Pabon v. Superintendent, 08-1536 (3d Cir. 2011)

Opinion by Ambro, J.:

In 1997, Pabon was a member of a Philadelphia drug-dealing organization.  One the organizations members was shot and injured by a rival gang, and swore revenge.  Pabon and his cohorts plotted a reprisal and, the next night, executed their plan, killing both the rival gang-member and a bystander.  Pabon fled to Puerto Rico and was arrested there.

Five members of Pabon's organization were tried jointly.  At trial, the Commonwealth introduced confessions from non-testifying co-defendants, which were redacted pursuant to negotiated agreements.  Pabon was convicted of, inter alia, two counts of murder, and was sentenced to consecutive life sentences.  The Superior Court affirmed his judgment of sentence.

Ten months after AEDPA's statute of limitations had passed, Pabon filed a federal habeas corpus petition.  The magistrate judge issued a report and recommendation that the petition be dismissed as untimely filed.  Pabon filed objections, in which he alleged that he cannot read, write, or speak the English language, that he has not had access to Spanish language legal materials, and that he does not have access to Spanish interpreters to translate the prison legal materials for him.  On this basis, he argued for equitable tolling of AEDPA's time-bar.  The District Court overruled his objections, and adopted the R&R of the magistrate judge, and the Third Circuit issued a Certificate of Appealability.

The Third Circuit examined the record and concluded that Pabon had exercised diligence in attempting to obtain Spanish translations of relevant documents, and in trying to reach out to Spanish speaking attorneys.  It then joined the Second and Ninth Circuits in concluding:

. . . that an inability to read or understand English, combined with a denial of access to translation or legal assistance, can constitute extraordinary circumstances that trigger equitable tolling.

On this basis, the Third Circuit remanded the matter to the District Court for an evidentiary hearing to determine whether Pabon in fact is incapable of speaking English.

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