HIGHSMITH v. D'ILIO
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NOT FOR PUBLICATION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
_______________________________________
:
JAIRE HIGHSMITH,
:
: Civil Action No. 13-7139 (RMB)
Petitioner,
:
:
v.
:
OPINION
:
STEPHEN D'ILIO,
:
:
Respondent.
:
_______________________________________
:
This matter comes before the Court upon Petitioner’s § 2254
petition (“Petition”), see Docket Entry No. 1, which arrived
accompanied by his statement that he is not seeking in forma
pauperis status and will pay the $5.00 fee applicable to habeas
matters as soon as his next month funds are posted.
Id. at 1.
Petitioner is a state inmate currently confined at the New
Jersey State Prison.
He is challenging his December 6, 2002,
conviction rendered by the Superior Court of New Jersey, Law
Division, Camden County.
1
See id. at 4.1
Petitioner was indicted on murder, possession of a weapon
and hindering apprehension charges. See State v. Highsmith, 2013
WL 57706, at *1 (N.J. Super. Ct. App. Div. Jan. 7, 2013). He took
a guilty plea on an amended charge of aggravated manslaughter and
was sentenced, under the plea agreement, to a thirty-year prison
term, with eighty-five percent parole ineligibility pursuant to
N.J. Stat. Ann. 2C:43–7.2(a). See id. He was later re-sentenced
to the same term after the Appellate Division’s remand under the
then-recent State v. Natale, 184 N.J. 458 (2005), holding. Being
so re-sentenced, he appealed his sentence as excessive, and had
his re-imposed sentence affirmed by the Appellate Division on
September 17, 2007. See id.
Having his sentence affirmed by the Appellate Division, he
did not seek certification from the Supreme Court of New Jersey.
See id. at 6.
He did not seek certiorari from the Supreme Court
of the United States.
See id.
Rather, on January 22, 2009, he submitted his application
for post-conviction relief (“PCR”) raising numerous challenges
unrelated to his plea.
See id. at 7 and 22.
The Law Division
denied Petitioner’s PCR application as time-barred under the
state law.
See Highsmith, 2013 WL 57706, at *1 (“Following oral
argument, the trial court denied [Petitioner’s] PCR petition . .
. finding it time-barred [since it] was filed more than six years
after his sentence, or one year beyond the five-year deadline
found in the [applicable state law] rule.
The [trial] judge
[also] found that no manifest injustice resulted from the entry
of the plea, as it “was a strategic decision made by [Petitioner]
in the face of the allegation of 72 stabbings and the throat
slitting.
It saved him from a life sentence”).
Petitioner
appealed, and the Appellate Division affirmed, also finding his
PCR application untimely.
See id. at 2. (“[Petitioner] does not
explain the reason for his silence for ‘more than five years
after the date of entry of the judgment of conviction that is
being challenged.’
This omission means that . . . the trial
judge’s conclusion that the petition was time-barred is
unassailable”) (original ellipsis omitted).
2
Therefore, the Appellate Division dismissed Petitioner’s PCR
appeal noting, inter alia, that “[w]ithout any justification for
this extensive delay, no finding can be made [that Petitioner’s]
failure to pursue legal recourse constitutes excusable neglect.”
Id.
Petitioner sought certification from the Supreme Court of
New Jersey, and had his application to that effect denied on July
12, 2012.
See Docket Entry No. 1, at 23; State v. Highsmith, 214
N.J. 175 (2013).
On November 8, 2013, Petitioner executed the
Petition at bar, see Docket Entry No. 1, at 25, and it was
received by the Clerk on November 15, 2013.
See Docket Sheet.2
Being, apparently, well aware of the timeliness concerns his
Petition is likely to bring about, Petitioner dedicated five
pages of his Petition to a lengthy argument that the Petition
should be deemed timely.
See Docket Entry No. 1, at 21-25.
However, in these five pages, he merely recited the information
summarized supra and asserted that the original attorney
2
Puzzlingly, Petitioner asserted that he handed his
Petition to his prison officials for mailing to this Court on
September 30, 2013, see Docket Entry No. 1, at 23, that is, eight
days prior to him signing the Petition. Because Petitioner could
not have signed his Petition more than a week after he no longer
possessed it, it is self-evident that he handed his Petition to
his prison officials for mailing to this Court no sooner than on
November 8, 2013, and perhaps later in light of the Clerk’s
receipt of the same on November 15, 2013. Granting Petitioner
benefit of the doubt, the Court will presume that Petitioner
handed his Petition to his prison officials for mailing to this
Court on November 8, 2013. (The distinction between September
30, 2013, and November 8, 2013, is neither dispositive nor has
any material effect for the purposes of the Court’s legal
analysis.
3
representing him on direct appeal before the Appellate Division
passed away in the midst of said appeal, promoting the Appellate
Division to entertain his renewed direct appellate challenges
nunc pro tunc and grant him relief in the form of a directive to
re-sentence under Natale, 184 N.J. 458.
See id. at 21.
Paramount here, Petitioner conceded – in his discussion of
the timeliness concerns – that his federal habeas period of
limitations was triggered on October 9, 2007, and “expired on
October 8, 2008 [that is, more than three-and-a-half months prior
to] January 29, 2009, [i.e., the date when] Petitioner filed his
[pro se] application for post-conviction relief.”
(emphasis supplied).3
Id. at 23
Yet, this concession notwithstanding, he
still asserted that his Petition at bar must be deemed timely4
3
No statement in Petitioner’s lengthy discussion of the
timeliness concerns associated with his Petition asserted or even
attempted to assert no justification for the gap-time following
the expiration of Petitioner’s federal habeas limitations period.
4
Correspondingly, the Petition offered this Court a
panoply of challenges to his conviction and sentence, none of
which implicated Petitioner’s plea. However, since Petitioner
accepted a plea, his 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, 474 U.S. at 59. None of
4
simply because, having the Supreme Court of New Jersey deny him
certification on July 12, 2013, Petitioner waited only “80 days”
until he allegedly submitted his Petition to his prison officials
on September 30, 2013 (that is, eight days prior to him signing
this Petition). Id. at 24.
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.”
28 U.S.C. § 2244(d)(1).
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 seek certification from the Supreme Court of New Jersey
expired after the Appellate Division affirmed his re-sentencing,
Petitioner’s allegations here or raised during his PCR
proceedings asserted such facts. See generally, Docket Entry No.
1. Thus, all Petitioner’s challenges fall outside the scope of
federal habeas review and, in addition, are facially unexhausted.
However, since – as detailed infra – the Petition is untimely on
the facts conceded by Petitioner – this Court need not reach the
issues of exhaustion or substantive invalidity of his challenges.
5
that is, twenty days from the date of the Appellate Division’s
ruling, see N.J. Ct. R. 2:12-3, i.e., on October 3, 2007 (which
six days prior to the October 9, 2007, date calculated by
Petitioner without explaining the basis for his calculations).
Thus, his one-year AEDPA-based period of limitations began to run
on that October 3, 2007, date and expired on October 2, 2008,
i.e., more than three-and-a-half months prior to Petitioner’s
filing his pro se PCR notice and more than five years prior to
his filing of the Petition at bar.
Since Petitioner filed his PCR notice after his AEDPA period
had already run, Petitioner’s filing of this PCR notice could not
have triggered the statutory tolling; this would be so even if
that PCR notice was timely under the state rules.
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).
A fortiori, Petitioner’s PCR
applications dismissed by the state courts as untimely could not
have had any statutory tolling effect, even during the period
when the state courts were having it on their dockets and ruling
upon it.
See Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (An
inmate’s trial-level PCR application may have a statutory tolling
effect only if, in addition to being timely for the purposes of
the AEDPA analysis, it is timely and duly perfected under the
state court rules); see also Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80 (3d Cir. 2013); Webster v. Ricci, 2013
6
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)).
Thus, unless Petitioner qualifies for equitable tolling, his
Petition is untimely by more than five years.5
“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, unlike in state
fora, a litigant’s excusable neglect is insufficient to trigger
equitable tolling for the purposes of federal habeas review.
See
Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003); Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Rather, federal
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
5
See Holland v. Florida, 130 S. Ct. 2549 (2010), and
Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.
1998), for a general discussion of equities.
7
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 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 October 2,
2008, he kept actively litigating in state fora, but did not file
a § 2254 application for more than five years.6
Moreover, his
pre-October 2, 2008, period was already expressly found by the
state courts not amenable to even an excusable-neglect-based
tolling.
Correspondingly, his delay in filing cannot be
justified under the federal precedent extracting a much steeper
standard.
Finally, even after the Supreme Court of New Jersey
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.
8
denied him certification as to his PCR application, Petitioner
still waited three months to file the Petition at bar and then,
in an effort to justify his lengthy delay, offered the Court an
assertion that he submitted his Petition eight days prior to the
date when he signed it.
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.
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 is applicable to this matter, the
Petition should be dismissed for failure to meet the AEDPA
9
statute of limitations requirements.7
In conjunction with making
such finding, 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 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.”
U.S. 322.
Miller-El, 537
“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
7
While mindful of the Court of Appeals’ guidance that
district courts may sua sponte raise AEDPA’s one-year statute of
limitations only if the petitioner is provided with an
opportunity to reflect on that issue, see United States v.
Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc), this Court
finds it unwarranted to issue Petitioner an order to show cause:
the five pages in his Petition, dedicated to discussion of the
timeliness aspect, unambiguously indicate that Petitioner has
sufficiently reflected on this issue and cannot offer this Court
any facts warranting equitable tolling. Therefore, the Court
will dispense with a facially superfluous here Bendolph notice,
and will dismiss the Petition as untimely.
10
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, 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.
Petitioner will be directed to submit his $5.00 filing fee.8
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: December 11, 2013
8
In light of his express statement that he has no intention
to seek in forma pauperis status, the Court will direct the
Attorney General of New Jersey and the warden having custody over
Petitioner to impose the appropriate assessment against
Petitioner’s prison account in the event Petitioner fails to
timely submit his filing fee. See Hairston v. Gronolsky, 348 F.
App’x 716 (3d Cir. 2009) (a prisoner’s obligation to prepay his
filing fee is automatically incurred by the very act of
initiating a legal action) (relying on Hall v. Stone, 170 F.3d
706, 707 (7th Cir. 1999)).
11
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