MARQUEZ v. SANTIAGO et al
Filing
19
OPINION FILED. Signed by Judge Noel L. Hillman on 6/6/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGELO MARQUEZ,
Civil No. 13-3926 (NLH)
Petitioner,
OPINION
v.
ANGEL L. SANTIAGO, et al.,
Respondents.
APPEARANCES:
ANGELO MARQUEZ, #856741B
Adult Diagnostic & Treatment Center
8 Production Way, 7-L
Avenel, NJ 07001-1660
Attorney for Petitioner
ROBIN A. HAMETT, Assistant Prosecutor
CAMDEN COUNTY PROSECUTOR
25 North Fifth Street
Camden, NJ 08102
Attorneys for Respondents
HILLMAN, District Judge:
Angelo Marquez filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging a judgment of conviction
filed in the Superior Court of New Jersey, Camden County, on
September 28, 2001, imposing a 24-year term of incarceration
with 12 years of parole ineligibility, after a jury found him
guilty of several charges.
The State filed an Answer.
Although
given an opportunity to do so, Marquez did not file a reply.
After carefully reviewing the arguments of the parties and the
electronically available opinions and orders of the New Jersey
courts, this Court will dismiss the Petition with prejudice as
untimely and deny a certificate of appealability.
I.
A.
BACKGROUND
The Crime
Marquez challenges an aggregate sentence of 24 years in
prison with 12 years of parole ineligibility, imposed after a
jury convicted him of three counts of first-degree aggravated
sexual assault on M.O. (a child), one count of second-degree
sexual assault, and one count of third-degree child endangering.
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), state court factual findings are presumed correct
unless rebutted by clear and convincing evidence.
§ 2254(e)(1).
See 28 U.S.C.
As Marquez has not rebutted the factual findings
of the Appellate Division, this Court will rely on those
findings.
The Appellate Division found on direct appeal that Marquez
sexually molested M.O., the daughter of his girlfriend, from the
time she was 10 years old in 1992 until she ran away at age 16.
See State v. Marquez, Docket No. A-4078-01T4 sl. opinion (N.J.
Super. Ct., App. Div., Feb. 24, 2004) (ECF No. 1 at 13-18).
molestation, which occurred about once or twice a month,
involved fondling and intercourse.
2
Id.
The
B.
The State Court Proceedings1
As explained above, on June 7, 2001, a jury convicted
Marquez of three counts of first-degree aggravated sexual
assault, one count of second-degree sexual assault, and one
count of third-degree child endangering.
On September 28, 2001,
the trial judge sentenced Marquez to an aggregate term of 24
years in prison, with 12 years of parole ineligibility.
Marquez appealed.
On February 24, 2004, the Appellate Division
of the Superior Court of New Jersey affirmed.
13.)
(ECF No. 1 at
On May 21, 2004, the Supreme Court of New Jersey denied
certification on direct appeal.
See State v. Marquez, 180 N.J.
357 (2004) (table).
1
Although this Court ordered Respondents on September 22, 2014,
to file a hard copy of the state court record under seal, and
Respondents electronically filed the Answer under seal on
September 30, 2014, the docket contains no indication that the
Clerk received the record and, after a diligent search, the
Clerk has not been able to locate a hard copy of the state court
record. At this time, however, the Court sees no reason to
require Respondents to electronically file the record under
seal. Respondents argue in the Answer that the Petition is time
barred. Because the relevant opinions and orders issued by the
Appellate Division and the New Jersey Supreme Court, which are
electronically available on WestlawNext, establish that the
Petition is time barred, this Court does not need the remainder
of the record to find that the Petition is barred by the statute
of limitations. See, infra at 11.
3
On June 29, 2005, Marquez filed his first petition for
post-conviction relief, which raised ineffective assistance of
counsel claims, in the trial court.
Ans., ECF No. 18 at 4.)
(Petition, ECF No. 1 at 4;
The trial court denied relief without
conducting an evidentiary hearing on February 16, 2007. See
State v. Marquez, 2012 WL 876789 at *1 (N.J. Super. Ct., App.
Div., Mar. 16, 2012).
Marquez appealed, and on May 26, 2009,
the Appellate Division affirmed.
Id.
The Supreme Court of New
Jersey denied certification on September 11, 2009.
See State v.
Marquez, 200 N.J. 370 (2009) (table).
Marquez filed his second petition for post-conviction
relief, again arguing ineffective assistance of counsel, in the
trial court on December 8, 2009.
876789 at *1.
See State v. Marquez, 2012 WL
The trial court denied the second petition in May
2010 on procedural grounds, based on new N.J. Rules 3:22-4(b)
and 3:22-12(a)(2) (effective February 1, 2010). Id.
Marquez
appealed, arguing that because the rules relied on by the trial
court did not go into effect until two months after he filed his
petition, they could not be applied to bar his post-conviction
relief petition.
On March 16, 2012, assuming that his position
was correct, the Appellate Division applied the predecessor rule
and held that the second post-conviction relief petition was
4
time barred because Marquez did not file it within five years
after sentencing and he failed to show excusable neglect for the
three-year filing delay.
Id.
On May 15, 2013, the Supreme
Court of New Jersey denied certification. See State v. Marquez,
213 N.J. 538 (2013) (table).
C.
Procedural History of § 2254 Petition
On June 3, 2013, Marquez signed his § 2254 Petition and
handed it to prison officials for mailing to the Clerk.
No. 1 at 11.)
(ECF
The Petition raises the following grounds for
relief:
Ground One: DEFENDANT’S CONVICTIONS MUST BE REVERSED
DUE TO TRIAL COUNSEL’S FAILURE TO OBJECT TO THE
PROSECUTOR’S IMPROPER REMARKS.
Ground Two: THE RETROACTIVE APPLICATION OF NEW JERSEY
COURT RULES 3:22-12(a) AND 3:22-4(b) IMPOSED AN
INJUSTICE ON THE DEFENDANT BY CAUSING THE DENIAL OF
HIS SECOND OR SUBSEQUENT PCR.
(Petition, ECF No. 1 at 6, 8.)
The State filed an Answer arguing that the § 2254 Petition
is time barred and that Marquez is not entitled to relief on the
merits.
(ECF No. 18.)
Although the Order to answer gave
Marquez time and opportunity to file a reply, he did not do so.
II.
STATUTE OF LIMITATIONS
The State argues that the § 2254 Petition is barred by the
Anti-Terrorism and Effective Death Penalty Act’s (“AEDPA”) 3655
day statute of limitations because Marquez did not file it
within 365 days of the date on which his conviction became
final.
The AEDPA provides:
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to a 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 . . . .
28 U.S.C. § 2244(d)(1).
Section 2244(d)(2) tolls the limitations period for the
“time during which a properly filed application for State postconviction or other collateral review with respect to the
pertinent judgment or claim is pending[.]”
2244(d)(2).
28 U.S.C. §
An application is “filed” when it “is delivered to,
and accepted by, the appropriate court officer for placement
6
into the official record.”
(2000) (citations omitted).
Artuz v. Bennett, 531 U.S. 4, 8
An application is properly filed
“when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Id. at 8-9
(citations omitted).
A.
Calculation of the Statute of Limitations
In this case, the statute of limitations is governed by §
2244(d)(1)(A).
The New Jersey Supreme Court denied
certification on direct review on May 21, 2004, see State v.
Marquez, 180 N.J. 357 (2004) (table), and the time for Marquez
to file a petition for certiorari in the United States Supreme
Court expired 91 days later on August 20, 2004.
See Gonzalez v.
Thaler, 132 S.Ct. 641, 653-54 (2012); Wali v. Kholi, 131 S. Ct.
1278, 1282 (2011); Lawrence v. Florida, 549 U.S. 327, 332-333
(2007); Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003).
The limitations period began the next day, August 21, 2004, and
ran for 313 days until Marquez filed his first petition for
post-conviction relief on June 29, 2005.
The limitations period was statutorily tolled, see 28
U.S.C. § 2244(d)(2), from June 29, 2005 (the date on which
Marquez filed his first petition for post-conviction relief),
until September 11, 2009 (the date on which the Supreme Court of
7
New Jersey denied certification on that petition).
Marquez, 200 N.J. 370 (2009) (table).
See State v.
The limitations period
began to run again on September 12, 2009 (the day after the
Supreme Court of New Jersey denied certification on the first
post-conviction relief petition), at day 314 and ran for the
next 51 days until it expired on Monday, November 2, 2009.
Although Marquez’s second petition for post-conviction
relief was pending from December 8, 2009 (filing date), through
May 15, 2013 (date on which Supreme Court of New Jersey denied
certification), see State v. Marquez, 213 N.J. 538 (2013)
(table), there are two reasons why this second post-conviction
relief petition did not toll the statute of limitations under §
2244(d)(2).
First, the second petition did not trigger
statutory tolling because the 365-day statute of limitations
expired on November 2, 2009, a month before Marquez filed the
second post-conviction relief petition on December 8, 2009.2
Second, the Appellate Division held that the second
petition was time barred under New Jersey law, see State v.
2
See Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004) (state
post-conviction review petition had no effect on tolling because
the limitations period had already run when it was filed);
Schlueter v. Varner, 384 F.3d 69, 78-79 (3d Cir. 2004) (same).
8
Marquez, 2012 WL 876789 at *2, and a petition for state postconviction relief that was rejected by the state courts as
untimely does not toll the limitations period because it is not
“properly filed” within the meaning of § 2244(d)(2). See Allen
v. Siebert, 552 U.S. 3 (2007); Pace v. DiGuglielmo, 544 U.S. 408
(2005).
Because Marquez did not file his § 2254 Petition in this
Court until June 3, 2013, which was 1,310 days after the statute
of limitations expired on November 2, 2009, the § 2254 Petition
is untimely unless Marquez is entitled to equitable tolling.
B.
Equitable Tolling and Actual Innocence Exception
The one year statute of limitations is subject to equitable
tolling.
See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013);
Holland v. Florida, 560 U.S. 631, 645 (2010); Ross v. Varano,
712 F.3d 784, 798-800 (3d Cir. 2013).
A court extends the
remedy of equitable tolling “sparingly,” when “principles of
equity would make the rigid application of a limitation period
unfair.”
Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 89 (3d Cir. 2013) (citations and internal quotation
marks omitted).
A habeas “’petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
9
stood in his way and prevented timely filing.’” McQuiggin, 133
S.Ct. at 1931 (quoting Holland, 560 U.S. at 649) (internal
quotation marks omitted).
A court must “exercise judgment in
light of prior precedent, but with awareness of the fact that
specific circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case.” Holland, 560
U.S. at 650.
Although “a garden variety claim of excusable neglect, such
as a simple miscalculation that leads a lawyer to miss a filing
deadline, does not warrant equitable tolling,” Holland, 569 U.S.
at 652 (citations and internal quotation marks omitted),
extraordinary circumstances may be found “for ‘serious instances
of attorney misconduct.’” Christenson v. Roper, 135 S.Ct. 891,
894 (2015) (quoting Holland, 560 U.S. at 651-52).
Other
potentially extraordinary situations may be found on the basis
of the petitioner’s “inability to read or understand English,
combined with denial of access to translation or legal
assistance,” Pabon v. Mahanoy, 654 F.3d 385, 400 (3d Cir. 2011),
and “where a court has misled a party regarding the steps that
the party needs to take to preserve a claim.” Munchinski v.
Wilson, 694 F.3d 308, 329-330 (3d Cir. 2012)(quoting Brinson v.
Vaughn, 398 F.3d 225, 230 (3d Cir. 2005)).
10
In this case, Marquez does not argue that extraordinary
circumstances prevented timely filing of his § 2254 Petition.
Nor does he maintain that he pursued his rights diligently.
This Court discerns no extraordinary circumstance warranting
equitable tolling of the statute of limitations and sees no
support for a finding that Marquez was diligent in pursuing his
rights.
Although “actual innocence, if proved, serves as a
gateway through which a petitioner may pass whether the
impediment is a procedural bar . . . or . . . expiration of the
statute of limitations,” McQuiggin, 133 S.Ct. at 1928, nothing
before this Court indicates that Marquez is actually innocent.3
To summarize, Marquez filed his § 2254 Petition 1,310 days
after the 365-day statute of limitations expired and he has not
shown that the actual innocence exception applies or that he
diligently pursued his rights but was prevented by extraordinary
circumstances from timely filing his § 2254 Petition. See
Holland, 560 U.S. at 649.
Accordingly, this Court will dismiss
the Petition as time barred.
3
“To invoke the miscarriage of justice exception to AEDPA’s
statute of limitations . . , a petitioner ‘must show that it is
more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.’” McQuiggin,
133 S.Ct. at 1928 (quoting Schlup, 513 U.S. at 327).
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III.
CERTIFICATE OF APPEALABILITY
The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding
unless a judge issues a certificate of appealability on the
ground that “the applicant has made a substantial showing of the
denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
This Court denies a certificate of appealability because jurists
of reason would not find it debatable that dismissal of the
Petition as time barred is correct.
See Slack v. McDaniel, 529
U.S. 473, 484 (2000).
IV.
CONCLUSION
This Court will dismiss the Petition with prejudice and
deny a certificate of appealability.
An appropriate Order
accompanies this Opinion.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
June 6, 2016
At Camden, New Jersey
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