the end of the matter for purposes of [AEDPA] § 2244(d)(2).”).
assisted in other legal matters which required action during the limitations period;
and whether petitioner’s allegations of impairment are supported by extrinsic
evidence such as evaluations and/or medication.
Griffin v. Stickman, No. 04-cv-0975, 2004 U.S. Dist. LEXIS 16186, at *19 (E.D. Pa. Aug. 11,
2004) (internal citations omitted); see also Graham v. Kyler, No. 01-cv-1997, 2002 U.S. Dist.
LEXIS 26639, at *10-11 (E.D. Pa. Oct. 31, 2002) (explaining that whether mental impairment
affected a petitioner’s ability to timely file a habeas petition “must be premised on the totality of
the petitioner’s circumstances” including his or her ability to “understand basic legal concepts,
combined with his diagnosed psychiatric disorder”).
Here, Wallace alleges that prior to and during court proceedings, he was prescribed
Depakene (mood stabilizer), Trilafon (anti-psychotic), Cogentin (used to treat the twitching
caused by other medications), Ativan (sedative, hypnotic and tranquilizer), and Haldol (antipsychotic), and that he continued to be prescribed those medications in various forms throughout
his incarceration. Traverse at 9. Wallace also references opinions addressing his mental illness,
including a letter by Dr. Robert L. Sadoff, M.D. dated June 9, 2000 stating that he suffered from
bipolar disorder, was “psychotic and delusional” at the time he stabbed his wife, and lacked
“substantial capacity to conform his conduct to the requirements of law,” which rendered him
mentally ill under the laws of Pennsylvania. Commonwealth’s Motion to Exclude Testimony,
Exhibit A, Commonwealth v. Wallace, No. 1266-00 (Pa. Ct. C.P. Nov. 13, 2000). Similarly, a
letter from Dr. Gerald Cooke, Ph.D. dated June 27, 2000 diagnosed Wallace with bipolar
disorder “in partial remission on medication” and personality disorder, which rendered Wallace
“marginally competent to stand trial” but with a risk of decompensation. Commonwealth’s
Motion to Exclude Testimony, Exhibit B, Commonwealth v. Wallace, No. 1266-00 (Pa. Ct. C.P.
Nov. 13, 2000). Missing from the record, however, is any medical record or evaluation
concerning Wallace’s mental state from 2001 until 2013, the period in which he alleges that he
was incompetent and unable to file any direct appeal or collateral appeal on his own behalf,
including what medication was dispensed to treat his condition, any evaluation of the progression
or treatment of his condition, or any hospitalizations associated with his condition, if any. See
Pet. at 43 (alleging that Wallace “was receiving treatment at a psychological hospital inside [the
SCI Mahanoy]” during the time period in which a direct appeal should have been filed). The
investigation and development of this evidence is necessary for a proper adjudication of
Wallace’s equitable tolling claim. See Nara, 264 F.3d at 319-20 (remanding to the district court
for further factual determination regarding equitable tolling where there was “no evidence in the
record that Nara’s current mental status affected his ability to present his habeas petition” but
there was at least some evidence of “ongoing, if not consecutive, periods of mental
incompetency”); United States v. Johnson, 590 F. App’x 176, 178-79 (3d Cir. 2014) (finding that
a district court abused its discretion by declining to toll AEDPA’s statute of limitations without
first holding an evidentiary hearing regarding the extent of petitioner’s mental illness, where the
petitioner had previously alleged suicide attempts, auditory hallucinations, and was being
proscribed psychotropic medications as reason for his failure to file a timely 28 U.S.C. § 2255
motion); Laws, 351 F.3d at 923-24 (remanding petitioner’s equitable tolling claim for further
factual discovery and a hearing where the evidence initially presented concerning his
competence was petitioner’s “allegations in a sworn pleading, against which the state has offered
no evidence at all, that he was incompetent in the years when his petitions should have been
In addition, statements contained within Wallace’s filings suggest that he may have been
reliant upon other inmates, i.e., “jailhouse lawyers” or “certified legal reference aides” to prepare
his petitions, motions and related briefing. See Am. Mot. for App’t of Counsel by David Pollard
as Next Friend Submission at 1-3; PCRA Pet., Commonwealth v. Wallace, No. 1266-00, at 7-A
(Pa. Ct. C.P. Sept. 3, 2013) (requesting leniency on the petition timing because “someone I
trusted and had a verbal contract with to type and mail my PCRA to the court . . . breached and .
. . I am making every effort to finish it myself ASAP” even though “I’m still over[-]medicated”).
Given the nature of the allegations presented in Wallace’s habeas petition, the need for
additional factual investigation concerning Wallace’s mental condition during the 2001 to 2013
time period, and the limitations suggested by Wallace’s mental impairments that could
potentially undermine his ability to pursue such an investigation without counsel’s assistance,
appointment of counsel is warranted for further evaluation of Wallace’s claims.
IT IS THEREFORE ORDERED THAT:
1. Wallace’s motion for appointment of counsel is GRANTED.
2. The Federal Community Defender Office for the Eastern District of Pennsylvania is
appointed to represent Wallace and shall have 60 days from the entry of this Order to
submit a memorandum addressing the limited issue of whether the statute of
limitations concerning Wallace’s federal habeas petition is subject to equitable
3. Respondents shall then have 30 days from the submission of Wallace’s memorandum
to file a response.
BY THE COURT:
/s/ Marilyn Heffley
UNITED STATES MAGISTRATE JUDGE
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