GONZALEZ v. RODRIGUEZ
Filing
2
OPINION. Signed by Judge Renee Marie Bumb on 12/11/2013. (nz, )n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________________
:
CARLOS GONZALEZ,
:
: Civil Action No. 13-6919 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
JAVIER D. RODRIGUEZ,
:
:
Respondent.
:
_______________________________________
:
This matter comes before the Court upon Petitioner’s § 2254
petition, see Docket Entry No. 1, which arrived accompanied by
his in forma pauperis application.
See Docket Entry No. 1-1.
Petitioner is a state inmate currently confined at the
Institution Ponce Main, Ponse, Puerto Rico.
See generally,
Docket; see also https://www6.state.nj.us/DOC_Inmate/details?x
=1375405&n=0 (web-page of New Jersey Department of Corrections
indicating that Petitioner is confined in Puerto Rico pursuant to
the Interstate Corrections Compact that authorizes the transfer
of one State’s prisoner to another State’s prison); accord N.J.
Stat. Ann. 30:7C-1 through -12.
Petitioner is challenging his conviction rendered in 2007 by
the Superior Court of New Jersey, Law Division.
No. 1, at 1.
See Docket Entry
Specifically, in November 1996, that is, more than
a decade prior to his conviction, Petitioner was indicted on
fourteen different offenses that included burglary, robbery,
kidnapping, numerous sexual offenses, multiple weapon offenses
and child endangerment.
See id. at 18-19. Upon the entry of that
indictment, he fled New Jersey, and a bench warrant was issued.
See id. at 19.
He was located in Puerto Rico in 2006, where he
was “serving a prison sentence for an unrelated crime.”
Id.
Upon that development, Petitioner was extradited to New Jersey
and, in March 2007, entered a plea agreement.
See id.
Under the
agreement, he pled guilty only to burglary; all other counts were
dismissed.
See id.
Petitioner was sentenced on April 15, 2007.1
No direct appellate proceedings followed.
On September 17, 2008, Petitioner filed an application for
post-conviction relief (“PCR”); it was perfected on November 28,
2008.
See id. at 20.
He asserted ineffective assistance of
counsel but “failed to set forth any affidavits or certifications
supporting his allegations.”
Id. at 20-21 (reflecting his claim
that the results of a certain DNA test were concealed from him).
The Law Division denied him PCR on the ground that any attack on
his plea should have been raised in a direct appeal and also on
the grounds that: (a) his position lacked a factual predicate and
rested solely on his “naked” bald conclusions; and (b) no DNA
evidence could have aided him with regard to the burglary charge
1
Pursuant to the plea, he is serving a nine-year term
concurrent to his other sentence (which he was facing after a
trial on yet another offense) but consecutively to the term he
had been serving in Puerto Rico. See Docket Entry No. 1, at 19.
2
underlying his conviction.2
Id. at 21-23.
Petitioner appealed,
and the Appellate Division affirmed observing that, “prior to the
trial judge acceptance of the plea, [Petitioner] testified that
his plea was voluntary and he was satisfied with [his] counsel.”
See id. at 27.
On December 13, 2012, the Supreme Court of New
Jersey denied him certification.
See id. at 28.
bar followed, being executed on November 6, 2013.
The Petition at
See id. at 15.
It recited the DNA allegations, asserted a panoply of challenges
to the conduct of prosecutor and numerous challenges to the
conduct of trial counsel, “pre-trial” and “during trial,” as well
as claims against appellate counsel.
See generally id. at 5-16.
The Petition suffers of numerous facial deficiencies.3
2
In other words, because all charges alleging sexual
offenses (that might have been affected by a DNA analysis) were
dismissed, Petitioner’s references to DNA were inapposite to his
legal position. Moreover, he conceded being aware of the DNA
results prior to taking his plea: he only claimed “he did not
receive a written copy of the results.” Docket Entry No. 1, at
27. The state courts noted that he “fail[ed] to explain why the
absence of a written copy of the DNA results adversely affected
his decision to plead guilty to the burglary charges.” Id.
3
For instance, Petitioner’s challenges had to be limited
only to those duly exhausted claims that assert the invalidity of
his plea. In Tollett v. Henderson, 411 U.S. 258, 268 (1973), the
Supreme Court held that a defendant who pleads guilty upon the
advice of counsel “may only attack the voluntary and intelligent
character of the guilty plea by showing that the advice [s]he
received from counsel was not within the [constitutionally
guaranteed] standards.” In Hill v. Lockhart, 474 U.S. 52, 60
(1985), the Court held that there is no prejudice under
Strickland v. Washington, 466 U.S. 668 (1984), unless the
petitioner asserts facts showing that “there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill,
3
The threshold deficiency is untimeliness.
On April 24,
1996, Congress enacted Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), which provides that “[a] 1-year period of
limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court.”
28 U.S.C. § 2244(d)(1).
The limitations period starts
to run from “the date on which the judgment became final.”
U.S.C. § 2244(d)(1).
28
A state-court criminal judgment becomes
“final” upon conclusion of direct review or at the expiration of
time to seek such review.
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).
Here, Petitioner’s judgment of conviction finalized when his
time to file direct appeal expired, that is, forty-five days from
474 U.S. at 59. None of Petitioner’s allegations here or raised
during his PCR proceedings asserted such facts. See generally,
Docket Entry No. 1. Thus, Petitioner’s § 2254 claims are barred
by his plea and/or unexhausted. Further, under § 2254(e)(1), a
federal court is required to presume that a state court’s
findings of fact are correct ; this presumption of correctness
applies to explicit and implicit findings of fact. See Campbell
v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). A petitioner may
rebut this only by producing clear and convincing evidence of the
state court’s error. See Miller-El v. Cockrell, 537 U.S. 322,
341 (2003); Thomas v. Varner, 428 F.3d 491, 497-98 (3d Cir.
2005). Thus, a habeas petitioner “must clear a high hurdle before
a federal court will set aside any of the state court’s factual
findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir.
2001). Here, the state courts found Petitioner’s allegations
factless. He, therefore, had to produce “clear and convincing
evidence” showing those findings were false. He, however, raised
only self-serving, conclusory statements that cannot qualify as
“clear and convincing evidence” or evidence at all.
4
April 15, 2007, i.e., on May 30, 2007.4
Thus, his one-year
period of limitations began to run on that date and expired on
May 29, 2008: more than three-and-a-half months prior to
Petitioner’s filing his PCR notice and five and a half years
prior to his filing of the Petition at bar.5
4
Pursuant to New Jersey Court Rule 2:4-1(a), the time for
filing a notice of appeal is forty five days.
5
An inmate’s trial-level PCR application and his appellate
PCR applications may have a statutory tolling effect only if, in
addition to being timely for the purposes of the AEDPA analysis,
they are timely and duly perfected under the state court rules.
See Artuz v. Bennett, 531 U.S. 4, 8-9 (2000); see also Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80 (3d Cir. 2013);
Webster v. Ricci, 2013 U.S. Dist. LEXIS 88945, at *15-17 and nn.
13-15 (D.N.J. June 25, 2013) (detailing the Jenkins rule as
applied to the § 2254 claims raised by New Jersey state
prisoners), certif. denied, Webster v. Ricci, USCA No. 1-3381 (3d
Cir.), Docket Entry dated Oct. 25, 2013 (affirming application of
the proper perfection rule and quoting Evans v. Chavis, 546 U.S.
189, 191 (2006)). Since Petitioner’s PCR was perfected only in
November 2008, it was not properly pending between September 17,
2008, and the date of perfection. Analogously, if Petitioner’s
PCR appeals to the Appellate Division and/or the Supreme Court of
New Jersey were filed out of time and entertained nunc pro tunc,
those applications were not properly pending until the nunc pro
tunc orders were entered. However, since the Petition at bar is
out of time by more than just a handful of days, the analysis of
whether Petitioner’s PCR application and appeals were properly
pending at all times when they were on file with the state courts
is unnecessary at this juncture. Thus, the Court presumes,
without making a factual finding and solely for the purposes of
this Opinion and accompanying Order, that all Petitioner’s PCR
submissions were properly pending under the state rules at all
times when they were on file. Analogously, while this Court does
not know the exact date when Petitioner handed the Petition at
bar to his prison officials for mailing to the Court, the Court
presumes, without making a factual finding and solely for the
purposes of this Opinion and accompanying Order, that it was done
on the date when Petitioner executed his Petition.
5
Correspondingly, Petitioner’s filing of his PCR application
could not have triggered the statutory tolling.
See Long v.
Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004); Schlueter v. Varner,
384 F.3d 69, 78-79 (3d Cir. 2004).
Thus, unless Petitioner
qualifies for equitable tolling, his Petition is untimely.
See
Holland v. Florida, 130 S. Ct. 2549 (2010); Miller v. N.J. State
Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998).
“A litigant seeking equitable tolling bears the burden of
establishing two elements: (a) that he has been pursuing his
rights diligently, and (b) that some extraordinary circumstance
stood in his way.”
Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005); accord Holland, 130 S. Ct. 2549.
Thus, even a litigant’s
excusable neglect cannot trigger equitable tolling.
See Merritt
v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003); Jones v. Morton, 195
F.3d 153, 159 (3d Cir. 1999).
Rather, equitable tolling could be
triggered only when “the principles of equity would make the
rigid application of a limitation period unfair, such as when a
state prisoner faces extraordinary circumstances that prevent him
from filing a timely habeas petition and the prisoner has
exercised reasonable diligence in attempting to investigate and
bring his claims.”
LaCava v. Kyler, 398 F.3d 271, 275-276 (3d
Cir. 2005); see also Holland, 130 S. Ct. at 2562 (relying on
Pace, 544 U.S. at 418).
Moreover, even where extraordinary
circumstances do exist, “if the person seeking equitable tolling
6
has not exercised reasonable diligence in attempting to file
after the extraordinary circumstances began, the link of
causation between the extraordinary circumstances and the failure
to file is broken, and the extraordinary circumstances therefore
did not prevent timely filing.”
Brown v. Shannon, 322 F.3d 768,
773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d 129,
134 (2d Cir. 2000)).
Here, after Petitioner’s AEDPA period expired on May 29,
2008, he kept actively litigating in state fora, but did not file
a § 2254 application for five and a half years.6
In fact, even
after the Supreme Court of New Jersey denied him certification as
to his PCR application, he still waited almost eleven months to
file the Petition at bar.
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, and
who met each of their state law filing deadlines and
even perfected their abandoned-by-counsel state court
applications in less than two weeks. 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.
6
Had Petitioner had any doubts, he could have commenced a
§ 2254 proceeding five years ago so to obtain stay and abeyance
of his federal petition at the time when he was contemplating and
then litigating his PCR applications. See Rhines v. Weber, 544
U.S. 269 (2005); accord Pace, 544 U.S. at 416.
7
Webster v. Ricci, 2013 U.S. Dist. LEXIS 88945, at *45-46
(D.N.J.
June 25, 2013) (citing Munchinski v. Wilson, 694 F.3d 308, 331
(3d Cir. 2012), for the observation that a litigant shall not be
rewarded for “sleeping on his rights” and noting that “[f]inding
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 extraordinary circumstances in order to ensure the
availability of substantive federal habeas review”).
Since no equitable tolling appears warranted in this matter,
the Petition should be dismissed for failure to meet the AEDPA
statute of limitations requirements.
However, being mindful of
the Court of Appeals’ guidance that district courts may sua
sponte raise AEDPA’s one-year statute of limitations, provided
that the petitioner is provided with notice and an opportunity to
respond, see United States v. Bendolph, 409 F.3d 155, 169 (3d
Cir. 2005) (en banc), the Court will retain jurisdiction over
this matter for sixty days in order to allow Petitioner an
opportunity to state his grounds for equitable tolling, if any,
unaddressed in this Opinion.
Finally, the Court is obligated to determine whether the
Petition, as filed, warrants issuance of a certificate of
appealability (“COA”).
Pursuant to 28 U.S.C. § 2253(c), unless a
circuit justice or judge issues a COA, an appeal may not be taken
8
from a final order in a proceeding under 28 U.S.C. § 2254.
A COA
may issue only if the is a substantial showing of the denial of a
constitutional right.
See 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, 537 U.S. 322.
“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.”
473, 484 (2000).
Slack v. McDaniel, 529 U.S.
Here, jurists of reason would not find the
procedural disposition of this Court debatable.
Accordingly, no
COA will issue.
For the foregoing reasons, the Petition will be dismissed as
untimely.
No certificate of appealability will issue.
The Court
will retain temporary jurisdiction over this matter to allow
Petitioner an opportunity to inform the Court of the Petitioner’s
extraordinary circumstances, if any, warranting equitable tolling
in light of the guidance provided to him herein.
9
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB,
United States District Judge
Dated: December 11, 2013
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?