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LACAVA v. KYLER

No. 03-1398.

398 F.3d 271 (2005)

Michael LACAVA, Appellant v. Kenneth D. KYLER; The District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania.

United States Court of Appeals, Third Circuit.

Filed February 11, 2005.

Attorney(s) appearing for the Case

Joseph Leibowicz, (Argued), James S. Malloy, Kirkpatrick & Lockhart LLP, Pittsburgh, for Appellant.

Lynne Abraham, District Attorney of Philadelphia, Arnold H. Gordon, First Assistant District Attorney, Ronald Eisenberg, Deputy District Attorney, Law Division, Thomas W. Dolgenos, Chief, Federal Litigation, David C. Glebe, (argued), Assistant District Attorney, Philadelphia, for Appellee.

Before ROTH, SMITH and BECKER, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Michael LaCava appeals from an order of the District Court which denied his petition for writ of habeas corpus as untimely filed, rejecting his contention that equitable tolling should apply. The appeal requires us to decide whether the twenty-one month period that LaCava allowed to pass prior to making inquiry into the status of his state petition for allowance of appeal precludes a finding of due diligence and...

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