GONZALEZ v. RODRIGUEZ et al

Filing 6

MEMORANDUM OPINION AND ORDER, ORDERED that the Clerk shall reopen this matter in light of Petitioner's filing of his written statement 5 ; ORDERED that Petitioner's written statement 5 is construed as a motion seeking reconsideration of the Court's prior Order 2 ; ORDERED that Petitioner's written statement is dismissed, etc; ORDERED that the Clerk shall forward this Memorandum Opinion and Order to the United States Court of Appeals for the Third Circuit, etc. Signed by Judge Renee Marie Bumb on 6/27/2014. (dmr)(n.m.)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________________
:
CARLOS GONZALEZ,
:
: Civil Action No. 14-2958 (RMB)
Petitioner,
:
:
v.
:
:
JAVIER D. RODRIGUEZ, et al.,
:
: MEMORANDUM OPINION AND ORDER
Respondent.
:
_______________________________________
:
BUMB, District Judge:
Since the relevant events have already been detailed in this
Court’s prior opinion, Docket Entry No. 2, it shall suffice to
state that Petitioner, a state inmate, is challenging his
numerous convictions rendered by the Law Division on April 19,
2007 (collectively, “2007 Conviction”).

His Petition states that

he did not pursue a direct appeal but filed an application for
post-conviction relief (“PCR”).1

It also states that the Supreme

Court of New Jersey denied certification as to the PCR on June
13, 2013.

Petitioner filed his § 2254 Petition almost eleven

months later, i.e., on May 7, 2014.
Noting that his judgment of conviction became final forty
five days from April 19, 2007, this Court explained to Petitioner
that his one-year AEDPA period was triggered on June 1, 2007, and
expired on May 31, 2008, i.e., more than two years prior to his
1

This Court examined Petitioner’s PCR records and
determined that he filed the PCR application on June 14, 2010.

June 14, 2010, filing of the PCR application, thus rendering his
Petition untimely unless he established a basis for equitable
tolling.

See Docket Entry No. 2 (extensively detailing the

relevant facts and law).

Pointing out that Petitioner: (a)

offered this Court no factual predicate indicating that he
experienced extraordinary circumstances warranting equitable
tolling; and, moreover (b) waited almost eleven months to file
his Petition after denial of certification as to his PCR, this
Court dismissed the Petition as untimely and declined to issue a
certificate of appealability, but retained temporary jurisdiction
over this matter so to allow Petitioner an opportunity to state
his grounds for equitable tolling, if any.

See id. at 4-6.2

In response, Petitioner filed a notice of appeal.
Docket Entry No. 3.

See

Yet, one week later, he submitted a written

statement to this Court asserting that his judgment of conviction
did not become final on June 1, 2007,since: (a) he check-marked
the entry reading, “At this time I desire to appeal and request

2

The Court also noted that Petitioner was already advised
of his obligation to detail his bases for equitable tolling in
this Court’s decision issued as to his other, prior § 2254
petition that: (a) challenged Petitioner’s other convictions; and
(b) was analogously untimely. See Docket Entry No. 2, at 6 (“In
light of Petitioner’s election not to take advantage of his
Bendolph opportunity as to his [prior] petition, an offer of the
same opportunity as to his [instant] Petition might prove
futile”). “However, out of an abundance of caution and mindful
of Petitioner’s pro se litigant status, this Court f[ound] it
prudent to allow him a Bendolph opportunity [with regard to the
Petition at bar].” Id.
2

the services of the Public Defender[’]s Office for such purpose”
in a form provided by the State’s Office of Public Defender; and
(b) his public defender did not commence a direct appeal.

See

Docket Entry No. 5, at 1-5 (citing Roe v. Flores-Ortega, 528 U.S.
470 (2000), and attaching a copy of the checked form).3
Petitioner’s written statement is procedurally improper and
substantively meritless.

Petitioner’s act of filing a notice of

appeal barred his later-filed written statement at this District.
See Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (“filing of
a notice of appeal is an event of jurisdictional significance,
immediately conferring jurisdiction on a Court of Appeals and
divesting a district court of its control over those aspects of
the case involved in the appeal”); see also Ingram v. Warden,
2011 U.S. Dist. LEXIS 7033, at *3 (D.N.J. Jan. 24, 2011) (“Simply
put, [a litigant] cannot ‘hedge his bets’ by hoping that either
continuing proceedings before this Court or his appeal before the
Court of Appeals for the Third Circuit would yield a favorable
result; rather, [he] is obligated to make an exclusive
election”).
Furthermore, if this Court were to ignore the jurisdictionstripping defect of Petitioner’s written statement, Petitioner’s

3

Petitioner’s written statement is silent as to: (a)
whether and when he changed his mind to appeal and advised his
public defender accordingly; or (b) when the Public Defender’s
Office notified Petitioner of the fact that no appeal was filed,
or when Petitioner learned of that fact on his own.
3

position is substantively meritless.

To the extent he challenges

the date when his 2007 Conviction became final, that date could
not be affected by his check-mark on the form provided by the
Office of Public Defender.

Accord Artuz v. Bennett, 531 U.S. 4,

8-9 (2000) (to be “properly filed,” an application must actually
be delivered to and accepted by the state courts).

The form he

check-marked, or his public defender’s promise to file an appeal
cannot render his never-filed appeal “properly filed.”
In addition, Petitioner cannot convert the check-marked form
into a viable ground for equitable tolling.

Even if this Court

were to hypothesize that Petitioner was actively misled by his
public defender as to an appeal being actually filed (even though
Petitioner’s written statement does not assert so), it is selfevident that Petitioner had to learn about the appeal being not
filed prior to June 14, 2010, since he filed his PCR application
on that date.4

Yet, he did not immediately file a § 2254

petition seeking equitable tolling on the grounds that he was
misled by his public defender as to the pendency of appeal; he
also did not seek stay and abeyance.

He continued litigating his

PCR applications in state fora for three years.

Moreover, for

almost eleven months after being denied certification as to PCR,
he still continued sitting on his rights.

4

Thus, at the very least, on June 14, 2010, i.e., almost
four years prior to his execution of the Petition at bar,
Petitioner came to know that his AEDPA period expired years ago.
4

He now comes to this Court arguing that, his delay
notwithstanding, his Petition should be deemed timely because he
check-marked a Public Defender’s form almost seven years prior to
his execution of the Petition at bar.

Entering a check-mark on a

form cannot qualify as the persistent diligence the Supreme Court
envisioned in Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (a
petitioner is “entitled to equitable tolling” if he shows “(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way” and prevented
timely filing), or in Holland v. Florida, 560 U.S. 631 (2010).5
Therefore, had Petitioner not filed his notice of appeal
severing this Court’s jurisdiction, Petitioner’s written
statement would offer this Court no basis for reconsideration of
its prior decision.

Hence, the Petition will remain dismissed as

untimely, with no certificate of appealability issued.6

5

In Holland, the petitioner diligently pursued his rights
by writing his attorney numerous letters with reminders about the
deadlines, repeatedly requesting that the attorney be removed
from his case, and filing his own pro se habeas petition on the
very day he learned his AEDPA filing period had expired.
6

Petitioner’s reliance on Flores-Ortega is misplaced. In
Flores-Ortega, the Supreme Court addressed a substantive, rather
than a procedural, inquiry when it reiterated that “a lawyer who
disregards specific instructions from the defendant to file a
notice of appeal acts in a manner that is professionally
unreasonable.” 528 U.S. at 477. No statement in Flores-Ortega
addressed the issue of timeliness, and its holding cannot be
converted into a leave allowing a habeas litigant to sit on his
rights for two years prior to filing his PCR and then for another
year after having certification denied as to his PCR.
5

IT IS, therefore, on this 27th day of June 2014,
ORDERED that the Clerk shall reopen this matter in light of
Petitioner’s filing of his written statement, Docket Entry No. 5,
by making a new and separate entry on the docket reading, “CIVIL
CASE REOPENED”; and it is further
ORDERED that Petitioner’s written statement, Docket Entry
No. 5, is construed as a motion seeking reconsideration of this
Court’s prior order, Docket Entry No. 2; and it is further
ORDERED that Petitioner’s written statement, Docket Entry
No. 5, is dismissed as jurisdictionally improper in light of
Petitioner’s notice of appeal, Docket Entry No. 3, or, in
alternative, is denied as substantively meritless; and it is
further
ORDERED that this Court’s prior order, Docket Entry No. 2,
shall remain in full force; and it is further
ORDERED that the Petition, Docket Entry No. 1, shall
remained denied as untimely; and it is further
ORDERED that this Court’s election to decline issuance of a
certificate of appealability shall remain undisturbed; and it is
further
ORDERED that the Court conclusively withdraws its
jurisdiction over this matter; and it is further

6

ORDERED that the Clerk shall close the file on this matter;
and it is further
ORDERED that the Clerk shall forward this Memorandum Opinion
and Order to the United States Court of Appeals for the Third
Circuit, addressing it to the Clerk of the Court and accompanying
it with a notation reading, “IN CONNECTION WITH USCA CASE NUMBER
14-3025 AND IN LIGHT OF PETITIONER’S FILING OF A MOTION FOR
RECONSIDERATION”; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Petitioner by regular U.S. mail.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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