Full opinion text
MEMORANDUM AND ORDER ANITA B. BRODY, District Judge. CONTENTS I.Introduction 725 II. Factual Background .725 III. Review of Baker v. Horn, 210 F.Supp.2d 592 (E.D.Pa.2002) .726 A. Procedural History.726 B. Application of AEDPA.736 C. AEDPA Timeliness.737 1. Background.737 2. Statutory Tolling.738 3. Equitable Tolling.743 D. Exhaustion.749 E. Procedural Default.750 1. Procedural History of PCRA Petition of 1/15/97 .750 2. Actual Violation of Procedural Rules Relating to PCRA Withdrawal.753 3. Consistent Application of Rules Relating to PCRA Withdrawal.754 4. Pennsylvania’s “Relaxed Waiver” Doctrine.757 IV. Standard of Review.758 V. Accomplice Liability Instructions. .760 A. Introduction. .760 B. Direct Due Process Challenge to Jury Instructions. .761 1. Federal Due Process Requirements. .761 2. Pennsylvania Law of First Degree Murder and Accomplice Liability .762 3. Baker’s Jury Instructions. .763 4. Reasonable Likelihood Analysis . .764 5. Harmless Error Analysis. .771 C. Ineffective Assistance of Counsel. .777 1. Deficient Performance . .777 2. Prejudice... 778 XII. Conclusion.780 ORDER.780 I. Introduction Herbert Baker Jr. (“Baker”) petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Baker’s petition is granted in part. II. Factual Background The following facts are taken from the Pennsylvania Supreme Court’s decision on Baker’s direct appeal, Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663, 665 (1993) (“Commonwealth v. Baker II” ). A Pennsylvania jury convicted Baker and co-defendants Eric Joseph (“Joseph”) and Mark Mitchell (“Mitchell”) of first degree murder, robbery, criminal conspiracy, and possession of an instrument of crime for their roles in the armed robbery of the Metro Oil Company (“Metro Oil”) and the murder of its owner, William Gambrell (“Gambrell”). Evidence presented at trial showed that Baker and his co-defendants, upon entering the premises of Metro Oil, seized two employees, Adrian Crosby (“Crosby”) and Thomas Dolan (“Dolan”). Baker and Joseph directed Dolan at gunpoint to lead them to a second floor room to open the company safe. The men arrived to find Gambrell sitting in his second-floor office. The Commonwealth presented sufficient evidence for a jury to find that Baker then shot Gambrell twice. However, Baker, in a statement presented at trial, stated that Joseph had fired over Baker’s shoulder. Gambrell died from the gunshot wounds. Unable to open the safe, the three defendants fled with weapons and money they found on the premises. A bullet taken from the victim’s body was identified as a .38 caliber, but the weapon used in the crime was never recovered. The jury returned their verdicts of guilt on all charges and as to all defendants on October 4, 1984. Following a penalty hearing, the jury sentenced Baker to death and sentenced Mitchell and Joseph to life imprisonment. III. Review of Baker v. Horn, 210 F.Supp.2d 592 (E.D.Pa.2002) (“Baker v. Horn III”) A. Procedural History Baker’s case rests before me following a unique and complicated procedural history. I recounted that history in great detail in an earlier opinion denying the Commonwealth’s motion to dismiss Baker’s petition as untimely or in the alternative to dismiss certain claims as procedurally defaulted. Baker v. Horn, 210 F.Supp.2d 592 (E.D.Pa.2002) {“Baker v. Horn III”). I reproduce with additions the procedural chronology included within that opinion here: Octoberk, 1984 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. February 14, 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 3, 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 Hearing Act” (“PCHA petition ofk/10/87”) raising claims of ineffective assistance of counsel November 18, 1987 After a hearing, Judge Sabo dismissed Baker’s PCHA petition of Ñ10/87. Baker again appealed the original judgment of sentence of death imposed on 1/30/85, and also appealed Judge Sabo’s dismissal of the petition of H 10/87. May 2, 1988 Judge Sabo filed an opinion in support of his denial of Baker’s claims of ineffective assistance of counsel included within the PCHA petition of k/10/87. Commonwealth v. Baker, No. 514-520 (Pa.Comm.Pl.Ct. May 2, 1988) (“Commonwealth v. Baker I"). June 17, 1992 The Pennsylvania Stupreme 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) (“Commonwealth v. Baker II’’). Date Unknown Baker petitioned for reargument. March 2, 1998 The Pennsylvania Supreme Court denied Baker’s motion for reargument. July 30, 1993 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 without 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. Commonwealth v. Baker, No. 514-520 (Pa. Comm. Pl. Ct. Dec. 13, 1993) (“Commonwealth v. Baker III”). 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 Papalini’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, 42 Pa.C.S. §§ 9543(3), 9544(a)(2).” Commonwealth v. Baker, 540 Pa. 131, 656 A.2d 116 (Pa.1995) (“Commonwealth v. Baker IV”). Baker petitioned the United States Supreme Court for a unit 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 Post-Conviction Relief under the Post Conviction Relief Act” (“PCRA petition of 1/15/97”). The petition was assigned to Judge Sabo. Prior to March 31, 1997 Baker’s counsel, Billy Ñolas, submitted to Judge Sabo a proposed order without an accompanying motion which stated in part: March 31, 1997 “[T]he PCRA petition herein [petition of 1/15/97], as supplemented, is dismissed without prejudice due to ongoing litigation in federal court. ” Judge Sabo did not sign Ñolas’ proposed order but issued his own order dismissing Baker’s petition of 1/15/97 “as premature due to on-going litigation in federal couH. ” Commonwealth v. Baker, No. 514-520 (Pa. Ct. Comm. Pl. March 31, 1997) (“Commonwealth v. Baker V”). The order failed to specify whether the dismissal was with or without prejudice. The order notified Baker that he had 30 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 31, 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. Commonwealth v. Baker, No. 514-520 (Pa. Ct. Comm. Pl. May 7, 1997) (“Commonwealth v. Baker VI”). 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 Post-Conviction Relief Act. The defendant himself acknowl edges 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 hoiv 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.” Commonwealth v. Baker, No. 514-520 (Pa. Ct. Comm. Pl. Aug. 28, 1997) (“Commonwealth v. Baker VII”). Judge Sabo also noted that Baker’s May Ik, 1997 petition for reconsideration was untimely because it was filed more than 80 days after Judge Sabo had dismissed the case in the order of Commonwealth v. Baker V. 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 unex-hausted in state court. However, Baker argued that any unex-hausted 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 unexhaust-ed claims in Baker’s federal petition of 4/23/97 were procedurally defaulted in state court, and (2) dismissed Baker’s petition without prejudice for failure to exhaust state remedies. (Order and Explanation, Dec. 22,1997 (“Baker v. Horn I”)). 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 Commonwealth to file a complete record, to remand for proceedings in the lower 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 CRA 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 2k, 1998 Baker alleges that he attempted to file in the Court of Common Pleas a “Motion for New Trial Based on Newly Discovered Evidence and Petition for Habeas Corpus Relief.” The filing would have introduced evidence derived from a recently released academic study of racial discrimination in capital cases in Philadelphia. Baker contends the Court of Common Pleas refused to accept the motion for filing. 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. August 17, 1998 November 16,1998 Baker filed in the Pennsylvania Supreme Court an “Application for Permission to File Supplemental Pleading and Motion to Remand to the PCHA Court on the Basis of Newly Discovered Evidence. ” The motion incorporated verbatim the arguments presented in the July 2k, 1998 motion Baker attempted to file in the Court of Pleas. 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.” (Order, Nov. 16,1998 (“Baker v. Horn II”)). 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) (“Commonwealth v. Baker VIII”), affirmed Judge Sabo’s March 81, 1997 dismissal of Baker’s PCRA petition of 1115/97: “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. 302. Therefore, we do not reach the merits of these issues.” Commonwealth v. Baker VIII, 728 A.2d at 953. The Pennsylvania Supreme Court’s opinion was accompanied by an order which stated, in part: “AND NOW, this 4th day of May, 1999, Appellee’s [the Commonwealth’s] Motion for Summary Disposition of Appeal from Time-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 ease 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 U, 1999 memorandum & order affirming the dismissal of Baker’s PCBA 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 a “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.” May 31, 2002 I denied the Commonwealth’s motion to dismiss in Baker v. Horn, 210 F.Supp.2d 592 (E.D.Pa.2002) (“Baker v. Horn III”). I explained that the claims presented in Baker’s PCRA petition of 1/15/97, as well as two other claims contained within his federal petition, were exhausted and were not procedurally defaulted. However, I deferred consideration of the procedural posture of Baker's Batson-related claims. July 25, 2002 Baker filed a motion for summary judgment on his claim challenging the accomplice liability instructions. He argued that he was entitled to relief under the Third Circuit’s decisions in Everett v. Beard, 290 F.3d 500 (3d Cir.2002) and Smith v. Horn, 120 F.3d 400 (3d Cir.1997) and that the granting of summary relief on this claim “would make it unnecessary for the court to devote additional resources to deciding the other claims in this case.” January 14, 2003 I issued an order denying Baker’s motion for summary judgment “without prejudice to raise along with all of the other claims in his petition” and ordering Baker to submit a brief regarding all of the claims in his petition. May 8, 2003 Baker filed a memorandum of law in support of his amended petition for habeas corpus. March 5, 2004 The Commonwealth filed a response memorandum in opposition to Baker’s petition for habeas corpus. July 6, 2004 Baker filed a reply brief in support of his petition for habeas corpus. Because a good deal of time has passed since I issued Baker v. Horn III, I will review its analytical steps in light of subsequent authority to evaluate its continuing vitality. B. Application of AEDPA As I noted in Baker v. Horn III, revisions to the federal habeas statute enacted in the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-32, 110 Stat. 1214 (1996), effective April 24, 1996 (“AEDPA”), apply to Baker’s federal petition. Baker v. Horn III, 210 F.Supp.2d at 603-06. Baker filed a motion for appointment of counsel in federal court on January 3, 1996, prior to the effective date of the AEDPA, but he did not file his original habeas petition until April 23,1997 and his amended petition until June 25, 1999, both after the AEDPA’s effective date. The Supreme Court’s opinion in Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003), leaves no doubt that the AEDPA properly applies to Baker’s federal petition. In Woodford, the Supreme Court stated that “an application [for habeas relief] filed after AED-PA’s effective date should be reviewed under the AEDPA, even if other filings by that same applicant-such as, for example, a request for the appointment of counsel .. .—were presented to a federal court prior to AEDPA’s effective date.” Id. at 207, 123 S.Ct. 1398. Even though Baker had previously filed a motion for appointment of counsel, Baker’s actual petition for habeas corpus was not pending in federal court on the AEDPA’s effective date; therefore, the petition must be reviewed pursuant to the AEDPA. Id. C. AEDPA Timeliness 1. Background Baker filed his original federal habeas petition on April 23, 1997. Over Baker’s objections, I dismissed that original petition “without prejudice” on December 22, 1997 as a “mixed” petition containing both exhausted and unexhausted claims. (Order and Explanation, Dec. 22, 1997 (“Baker v. Horn I”).) I also denied Baker’s request to hold his case in abeyance while he litigated his unexhausted claims in state court. Id. Baker, fearing that a subsequent federal habeas petition might be time-barred, filed a subsequent motion requesting that the order be vacated and that his case be placed in suspense pending the exhaustion of his state court remedies. By order dated November 16, 1998, I attempted to clarify that the dismissal of Baker’s original federal petition was without prejudice to Baker’s right to file an amended federal petition pursuant to Federal Rule of Civil Procedure 15(c)(2), concerning relation back of amendments to pleadings. (Order, Nov. 16, 1998 (“Baker v. Horn II”).) At the time of the dismissal of Baker’s original federal petition in federal court, Baker v. Horn I, Baker was in the midst of litigating a PCRA petition he had filed on January 15, 1997 in the Pennsylvania courts (“PCRA petition of 1/15/97”). On March 31, 1997, the PCRA court dismissed that petition “as premature due to ongoing litigation in federal court,” Commonwealth v. Baker, No. 514-520 (Pa.Ct. Comm.Pl. March 31, 1997) (“Commonwealth v. Baker V”), but in a later opinion stated that the petition had been “initially dismissed at the request of defense counsel.” Commonwealth v. Baker, No. 514-520 (Pa.Ct.Comm.Pl. May 7, 1997) (“Commonwealth v. Baker VI”). Baker timely appealed both the Commonwealth v. Baker V order and subsequent opinion, Commonwealth v. Baker VI. On May 4, 1999, the Pennsylvania Supreme Court affirmed the PCRA court’s dismissal on the ground that Baker had requested that the PCRA court dismiss his petition. Commonwealth v. Baker, 556 Pa. 427, 728 A.2d 952 (Pa.1999) (“Commonwealth v. Baker VIII”). Shortly thereafter, Baker filed an application for reargument with the Pennsylvania Supreme Court that was ultimately denied on February 1, 2000. On June 25, 1999, while the application for reargument was pending in state court, Baker filed a motion to reopen habeas case and an amended habe-as petition in federal court. The AEDPA establishes a one-year statute of limitations for filing a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). As explained in Baker v. Horn III, because Baker’s state conviction became final prior to the effective date of the AEDPA, Baker’s AEDPA limitations period began to run on the effective date of the Act, April 24,1996. 210 F.Supp.2d at 607. Absent tolling, the limitations period therefore would have expired on April 23, 1997. Id. at 620. Baker filed his original federal habeas petition on April 23, 1997 and it therefore was timely filed. However, as noted, I dismissed that petition in Baker v. Horn I. Baker’s amended federal petition was filed on June 25, 1999, more than three years after the date his AEDPA limitations period began to run. I concluded in Baker v. Horn III that Baker’s amended federal petition was nevertheless timely filed because: 1) the PCRA petition of 1/15/97 statutorily tolled his AEDPA limitations period under 28 U.S.C. § 2244(d)(2); and, in the alternative, 2) the AEDPA limitations period should be equitably tolled based upon the PCRA petition of 1/15/97 and all of the circumstances surrounding his efforts to present his claims in state and federal court. 2. Statutory Tolling Section 2244(d)(2) provides that a “properly filed application for State post-conviction relief or other collateral review” tolls section 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). I concluded in Baker v. Horn III that Baker’s PCRA petition of 1/15/97 was “properly filed” and that it was “pending” from the date of its filing until February 1, 2000, the date the Pennsylvania Supreme Court denied Baker’s application for reargument. 210 F.Supp.2d at 610-20. Baker v. Horn III must be reviewed to evaluate its continuing vitality in light of the United States Supreme Court’s subsequent decisions in Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) and Pace v. DiGuglielmo, — U.S. —, 125 S.Ct. 1807, 1813-14, 161 L.Ed.2d 669 (2005), which discussed both statutory and equitable tolling under the AEDPA, as well as in light of subsequent cases decided by the Pennsylvania Supreme Court. A state application for postcon-viction relief is “ ‘properly filed’ when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). State-imposed time limits on post-conviction petitions are “condition[s] to filing,” such that untimely petitions are not deemed “properly filed” for purposes of section 2244(d)(2). Pace, 125 S.Ct. at 1814. If a state court has rejected a post-conviction petition as untimely under state law, the petition was not “properly filed,” and the petitioner cannot be entitled to statutory tolling under § 2244(d)(2). Id. On the other hand, when a state court has not “clearly ruled” on the timeliness of a state petition, it is the responsibility of the habeas court to consider whether the state postconviction petition was timely filed as a matter of state law before tolling the AEDPA limitations period. Carey v. Saffold, 536 U.S. 214, 226-27, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (remanding federal petition to Ninth Circuit, when California courts had not clearly ruled on timeliness of state petition, for consideration of whether state petition timely as matter of California law and consequently “properly filed” for purposes of AEDPA statutory tolling). In Baker v. Horn III, which I issued shortly before the United States Supreme Court’s decision in Saffold, I concluded that Baker’s PCRA petition of 1/15/97 was “properly filed” under section 2244(d)(2). 210 F.Supp.2d at 610-19. I reached that conclusion without squarely addressing whether Baker’s PCRA petition of 1/15/97 was timely filed as a matter of Pennsylvania law. Id. I noted that Baker had presented at least a plausible argument that his PCRA petition of 1/15/97 was timely. Id. at 614-15 n. 17. I also noted that the Pennsylvania Supreme Court did not reject Baker’s PCRA petition of 1/15/97 as untimely. Id. at 615-19. Finally, I noted that the Pennsylvania Supreme Court had “implicitly” ruled that Baker’s petition was timely when it denied the Commonwealth’s motion for summary disposition of Baker’s PCRA petition of 1/15/97 as untimely and requested full briefing on the merits of Baker’s petition. Id. at 616-17. I concluded as follows: 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. Id. at 617. The United States Supreme Court subsequently clarified in Saffold that a federal habeas court must not construe a state court’s decision to look past timeliness concerns and base its decision on a separate ground as an implicit ruling of timeliness. 536 U.S. at 225-26, 122 S.Ct. 2184. In Saffold, the petitioner, Saffold, before filing his federal habeas petition, had filed “original” state habeas petitions in the state trial court, the State Court of Appeal, and the California Supreme Court. Id. at 217, 122 S.Ct. 2134. Under California’s unusual “original writ” system of postcon-viction review, a prisoner ordinarily would first file an original state habeas petition in a lower state court. Id. at 221, 122 S.Ct. 2134. In the event that the first petition is denied, the prisoner, rather than directly appealing that denial to a higher court, would refile the petition as an “original” petition in a higher court. Id. at 222, 122 S.Ct. 2134. The United States Supreme Court in Saffold viewed the filing of such subsequent “original” petitions in California courts as analogous to the direct review process available in most other states. Id. at 223, 122 S.Ct. 2134. However, a critical difference between California’s system and that of other states is that rather than providing clear time limits for the filing of an appeal, California courts judge the timeliness of subsequent “original” petitions filed in higher courts under a more general standard of “reasonableness.” Id. at 221-23, 122 S.Ct. 2134. Saffold filed his “original” petition in the California Supreme Court four and one-half months after the State Court of Appeal had dismissed his prior petition. Id. at 217, 122 S.Ct. 2134. The California Supreme Court denied the petition filed in the state Supreme Court, stating in a single sentence that it did so “on the merits and for lack of diligence.” Id. at 217-18, 122 S.Ct. 2134. All federal courts reviewing Saffold’s federal habeas petition ruled that Saffold’s federal petition would be timely through operation of the AEDPA’s statutory tolling provision only if his state application for review was “pending” during the intervals between his successive filings in the California courts. Id. at 218, 122 S.Ct. 2134. The United States Supreme Court further ruled that Saffold’s application could not be considered “pending” under federal law, if he did not timely file his petition before the California Supreme Court as a matter of California law. Id. at 225, 122 S.Ct. 2134. The Ninth Circuit had reasoned that the California Supreme Court’s decision to deny Saffold’s state petition “on the merits” constituted an implicit ruling that Saf-fold had not delayed unreasonably in filing his state petition and that the state petition was therefore timely. Id. It did not undertake its own independent inquiry as to whether the delay was reasonable and the state petition therefore timely under California law. The United States Supreme Court disagreed with this procedure. It noted that “there are many plausible answers” for why a state court might “address the merits of a claim that it believes was presented in an untimely way.” Id. The Court stated: If the California Supreme Court had clearly ruled that Saffold’s 4 1/2-month delay was “unreasonable,” that would be the end of the matter, regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was “entangled” with the merits. Id. at 226, 122 S.Ct. 2134. But because the California Supreme Court had not “clearly ruled” as to the timeliness of the state petition, the United States Supreme Court remanded the case back to the Ninth Circuit for consideration of timeliness as a matter of California law. Id. at 226-27,122 S.Ct. 2134. Thus, even though the Pennsylvania Supreme Court declined to dispose of Baker’s case on timeliness grounds, instead dismissing it on the ground that Baker had withdrawn his petition, such treatment does not constitute an implicit ruling that Baker’s petition was timely. As the Supreme Court noted in Saffold, “there are many plausible reasons” why a state court might decline to base a decision on timeliness when another ground is available. Id. This may be especially true when a state court is able to dispose of the case without otherwise reaching its merits. As the Supreme Court stated recently in Pace, “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” 125 S.Ct. at 1812; see also Merritt v. Blaine, 326 F.3d 157, 167 (3d Cir.2003) (“[W]e must look to state law to determine whether the state petition is ‘properly filed.’ ”); Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir.2001) (“The AEDPAf’s statutory tolling provision] requires us to interpret state law as we do when sitting in diversity cases.”) Because the Pennsylvania Supreme Court never “clearly ruled” as to whether Baker’s PCRA petition of 1/15/97 was untimely under state law, I must consider whether it was timely filed as a matter of Pennsylvania law before deeming it “properly filed” and a basis for statutory tolling under § 2244(d)(2). At the time Baker filed his PCRA petition of 1/15/97, absent certain exceptions, petitioners were generally required to file PCRA petitions within one year of their final judgment of conviction. 42 Pa. Cons. Stat. Ann. § 9545(b) (1998). Amendments to the PCRA enacted in 1995 provided that: Any petition under [the PCRA], 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 [he or she qualifies for one of three exceptions]. 42 Pa. Cons.Stat. Ann. § 9545(b). Petitioners whose convictions became final prior to the effective date of the 1995 amendments, January 16, 1996, were permitted to file a “first” PCRA petition by January 16, 1997 and have it be treated as timely. 42 Pa. Cons.Stat. Ann. § 9545, Historical and Statutory Notes; Act of November 17, 1995, P.L. 1118, No. 32 (Spec.Sess. No. 1), § 3(1) (“section 3(1)”). Section 3(1) provided that the 1995 amendments, including the one-year statute of limitations: shall apply to petitions filed after the effective date of this act [January 16, 1996]; however, 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 [the PCRA] if the petitioner’s first petition is filed within one year of the effective date of this act. Section 3(1). Baker’s PCRA petition of 1/15/97 was filed before January 16, 1997, but it was not chronologically his first petition, as he had previously filed petitions under both the Post-Conviction Hearing Act, 42 Pa. Cons.Stat. §§ 9541-9551 (superseded) (“PCHA”), and the PCRA. He filed a counseled PCHA petition on April 10, 1987, following the Supreme Court’s remand of his direct appeal proceedings, and subsequently filed a pro se PCRA petition on July 30,1993. Baker argues that section 3(l)’s grace period for first petitions should be read to allow a grace period for the first counseled petition a petitioner files after the conclusion of one full round of direct review. Under Baker’s interpretation, a petition that was uncounseled or a petition filed before the conclusion of direct review does not count as a “first” petition for purposes of section 3(l)’s grace period. Consequently, even if a petitioner had filed a previous uncounseled petition, or a previous counseled petition prior to the conclusion of direct review, under Baker’s theory, the petitioner would still be permitted to file a “first” counseled petition before January 16, 1997 and have it be deemed timely under section 3(1). Baker’s PCHA petition of 4/10/87 was filed prior to the conclusion of direct review and his PCRA petition of 7/30/93 was uncounseled. Therefore, according to Baker, Baker’s PCRA petition of 1/15/97 was Baker’s first counseled petition filed after the conclusion of direct review and was timely. Baker is correct that the Pennsylvania Supreme Court interprets PCRA’s timeliness requirements in concert with a traditional and statutory right to the assistance of counsel in Pennsylvania postcon-viction proceedings. Commonwealth v. Tedford, 566 Pa. 457, 781 A.2d 1167, 1170-71 (2001); Commonwealth v. Smith, 572 Pa. 572, 818 A.2d 494, 501 (2003); Pa. R.Crim. P. 904. The Pennsylvania Supreme Court has explained that “if a court dismisses a pro se petition prior to the appointment of counsel, a subsequent petition may not be treated as an untimely second petition.” Commonwealth v. Williams, 573 Pa. 613, 828 A.2d 981, 990 (2003); see also Tedford, 781 A.2d at 1171 (when petitioner’s previous pro se PCRA petition dismissed before appointment of counsel, subsequent PCRA petition filed with assistance of counsel “should effectively be treated” as first amended PCRA petition). Consequently, if a petitioner has previously filed a PCRA petition that was dismissed prior to the appointment of counsel, the Pennsylvania Supreme Court will nonetheless treat the petitioner’s first counseled PCRA petition as a first petition. However, even assuming the first prong of Baker’s argument, that section 3(1) should be read to provide that a first counseled petition filed before January 16, 1997 must be deemed timely, Baker’s argument that his PCRA petition of 1/15/97 was timely under section 3(1) still fails. Pennsylvania law does not provide that counseled petitions filed prior to the conclusion of direct review do not count as a “first” petition for purposes of section 3(l)’s grace period. Baker points to no Pennsylvania case to the contrary, but suggests that his PCHA petition of 4/10/87 was “premature.” Baker filed his first counseled petition for state postconviction review after the Pennsylvania Supreme Court granted Baker’s petition to remand his case for consideration of claims of ineffective assistance of counsel. Baker’s petition to remand specifically stated that “petitioner and his present attorney desire to raise the issues of ineffective assistance of counsel at this stage of the proceeding by filing a Post-Conviction Hearing Act petition in the court below....” Pet. Remand, Commonwealth v. Baker II (No. 514-520). The Pennsylvania Supreme Court granted that petition to remand. See Commonwealth v. Baker II, 614 A.2d at 666 (“We remanded for an evidentiary hearing in the form of a proceeding under the Post Conviction Hearing Act....”). Subsequently, with the assistance of counsel, Baker filed a petition entitled, “Petition Pursuant to Post-Conviction Hearing Act.... ” The opening phrase of that petition reads: Petitioner, LEE BAKER, a/k/a HERBERT BAKER, JR., defendant in the above case, by his attorney, RICHARD H. KNOX, ESQUIRE, files this Post-Conviction Hearing Act Petition, and states as follows: PCHA petition of 4/10/87 at 1. Judge Sabo denied the PCHA petition of 4/10/87 on November 18, 1987, and the Pennsylvania Supreme Court affirmed that denial on June 17, 1992. Commonwealth v. Baker II, 614 A.2d at 673-74. Baker cannot argue that the Pennsylvania courts inappropriately reviewed Baker’s ineffective assistance of counsel claims in the form of a PCHA petition, when that was precisely the form Baker had requested and precisely the form in which he presented his claims. Moreover, no Pennsylvania court, including the Pennsylvania Supreme Court, has ever suggested that Baker’s filing of a PCHA petition prior to the conclusion of his direct appeal was procedurally improper or “premature.” Baker relies on a Pennsylvania case wherein remanded ineffective assistance of counsel claims were not raised in the form of a PCHA or PCRA petition. See Yarris, 731 A.2d at 583-86. But Baker marshals no authority, nor has my research revealed any, for the proposition that a counseled PCHA petition filed before the conclusion of direct review does not count as a first petition for purposes of section 3(1). In the absence of such authority, and in light of the Pennsylvania Supreme Court’s treatment of Baker’s PCHA petition of 4/10/87 at face value, I must reach the common sense conclusion that Baker’s first counseled petition, his PCHA petition of 4/10/87, was his first counseled petition for purposes of section 3(1), regardless of whether Baker had concluded his direct review. Baker’s PCRA petition of 1/15/97 was filed more than one year after his final judgment of conviction and it was not his first, nor his first counseled, postconviction petition. Therefore, section 3(1) does not apply to save the timeliness of the petition. Consequently, Baker’s PCRA petition of 1/15/97 was not timely filed as a matter of Pennsylvania law, nor was it “properly filed” as a matter of federal law. Baker does not qualify for statutory tolling of his limitations period under the AEDPA. 3. Equitable Tolling Although Baker does not qualify for statutory tolling under the AEDPA, Baker’s AEDPA limitations period may be equitably tolled for the period in which Baker litigated his PCRA petition of 1/15/97 in the Pennsylvania courts. Generally, “a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 125 S.Ct. at 1814. However, in capital cases, less than “extraordinary circumstances” is required. Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.2001); Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir.2003). Controlling Third Circuit precedent in Fahy v. Horn, 240 F.3d at 242-46, and Banks v. Horn, 271 F.3d 527 (3d Cir.2001), requires that Baker’s AEDPA limitations period be equitably tolled while Baker litigated his PCRA petition of 1/15/97 in state court. In Fahy v. Horn, the petitioner, Fahy, had been convicted of first degree murder and sentenced to death by a Pennsylvania court in 1983. 240 F.3d at 242. Fahy filed his first PCHA petition in 1986 and it was dismissed in 1987. Id.; Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 216 (1999). After the Governor of Pennsylvania signed Fahy’s death warrant, Fahy filed a second petition under the PCRA in 1992. Fahy v. Horn, 240 F.3d at 242. The PCRA court denied relief after a hearing and the Pennsylvania Supreme Court affirmed that denial in 1994. Id.; Commonwealth v. Fahy, 737 A.2d at 216. After the Governor signed a second death warrant, Fahy obtained a stay of execution from the Pennsylvania Supreme Court and filed a third petition under the PCRA in 1995. Fahy v. Horn, 240 F.3d at 242; Commonwealth v. Fahy, 737 A.2d at 216. While Fahy’s third PCRA petition was pending before the PCRA court, Fahy filed his first habeas petition in federal court. Fahy v. Horn, 240 F.3d at 242. Fahy’s first federal habeas petition was dismissed without prejudice for failure to exhaust state remedies because the Pennsylvania Supreme Court had entered a stay of execution. Id. The PCRA court denied Fahy’s third PCRA petition on October 25, 1995. Commonwealth v. Fahy, 737 A.2d at 216. Fahy appealed to the Pennsylvania Supreme Court, but then requested that his appeal be withdrawn. Fahy v. Horn, 240 F.3d at 242. Following a hearing before the PCRA court regarding the validity of Fahy’s waiver, the Pennsylvania Supreme Court upheld the waiver and dismissed Fahy’s appeal on September 17, 1997. Id.; Commonwealth v. Fahy, 549 Pa. 159, 700 A.2d 1256 (1997). Believing that if he filed a federal habe-as petition at this point it would be dismissed for failure to exhaust state remedies, Fahy filed a fourth PCRA petition in state court on November 12, 1997. Fahy v. Horn, 240 F.3d at 242-44. At the time he filed the fourth PCRA petition, the Pennsylvania Supreme Court, under the “relaxed waiver” doctrine, “declined to apply ordinary waiver principles in capital cases in an effort to prevent the court ‘from being instrumental in an unconstitutional execution.’ ” Jacobs v. Horn, 395 F.3d 92, 116-118 (3d Cir.2005). Fahy reasonably believed that his fourth PCRA petition would be accepted by the Pennsylvania courts either through operation of the relaxed waiver doctrine or because his petition fit within the “governmental interference” exception to the PCRA’s statute of limitations. Fahy v. Horn, 240 F.3d at 245. The PCRA court denied Fahy’s petition on December 29, 1997 as untimely and for failure to set forth a prima facie case that a miscarriage of justice had occurred. Id.; Commonwealth v. Fahy, 737 A.2d at 217. While Fahy’s fourth PCRA petition was pending before the Pennsylvania Supreme Court, the Pennsylvania Supreme Court announced in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998), that it would no longer apply relaxed waiver rules in capital cases on PCRA appeal. The Pennsylvania Supreme Court refused to apply relaxed waiver in Fahy’s case and ruled that Fahy’s fourth PCRA petition was untimely. Commonwealth v. Fahy, 737 A.2d at 218-25. Fahy filed an amended federal habeas petition in federal court on October 13, 1999. Fahy v. Horn, 240 F.3d at 242. In Fahy v. Horn, the Third Circuit ruled that it was bound by the Pennsylvania Supreme Court’s determination that Fahy’s fourth PCRA petition was untimely as a matter of Pennsylvania law., Id. at 243-44. Consequently, Fahy’s fourth PCRA petition was not “properly filed” as a matter of federal law and Fahy’s AEDPA limitations period was not statutorily tolled while Fahy litigated his fourth PCRA petition in state court. Id. The Third Circuit announced a two-prong test for the application of equitable tolling in capital cases. Under Fahy v. Horn, equitable tolling is appropriate if: 1) the “petitioner has been diligent in asserting his or her claims;” and 2) “rigid application of the statute would be unfair.” 240 F.3d at 245. The Third Circuit ruled that Fahy had exercised reasonable diligence when he sought to exhaust state law claims in a fourth PCRA petition even though the petition was ultimately ruled untimely by the Pennsylvania Supreme Court. Id. At the time Fahy filed his fourth PCRA petition, the Pennsylvania Supreme Court could have accepted Fahy’s fourth petition as timely “because of its role within the capital case.” Id. 245. Because Pennsylvania law regarding acceptance of otherwise untimely petitions in capital cases was “inhibitively opaque” in 1997, and because even the Third Circuit itself had struggled to predict how the Pennsylvania Supreme Court would treat capital petitions, it was reasonable for Fahy to seek to exhaust his claims in the Pennsylvania courts by filing a fourth PCRA petition before filing a petition in federal court. Id. Furthermore, the Third Circuit ruled that it was reasonable for Fahy to believe that if he filed, a federal habeas petition in federal court before filing his fourth PCRA petition in state court, the federal petition would be dismissed as unexhausted. Id. Like the petitioner in Fahy, Baker sought to present his claims to the Pennsylvania courts at a time when Pennsylvania law regarding acceptance of otherwise untimely petitions was “inhibitively opaque.” Id. It was therefore reasonable for Baker to believe that his PCRA petition of 1/15/97 would be accepted by the Pennsylvania courts. Furthermore, Baker, unlike the petitioner in Fahy, took the extra step of filing a timely protective federal habeas petition that he asked me to hold in suspense while he exhausted his remaining state claims. Baker v. Horn I at 2. Therefore, Baker exercised even greater diligence than the petitioner in Fahy and meets the “reasonable diligence” requirement of equitable tolling. See also Banks v. Horn, 271 F.3d 527, 535 (3d Cir.2001), rev’d on other grounds, 536 U.S. 266, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (applying Fahy’s equitable tolling rationale to circumstances also materially identical to Baker’s case). The United States Supreme Court’s recent ruling in Pace does not alter the conclusion that Baker exercised reasonable diligence. In Pace, the Supreme Court refused to apply equitable tolling to save the untimeliness of a non-capital federal habeas petition because it found that the petitioner had not pursued his rights diligently. 125 S.Ct. at 1814-15. Baker’s diligence in pursuing his claims in federal court is in sharp contrast to that of the petitioner in Pace. The petitioner in Pace did not file a protective petition in federal court within the AEDPA’s time frame. Id. Further, in Pace, the petitioner waited five months after the Pennsylvania courts finally dismissed his PCRA petition before filing his first federal petition. Id., 125 S.Ct. at 1815. Baker, by contrast, filed his first federal petition within the AEDPA’s explicit statutory time frame. It was only what amounts in hindsight to a mistake of law on the part of the court that led to the necessity of Baker filing a subsequent amended petition and eventual consideration of principles of equitable tolling. In addition, Baker filed his amended federal petition even before the Pennsylvania Supreme Court brought his state court proceedings to a close by denying Baker’s application for reargument. It is true that Baker, like the petitioner in Pace, waited a period of years before raising certain of his claims before the Pennsylvania courts. The obligation to exercise reasonable diligence in bringing claims that is a prerequisite for the application of equitable tolling “exists during the period [the petitioner] is exhausting state court remedies as well.” LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir.2005). However, because of the Pennsylvania Supreme Court’s application of the “relaxed waiver” doctrine in capital cases, Baker may have been led to believe that any number of successive PCRA petitions would be accepted by the state courts. The petitioner in Pace, who did not face a capital sentence, could not claim reliance on that doctrine. 125 S.Ct. at 1814-15. Further, the Pennsylvania courts never ruled that Baker’s PCRA petition of 1/15/97 was not timely. Therefore, unlike the petitioner in Pace, Baker pursued his rights diligently. To invoke equitable tolling, petitioners also typically need to show that extraordinary circumstances prevented them from asserting their claims in a timely fashion. Pace, 125 S.Ct. at 1814. However, if a petitioner challenges a capital conviction, “less than ‘extraordinary’ circumstances” may trigger equitable tolling of the AED-PA statute of limitations when “rigid application of the statute would be unfair.” Fahy, 240 F.3d at 245. In the context of a capital case, the Third Circuit ruled in Fahy: When state law is unclear regarding the operation of a procedural filing requirement, the petitioner files in state court because of his or her reasonable belief that a § 2254 petition would be dismissed as unexhausted, and the state petition is ultimately denied on these grounds, then it would be unfair not to toll the statute of limitations during the pendency of that state petition up to the highest reviewing state court. Id. Fahy filed his fourth PCRA petition in state court, rather than filing a federal habeas petition in federal court, because he reasonably believed that the Pennsylvania courts would accept his fourth petition under its “relaxed waiver” doctrine or under an exception to the PCRA statute of limitations. Id. Further, Fahy reasonably believed that filing a federal habeas petition in federal court would be futile because a federal court would likely dismiss Fahy’s petition as unexhausted. Id. Because the Pennsylvania courts ultimately dismissed Fahy’s fourth PCRA petition as untimely, it would have been unfair under those circumstances not to toll Fahy’s AEDPA statute of limitations while Fahy litigated his fourth PCRA petition in state court. Id. Accordingly, the Third Circuit in Fahy applied equitable tolling to save the timeliness of Fahy’s federal petition. Id. As noted, the only relevant distinction between Baker’s case and Fahy is that the petitioner in Fahy did not file a timely protective federal habeas petition because he expected that it would be dismissed as a mixed petition, id., whereas Baker actually filed a timely federal petition that was dismissed as mixed. Certainly, the fact that Baker took the extra step of actually filing a timely protective federal petition cannot work against Baker. If anything, it would be more unfair to apply the statute rigidly to a petitioner who exercised greater diligence than did the petitioner in Fahy. Furthermore, it would be unfair to Baker not to toll his statute of limitations because it is now clear that Baker was correct to argue that his first federal petition should not have been dismissed but should have been held in suspense while he exhausted his remaining state claims. In 1997, when Baker filed his first federal petition, the Third Circuit’s interpretation of governing Supreme Court precedent required that I dismiss his petition as a mixed petition. See Christy v. Horn, 115 F.3d 201, 207 (3d Cir.1997). The Supreme Court has since clarified that, in circumstances like Baker’s, it is appropriate to stay and abey the federal habeas proceedings while the petitioner exhausts his unexhausted claims in state court. Rhines, 125 S.Ct. at 1531. The Supreme Court has directed that federal district courts ordinarily “should stay, rather than dismiss” mixed petitions when a petitioner exhibits “reasonable confusion about whether a state filing would be timely” and thereby shows “good cause” for filing in federal court. Id., 125 S.Ct. at 1535; Pace, 125 S.Ct. at 1813-14. At the time Baker filed his first federal petition, Pennsylvania law was unclear in two respects that impacted whether Baker’s PCRA petition of 1/15/97 would be accepted as timely by the Pennsylvania courts. First, as discussed previously in the context of statutory tolling, Pennsylvania law was unclear regarding whether Baker’s petition would be treated as a “first” petition for purposes of section 3(1), the one-year grace period for filing first PCRA petitions. See Commonwealth v. Peterson, 756 A.2d 687 (Pa.Super.Ct.2000), disapproved of in Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003); but see Tedford, 781 A.2d at 1171; Williams, 828 A.2d at 990. Second, even if Baker’s PCRA petition of 1/15/97 were not treated as a “first” petition for purposes of section 3(1), Pennsylvania law was unsettled as to whether Pennsylvania courts would accept otherwise untimely PCRA petitions in capital cases under Pennsylvania’s “relaxed waiver” doctrine. See Fahy, 240 F.3d at 245 (describing Pennsylvania’s “relaxed waiver” doctrine as “inhibitively opaque” in 1997); Baker v. Horn III, 210 F.Supp.2d at 621-22. Consequently, Baker’s “reasonable confusion” over whether his PCRA petition would be timely as a matter of Pennsylvania law, and whether the Pennsylvania courts would address the petition on its merits even if it were not timely, constituted “good cause” for his filing of a protective federal habeas petition. Rhines, 125 S.Ct. at 1531. Under the Supreme Court’s current interpretation of federal law, I should have stayed and abeyed his petition, but following then-governing Third Circuit precedent, I instead dismissed it. The fact that Baker’s argument against dismissal of his first federal petition was ultimately vindicated by the Supreme Court lends further support to Baker’s case for unfairness. It is clear that Baker meets the lower threshold of unfairness, if not the higher standard of extraordinary circumstances, necessary for equitable tolling in capital cases. To the extent Baker challenges his capital conviction, Baker’s one-year AED-PA limitations period therefore was equitably tolled from Baker’s filing of his PCRA petition on January 15, 1997 until February 1, 2000, when the Pennsylvania Supreme Court denied his application for reargument, leaving him approximately 100 days to timely file a federal petition under the AEDPA. Baker filed his amended federal petition on June 25, 1999, while his application for reargument was still pending before the Pennsylvania Supreme Court, and before his AEDPA limitations period began to run again. Therefore, to the extent Baker challenges his capital conviction, Baker’s amended federal petition was timely filed under the AEDPA. However, Baker does not receive the benefit of Fahy’s lower threshold for equitable tolling to the extent he challenges his non-capital convictions. Fahy was clearly grounded on the proposition that “death is different.” 240 F.3d at 244. As the court explained: Here the penalty is death, and courts must consider the ever-changing complexities of the relevant provisions Fahy attempted to navigate. Because the consequences are so grave and the applicable law is so confounding and unsettled, we must allow less than “extraordinary” circumstances to trigger equitable tolling of the AEDPA’s statute of limitations when a petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair. Id. at 245. The consequences of Baker’s non-capital convictions, though serious, do not allow for Fahy’s rationale to extend to Baker’s claims to the extent they challenge his non-capital convictions. See Merritt, 326 F.3d at 169-70 (refusing to extend Fahy’s rationale even though petitioner faced “grave penalty of mandatory life sentence without possibility of parole”). To challenge those non-capital convictions in an otherwise untimely federal petition, Baker must show that extraordinary circumstances prevented him from asserting his claims in a timely fashion. Pace, 125 S.Ct. at 1814. In Merritt v. Blaine, 326 F.3d 157 (3d Cir.2003), the Third Circuit considered whether equitable tolling should apply to a petitioner challenging non-capital convictions. The court noted that the petitioner, Merritt, was similarly situated to the petitioner in Fahy in that, facing unclear Pennsylvania law regarding whether a second PCRA petition would be accepted in state court and the likelihood that a federal habeas petition would be dismissed as unexhausted in federal court, it was “appropriate ... for Merritt to have believed he was required to exhaust his state remedies by filing a second PCRA petition prior to filing a habeas petition in federal court.” Id. at 169. The court ruled that, even though Merritt’s second PCRA petition was ultimately dismissed as untimely, thereby leaving him ineligible for statutory tolling, Merritt’s predicament did not amount to “extraordinary circumstances” sufficient for equitable tolling in non-capital cases. Id. at 169-70. While Merritt might have met “the lower bar ... established [in Fahy ] for equitable tolling [in] capital cases,” Fahy’s rationale could not be applied to Merritt because Merritt did not face the death penalty. Therefore, Baker too cannot claim that the uncertainty of Pennsylvania law amounted to an extraordinary circumstance preventing him from bringing his claims. The fact that I dismissed Baker’s timely first federal petition also does not constitute an “extraordinary circumstance” that prevented Baker from asserting his claims. In Brinson v. Vaughn, 398 F.3d 225 (3d Cir.2005), the Third Circuit concluded that a district court’s erroneous dismissal of a petitioner’s timely first federal habeas petition as unexhausted, when the record showed that the petition was, in fact, exhausted, constituted “extraordinary circumstances” for purposes of the AEDPA limitations period. But the district court’s dismissal in Brinson was “mistaken” and erroneous under the then-governing law. Id. at 231. My dismissal of Baker’s first petition was in a sense erroneous, in that under current governing interpretations of federal law a court ordinarily should not dismiss a similar petition, but it did not contradict the governing law of the time. See Christy, 115