Full opinion text
MEMORANDUM AND ORDER ANITA B. BRODY, District Judge. On June 25, 1999, Petitioner Lee Baker (“Baker”), a state prisoner convicted of first degree murder and sentenced to death, petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents include the Commissioner of the Pennsylvania Department of Corrections, and the Superintendents of the State Correctional Institutions at Graterford and Rockview (“the Commonwealth”). On August 31, 2001, the Commonwealth filed a motion to dismiss Baker s petition as untimely under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), or in the alternative, a motion to dismiss all claims in the petition that were procedurally defaulted in state court and, therefore, unre-viewable in federal court. For the reasons set forth below, I will deny the motion. TABLE OF CONTENTS I. PROCEDURAL HISTORY.595 II. DOES AEDPA APPLY AT ALL?.603 III. AEDPA’S STATUTE OF LIMITATIONS.606 IV. RELATION BACK.609 V. STATUTORY TOLLING. © i“H © A. “Properly Filed”. © i~H © B. “Pending”. © rH © VI. EQUITABLE TOLLING. © to © VII. EXHAUSTION. © to cn VIII. PROCEDURAL DEFAULT. © CO © A. “Unmistakable Terms”. © CO to B. “Firmly Established and Regularly Followed” © CO Or I. PROCEDURAL HISTORY The following is a chronology of the procedural history relevant to the Commonwealth’s motion to dismiss October b, 198b Lee Baker was convicted of first degree murder before the Honorable Alfred F. Sabo in the Court of Common Pleas of Philadelphia County. January 30, 1985 Judge Sabo sentenced Baker to death. February 11, 1985 Baker filed a motion with Judge Sabo to modify his sentence, sentence. February lb, 1985 Judge Sabo denied the motion to modify Baker’s sentence without a hearing. As he was automatically entitled, Baker appealed to the Pennsylvania Supreme Court. February 8, 1986 The Court of Common Pleas of Philadelphia County appointed new counsel to represent Baker. July 17, 1986 Baker filed a petition with the Pennsylvania Supreme Court to remand the case to the trial court to address claims of ineffective assistance of trial counsel. November 10, 1986 The Pennsylvania Supreme Court granted Baker’s petition to remand. The case was remanded to Judge Sabo. April 10, 1987 Baker filed a “petition pursuant to the Postr-Conviction Plear-ing Act” (“PCHA petition of i/10/87”) raising claims of ineffective assistance of counsel. November 18,1987 After a hearing, Judge Sabo dismissed Baker’s PCHA petition of i/10/87. Baker again appealed the original judgment of sentence of death imposed on 1/80/85, and also appealed Judge Sabo’s dismissal of the petition of H 10/87. June 17, 1992 The Pennsylvania Supreme Court affirmed both the judgment of sentence of death and Judge Sabo’s dismissal of the petition of 4/10/87. See Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (Pa.1992). Date Unknown Baker petitioned for reargument. March 2, 1993 The Pennsylvania Supreme Court denied Baker’s motion for reargument. July SO, 19 9S Baker filed a pro-se petition for post-conviction relief under the Pennsylvania “Post Conviction Relief Act" (“PCRA”) (“PCRA petition of 7/30/93”). The petition of 7/30/93 was assigned to the Honorable Joseph Papalini in the Court of Common Pleas of Philadelphia County. August 23, 1993 Judge Papalini dismissed the petition of 7/30/93 unthout the appointment of counsel and without conducting a hearing. Baker appealed. December 13,1993 Judge Papalini filed an opinion in support of his August 23, 1993 dismissal of Baker’s PCRA petition of 7/30/93. Fall 1994 The Pennsylvania Supreme Court appointed counsel to represent Baker in the appeal of Judge Papalini’s dismissal of Baker’s PCRA petition of 7/30/93. May 8, 1995 The Supreme Court of Pennsylvania affirmed Judge Papali-ni’s dismissal of Baker’s PCRA petition of 7/30/93 stating that “the issue raised by Appellant [Baker] was previously litigated on direct appeal to this court, and, thus, Appellant is ineligible for relief under the Post Conviction Relief Act, U2 Pa.C.S. §§ 954.3(3), 9544(a)(2).” Commonwealth v. Baker, 540 Pa. 131, 656 A.2d 116, 116 (Pa.1995). Baker petitioned the United States Supreme Court for a writ of certiorari. October 30,1995 The U.S. Supreme Court denied certiorari. January 3,1996 Baker filed a motion for appointment of counsel and to proceed in forma pauperis in federal court. The matter was assigned to me for adjudication. January 4,1996 I granted Baker’s IFP motion and appointed Billy H. Ñolas as counsel. January 15,1997 Baker filed a petition in state court entitled “Petition for Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania Constitution and for Postr-Conviction Relief under the Post Conviction Relief Act” (“PCRA petition of 1/15/97”). The petition was assigned to Judge Sabo . Prior to March SI, 1997 Baker’s counsel, Billy Ñolas, submitted to Judge Sabo a proposed order luithout an accompanying motion which stated in part: “[T]he PCRA petition herein [petition of 1/15/97], as supplemented, is dismissed without prejudice due to on-going litigation in federal court. ” March SI, 1997 Judge Sabo did not sign Ñolas’ proposed order but issues his own order dismissing Baker’s petition of 1/15/97 “as premar ture due to on-going litigation in federal court. ” The order failed to specify whether the dismissal was ivith or without prejudice. The order notified Baker that he had SO days to appeal the order. April 9, 1997 Baker filed a motion for rehearing of the petition of 1/15/97 based on newly discovered evidence which Baker contended disclosed a Batson claim. April 23,1997 Baker filed a petition for writ of habeas corpus in federal court under 28 U.S.C. § 2254 (“federal petition of 4/23/97”). April 25, 1997 Baker appealed to the Pennsylvania Supreme Court Judge Sabo’s March SI, 1997 dismissal of Baker’s PCRA petition of 1/15/97. May 7, 1997 Judge Sabo issued an opinion in support of his March 31, 1997 order dismissing Baker’s PCRA petition of 1/15/97. It stated in part: “The Petition was initially dismissed at the request of defense counsel as being premature due to on-going litigation in federal court ... Even if this action were not barred by federal litigation ... the action would still not meet the requisites for relief under the Postr-Conviction Relief Act. The defendant himself acknowledges that there have been multiple filings under the Post Conviction Relief Act in this case. Guided by governing criteria set forth in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988) for repetitive filings, the Court finds that the Defendant has failed to set forth a strong prima facie case that a miscarriage of justice occurred. ” Judge Sabo also denied Baker’s April 9,1997 motion for rehearing based on the Batson claim. May 14, 1997 Baker filed a petition for reconsideration of Judge Sabo’s May 7,1997 opinion. Baker argued that he had not requested dismissal of his petition and that Judge Sabo had misunderstood the intention of Baker’s counsel in submitting the proposed order of dismissal. June 5, 1997 Baker appealed Judge Sabo’s May 7, 1997 opinion to the Pennsylvania Supreme Court. August 28, 1997 In response to Baker’s June 5, 1997 appeal, Judge Sabo issued another opinion in which he stated that he was “without understanding as to how a party who has already filed an appeal in an action can file a totally separate appeal from a denial of reconsideration involving the very same action. ” Judge Sabo also noted that Baker’s May 14, 1997 petition for reconsideration was untimely because it was filed more than 80 days after the dismissal order of 8131197 was issued. October 17,1997 The Commonwealth filed a “motion for adjudication of issues of exhaustion and procedural default” in federal court. According to the Commonwealth, Baker’s federal habeas petition was a “mixed petition,” containing claims that had not been exhausted in state court. The Commonwealth argued that the unexhausted claims were procedurally defaulted because they were time-barred under state law. As a result, the Commonwealth contended, the unexhausted claims were unreviewable in federal court. In the alternative, the Commonwealth argued that if Baker’s unexhausted claims were not procedurally defaulted in state court, his federal petition must be dismissed for failure to exhaust state remedies. November 10,1997 Baker responded to the Commonwealth’s motion for adjudication of issues of exhaustion and procedural default. Baker conceded that at least one of the claims in his federal petition was unexhausted in state court. However, Baker argued that any unexhausted claims were not procedurally defaulted in state court. Baker presented me with three options for how to proceed: (1) I could dismiss the petition without prejudice for failure to exhaust; (2) the Commonwealth could waive exhaustion, and permit review of the petition as filed; or (3) I could hold the federal case in abeyance while Baker exhausted his claims in state court. November 18,1997 The Commonwealth informed Baker’s counsel by letter that it would not waive the exhaustion requirement for any claim in Baker’s federal petition of 4/23/97. December 22,1997 I issued an order in which 1(1) found that none of the unex-hausted claims in Baker’s federal petition of 4/23/97 were proeedurally defaulted in state court, and (2) dismissed Baker’s petition without prejudice for failure to exhaust state remedies. January 21,1998 While Baker’s appeal of Judge Sabo’s dismissal of the PCRA petition of 1/15/97 was pending before the Pennsylvania Supreme Court, Baker moved the Pennsylvania Supreme Court to compel the Commonioealth to file a complete record, to remand for proceedings in the loiver court, and/or for an extension of time in which to file his brief January 29,1998 In response, the Commonwealth filed with the Pennsylvania Supreme Court (1) an answer “to [Baker’s] moot and frivolous motion to compel,” and (2) a “motion for summary disposition of appeal from time-barred third PCRA petition. ” February 17, 1998 Baker filed an answer to the Commonwealth’s motion for summary disposition. February 20,1998 The Pennsylvania Supreme Court issued an order (1) denying Baker’s request to compel the Commonwealth or the clerk of the lower court to file a complete record; (2) denying Baker’s request to remand; and (8) granting Baker’s request for an extension of time to file his brief. July 31,1998 In federal court, Baker filed a Rule 60(b) motion for relief from the December 22, 1997 dismissal of his federal petition of 4/23/97. Baker argued that the dismissal could have the effect of precluding him from filing an amended habeas corpus petition after he had exhausted his state remedies. According to Baker, his federal statute of limitations could expire before his claims were exhausted in state court. Therefore, Baker asked that (1) I vacate the order of 12/22/97 dismissing his mixed petition without prejudice, and (2) I hold his case in abeyance pending the outcome of the state court disposition of his PCRA petition of 1/15/97. November 16,1998 I issued an order clarifying the December 22,1997 order dismissing Baker’s federal petition of 4/23/97 without prejudice: “This Court’s order of December 22, 1997 [dismissing Baker’s petition without prejudice] is clarified to reflect that Petitioner’s writ of Habeas Corpus was dismissed without prejudice to Petitioner’s right to file an amended petition pursuant to Federal Rule of Civil Procedure 15(c)(2) upon exhaustion of his state remedies. This order is effective nunc pro tunc to the time of this Court’s December 22,1997 order.” December 11,1998 Baker filed an application for certificate of appealability of my November 16,1998 clarification order. On this same date, Baker filed a notice of appeal with the Third Circuit. February 23,1999 I denied Baker’s application for a certificate of appealability. May 4, 1999 The Supreme Court of Pennsylvania in Commonwealth v. Baker, 556 Pa. 427, 728 A.2d 952 (Pa.1999), affirmed Judge Sabo’s March 31, 1997 dismissal of Baker’s PCRA petition of 1/15/97: “The rules of criminal procedure allow a party to ‘withdraw a petition for post-conviction collateral relief at any time. ’ Pa. R.Crim.P. 1505. We cannot, therefore, rule that it was error to grant [Baker’s] request for a dismissal ... Appellant’s brief also lists 28 other alleged errors. Due to Appellant’s requested dismissal, none of these issues were litigated before the common pleas court and thus, no record has been developed for this Court to review. It is a general rule that, ‘[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal. ’ Pa.R.AP. 802. Therefore, we do not reach the merits of these issues.” Commonwealth v. Baker, 556 Pa. 427, 728 A.2d 952, 953 (Pa.1999). The Pennsylvania Supreme Court’s opinion was accompanied by an order which stated, in part: “AND NOW, this 4 th day of May, 1999, Appellee’s [the Commonwealth’s] Motion for Summary Disposition of Appeal from Timer-Barred Third PCRA Petition is denied. ” May 14, 1999 Baker filed an application for reargument before the Pennsylvania Supreme Court. June 25,1999 Baker filed a “notice to reopen habeas corpus case” and an amended federal petition for writ of habeas corpus (“federal petition of 6/25/99”) in federal court. August 18,1999 I issued an order that I would take no further action in the case because Baker’s appeal of my November 16, 1998 order was still pending before the Third Circuit. February 1, 2000 The Pennsylvania Supreme Court denied Baker’s application for reargument of its May 4, 1999 memorandum & order affirming the dismissal of Baker’s PCRA petition of 1/15/97. July 18, 2000 Baker filed a petition to withdraw his appeal from the Third Circuit. August 9, 2000 The Third Circuit granted Baker’s petition and terminated the appeal. October 26,2000 I granted Baker’s motion “to reopen habeas corpus case.” August 31, 2001 The Commonwealth filed the “motion to dismiss [Baker’s] amended [federal] petition as untimely, or, in the alternative, motion to dismiss all claims in the amended [federal] petition that are not reviewable under federal habeas law.” The Commonwealth’s August 31, 2001 motion to dismiss is before me now. It has not yet filed an answer to Baker’s amended federal petition of 6/25/99. The parties agreed that because of the complicated procedural history surrounding the petition of 6/25/99, I should first address whether I am proeedurally barred from considering Baker’s petition on the merits. The Commonwealth argues (1) that Baker’s amended federal habeas petition in its entirety is time-barred by the one-year statute of limitations period under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), or in the alternative, (2) that many of the claims in Baker’s amended petition are unreviewable because they were proeedurally defaulted in state court. II. DOES AEDPA APPLY AT ALL? On April 24, 1996, Congress signed into law AEDPA which amended § 2244 and §§ 2253-2255 of chapter 153 of Title 28 of the United States Code, governing all ha-beas corpus proceedings in the federal courts. Pub.L. No. 104-132, 110 Stat. 1217-1221. Among AEDPA’s most sweeping changes was the addition of a new subsection, 2244(d), which established a one-year limitations period for petitions filed by state prisoners under § 2254. See 28 U.S.C. 2244(d). In Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court ruled that AEDPA applies only to “eases filed” after the Act became effective on April 24, 1996. See id. at 336, 117 S.Ct. 2059. However, Lindh did not specify when a case is considered “filed” for purposes of AEDPA’s applicability. Because AEDPA only governs cases filed after April 24, 1996, I must decide when Baker’s case was “filed” in order to determine whether AEDPA governs his amended federal petition of June 25, 1999 (“petition of 6/25/99”). Baker asserts that his habeas case was “filed” on January 3, 1996, the date he filed a motion for appointment of counsel in federal court. Therefore, he contends, because his case was filed before AEDPA, AEDPA does not govern his amended petition of 6/25/99. The Commonwealth responds that the proper measuring date for whether AEDPA applies is not the date that Baker filed a motion for appointment of counsel but the date that he filed the amended petition, June 25, 1999. Thus, it argues, because Baker filed the petition after the effective date of AEDPA, AED-PA applies. The Third Circuit has not specifically addressed whether a motion for appointment of counsel commences a habeas case for purposes of the applicability of AED-PA, although other courts of appeals have. The Third Circuit, however, has adopted the general rule that the whether or not AEDPA applies is governed by the date that a petition is filed; any petition filed after the effective date of AEDPA is governed by AEDPA. Banks v. Horn, 271 F.3d 527, 532 (3d Cir.2001) (citing cases). Of those circuit courts that have considered the issue, all but one have rejected the notion that a motion for appointment of counsel commences a federal habeas case, holding instead that the relevant measuring date for whether or not AED-PA applies is the date that a petition was filed. As Judge Joyner recently noted in Peterkin v. Horn, 176 F.Supp.2d 342 (E.D.Pa.2001): With the exception of the Ninth Circuit, those Courts of Appeals which have had occasion to address the issue of whether the filing by a capital defendant of a Motion for Appointment of Counsel “commences” a habeas corpus proceeding within the meaning of 28 U.S.C. § 2251, et seq. have all uniformly held that the relevant date for determining the applicability of the AEDPA to habe-as corpus petitions is the date that the actual habeas corpus petition is filed-— not the date on which the motion for appointment of counsel is filed. Peterkin, 176 F.Supp.2d at 356 (citing cases). See Moore v. Gibson, 195 F.3d 1152 (10th Cir.1999); Williams v. Coyle, 167 F.3d 1036, 1038 (6th Cir.1999); Gosier v. Welborn, 175 F.3d 504, 506 (7th Cir.1999); Nobles v. Johnson, 127 F.3d 409 (5th Cir.1997). As the Sixth Circuit explained in Williams v. Coyle, the statutory language of AEDPA supports this conclusion. Section 2254 of AEDPA, governing petitions of state prisoners, provides, in part, “[i]n a proceeding instituted by an application for a writ of habeas corpus ...” 28 U.S.C. § 2254(e)(1). Thus, the statute itself contemplates that the filing of a petition commences a case. Furthermore, the Sixth Circuit reasoned, a habeas petition is akin to a complaint, the filing of which commences a civil case. See Williams v. Coyle, 167 F.3d at 1038. See also Moore, 195 F.3d at 1162 (citing Williams v. Coyle, 167 F.3d at 1038). As Baker points out, the Ninth Circuit took a contrary view in Calderon v. The United States District Court for the Central District of California, 163 F.3d 530 (9th Cir.1998), where it held that the' filing of a motion for appointment of counsel, coupled with a motion to stay execution, commences a habeas case for purposes of the applicability of AEDPA. The Ninth Circuit based its decision on its interpretation of the Supreme Court’s holding in Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998). In Hohn, the Supreme Court ruled that an application for a certificate of an appeala-bility constituted a case and that it, therefore, had jurisdiction to hear the appeal of its denial. Id. at 246, 118 S.Ct. 1969. Based on Hohn, the Ninth Circuit reasoned in Calderon that a motion for appointment of counsel accompanied by a motion for leave to file a writ of habeas corpus constituted a “threshold action” like the application for a certificate of appeala-bility. See Calderon, 163 F.3d at 540. Such filings, it held, create a “pending habeas case.” Id. Like the Sixth, Seventh, and Tenth Circuits, however, I find the Ninth Circuit’s reasoning in Calderon unpersuasive. As these courts of appeals explained, Hohn is undoubtedly distinguishable on the ground that it was limited to the question of whether an application for a certificate of appealability constitutes an appealable ease, a question entirely different from when a case is deemed “filed” under AED-PA. See Moore, 195 F.3d at 1163 (Hohn is “limited to the determination that the rejection by the district court of the preliminary motion constitutes an appealable case”); Williams v. Coyle, 167 F.3d at 1040 (“Hohn and Ex Parte Quirin stand only for the proposition that the denial by the district court of a motion for the issuance of a COA ... or ... a motion for the appointment of counsel ... would constitute an appealable case”). See also Gosier, 175 F.3d at 506 (the Ninth Circuit’s rebanee on Hohn in deciding whether a motion for appointment of counsel is a “case pending” under AEDPA is “inapt”). Baker further relies on the Supreme Court’s decision in McFarland v. Scott, 516 U.S. 848, 116 S.Ct. 141, 133 L.Ed.2d 87 (1995), to support his argument that the proper measuring date for purposes of AEDPA’s applicability is the date he filed his motion for appointment of counsel. In McFarland, the Supreme Court was presented with the issue of whether a capital defendant can invoke the statutory right to counsel provided under federal habeas law, 21 U.S.C. § 848(b)(4)(B), before fifing a habeas petition. See id. at 854-55, 116 S.Ct. 141. Section 848(b)(4)(B) provides capital defendants the right to seek appointment of counsel in “any post-conviction proceeding.” 21 U.S.C. § 848(b)(4)(B). Looking to related provisions, the Court ruled that § 848(b)(4)(B)’s right to appointment of counsel includes the right to counsel in preparing a habeas petition. See id. at 855, 116 S.Ct. 141. Therefore, it concluded that a motion for appointment of counsel commences a “post-conviction proceeding” for purposes of § 848(b)(4)(B). See id. at 856-57, 116 S.Ct. 141. However, whether a capital defendant may invoke his statutory right to appointed counsel before fifing his habeas petition is a question separate and apart from when a habeas case is filed for purposes of AEDPA’s applicability. As the Sixth Circuit explained in Williams v. Coyle: The problem the Court addressed in McFarland was of an ongoing nature and had nothing to do with the effective date of any statutory provision. In the present case, on the other hand, the defendant faces additional procedural hurdles post-AEDPA, but there is no ongoing rationale for stretching the “pending” period to reach prior to the actual fifing of the application as there was in McFarland. Williams, 167 F.3d at 1039. Moreover, given the fact that McFarland was decided before AEDPA was enacted, Baker’s reliance on it to establish that an appointment of counsel motion commences a post-conviction proceeding is further misplaced. Accordingly, I conclude that Baker’s ha-beas case was not “filed” for purposes of the applicability of AEDPA on the date that Baker filed his motion for appointment of couhsel. This conclusion can be inferred from Third Circuit precedent, see Banks, 271 F.3d at 532, and is further supported by the reasoning of the majority of circuits that have directly addressed and rejected the argument that a motion for appointment of counsel commences a habe-as case under AEDPA. A habeas case is not “filed” within the meaning of Lindh until a prisoner files a habeas petition. Baker’s original petition of 4/23/97 and his amended petition of 6/25/99 were both filed after the effective date of AEDPA. Therefore, whether I look to the filing date of the original or amended petition, AED-PA applies in this case. III. AEDPA’S STATUTE OF LIMITATIONS Next, I must decide if Baker’s federal action in habeas corpus is time-barred under AEDPA’s statute of limitations. AEDPA established a one-year limitations period for the filing of petitions by state prisoners, codified at 28 U.S.C. § 2244(d)(1): (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. 28 U.S.C. § 2244(d)(1). In Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998), the Third Circuit ruled that petitioners whose state convictions became final prior to the effective date of AEDPA, April 24, 1996, are entitled to a one year “grace period” to file a petition under § 2244(d)(1). Thus, such a petitioner had until April 23, 1997 to timely file a § 2254 federal habeas petition. See id. AEDPA’s one-year limitations period is subject to tolling. Section 2244(d)(2) of AEDPA provides for “statutory tolling” of § 2244(d)(l)’s one-year limitations period in the following circumstance: 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. 28 U.S.C. § 2244(d)(2). The Third Circuit has held that AED-PA’s one-year limitations period is not a jurisdictional limitation but a statute of limitations. Therefore, it is also subject to equitable tolling. See Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618 (3d Cir.1998). The parties do not dispute that the triggering date for measuring AEDPA’s one-year limitations period in Baker’s case is § 2244(d)(1)(A), the date on which Baker’s judgment “became final by the conclusion of direct review or the expiration of the time for seeking such review.” The Commonwealth contends that this date was in September 1992. Baker asserts that his judgment became final on May 31, 1993, the date on which the time period for filing a petition for writ of certiorari with the United States Supreme Court expired. Under either date, Baker’s conviction became final within the meaning of § 2244(d)(1)(A) prior to the effective date of AEDPA; therefore, the one-year grace period applies to Baker. Accordingly, Baker’s AEDPA limitations period began to run on April 24, 1996. Absent tolling, his limitations period expired on April 23, 1997. Baker filed his original federal petition on April 23, 1997. Thus, it was timely filed under AEDPA. That petition, however, was dismissed without prejudice, and the only petition that is before me now is Baker’s amended petition of 6/25/99. Yet because Baker argues that it is relevant to whether his amended petition is time-barred, I will briefly review the procedural history of this Court’s dismissal of Baker’s federal petition of 4/23/97. On October 17, 1997, in lieu of fifing an answer to Baker’s petition of 4/23/97, the Commonwealth filed a motion “for adjudication of issues of exhaustion and procedural default” in which it asserted that the petition of 4/23/97 contained claims unex-hausted in state court. Therefore, the Commonwealth argued, unless I found that the claims were procedurally defaulted in state court, I must dismiss the petition of 4/23/97 for failure to exhaust. In response to the Commonwealth’s motion for adjudication of procedural issues, Baker conceded that at least one of the claims in his federal petition of 4/23/97 was not exhausted, but claimed that none of his potentially unexhausted claims were procedurally defaulted in state court. In fight of this contention, Baker then presented several options for how to proceed in his federal case: (1) the petition could be dismissed without prejudice for failure to exhaust, (2) the Commonwealth could waive exhaustion of the unexhausted claims, or (3) if the Commonwealth declined to waive exhaustion, the case could be placed in suspense pending exhaustion of state remedies. Baker argued for one of the latter two options. The Commonwealth declined to waive exhaustion. By Order and Explanation dated December 22, 1997, I ruled that Baker’s federal petition of 6/25/99 was a “mixed” petition, containing exhausted claims and unexhausted claims, the latter of which I found were not procedurally defaulted under Pennsylvania law. Pursuant to the Supreme Court’s decision in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), I dismissed the petition without prejudice for failure to exhaust state remedies. I also denied Baker’s request to hold the case in abeyance while he fully litigated his unexhausted claims in state court, deciding that, absent exigent circumstances, the law of this circuit at that time required dismissal without prejudice of a “mixed” petition of exhausted and unexhausted claims. See Christy v. Horn, 115 F.3d 201, 207 (3d Cir.1997) (where execution is not imminent, court should not waive exhaustion requirement, and instead must dismiss the petition for failure to exhaust). Baker subsequently filed a motion for reconsideration of the December 22, 1997 dismissal order, requesting that the order be vacated and that his case be placed in suspense pending the exhaustion of his state court remedies. Baker’s motion for reconsideration was prompted by his concern that any subsequent habeas petition that he filed could be found time-barred under AEDPA. Again, mindful of the Third Circuit’s ruling in Christy v. Horn, I denied Baker’s request to vacate the dismissal order and place his case in suspense. However, by order dated November 16, 1998, I clarified that the dismissal of Baker’s petition of 4/23/97 was without prejudice to Baker’s right to file an amended petition pursuant to Federal Rule of Civil Procedure 15(c)(2), Relation Back. Baker then filed his amended petition on June 25, 1999. The Commonwealth claims that the petition of 6/25/99 is untimely under AEDPA. Baker disagrees. The following is an outline of the contentions of the Commonwealth and Baker regarding whether Baker’s amended petition of 6/25/99 is time-barred under AEDPA: • The .Commonwealth contends that the. petition of 6/25/99 is time-barred because it was filed after Baker’s AEDPA limitations period expired on. April 23,1997Í • Baker argues that his petition of 6/25/99 is not time-barred for the following three reasons: (1) Relation Back • According to Baker, the amended petition of 6/25/99 relates back to ' the date of his original petition of 4/23/97 which was timely filed under AEDPA. • The Commonwealth responds that Baker’s amended petition of 6/25/99 cannot relate back to his original petition of 4/23/97 because relation back is improper under Third Circuit law. • Baker replies that this Court’s November 16, 1998 order allowing for relation back distinguishes his case from those cases in which the Third Circuit ruled that relation back was improper as a matter of law. (2) Statutory Tolling • Baker asserts that his PCRA petition filed on January 15, 1997 (“PCRA petition of 1/15/97”) statutorily tolled his AEDPA limitations period under § 2244(d)(2). • The Commonwealth responds that Baker’s PCRA petition of 1/15/97 did not toll his AEDPA limitations period under § 2244(d)(2) because it was not “properly filed” for two reasons: (1) it was untimely under Pennsylvania law, and (2) Baker requested that the PCRA court dismiss the petition. • Baker replies that his PCRA petition of 1/25/97 was “properly filed” under § 2244(d)(2) because (1) the Pennsylvania courts never ruled that it was untimely; (2) it is properly treated as his first PCRA petition and, therefore, was timely filed; and (3) Baker, specifically, Baker’s counsel, did not request that the petition be dismissed. (3) Equitable Tolling • Baker asserts that his PCRA petition of 1/15/97 also equitably tolled his AEDPA limitations period. • The Commonwealth contends that Baker has not met the requisite standard for equitable tolling because he engaged in “multi-level” “frivolous” and “problematic” litigation tactics, including the requested dismissal of the PCRA petition of 1/15/97, and should not be rewarded for such tactics. • Baker responds that his PCRA petition of 1/15/97 is entitled to equitable tolling due to the uncertainty in Pennsylvania law regarding the “relaxed waiver rule” in capital cases. Baker also defends against the claim that he engaged in frivolous litigation. I will consider each argument. IV. RELATION BACK Baker asserts that his petition of 6/25/99 is timely under AEDPA because, pursuant to this Court’s order of November 16, 1998, it relates back to the filing date of his original petition, April 23, 1997. The November 16, 1998 order clarifying the dismissal of Baker’s original petition of 4/23/97 provided: This Court’s [dismissal] order of December 22, 1997 is clarified to reflect that Petitioner’s writ of Habeas Corpus was dismissed without prejudice to Petitioner’s right to file an amended federal petition pursuant to Federal Rule of Civil Procedure 15(c)(2) [Relation Back] upon exhaustion of his state remedies. (Order of Nov. 16, 1998, 96-CV-0037). Therefore, Baker argues, because the original petition of 4/23/97 was timely filed under AEDPA, under Rule 15(c) relation back, his amended petition of 6/25/99 is also timely filed. The Commonwealth contends that, despite the November 16, 1998 order, relation back in these circumstances is improper as a matter of law. Federal Rule of Civil Procedure 15(c)(2) permits an amendment to a pleading to relate back to the date of the original pleading when “the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.”- Fed.R.Civ.P. 15(c)(2). Under Third Circuit law, absent exigent circumstances, a court may not hold a habeas petition containing exhausted and unexhausted claims in abeyance pending the prisoner’s exhaustion of state court remedies; the petition must be dismissed for failure to exhaust state remedies. Christy v. Horn, 115 F.3d at 206-07. As the Commonwealth indicates, the Third Circuit has also made clear, albeit after this Court’s order of November 16,1998, that a habeas petition filed after a prior petition was dismissed without prejudice for failure to exhaust state remedies cannot, as a matter of law, relate back to the filing date of the prior petition. See Banks, 271 F.3d at 533; Jones v. Morton, 195 F.3d 153, 160-61 (3d Cir.1999). As the court explained in Jones, “‘[Tjypically, when a complaint (or habeas petition) is dismissed without prejudice, that complaint or petition is treated as if it never existed.’ ” Jones, 195 F.3d at 160 (quoting Hull v. Kyler, 190 F.3d 88, 103-04 (3d Cir.1999)). A subsequent petition cannot relate back to a prior petition that was dismissed “because there [is] nothing for [the][ ] petition to relate back to.” Jones, 195 F.3d at 160. Baker’s original petition was dismissed without prejudice on December 22, 1997, and his case was marked closed on December 23,1997. Thus, as the Commonwealth asserts, under Third Circuit law, Baker cannot invoke relation back. Baker attempts to distinguish his case from the cases in which the Third Circuit ruled that relation back is improper as a matter of law. According to Baker, this Court’s order of November 16, 1998 allowing Baker to file an amended petition under Rule 15(c)(2) upon exhaustion of state remedies implicitly kept his federal case open, and thus this Court retained jurisdiction over the case while he returned to state court. This, he contends, distinguishes his case from the cases in which the Third Circuit rejected the relation back argument because in none of the latter cases did the respective courts keep the petitioner’s case open after dismissing the petition. In support, Baker cites the Third Circuit in Jones: “Our order [dismissing Jones’ prior petition] did not leave Jones’s case open in federal court; rather, we dismissed the case without prejudice to Jones’s ability to refile his claims after complying with the exhaustion requirement.” Jones, 195 F.3d at 160. Baker’s argument fails. This court’s order of November 16, 1998 did not “implicitly” keep Baker’s case open while he returned to state court to litigate his unexhausted claims. Indeed, absent exigent circumstances, an order allowing a federal case to remain open pending a petitioner’s exhaustion of state court remedies is improper under Third Circuit law. See Christy v. Horn, 115 F.3d at 206-07. More importantly, while the order of November 16, 1998 may have allowed for relation back, it did not vacate or otherwise disturb the December 22, 1997 dismissal of Baker’s original petition. As even the above-quoted statement from Jones- makes clear, the crux of the Third Circuit’s conclusion that an amended petition cannot relate back to a prior dismissed petition is the fact that the prior petition was dismissed. The dismissal of a petition, like the dismissal of a complaint, closes a case and wipes the slate clean. Once Baker’s petition of 4/23/97 was dismissed, there was nothing for his amended petition “to relate back to.” Jones, 195 F.3d at 160. Accordingly, I conclude that Baker’s amended federal petition does not relate back to the filing date of his original federal petition. In order to establish that his amended petition of 6/25/99 is not time-barred under AEDPA, Baker must rely on statutory or equitable tolling. Y. . STATUTORY TOLLING Baker contends that his PCRA petition filed on January 15, 1997 in state court tolled his AEDPA limitations period under AEDPA, § 2244(d)(2). Section 2244(d)(2) provides that a “properly filed application for State post-conviction relief or other collateral review” tolls § 2244(d)(l)’s one-year limitations period for the time during which the properly filed application is “pending.” 28 U.S.C. § 2244(d)(2). Thus, I must decide whether Baker’s PCRA petition of 1/15/97 was “properly filed” and, if so, the period of time during which it was pending. A. “Properly Filed” The standard for what constitutes a “properly filed” application is determined by federal law. In Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), the Supreme Court held that: [A]n application is “properly filed” when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. Id. at 8, 121 S.Ct. 361 (footnote omitted). The court distinguished between such “conditions to filing,” to which a state application must adhere in order to be properly filed, and a state’s “conditions to obtaining relief,” with which an application need not comply for purposes of § 2244(d)(2): “[I]n common usage, the question whether an application has been ‘properly filed’ is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.” Id. at 9, 121 S.Ct. 361. See also Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir.1998) (“ ‘a properly filed application’ is one submitted according to the state’s procedural requirements, such as the rules governing the time and place of filing”). The Commonwealth contends that Baker’s PCRA petition of 1/15/97 is not “properly filed” for purposes of § 2244(d)(2) in part on the ground that it was untimely under Pennsylvania law. In 1995, Pennsylvania’s PCRA statute was amended to include a new time limit on the fifing of PCRA petitions, codified in 42 Pa.Cons.Stat.Ann. § 9545(b): (b) Time for filing petition.— (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. . 42 Pa.Cons.Stat.Ann. § 9545(b). The Pennsylvania legislature enacted a proviso to the 1995 PCRA amendments which states: “[A] petitioner whose judgment has become final on or before the effective date of this act shall be deemed to have filed a timely petition under [42 Pa.Cons.Stat.Ann. § 9545(b) ] if the petitioner’s first petition is filed within one year of the effective date of this act.” See Act of November 17, 1995, P.L. 1118, No. 32 (Spec.Sess. No. 1), § 3(1). . The 1995 amendments to the PCRA became effective on January 16, 1996. The Pennsylvania Supreme Court has interpreted § 3(l)’s proviso to permit a prisoner whose judgment became final prior to January 16, 1996 to timely file a first PCRA petition on or before January 16, 1997. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641 (Pa.1998). See also Commonwealth v. Thomas, 718 A.2d 326, 329 (Pa.Super.Ct.1998). In other words, in order for a prisoner to timely file a PCRA petition under § 9545(b)’s “grace period,” he must meet three requirements: (1) his judgment must have become final prior to January 16, 1996, (2) he must have filed a PCRA petition on or before January 16, 1997, and (3) this petition must have been the prisoner’s first PCRA petition. .. The Third Circuit has decided two cases after Artuz involving the question of whether an application for post-conviction relief was untimely under Pennsylvania law and, therefore, “[im]properly filed” within the meaning of § 2244(d)(2). In Fahy v. Horn, 240 F.3d 239 (3d Cir.2001), the Third Circuit addressed the issue of whether the Pennsylvania Supreme Court’s ruling that Fahy’s fourth PCRA petition was untimely under Pennsylvania law was binding on federal courts for purposes of whether or not the petition was “properly filed” under § 2244(d)(2). Fahy was convicted of first degree murder in Pennsylvania and sentenced to death in 1983. After failing to obtain post-conviction relief with his first three state petitions, Fahy filed a fourth PCRA. petition on November 12, 1997. The PCRA court dismissed Fahy’s petition, in part, on the ground that it was time-barred under Pennsylvania’s PCRA statute. The Pennsylvania Supreme Court affirmed, finding that the petition was untimely under § 9545(b) because it was filed more than a year after his judgment becamq final, it did not qualify for § 9545(b)’s grace period, and it did not satisfy the “interference by government officials” exception under § 9545(b)(l)(i). See Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 218-220 (Pa.1999). Stating that it “must defer to a state’s highest court when it rules on an issue,” the Third Circuit held that Fahy’s PCRA petition was not “properly filed” for purposes of § 2244(d)(2): “Here the Pennsylvania Supreme Court has specifically ruled that Fahy’s PCRA petition was not properly filed as a matter of state law ... Fahy’s petition was therefore not statutorily tolled because his PCRA petition was not properly filed.” Fahy v. Horn, 240 F.3d at 244. Months later, in Nara v. Frank, 264 F.3d 310 (3d Cir.2001), the Third Circuit considered whether a prisoner’s nunc pro tunc motion to withdraw his guilty plea was “properly filed” and, thus, tolled his AEDPA statute of limitations under § 2244(d)(2). Id. at 315-16. Nara pleaded guilty to first degree murder in 1984, and was sentenced to life imprisonment. In 1990, he filed what amounted to his second PCRA petition claiming that his guilty plea was invalid due to his mental incompetence. The Pennsylvania courts ultimately rejected this argument. See id. at 312. In December 1995, he filed a third PCRA petition raising the same claim. In September 1996, the PCRA court held a hearing on the petition where Nara conceded that he had previously litigated this claim. At that time, the PCRA court permitted Nara to withdraw his PCRA petition and to file a nunc .pro tunc motion to withdraw his guilty plea. The court then issued a briefing schedule for the nunc pro tunc motion. After considering the briefs of the parties on their merits, the PCRA court denied Nara’s nunc pro tunc motion on the ground that Nara had been advised at his sentencing that he had 10 days to withdraw his guilty plea and had offered no “compelling reason why he waited twelve years to ask to withdraw his guilty plea.” Id. at 313. The Superior Court affirmed, and the Pennsylvania Supreme Court denied Nara’s petition for allowance of appeal. See id. Noting that it takes a “flexible approach” to what constitutes a “properly filed” application for state post-conviction relief, the Third Circuit held that Nara’s nunc pro tunc motion was “properly filed” for purposes of § 2244(d)(2). Id. at 315. The court rejected the Commonwealth’s argument that a nunc pro tunc motion could never be “properly filed” for purposes of § 2244(d)(2) because, by its very nature, it is an untimely filing. See id. at 315. Instead, in determining whether the motion was “properly filed,” the court relied heavily on the way in which the Pennsylvania courts treated Nara’s motion: The PCRA trial court accepted the motion, allowed the parties to brief the motion, and made a full consideration of the record before denying it. Indeed, Nara notes that his motion merely followed what the Superior Court suggested when the court disposed of Nara’s second PCRA petition. Lastly, Nara contends that it is not uncommon for Pennsylvania courts to accept motions to withdraw guilt pleas nunc pro tunc. Thus, we hold that Nara’s motion to withdraw his guilty plea nunc pro tunc was a “properly filed application for State post-conviction or other collateral review” within the meaning of 2244(d)(2). Id. at 316 (citations omitted). Considered together, Fahy and Nara suggest two factors for determining whether an application for post-conviction relief complies with Pennsylvania’s requirement for timely filing, and, therefore, whether the petition is “properly filed” under 2244(d)(2). First, according to Fahy, a court should look to whether or not the Pennsylvania courts expressly ruled that the petition was untimely. Second, Nara suggests that a court should look to how the Pennsylvania courts treated the petition, i.e. whether they accepted the petition and considered it on the merits, or rejected it from the outset. The Commonwealth argues that Baker’s PCRA petition of 1/15/97 is not “properly filed” within the meaning of § 2244(d)(2) because (1) the petition did not comply with Pennsylvania’s rule governing the time for filing a PCRA petition, § 9545(b), and (2) Baker requested that the PCRA court dismiss the petition. Under § 9545(b), a PCRA petition must “be filed within one year of the date the judgment becomes final” unless one of enumerated exceptions applies, or the petitioner qualifies for the provision’s one-year grace period for first petitions. The parties do not agree on the specific date that Baker’s judgment of sentence became final: the Commonwealth asserts it was in September 1992; Baker contends it was May 31, 1993. At the very latest, Baker’s judgment became final on May 31, 1993. Accordingly, any PCRA petition that Baker filed after May 31, 1994 would be untimely under § 9545(b) unless the petition satisfied either the requirements for the one-year grace period or one of § 9545(b)’s three exceptions. Baker does not allege that any of § 9545(b)’s exceptions apply. Baker, however, does contend that the petition of 1/15/97 is timely under § 9545(b)’s one-year grace period. In order for Baker’s petition of 1/15/97 to be timely under § 9545(b)’s one-year grace period, Baker must meet the three requirements: (1) his judgment must have become final prior to January 16, 1996, the effective date of the amended provision; (2) he must have filed the'petition on or before January 16, 1997, and (3) the petition must have been his first PCRA petition. Baker clearly meets the first two requirements. First, whether measured by the date given by the Commonwealth or Baker, Baker’s judgment was final prior to January 16, 1996. Second, he filed the PCRA petition on January 15, 1997. With respect to the third requirement, Baker argues here and argued in the PCRA petition itself that, although this petition is technically not his first PCRA petition, it should nevertheless be treated as such. If the PCRA petition of 1/15/97 were treated as his first petition, it would then satisfy the third requirement and, thus, would be timely under § 9545(b)’s grace period. If Baker’s petition of 1/15/97 were deemed a successive petition, as the Commonwealth contends it is, then the grace period would not apply to the petition. In that case, Baker’s petition of 1/15/97 would be untimely under § 9545(b) because it was not filed within a year of the date that Baker’s judgment became final. No Pennsylvania court ruled upon the timeliness of Baker’s petition of 1/15/97 under § 9545(b). In light of this fact, and based on the Third Circuit’s decisions in Fahy and Nara, I find that the PCRA petition of 1/15/97 was “properly filed” for purposes of § 2244(d)(2). Baker filed the PCRA petition on January 15, 1997. The petition was assigned to Judge Sabo (who also presided over Baker’s trial and sentencing). Sometime prior to March 31, 1997, Baker’s counsel, Billy Ñolas, submitted to Judge Sabo a proposed order to dismiss the petition of 1/15/97 without prejudice “due to on-going federal litigation.” According to Ñolas, he submitted the proposed order because weeks before, Judge Sabo had dismissed the PCRA petition of another one of Ñolas’ clients, Otis Peterkin, “as premature due to on-going litigation in federal court.” Peterkin and Baker’s cases were in an identical procedural posture, leading Ñolas to conclude that Judge Sabo would dismiss Baker’s PCRA petition on this same ground. Thus, Ñolas asserts, he submitted the proposed order to dismiss in order to expedite Judge Sabo’s review of Baker’s PCRA petition. On March 31, 1997, Judge Sabo issued an order dismissing Baker’s petition of 1/15/97 “as premature due to on-going litigation in federal court.” This order was not the proposed order submitted by Ñolas and did not specify whether the dismissal was with or without prejudice. On April 9, 1997, Baker filed a motion for rehearing of the petition of 1/15/97 based on newly discovered evidence which Baker contended disclosed a Batson claim. On April 25, 1997, Baker timely appealed Judge Sabo’s March 31, 1997 dismissal of the PCRA petition of 1/15/97 to the Pennsylvania Supreme Court, raising all claims for relief included in the petition. On May 7, 1997, triggered by Baker’s appeal of the March 31, 1997 dismissal order, Judge Sabo issued a memorandum opinion in support of his March 31, 1997 dismissal of Baker’s PCRA petition stating that the “petition was initially dismissed at the request of defense counsel” and denying the motion for a hearing on the Batson claim. On May 14, 1997, Baker filed a petition for reconsideration of Judge Sabo’s May 7, 1997 opinion. Baker asserted that he had not requested dismissal of the petition of 1/15/97 and that Judge Sabo had misunderstood the intention of Baker’s counsel in submitting the proposed order of dismissal. Judge Sabo denied the motion for reconsideration. On May 4, 1999, the Pennsylvania Supreme Court affirmed Judge Sabo’s March 31,1997 dismissal: “The rules of criminal procedure allow a party to ‘withdraw a petition for post-conviction collateral relief at any time.’ Pa.R.Crim.P. 1505. We cannot, therefore, rule that it was error to grant [Baker’s] request for a dismissal. Nor can we rule that it was error to deny [Baker] a rehearing on his own request.” Commonwealth v. Baker, 556 Pa. 427, 728 A.2d 952, 953 (Pa.1999). As a review of the procedural history makes clear, neither the PCRA court nor the Pennsylvania Supreme Court expressly ruled that Baker’s petition of 1/15/97 was untimely under Pennsylvania law. Absent an express ruling of untimeliness by a Pennsylvania court, Fahy v. Horn is not controlling. See Fahy, 240 F.3d at 244. See also Pace v. Vaughn, 2002 WL 485689, *7 (E.D.Pa. Mar. 29, 2002) (Fahy limited to the holding that “a federal court, in determining whether a state PCRA petition was ‘properly filed,’ must interpret state law as it does when sitting in a diversity case and must defer to a state’s highest court when it rules on an issue”). Furthermore, the procedural history surrounding Baker’s appeal of Judge Sabo’s March 31, 1997 dismissal indicates that the Pennsylvania Supreme Court implicitly rejected the Commonwealth’s argument that Baker’s PCRA petition of 1/15/97 was untimely. On January 29, 1998, while Judge Sabo’s dismissal was on appeal to the Pennsylvania Supreme Court, the Commonwealth filed a motion for “summary disposition” in which it asserted that Baker’s petition of 1/15/97 was time-barred under § 9545(b)(1). On February 17, 1998, Baker responded that his petition was not time-barred because, among other reasons, (1) it should be treated as his first PCRA petition, (2) dismissal as untimely would result in a miscarriage of justice, and (3) Baker’s failure to “earlier raise” the claims in his third petition was a result of ineffective assistance of counsel. On February 20, 1998, the Pennsylvania Supreme Court issued an order that, in part, set a deadline for Baker’s brief on the merits of the appeal; the court later set a briefing deadline for the Commonwealth as well. Pursuant to the court’s briefing schedule, Baker fully briefed the claims for relief presented in the petition of 1/15/97, and the Commonwealth fully briefed its argument that the petition of 1/15/97 was untimely under § 9545(b). On May 4, 1999, the Pennsylvania Supreme Court issued a memorandum and order affirming Judge Sabo’s March 31, 1997 dismissal and also denying the Commonwealth’s motion for summary disposition. According to the Third Circuit’s reasoning in Nara, in determining whether Baker’s petition of 1/15/97 was “properly filed,” I look to the way in which the Pennsylvania courts treated the petition. See Nara, 264 F.3d at 316. The Commonwealth first argued to the Pennsylvania Supreme Court, that Baker’s petition of 1/15/97 was time-barred under § 9545(b) in its January 29, 1998 motion for summary disposition. The Pennsylvania Supreme Court did not immediately rule on the Commonwealth’s timeliness argument. Instead, subsequent to the filing of this motion, the court established a briefing schedule, and accepted the briefs of both parties. The Commonwealth again argued in its brief that Baker’s petition of 1/15/97 was time-barred under Pennsylvania law. The May 4,1999 decision of the Pennsylvania Supreme Court affirming Judge Sabo’s dismissal of the petition, however, made no mention of the Commonwealth’s untimeliness argument. In fact, the court’s accompanying order denied the Commonwealth’s January 28, 1998- motion for summary disposition. Under Nara, then, the fact that the Pennsylvania Supreme Court did not dismiss Baker’s petition from the outset as untimely, but'instead ordered and accepted briefing on the petition, further supports the conclusion that the petition was “properly filed” for purposes of § 2244(d)(2). See Nara, 264 F.3d at 316 (relying on the fact that the PCRA court ordered the parties to brief the prisoner’s nunc pro tunc motion in finding that the motion was “properly filed” under § 2244(d)(2)). It is undisputed that the Pennsylvania Supreme Court never ruled that Baker’s petition was untimely. As the Third Circuit has noted in the context of whether a habeas claim is procedurally defaulted under state law, it'is axiomatic that “a federal court should not find a' state prisoner’s claims procedurally barred from federal habeas review unless state law ‘clearly foreclose^]’' review of the claims.” Lo-vasz, 134 F.3d at 148. The same rationale appears to apply equally here. Given the fact that Baker’s petition of 1/15/97 could have been timely under 9545(b)’s one-year grace period if it were treated as his first petition, I decline to conclude what the Pennsylvania Supreme Court never did— that Baker’s petition of 1/15/97 was untimely under Pennsylvania law. The Commonwealth also argues that Baker’s PCRA petition of 1/15/97 was not “properly filed” because Baker asked Judge Sabo to dismiss the petition. Baker’s counsel, Ñolas, strenuously objects to this characterization of what occurred. He does not dispute that at some point before Judge Sabo’s March 31, 1997 dismissal of the petition of 1/15/97, he submitted to Judge Sabo a proposed order “to dismiss the petition without prejudice as premature due to ongoing federal litigation.” Again, Ñolas contends that he submitted the order only because Judge Sabo had dismissed the PCRA petition of another client of Ñolas on this ground, and by submitting the proposed order to dismiss, he hoped to expedite Judge Sabo’s review of Baker’s petition. As mentioned before, however, there is nothing in the record to support the finding that Baker requested to withdraw the petition entirely. Regardless of the intent of Baker’s counsel in submitting the proposed order to dismiss to Judge Sabo, it is clear from the record that Baker fully pursued his claims in state court after Judge Sabo’s March 31, 1997 dismissal of the petition of 1/15/97. Baker timely appealed Judge Sabo’s dismissal. When Judge Sabo issued an opinion on May 7, 1997 in support of the dismissal stating that “the petition was dismissed at the request of defense counsel,” Baker filed a motion for reconsideration of Judge Sabo’s May 7, 1997 opinion. On appeal, Baker fully briefed the merits of the petition to the Pennsylvania Supreme Court, and he filed an application for reargument from the May 4, 1999 decision of the Pennsylvania Supreme Court affirming Judge Sabo’s dismissal on the ground that Baker requested dismissal of the petition of 1/15/97. At no point did the Commonwealth argue to the Pennsylvania Supreme Court that the court should decline to review Baker’s petition . of 1/15/97 on its merits because Baker had requested that the petition be dismissed. Moreover, even if Baker’s counsel did “request” dismissal of the petition, such a request does not mean that the petition itself was “[imjproperly filed” within the meaning of § 2244(d)(2). As both the Supreme Court and the Third Circuit have made clear, whether an application for state post-conviction relief is “properly filed” is measured at the time of filing. See Artuz, 531 U.S. at 8, 121 S.Ct. 361 (listing as examples of “conditions to filing” the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee); Lovasz, 134 F.3d at 148 (“ ‘a properly filed application’ is one submitted according to the state’s procedural requirements, such as the rules governing the time and place of filing”) (e