KNIGHT v. WARREN et al

Filing 12

OPINION. Signed by Judge Renee Marie Bumb on 1/7/2014. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
JAMES KNIGHT,
:
: Civil Action No. 12-7670 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
CHARLES WARREN, et al.,
:
:
Respondents.
:
_______________________________________
:
This matter comes before the Court upon Petitioner’s motion,
see Docket Entry No. 11, seeking reconsideration of this Court’s
prior Opinions and Orders.
Upon Petitioner’s submission of his § 2254 petition, the
Court reviewed the same and noted the unusually lengthy period of
Petitioner’s post-conviction relief (“PCR”) process.

Reading

that jointly with the long gap between Petitioner’s completion of
the PCR process and his filing of the Petition at bar, the Court
– in order to verify the timeliness of the Petition – directed
Petitioner to clarify when his PCR appeals at the Appellate
Division and the Supreme Court of New Jersey were “properly
filed” and “pending.”1
1

For the purposes of calculating a litigant’s period of
limitations, the word “pending” and the phrase “properly filed”
are terms of art having a technical meaning qualitatively
different from that a layperson may perceive reflecting solely on
the dates when the first document is mailed to the trial court
and when the highest court issues its ruling. See Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80 (3d Cir. 2013).
Rather, as detailed in Artuz v. Bennett 531 U.S. 4, 8-9 (2000),

Because Petitioner failed to respond to the Court’s
directive, the Court dismissed the Petition as untimely.
Docket Entries Nos. 8 and 9.

See

Upon the Court’s entry of that

ruling, Petitioner filed the motion at bar, see Docket Entry No.
11, and accompanied it by his response, see Docket Entry No. 10
(“Response”), addressing the Court’s directive, which, by then
was untimely.
Petitioner’s Response addressed solely the issue of his
delay in filing his PCR appeal with the Appellate Division,
leaving the issue of whether there was a delay in Petitioner’s

and elaborated upon in Evans v. Chavis, 546 U.S. 189 (2006), the
statutory tolling does not apply:
(1)

starting from the point in time when, under the state law,
an inmate's time to appeal denial of PCR (or to seek
certification as to afformance of such denial) expires and
until the point in time when the inmate's application to
file such appeal out of time (or to seek such certification
out of time) is granted, see Jenkins, 705 F.3d at 86-88 and
nn.6 and 8; and, in addition,

(2)

starting from the point in time when a not-perfected PCR
application to the Law Division (or an appeal to the
Appellate Division as to denial of PCR, or an application
for certification as to affirmance of denial of PCR) was
received/recorded by the state courts and until the point in
time when the inmate’s submission is duly perfected under
the requirements posed by the state law. See id. at 88, n.
11 (“[W]e note that [the inmate's PCR submission] was not
properly filed [within the meaning of Artuz] until he
perfected it”).

Under New Jersey Court Rule 2:4-1(a), the time for filing a
notice of appeal with the Appellate Division is forty five days,
and a petition for certification must be filed with the Supreme
Court of New Jersey within twenty days from the date of the
Appellate Division’s adverse ruling, see N.J. Ct. R. 2:12-3.
2

filing of his application for PCR certification with the Supreme
Court of New Jersey unaddressed.

However, the information

provided in the Response, albeit incomplete, is sufficient for
this Court to rule on Petitioner’s motion, without reaching and
ruling on the facts that might be associated with the final stage
of Petitioner’s PCR process.
In his Response, Petitioner stated:
On November 15, 2005, after [using] 32 days [of his
one-year AEDPA period], Petitioner filed [his PCR with
the Law Division], thereby [statutorily] tolling [his]
one-year [AEDPA period. That] . . . PCR [application]
was denied by [the Law Division on] May 15, 2009. . . .
[O]n October 7, 2009, [that is, more than four and a
half months later], Petitioner filed a notice of appeal
[with the Appellate Division. Because the notice of
appeal was not filed within the 45-day time limit
[i.e.,] before June 29, 2009, . . . Petitioner concedes
[that, unless his AEDPA] one-year [period] was not
[deemed] tolled during [the resulting] 99-day [delay]
[his § 2254] petition [is] untimely. However, [he
maintains that this 99-day period should be included in
the statutory tolling because] the . . . Appellate
Division granted [his nunc pro tunc] motion . . . . [He
maintains that,] if New Jersey courts have decided to
[grant his nunc pro tunc motion, this Court] should
respect that decision by [granting him statutory]
tolling . . . . Alternatively, if [he] is not entitled
to statutory tolling, [he] asserts that he is entitled
to equitable tolling [because, if Appellate Division
granted his nunc pro tunc motion, it must mean that he]
exercised the requisite level of diligence required for
the purposes of equitable tolling. [He also maintains
he was subjected to] extraordinary circumstance [since
the Office of Public Defender experienced] backlog,
staff reduction and an overwhelming caseload, all
circumstances beyond Petitioner’s control.
Docket Entry No. 10, at 2-5 (quotation marks omitted).
In addition, Petitioner conceded that:

3

[additional] 322 days [of Petitioner’s AEDPA period]
ran . . . between January 13, 2012, (when his PCR
appeal became final) and November 30, 2012, when
Petitioner handed his petition to prison officials.
Id. at 2, n.1.
Both Petitioner’s arguments raised in the Response were
expressly addressed and rejected, as meritless, by the Court of
Appeals in its seminal Jenkins decision.
As the Jenkins Court pointed out:
[T]he nunc pro tunc title of [Petitioner’s notice of
PCR appeal was, de facto,] a misnomer; in reality,
[Petitioner filed [nothing but] a motion to extend
[his] time to file a [notice] of appeal . . . . [While
the state court] frequently grants . . . motions to
extend the time to . . . appeal, which it sometimes
characterizes as . . . nunc pro tunc [motions,
Petitioner’s PCR appeal] was not properly filed [and,
thus, had no statutory tolling effect until the time
when the state court granted his nunc pro tunc motion
and, in addition,] until he perfected it.
Jenkins, 705 F.3d at 87-88 and n.11; accord Knight v. Lagana,
2013 U.S. App. LEXIS 13069 (June 14, 2013) (statutory tolling
cannot include the appellate PCR period since the time to appeal
expired under the state law, and until the state court grants the
litigant’s nunc pro tunc motion, and the litigant duly perfects
his PCR appeal); see also Webster v. Adm’r N.J. State Prison,
2013 U.S. App. LEXIS 25719, at *2 (3d Cir. N.J. Oct. 25, 2013)
(“Assuming for the sake of argument that [Petitioner’s] PCR
[applications at all three levels of the state court] tolled the
federal period of limitations while they were pending [within the
meaning of Artuz and Evans], there are at least two undisputed
4

time periods during which nothing was pending in the state
courts: the period after which [Petitioner’s] time to appeal
denial of] PCR [by the Law Division] expired, and before the
Appellate Division granted [his motion] to appeal nunc pro tunc
(26 days), and the similar period following the denial of
[Petitioner’s other request for PCR [denied by the Law Division,
where the gap-time in appeal yielded] 14 days”).
Correspondingly, here, Petitioner’s one-year ARDPA period
was depleted, at the very least, by the span of time from June
29, 2009 (when Petitioner’s time to seek appellate PCR review
expired under the state court rules) and until the date when the
Appellate Division actually granted his nunc pro tunc motion and,
in addition, he perfected his appeal.

Since Petitioner states

that he filed his nunc pro tunc motion on October 7, 2009, it is
evident that said motion could not have been granted by the
Appellate Division until then (and, more likely than not, it was
granted weeks or months later).

Hence, even if this Court were

to hypothesize that Petitioner’s PCR appeal was fully perfected
on the date of his filing of the nunc pro tunc motion,
Petitioner’s one-year ARDPA period was depleted, at the very
least, by 99 days and, more likely, a longer period.
Since Petitioner admitted using 32 days of his one-year
ARDPA period before filing his PCR application with the Law
Division and, in addition, using 332 days of his one-year ARDPA
5

period after completing his PCR process but before filing his
Petition at bar, the sum of these two periods already yielded 364
days.

With the above-detailed “at-least-99-days” period added to

these 364 days, the total would render the Petition untimely by,
at the very least, 98 days, i.e., by more than three months.
Hence, unless Petitioner qualifies for equitable tolling,
his Petition should be dismissed as untimely.
equitable tolling argument is unavailing.

Here, Petitioner’s

As the court in

Webster v. Ricci, 2013 U.S. Dist. LEXIS 88945 (D.N.J. June 25,
2013), pointed out:
Here, Petitioner was . . . appraised of every
development that took place in his PCR actions, and his
submissions verify that he was well aware of all filing
deadlines ensuing from the operations of the state law
and of his obligation to perfect each of his state
court submissions. Analogously, he was well aware
about the one-year AEDPA period governing the Petition
at bar. Moreover, had he had any doubts, he could have
commenced a Section 2254 proceeding . . . years ago to
obtain stay and abeyance of his federal petition [so
to] preserve his right to seek federal habeas review
[when] his PCR proceedings completed. See Rhines v.
Weber, 544 U.S. 269 (2005). He also could have filed a
“protective” petition setting forth just some claims,
see Pace[ v. DiGuglielmo], 544 U.S. [408,] 416
[(2005)], and take advantage of the holding of Mason v.
Meyers, 208 F.3d 414 (2000), that allows a § 2254
litigant both an opportunity and the time to withdraw
such “protective” petition and file an all-inclusive
petition in its place. He elected to do nothing.
Id. at *45-46 (denying equitable tolling and citing Munchinski v.
Wilson, 694 F.3d 308, 331 (3d Cir. 2012), for the observation

6

that (a litigant shall not be rewarded for “seeping on his
rights”).
Moreover, the gap-time between Petitioner’s completion of
his PCR process and filing of the Petition at bar is crucial for
the purposes of this Court’s analysis.
[C]rucially here, having his application for
certification as to his . . . PCR application denied by
the Supreme Court of New Jersey, he elected to sit on
his rights for eleven months [more] . . . . Such
conduct presents a striking contrast to that examined
in Holland and Jenkins, where litigants who had no
information about the decisions reached by the state
courts, filed their federal habeas petitions either on
the very day they learned about the outcome of their
state actions or just a few days later . . . . Here,
in light of Petitioner's blatant disregard for the
consequences of his systemic and wilful laxness, this
Court is constrained to deny him equitable tolling. .
. .
Id., aff’d Webster, 2013 U.S. App. LEXIS 25719, at *1
(“[Petitioner] waited 11 months . . . before filing his § 2254
petition”).
This Court is presented with a scenario indistinguishable
from that in Webster.

When Petitioner completed his PCR process,

he well knew that his § 2254 Petition was in danger of becoming
untimely, even though he was still well within his AEDPA period.
And yet he waited more than ten months to file it.

He did not

file a “protective” application, nor did he seek a stay during
his PCR process.

Nor did he not submit a preliminary petition.

He now comes before this Court arguing that this over-tenmonths delay should be overlooked, and his failure to meet the
7

deadline should be blamed on the fact that the Office of Public
Defender was, allegedly, experiencing a high caseload in mid2009.

Petitioner’s position is half-hearted at best and fails to

merit equitable tolling.

“Finding otherwise would make a mockery

of those litigants who did and do go through the very same state
court process and yet meet their deadlines or act with utmost
diligence and promptness when faced with [truly] extraordinary
circumstances in order to ensure the availability of substantive
federal habeas review.”

Webster, 2013 U.S. Dist. LEXIS 88945, at

*46.
For the above reasons, the Court will grant Petitioner’s
motion for reconsideration is form and deny it is substance.

See

Pena-Ruiz v. Solorzano, 281 F. App'x 110, n.1 (3d Cir. 2008) (a
motion for reconsideration is deemed “granted” when the court
addresses the merits of that motion; however, the court may reach
a disposition identical, either in its rationale or in its
outcome, or in both regards, to the one previously reached).
In conjunction with the foregoing, the Court is obligated to
determine whether a certificate of appealability (“COA”) shall
issue.

A COA shall 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
8

jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.”
Cockrell, 537 U.S. 322 (2003).

Miller-El v.

“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.”
(2000).

Slack v. McDaniel, 529 U.S. 473, 484

Here, jurists of reason would not find it debatable that

this Court was correct in its finding that the Petition is
untimely.

Accordingly, no COA will issue.

An appropriate Order accompanies this Opinion.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 7, 2014

9