NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 19-1956 ______________

KEITH L. KAMMERDEINER,

Appellant

v.

SUPERINTENDENT ALBION SCI; ATTORNEY GENERAL PENNSYLVANIA; DISTRICT ATTORNEY ARMSTRONG COUNTY ______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 2-17-cv-00808) Honorable David S. Cercone, United States District Judge ______________

Submitted under Third Circuit L.A.R. 34.1(a) October 20, 2020

BEFORE: GREENAWAY, JR., COWEN, and FUENTES, Circuit Judges

(Filed: January 21, 2021)

______________

OPINION ______________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. COWEN, Circuit Judge.

Keith Kammerdeiner appeals from the order and judgment of the United States

District Court for the Western District of Pennsylvania dismissing his petition for writ of

habeas corpus pursuant to

. We will affirm.

I.

In 2013, Kammerdeiner was convicted in the Pennsylvania Court of Common

Pleas of Armstrong County of rape (threat of forcible compulsion), aggravated assault,

aggravated indecent assault (forcible compulsion), terroristic threats with intent to

terrorize another, unlawful restraint/serious bodily injury, indecent assault (without

consent of another), and risking a catastrophe. He was sentenced to an aggregate term of

120 to 240 months in prison. The state trial court denied Kammerdeiner’s motion for a

new trial on December 18, 2013, and Kammerdeiner did not file an appeal.

On October 3, 2014, Kammerdeiner filed a pro se petition for review under the

Pennsylvania Post Conviction Relief Act (“PCRA”). The state PCRA court appointed

counsel, who filed an amended PCRA petition. After an evidentiary hearing, the court

denied relief on November 16, 2015. Kammerdeiner’s counsel filed an appeal to the

Pennsylvania Superior Court, and the state intermediate appellate court affirmed the

denial of his PRCA petition on July 13, 2016.

Acting pro se, Kammerdeiner filed a § 2254 petition, which was dated June 8,

2017. The Magistrate Judge recommended “that the petition for writ of habeas corpus be

dismissed as time-barred,” because “no equitable tolling applies to remedy the

untimeliness.” (Appellant’s Brief Attached App’x at 33A.) The District Court overruled

2 Kammerdeiner’s objections to the report and recommendation, which the District Court

approved and adopted as supplemented. Accordingly, the District Court dismissed the

habeas petition as untimely (and denied any certificate of appealability).

Kammerdeiner appealed and filed an application for a certificate of appealability.

This Court granted his request for a certificate of appealability as to two issues:

As jurists of reason could reasonably debate these issues, the foregoing application for a certificate of appealability is granted as to: (1) whether the District Court correctly concluded, without holding an evidentiary hearing, that equitable tolling was not warranted to excuse the untimeliness of Kammerdeiner’s habeas petition, see Nara v. Frank,

(3d Cir. 2001), overruled in part on other grounds by Carey v. Saffold,

(2002); and (2) whether the District Court erred in dismissing, as procedurally barred, Kammerdeiner’s claim that counsel was ineffective for failing to file a direct appeal, see Martinez v. Ryan,

(2012). We are satisfied that this claim “states a valid claim of the denial of a constitutional right.” Slack v. McDaniel,

(2000). A certificate of appealability is denied as to the other claims.

(Id. at 34A.) This Court also appointed counsel to represent Kammerdeiner.

II.

“Appellant concedes that if equitable tolling does not apply, then his Habeas

petition is late” (Appellant’s Brief at 18).1 See, e.g.,

(d)(1)(A), (d)(2).

Kammerdeiner argues that the District Court erred by concluding that equitable tolling

1 The District Court had subject matter jurisdiction pursuant to

, and we have appellate jurisdiction under

. We generally exercise de novo review over a district court’s application of the equitable tolling doctrine. See, e.g., Munchinski v. Wilson,

(3d Cir. 2012). The district court retains discretion to grant an evidentiary hearing. See, e.g., Schriro v. Landrigan,

(2007). In deciding whether to grant an evidentiary hearing, the district court considers whether such a hearing could enable a petitioner to prove factual allegations that, if true, would entitle the petitioner to relief. See, e.g.,

.

3 was not warranted in this case without even holding an evidentiary hearing. According to

him, he was entitled to at least an evidentiary hearing on equitable tolling on account of

his own mental health issues and because he was abandoned by both trial counsel as well

as his PCRA attorney. We, however, conclude that the District Court properly disposed

of his federal habeas petition on timeliness grounds.

Mental illness does not constitute a per se reason to toll the limitations period, and,

in order to warrant equitable tolling, “the alleged mental incompetence must somehow

have affected the petitioner’s ability to file a timely habeas petition.” Nara,

(citing Miller v. N.J. State Dep’t of Corr.,

(3d Cir. 1998)).

Kammerdeiner has presented evidence of some serious episodes of mental illness.

However, the evidence is primarily concerned with the circumstances surrounding his

arrest and subsequent trial. For example, he was admitted to the psychiatric emergency

department for overnight observation on the night of the incident, diagnosed with an

altered mental status with a principal diagnosis of psychosis, and, according to his own

trial counsel, acted somewhat erratically at his preliminary hearing and his behavior

became even more outlandish during the trial itself.

Kammerdeiner’s appellate briefing does not offer any explanation for how his

mental health problems hindered his ability to file a timely habeas petition. Instead, he

simply cites in general to his mental health records and claims in a conclusory fashion

that his long history of mental illness “undoubtedly affects his ability to comprehend the

status of his case and his ability to pursue his own case.” (Appellant’s Brief at 25 (citing

App’x Vol. II at 286A).) Furthermore, he contends that “it was not until Appellant met

4 an individual in jail [a prisoner named Ross Nicholas] who was willing to help him [that

he could] file or even understand his option to file a habeas petition.” (Id. at 25-26

(citing App’x Vol. I at 21A).) This individual (who Kammerdeiner had met during a

mental health support group at the prison) was not a mental health professional and

simply averred (without any further explanation) that “I assisted in the drafting of the

federal habeas petition and supporting memorandum” based “on the limited information I

was able to obtain from Mr. Kammerdeiner due to his mental illness.” (App’x Vol. I at

47A.) We further note that, despite his mental health issues, Kammerdeiner was still able

to file a pro se PCRA petition in a timely fashion and to testify at the subsequent

evidentiary hearing conducted by the PCRA court (and was then able to file a federal

habeas petition and obtain a certificate of appealability).

According to Kammerdeiner, he was abandoned by both his trial counsel, “who

did not file a direct appeal on his behalf, despite Appellant requesting such” (Appellant’s

Brief at 19), and by his PCRA counsel, with whom he “had no further contact” after the

denial of his PCRA petition and who, “unbeknownst to Appellant, filed an appeal and

brief with the Pennsylvania Superior Court” while then failing to “advise Appellant of

any other options after the appeal was denied” (id. at 25 (citing App’x Vol. I at 25A)).2

He further asserts that “Appellant requested his case file and documents from his PCRA

attorney and was never given such.” (Appellant’s Brief at 19; see also, e.g., App’x Vol. I

at 47A (Nicholas averring that “Mr. Kammerdeiner only had a state court docketing

2 James H. Wray, Esq., represented Kammerdeiner at trial, and Linda L. Ziembicki, Esq., was appointed counsel for his PCRA proceedings. According to Kammerdeiner, his PCRA attorney was disbarred in 2019 for unknown reasons. 5 statement and all attempts to retrieve the case record from counsel and the state court

have been ignored”).)

“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstances stood

in his way’ and prevented timely filing.” Holland v. Florida,

, 649 (2010)

(quoting Pace v. DiGuglielmo,

(2005)). We have recognized that

attorney malfeasance, when combined with reasonable diligence on the part of the

petitioner, may trigger equitable tolling. See, e.g., Ross v. Varano,

(3d

Cir. 2013). However, Kammerdeiner’s vague assertions that he tried to obtain his case

records were clearly insufficient to establish that he was acting with reasonable diligence

in pursuing his own rights.

In addition, he was still able to file both a (timely) PCRA petition as well as an

(untimely) federal habeas petition without the case documents (or the benefit of counsel).

Kammerdeiner v. Clark, 2:17cv808,

, at *2 (W.D. Pa. Apr. 2, 2019)

(“Kammerdeiner did in fact file the instant petition although he apparently still does not

have his case documents. Thus, Kammerdeiner cannot persuasively argue that his

inability to procure his case file hindered his ability to timely file his Petition.”).

Likewise, there is no indication that Kammerdeiner ever notified the state courts that both

trial and PCRA counsel had abandoned him. See, e.g.,

(observing, inter alia, that

issue of trial counsel abandonment with respect to direct appeal was not raised in pro se

6 PCRA petition).3

III.

For the foregoing reasons, we will affirm the order and judgment of the District

Court.

3 Because we conclude that the habeas petition was untimely and that the District Court appropriately disposed of his equitable tolling allegations, we need not—and do not—decide whether the District Court erred in dismissing as procedurally barred Kammerdeiner’s claim that counsel was ineffective for failing to file a direct appeal. 7