GIBBS v. BARTKOWSKI et al
Filing
18
OPINION. Signed by Judge Noel L. Hillman on 8/17/2012. (nz, )n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
CARNELL GIBBS,
:
:
Civil Action No. 11-1137
(NLH)
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.
:
:
:
:
:
:
:
OPINION
APPEARANCES:
Carnell Gibbs, Pro Se
407358/SBI 399805C
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
James F. Smith
Atlantic County Prosecutor’s Office
4997 Unami Boulevard
Mays Landing, NJ 08330
Attorney for Respondents
HILLMAN, District Judge
Petitioner, Carnell Gibbs, a prisoner confined at the New
Jersey State Prison, Trenton, New Jersey, submitted a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The
respondents are Greg Bartkowski, Paula T. Dow, and Charles
Warren.
For the reasons stated herein, the petition will be
dismissed, with prejudice, as time-barred.
BACKGROUND
According to the petition, Petitioner was convicted of
first degree murder, possession of a handgun for an unlawful
purpose, unlawful possession of a handgun, and conspiracy.
His
judgment of conviction, entered on June 2, 2000 in the Superior
Court of New Jersey, Atlantic County, led to a sentence of fifty
years with a thirty year period of parole ineligibility.
The
Superior Court of New Jersey, Appellate Division (“Appellate
Division”) affirmed Petitioner’s conviction on May 24, 2002. 1
The New Jersey Supreme Court denied Petitioner’s petition for
certification by order filed on October 21, 2002.
Petitioner filed a motion for post-conviction relief
(“PCR”) in the trial court on May 16, 2003. 2
August 22, 2007.
PCR was denied on
Petitioner filed an appeal to the PCR decision
in Appellate Division on January 12, 2010.
Division affirmed on May 21, 2010.
The Appellate
Petitioner then appealed to
the New Jersey Supreme Court on June 2, 2010 and certification
was denied on October 5, 2010.
1
In his initial Petition, Petitioner lists this date as June 21, 2002. The May 24, 2002 date
is taken from Petitioner’s most recent filing.
2
In his initial Petition, Petitioner lists this date as June 2, 2003. The May 16, 2003 date is
taken from Petitioner’s most recent filing.
Petitioner signed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging the state court
conviction for filing on February 9, 2011, and it was docketed
by the Clerk of the Court on February 25, 2011.
He was advised
of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir.
2000), and an Order to Answer was issued.
On July 8, 2011,
Petitioner filed his first motion to stay this matter (docket
entry no. 11), claiming that he wishes to pursue nine previously
unexhausted issues in state court.
None of those proposed
claims were raised in the initial petition.
Petitioner states
that those issues were recently discovered with the help of a
paralegal at the prison.
On January 9, 2012, this Court entered a Notice and Order
(docket entry no. 14) to deny Petitioner’s first motion to stay,
without prejudice to Petitioner filing a response which would
include a properly supported motion to amend the petition to add
new claims contained in the addendum to Petitioner’s Motion to
Stay, to equitably toll the statute of limitations, and to stay
the petition, as amended.
Petitioner filed his response, including an amended
Petition (docket entry no. 15), a request to proceed in forma
pauperis 3 (docket entry no. 16), and an Amended Motion for Stay
and Abeyance (docket entry no. 17).
Petitioner’s amended motion
set forth his arguments as to why he believes that the Petition
should be stayed, and provided further dates, as listed above,
regarding the timeliness of the Petition.
DISCUSSION
A.
Pleading Standards
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519,
520 (1972).
A pro se habeas petition and any supporting
submissions must be construed liberally and with a measure of
tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);
Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
B.
The Petition is Time-Barred
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
3
Petitioner paid the filing fee on April 25, 2011.
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States.
28 U.S.C. § 2254(a).
A petitioner’s ability to pursue the writ
of habeas corpus is subject to various affirmative defenses,
including the defense that the petition is time-barred.
The limitations period for a § 2254 habeas petition is set
forth in 28 U.S.C. § 2244(d), which provides in pertinent part:
(1) A 1-year period of limitations 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.
(2) 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 section.
Thus, evaluation of the timeliness of this § 2254 petition
requires a determination of, first, when the pertinent judgment
became “final,” and, second, the period of time during which an
application for state post-conviction relief was “properly
filed” and “pending” for tolling purposes.
A state court criminal judgment becomes “final” within the
meaning of § 2244(d)(1) by the conclusion of direct review or by
the expiration of time for seeking such review, including the
90-day period for filing a petition for writ of certiorari in
the United States Supreme Court.
See Swartz v. Meyers, 204 F.3d
417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n. 1
(3d Cir. 1999); U.S. Sup. Ct. R. 13.
An application for state post-conviction relief is
considered “pending” within the meaning of § 2244(d)(2), and the
limitations period is statutorily tolled from the time it is
“properly filed,” during the period between a lower state
court’s decision and the filing of a notice of appeal to a
higher court, Carey v. Saffold, 536 U.S. 214 (2002), and through
the time in which an appeal could be filed, even if the appeal
is never filed, Swartz, 204 F.3d at 420-24. 4
However, “the time
during which a state prisoner may file a petition for writ of
certiorari in the United States Supreme Court from the denial of
his state post-conviction petition does not toll the one year
statute of limitations under 28 U.S.C. § 2244(d)(2).”
Stokes v.
District Attorney of the County of Philadelphia, 247 F.3d 539,
542 (3d Cir.), cert. denied, 534 U.S. 959 (2001).
The limitations period of § 2244(d) is also subject to
equitable tolling.
See Fahy v. Horn, 240 F.3d 239, 244 (3d
Cir.), cert. denied, 534 U.S. 944 (2001); Jones v. Morton, 195
F.3d 153, 159 (3d Cir. 1999); Miller v. New Jersey State Dept.
of Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
Equitable
tolling applies:
only when the principles of equity would make the
rigid application of a limitation period unfair.
Generally, this will occur when the petitioner has in
some extraordinary way been prevented from asserting
his or her rights. The petitioner must show that he or
she exercised reasonable diligence in investigating
and bringing the claims. Mere excusable neglect is not
sufficient.
Miller, 145 F.3d at 618-19 (citations and punctuation marks
omitted).
4
Among other circumstances, the Court of Appeals for
To statutorily toll the limitations period pursuant to § 2244(d)(2), a state petition for
post-conviction relief must be “properly filed.” Artuz v. Bennett, 531 U.S. 4, 8-9 (2000); see
also Pace v. DiGuglielmo, 544 U.S. 408 (2005) (state PCR petition rejected as untimely under
state statute of limitations was not “properly filed” for purposes of § 2244 (d)(2)).
the Third Circuit has held that equitable tolling may be
appropriate “if the plaintiff has timely asserted his rights
mistakenly in the wrong forum,” i.e., if a petitioner has filed
a timely but unexhausted federal habeas petition.
See Jones,
195 F.3d at 159; see also Duncan v. Walker, 533 U.S. 167, 183
(2001) (Stevens, J., joined by Souter, J., concurring in part)
(“neither the Court’s narrow holding [that the limitations
period is not statutorily tolled during the pendency of a
premature federal habeas petition], nor anything in the text or
legislative history of AEDPA, precludes a federal court from
deeming the limitations period tolled for such a petition as a
matter of equity”); 533 U.S. at 192 (Breyer, J., dissenting,
joined by Ginsburg, J.) (characterizing Justice Stevens's
suggestion as “sound”).
Here, Petitioner’s direct appeal concluded on October 21,
2002, and the last date in which Petitioner could have
petitioned the United States Supreme Court for certiorari would
have been January 19, 2003.
on that date.
Thus, the conviction became “final”
Petitioner had one year, or until January 19,
2004, to file an application for a writ of habeas corpus in this
Court.
Petitioner did file his PCR motion within that time period,
on May 16, 2003, tolling the statute of limitations at that
point with less than four months having run on the limitations
period, and allowing over eight months still available before
the expiration of the limitations period.
PCR was denied on
August 22, 2007, but Petitioner did not file his appeal to the
PCR division in Appellate Division until January 12, 2010.
Thus, even though Petitioner had approximately eight months left
on his statutory limitations period at the time PCR was denied,
he allowed the one year limitations period to run out well
before he filed his appeal, which was not filed for over two
years after PCR was denied.
Further, the Appellate Division affirmed on May 21, 2010,
and Petitioner then quickly appealed to the New Jersey Supreme
Court on June 2, 2010, but that short turnaround is of no
consequence for the limitations analysis since the one year
statutory period had previously been exhausted.
Finally, after
certification was denied on October 5, 2010, Petitioner did not
signed the instant petition for filing until February 9, 2011,
allowing even more time to run on the already elapsed
limitations period.
In the January 9, 2012 Notice and Order, this Court
afforded Petitioner the opportunity to address the timeliness
issue.
This Court has reviewed Petitioner’s filings and finds
that Petitioner asserts no facts that would indicate that his
petition should be equitably tolled.
must be dismissed as time-barred.
Accordingly, this petition
Since the Petition must be
dismissed as time-barred, the Court will not address the issue
of whether a stay would be appropriate.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
“A petitioner
satisfies this standard by demonstrating that jurists of reason
could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484
(2000). Here, reasonable jurists would not find this Court’s
procedural ruling debatable.
Accordingly, no certificate of
appealability shall issue.
CONCLUSION
For the reasons set forth above, the request to proceed in
forma pauperis is denied, the amended motion to stay is denied
as moot, and the petition is dismissed with prejudice as timebarred.
An appropriate order follows.
At Camden, New Jersey
Dated:
August 17, 2012
s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
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