EVANS v. JOHNSON et al

Filing 9

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/15/2016. (TH, )

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

ZAIRE EVANS,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 15-5279 (JBS)

v.
STEVEN JOHNSON, et al.,

OPINION
Respondents.

APPEARANCES:
ALAN DEXTER BOWMAN, ESQ.
Gateway One
Suite 105
Newark, New Jersey 07102
Attorney for Petitioner Zaire Evans
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Petitioner Zaire Evans’ (“Petitioner”)
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Petition, Docket Entry 1). Petitioner challenges the February
3, 2006 judgment of conviction sentencing him to forty-five
years with a thirty-two-and-a-half-year period of parole
ineligibility. Upon initial review of this petition, the Court
noted that on its face, it appeared the petition was untimely
under the limitations period of 28 U.S.C. § 2244. The Court
issued an Order to Show Cause inviting Petitioner to address
this issue, (Docket Entry 3), to which Petitioner responded,

(Docket Entry 8). For the reasons stated herein, the Court will
dismiss the petition as time-barred, and no certificate of
appealability will issue.
BACKGROUND
On September 30, 2003, a Camden County jury convicted
Petitioner of aggravated manslaughter, N.J. STAT. ANN. § 2C:114(a)(1); felony murder, N.J. STAT. ANN. § 2C:11-3(a)(3); burglary,
N.J. STAT. ANN. § 2C:18-2; possession of a weapon for an unlawful
purpose, N.J. STAT. ANN. § 2C:39-4(a); unlawful possession of a
weapon, N.J. STAT. ANN. § 2C:39-5(b); endangering an injured
victim, N.J. STAT. ANN. § 2C:12-1.2; and certain persons not to
have weapons, N.J. STAT. ANN. § 2C:39-7(b). (Da 38).1 The trial
court sentenced Petitioner to fifty years with a thirty-five
year parole disqualifier. (Da 39). Petitioner filed a timely
appeal with the New Jersey Superior Court Appellate Division.
(Da 41); State v. Evans, No. A-3398-03, 2005 WL 3500583 (N.J.
Super. Ct. App. Div. Dec. 23, 2005), certif. denied, 899 A.2d
302 (N.J. 2006).2
The Appellate Division affirmed Petitioner’s convictions,
but remanded to the trial court for resentencing on the

1

“Da” refers the appendix submitted with the petition.
“[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).
2

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endangering and certain persons convictions. Id. Petitioner was
resentenced on February 3, 2006, to a forty-five-year term with
a thirty-two-and-a-half-year period of parole ineligibility. (Da
97). According to Petitioner, counsel filed a notice of appeal
challenging the resentencing on September 26, 2006, without his
knowledge. (OTSC Response, Docket Entry 8 at 2). In the interim,
Petitioner had filed a pro se petition for post-conviction
relief (“PCR”) on June 19, 2006. (Id.). The PCR petition was
withdrawn due to the pending appeal, and Petitioner withdrew his
appeal on May 13, 2008. (Id. at 3). The appeal was officially
dismissed by the Appellate Division on July 3, 2008. (Da 103).
Plaintiff filed another PCR petition for post-conviction
relief on November 5, 2008. (Da 109). After conducting oral
argument on April 1, 2011, the trial court denied Petitioner’s
application on April 13, 2011. (Da 105). The Appellate Division
affirmed the denial of the PCR petition on August 26, 2013,
State v. Evans, No. A-1702-11, 2013 WL 4502752 (N.J. Super. Ct.
App. Div. Aug. 26, 2013), and the New Jersey Supreme Court
denied certification on July 3, 2014, State v. Evans, 94 A.2d
912 (N.J. 2014).
Petitioner filed this counseled habeas petition on July 6,
2015. Petitioner argues he was deprived of due process due to
the admission of a coerced statement; that he was denied due
process by the admission of improper “other crimes” evidence;
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that the prosecutor impermissibly vouched for a witness; that he
was denied due process by the trial court’s refusal to dismiss
the felony-murder charge; and that the PCR Court violated his
due process rights by denying petitioner a hearing and imposing
a time bar.3 As it appeared during the Court’s initial review of
the petition that it may be time-barred, the Court issued an
Order to Show Cause why it should not be dismissed. (Docket
Entry 3). Petitioner filed a response on October 14, 2015. (OTSC
Response, Docket Entry 8).
III. STANDARD OF REVIEW
Petitioner’s habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
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).
IV. DISCUSSION
In response to this Court’s Order to Show Cause, Petitioner
argues through counsel that he should be given the benefit of
equitable tolling because of the miscommunication between him

3

The PCR Court determined several of Petitioner’s claims were
procedurally barred as he did not raise them on direct appeal,
not time barred. (See generally PCR Court Opinion, Da 106-31).
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and his appellate counsel regarding the filing of the appeal
after resentencing. He asserts this miscommunication began a
chain of events that resulted in his untimely § 2254 petition.
Alternatively, Petitioner argues that his petition is timely
because it was filed within one year of the New Jersey Supreme
Court denying certification of his PCR appeal on July 3, 2014.
(OTSC Response at 7).4
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. “[T]he AEDPA statute of limitations is an
important issue, the raising of which may not necessarily be
left completely to the state.” Long v. Wilson, 393 F.3d 390, 402
(3d Cir. 2004); see also Day v. McDonough, 547 U.S. 198, 209
(2006) (“[D]istrict courts are permitted . . . to consider, sua
sponte, the timeliness of a state prisoner's habeas petition.”).
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

4

The court was in recess July 3, 2015, and July 5, 2015 was a
Sunday. Fed. R. Civ. Pro. 6(a)(1).
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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).
The Third Circuit has not decided in a precedential opinion
when a conviction becomes final for habeas purposes after a
defendant voluntarily discontinues his direct appeal, and at
least two panels have disagreed as to the relevant starting
date. Compare United States v. Parker, 416 F. App'x 132 (3d Cir.
2011) (agreeing that “there is no known precedent for the
proposition that a criminal defendant who seeks voluntary
dismissal of an appeal is foreclosed from filing a petition for
certiorari challenging the dismissal” (internal quotation marks
omitted)), with United States v. Sylvester, 258 F. App'x 411,
412 (3d Cir. 2007) (finding it “not reasonably debatable” that
the “conviction became final and the limitations period began to
run when [the] appeal was voluntarily dismissed. When an appeal
is voluntarily dismissed, further direct review is no longer
possible.”). When two Third Circuit panels conflict, and the
Court of Appeals has not spoken en banc on the conflict, “the

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earlier decision is generally the controlling authority.” United
States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009). In an
abundance of caution, and because the end result does not change
by including the additional time, the Court will give Petitioner
the benefit of the twenty days he had to petition the New Jersey
Supreme Court for review of the Appellate Division’s dismissal
of his appeal. See N.J. CT. R. 2:12-3(a). Petitioner’s direct
review therefore concluded, and AEDPA’s statute of limitations
began to run, on July 23, 2008, at the latest.5
A. Statutory Tolling
AEDPA’s one-year statute of limitations is subject to
statutory tolling during the pendency of any properly filed
state post-conviction relief petition. 28 U.S.C. § 2244(d)(2).
Therefore, the period between November 5, 2008 and July 3, 2014,
did not count towards the one year. After the conclusion of the
PCR proceedings, Petitioner had 260 days left to file a timely
federal habeas petition as 105 days passed between the
conclusion of direct review and the filing of the PCR petition.6
Petitioner would have had to file his § 2254 petition by March

5

Petitioner does not argue any of the other provisions of §
2244(d)(1) apply.
6 “[T]he time during which a state prisoner may file a petition
for a writ of certiorari in the United States Supreme Court from
the denial of his state post-conviction petition does not toll”
AEDPA’s statute of limitations. Stokes v. Dist. Attorney of the
Cnty. of Phila., 247 F.3d 539, 542 (3d Cir. 2001), cert. denied,
534 U.S. 959 (2001).
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21, 2015, in order for his petition to be timely-filed. As
Petitioner did not file until July 6, 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 AEDPA’s statute of limitations is
subject to equitable tolling in appropriate cases).
B. Equitable Tolling
Petitioner argues he should be given the benefit of
equitable tolling because the filing of a notice of appeal,
purportedly without his knowledge, started a chain of events
that precluded him from making a timely § 2254 filing. Under New
Jersey law, a PCR petition must be filed within five years of
the entry of the judgment of conviction. N.J. CT. R. 3:2212(a)(1). Petitioner’s judgment of conviction was entered on
November 20, 2003; therefore, he was required to file his PCR
petition by November 20, 2008. He filed a pro se PCR petition in
2006, but it had to be dismissed due to the pending direct
appeal challenging the 2006 resentencing.7 Petitioner argues he
had to withdraw the direct appeal on May 13, 2008, as he was
concerned the appeal would not be resolved by the PCR filing

7

Petitioner states he did not learn of the pending appeal until
he filed his PCR petition on June 19, 2006, (OTSC Response at
2), however the record reflects the appeal was not filed until
September 26, 2006, (Da 100). Petitioner does not explain this
contradiction.
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deadline. (OTSC Response at 4). He also argues he was not
advised that withdrawing the appeal would impact his habeas
filing deadlines. (Id. at 5). Essentially, Petitioner argues
that he could not have filed a timely habeas petition as he had
to exhaust his state court remedies, and his ability to exhaust
those remedies was impeded by forces beyond his control, namely
the delays caused by the simultaneous filing of resentencing
direct appeal and first PCR petition.
“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.”
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,
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between the extraordinary circumstances he faced and the
petitioner's failure to file a timely federal petition.” Id.
Petitioner has not demonstrated that extraordinary
circumstances prevented him from filing a timely habeas
petition. The “procedural conundrum” of being required to
exhaust state court remedies before filing a § 2254 petition
does not warrant equitable tolling. See Darden v. Sobina, 477 F.
App'x 912, 918 (3d Cir. 2012). “A prisoner seeking state
postconviction relief might avoid th[e] predicament [of
untimeliness] by filing a ‘protective’ petition in federal court
and asking the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.” Pace, 544 U.S.
at 416 (citing Rhines v. Weber, 544 U.S. 269, 278 (2005)).
Moreover, nothing in the response to the order to show cause
suggests why the confusion over the notice of appeal in 2006
prevented him from filing his habeas petition on time after the
July 3, 2014 denial of certification by the Supreme Court.
Petitioner asserts he was not told the withdrawal of his
direct appeal would impact his habeas filing deadline. Presuming
this alleged omission led to the miscalculation of the statute
of limitations, he still has not established extraordinary
circumstances. Ignorance of the law or miscalculation of the
statute of limitations do not constitute extraordinary
circumstances warranting equitable tolling. See Johnson v.
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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)
(“In non-capital cases, attorney error, miscalculation,
inadequate research, or other mistakes have not been found to
rise to the ‘extraordinary’ circumstances required for equitable
tolling.”); 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 had nearly
eight months after the New Jersey Supreme Court denied his PCR
appeal to file a timely petition, and nothing in the petition or
response suggests there is a “causal connection, or nexus,
between the alleged extraordinary circumstances” and the failure
to file a federal petition within those eight months. Ross v.
Varano, 712 F.3d 784, 803 (3d Cir. 2013). Having eight months
rather than twelve to file this § 2254 petition is hardly an
extraordinary obstacle.
As nothing in Petitioner’s submissions to this Court
indicates there was an obstacle beyond Petitioner’s control that
necessarily prevented him from filing a timely petition, there
is no basis for equitable tolling. See LaCava v. Kyler, 398 F.3d
271, 275 (3d Cir. 2005) (noting district courts “should be
sparing in their use of this doctrine, applying equitable
tolling only in the rare situation where [it] is demanded by
sound legal principles as well as the interests of justice.”
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(internal citations and quotation marks omitted) (alteration in
original)). The petition must therefore be dismissed as
untimely.
C. Certificate of Appealability
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
appealability shall issue.
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An accompanying Order will be entered.

March 15, 2016
Date

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

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