HATCH v. SUPERIOR COURT OF NEW JERSEY et al

Filing 11

OPINION. Signed by Chief Judge Jerome B. Simandle on 1/25/2016. (drw)n.m.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

WILLIE E. HATCH,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 15-2514 (JBS)

v.
SUPERIOR COURT OF NEW JERSEY,
et al.,

OPINION

Respondents.

APPEARANCES:
WILLIE E. HATCH, Petitioner pro se
#553234
East Jersey State Prison
P.O. Box 861
Rahway, New Jersey 07065
SIMANDLE, Chief Judge1:
INTRODUCTION
Before the Court is Petitioner Willie E. Hatch’s
(“Petitioner”) amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Docket Entry 6). Petitioner
challenges his twenty-year sentence with an eighty-five percent
period of parole ineligibility. Upon initial review of this
petition, the Honorable Renée Marie Bumb noted that on its face,
it appeared the petition was untimely under the limitations
period of 28 U.S.C. § 2244. Judge Bumb invited Petitioner to

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This case was transferred to the undersigned on August 4, 2015
[Docket Item 8].

address this issue, (Docket Entry 3), to which Petitioner
responded, (Docket Entries 6 and 7). For the reasons stated
herein, the Court will dismiss the petition as time-barred, and
no certificate of appealability will issue.
BACKGROUND
In 2005, Petitioner was tried before a jury and was
convicted of first-degree aggravated sexual assault, N.J. STAT.
ANN. § 2C:14–2(a); second-degree sexual assault, N.J. STAT. ANN. §
2C:14–2(c); and second-degree child endangerment, N.J. STAT. ANN.
§ 2C:24–4(a). State v. W.H., No. A-0948-11, 2012 WL 6698694, at
*1 (N.J. Super. Ct. App. Div. Dec. 27, 2012).2 Petitioner filed a
direct appeal. The New Jersey Superior Court Appellate Division
affirmed his convictions, State v. W.H., No. A-6478-05, 2008 WL
2596116 (N.J. Super. Ct. App. Div. July 2, 2008), and the New
Jersey Supreme Court denied certification on January 20, 2009,
State v. W.H., 963 A.2d 845 (N.J. 2009).
Petitioner filed a timely petition for post-conviction
relief (“PCR”) in the state courts. The PCR court denied the
petition without an evidentiary hearing on March 7, 2011, and
the Appellate Division affirmed that court’s judgment. W.H.,

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“[A] court may take judicial notice of a prior judicial
opinion.” McTernan v. City of York, 577 F.3d 521, 525 (3d Cir.
2009). See also 28 U.S.C. § 2254 Rule 4(b) (permitting
examination of “the record of prior proceedings” in the court’s
initial review).
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supra, No. A-0948-11. The New Jersey Supreme Court denied
certification on June 28, 2013. State v. W.H., 67 A.3d 1192
(N.J. 2013).
Petitioner handed his § 2254 petition to prison officials
for mailing on March 14, 2015. (Docket Entry 1 at 16). By Order
dated May 11, 2015, Judge Bumb administratively terminated the
petition for failure to pay the filing fee or submit a complete
application to proceed in forma pauperis. (Docket Entry 3).
Judge Bumb also ordered Petitioner to submit a written statement
“asserting any basis upon which the statute of limitations may
properly be tolled or any facts establishing that the statute of
limitations did not expire on or before June 29, 2014[.]”
(Docket Entry 3 at 2).
Petitioner submitted an in forma pauperis application on
June 3, 2015, but no written statement. (Docket Entry 4). Judge
Bumb granted Petitioner’s in forma pauperis application, but
administratively terminated the petition again as Petitioner had
not complied with the order to submit a written statement
regarding the statute of limitations. (Docket Entry 5).
Petitioner was “given one last opportunity to reopen this matter
by timely filing such a written statement.” (Docket Entry 5 at
2). Petitioner submitted an amended petition on July 15, 2015.

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(Docket Entry 6).3 On August 4, 2015, the case was reassigned to
this Court. (Docket Entry 8).
III. STANDARD OF REVIEW
Petitioner brings this petition for a writ of habeas corpus
as a pro se litigant. A pro se pleading is held to less
stringent standards than more formal pleadings drafted by
lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and
any supporting submissions must be construed liberally and with
a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721–22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
A federal district court must dismiss a habeas corpus
petition if it appears from the face of the petition that the
petitioner is not entitled to relief. 28 U.S.C. § 2254 Rule 4;
see also McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v.
Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.
1025 (1989).

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Judge Bumb gave Petitioner thirty (30) days to submit his
statement. The amended petition and attachments were received
three days after the deadline; however, as the amended petition
was handed to prison officials on July 5, 2015, (Docket Entry 6
at 10), the Court considers his amended petition to be timely
filed.
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IV. DISCUSSION
Petitioner’s habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA imposes a one-year period of limitation on a petitioner
seeking to challenge his state conviction and sentence through a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
See 28 U.S.C. § 2244(d)(1).
Under § 2244(d)(1), the limitation period runs 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).
Petitioner’s direct appeal concluded on January 20, 2009.
State v. W.H., 963 A.2d 845 (N.J. 2009). Petitioner’s conviction
became “final” for habeas purposes upon the expiration of the
ninety (90) day period in which he could have sought a writ of
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certiorari from the United States Supreme Court, April 20, 2009.
AEDPA also provides, however, that “[t]he time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation . . . .” 28 U.S.C. § 2244(d)(2). The one-year
limitations period was tolled during the pendency of his PCR
petition,4 and the statute of limitations began running again the
day after the New Jersey Supreme Court denied certification on
Petitioner’s PCR appeal, June 29, 2013. State v. W.H., 67 A.3d
1192 (N.J. 2013). As noted by Judge Bumb, AEDPA’s statute of
limitations would expire on June 29, 2014, in the absence of any
further tolling.
Petitioner’s amended petition states a second PCR petition
was filed on October 23, 2013, and dismissed on February 26,
2014. (Docket Entry 6 at 4). Assuming without deciding that
Petitioner’s second PCR petition was considered “properly filed”
by the state courts, AEDPA’s statute of limitations would have
been tolled during that time period. 28 U.S.C. § 2244(d)(2)., At

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The Appellate Division indicated that Petitioner filed his PCR
application on August 20, 2008. State v. W.H., No. A-0948-11,
2012 WL 6698694, at *1 (N.J. Super. Ct. App. Div. Dec. 27,
2012). As the PCR petition was filed before the New Jersey
Supreme Court denied certification in Petitioner’s direct
appeal, the entire time between January 20, 2009 and June 28,
2013 was tolled. 28 U.S.C. § 2244(d)(2).
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the time of the filing of his second PCR petition, Petitioner
had 248 days left in the 365-day limitations period as 117 days
elapsed between June 29 and October 23, 2013. Petitioner’s PCR
petition continued to be “pending” within the meaning of AEDPA
until the expiration of the forty-five-day period in which he
could have timely sought review by the Appellate Division,5 April
14, 2014. Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000) (“[F]or
purposes of § 2244(d)(2) ‘pending’ includes the time for seeking
discretionary review, whether or not discretionary review is
sought.”); N.J. Ct. R. 2:4-1(a). Petitioner therefore had until
December 18, 2014, to file a timely § 2254 petition. As he did
not submit his petition until March 2015, the petition must be
dismissed as untimely unless there is a basis for the
application of equitable tolling. See Holland v. Florida, 560
U.S. 631, 645 (2010) (holding § 2244(d) is subject to equitable
tolling in appropriate cases).
“There are no bright lines in determining whether equitable
tolling is warranted in a given case. Rather, the particular
circumstances of each petitioner must be taken into account.”

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Petitioner does not indicate whether February 26, 2014 was the
date the PCR court dismissed his petition, when the Appellate
Division denied his appeal, or when the New Jersey Supreme Court
denied certification. (Docket Entry 6 at 4). The Court infers
this is the date the PCR court denied his petition as Petitioner
does not indicate he appealed the February 26, 2014 order, and
there is no record of a New Jersey Supreme Court order denying
certification after its June 28, 2013 order.
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Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). “Generally,
a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently; and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). In analyzing whether the circumstances faced by
Petitioner were extraordinary, “‘the proper inquiry is not how
unusual the circumstance alleged to warrant tolling is among the
universe of prisoners, . . . but rather how severe an obstacle
it is for the prisoner endeavoring to comply with AEDPA's
limitations period.’” Ross v. Varano, 712 F.3d 784, 802-03 (3d
Cir. 2013) (quoting Pabon, 654 F.3d at 400) (emphasis in
original). There must also be a “causal connection, or nexus,
between the extraordinary circumstances he faced and the
petitioner's failure to file a timely federal petition.” Ibid.
In response to the order directing him to show cause as to
why his petition should not be dismissed as untimely, Petitioner
asserts he could not file a timely habeas petition as he was
placed into administrative segregation for 280 days and he “had
no way of knowing time sequences [sic] of filing appeals.”
(Docket Entry 6 at 23). The documents submitted by Petitioner
indicate a disciplinary hearing occurred on April 17, 2013, at
which time Petitioner was found guilty of prohibited act *.004,
fighting with another person. (Docket Entry 6 at 24); N.J. ADMIN.
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CODE 10A:4-4.1(a). Petitioner’s 280-day placement into
administrative segregation would have ended January 22, 2014,
before the termination of his second PCR on February 26, 2014.
(Docket Entry 6 at 4). Based on the dates provided by
Petitioner, he would have been out of administrative segregation
approximately eleven months before his § 2254 petition was due
in this Court on December 18, 2014. Petitioner’s time in
administrative segregation, though lengthy, did not prevent the
filing of a timely § 2254 petition as his segregation had
concluded almost eleven months before the statute of limitations
expired. Moreover, ignorance of the law or miscalculation of the
statute of limitations do not constitute extraordinary
circumstances warranting equitable tolling6. See Johnson v.
Hendricks, 314 F.3d 159, 163 (3d Cir. 2002), cert. denied, 538
U.S. 1022 (2003); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.
2001); Sch. Dist. of City of Allentown v. Marshall, 657 F.2d 16,
21 (3d Cir. 1981) (“[I]gnorance of the law is not enough to
invoke equitable tolling.”). Petitioner has not established that
any extraordinary circumstance prevented him from filing a
timely habeas petition. Therefore, he is not entitled to

6

Even if, for the same of argument, Petitioner mistakenly
believed he still had one year to file his § 2254 petition after
the February 26, 2014 termination of his second PCR petition,
his present § 2254 petition was still filed out of time on March
14, 2015, when he handed it to prison officials for mailing.
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equitable tolling of the statute of limitations. The petition
must therefore be dismissed as untimely.
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). The United States
Supreme Court held in Slack v. McDaniel that “[w]hen 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.” 529 U.S.
473, 484 (2000). This Court denies a certificate of
appealability because jurists of reason would not find it
debatable that dismissal of the petition as untimely is correct.
V. CONCLUSION
For the reasons state above, the habeas petition is
dismissed as untimely under 28 U.S.C. § 2244. No certificate of

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appealability shall issue. An accompanying Order will be
entered.

January 25, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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