BELL v. NOGAN et al

Filing 33

OPINION. Signed by Judge Noel L. Hillman on 3/22/2018. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
LAWRENCE BELL,
:
:
Petitioner,
:
Civ. No. 15-5497 (NLH)
:
v.
:
OPINION
:
PATRICK NOGAN,
:
:
Respondent.
:
___________________________________:
APPEARANCES:
Lawrence Bell, No. 115854/858703B
East Jersey State Prison
Lock Bag R
Rahway, NJ 07065
Petitioner Pro Se
Robin A. Hamett
Camden County Prosecutor’s Office
25 North Fifth Street
Camden, NJ 08102
Counsel for Respondent
HILLMAN, District Judge
Petitioner Lawrence Bell, a prisoner presently confined at
East Jersey State Prison in Rahway, New Jersey, filed a Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging
his 1992 New Jersey state court conviction.

ECF No. 1.

Respondent filed an Answer raising as an affirmative defense the
statute of limitations, arguing that the Petition is untimely.
ECF No. 19.

Petitioner filed no reply.

For the reasons

discussed below, the Court will dismiss the Petition as timebarred under 28 U.S.C. § 2244(d).

I.

BACKGROUND
In 1992, Petitioner was convicted by jury in New Jersey

state court of the offenses of murder, felony murder,
kidnapping, robbery, conspiracy to commit robbery, possession of
a weapon, unlawful possession of a weapon, and sexual assault.
ECF No. 1, Pet. at 3.

Petitioner filed a direct appeal, and his

conviction became final on September 5, 1996, ninety (90) days 1
after the New Jersey Supreme Court denied his Petition for
Certification on June 5, 1996.

Id. at 4.

Petitioner did not file his state court petition for postconviction relief until July 2, 1997--299 days after his
conviction became final.

See id. at 5; ECF No. 19, Ans. at 32.

His PCR petition was denied on November 19, 1999.
Pet. at 5.

ECF No. 1,

On January 24, 2002, the Appellate Division affirmed

the denial of his PCR petition.

Id. at 23.

Petitioner filed a

timely petition for certification with the New Jersey Supreme
Court, which was denied on April 29, 2002.

Id.

Three hundred and fifty-seven (357) days after the New
Jersey Supreme Court denied the petition for certification,
Petitioner filed his first petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in this court on April 22, 2003.
See No. 03-cv-1841, Dkt. No. 1.

In answering that petition, the

1

The ninetieth day fell on September 3, a Sunday.
September 4, was a federal holiday, Labor Day.
2

The next day,

respondent therein argued that the petition was time-barred.
See ECF No. 19, Ans. at 10; No. 03-cv-1841, Dkt. 9.

The court,

however, did not decide the issue of timeliness because the
petitioner wrote a letter to the court requesting that the
petition be dismissed without prejudice.
at 10-11; No. 03-cv-1841, Dkt. No. 10.

See ECF No. 19, Ans.
The court dismissed that

petition without prejudice on November 14, 2003.

See ECF No. 1,

Pet. at 23; No. 03-cv-1841, Dkt. No. 11.
Thereafter, Petitioner filed a second PCR petition on
August 18, 2004.

ECF No. 1, at 6.

Because it is unnecessary to

the Court’s analysis of the timeliness issue, the Court will
dispense with outlining the intermediary dates of the second PRC
petition and appeals.

Petitioner’s robust efforts regarding his

second PCR petition and other related motions concluded on
September 9, 2014, when the New Jersey Supreme Court denied
Petitioner’s petition for certification.

ECF No. 1, Pet. at 23.

Two hundred and ninety-four days after his petition for
certification was denied, Petitioner filed the instant Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
1.

ECF No.

The Court issued an order to answer, and on March 21, 2016,

the Respondent filed an Answer with supporting exhibits,
raising, inter alia, the timeliness of the Petition.
19.

Petitioner did not file a reply to the Answer.

3

ECF No.

II.

DISCUSSION
The governing statute of limitations under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) is found
at 28 U.S.C. § 2244(d), which states in relevant part:
(1) A 1–year period of limitation shall
apply to an application for a writ of
habeas corpus by a person in custody
pursuant to a judgment of a State court.
The limitation period shall run 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;
...
(2) The time during which a properly
filed
application
for
State
postconviction or other collateral review
with respect to the pertinent judgment or
claim is pending shall not be counted
toward any period of limitation under
this subsection.
28 U.S.C. § 2244(d).

See also Jones v. Morton, 195 F.3d 153,

157 (3d Cir. 1999).
Pursuant to § 2244(d), evaluation of the timeliness of a §
2254 petition requires a determination of, first, when the
pertinent judgment became “final,” and, second, the period of
time during which an application for state post-conviction
relief was “properly filed” and “pending.”

The judgment is

determined to be final by the conclusion of direct review, or
the expiration of time for seeking such review, including the

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ninety-day period for filing a petition for writ of certiorari
in the United States Supreme Court.

See Gonzalez v. Thaler, 132

S. Ct. 641, 653–54 (2012).
Here, the New Jersey Supreme Court denied Petitioner’s
petition for certification on direct appeal on June 5, 1996.

He

did not file a petition for writ of certiorari in the Supreme
Court of the United States, so his conviction became final
ninety days later, i.e. on September 5, 1996.

He did not file

his PCR petition until after the expiration of the time for
filing a petition for writ of certiorari with the Supreme Court
of the United States, and thus his habeas statute of limitations
began to run on September 6, 1996.

See 28 U.S.C. §

2244(d)(1)(a).
Two hundred and ninety-nine days later, Petitioner filed
his PCR petition on July 2, 1997.

At this point, his federal

habeas statute of limitations begins to toll pursuant to 28
U.S.C. § 2244(d)(2).

The Appellate Division of the New Jersey

Superior Court affirmed the denial of his PCR petition on
January 24, 2002.

Petitioner then filed a timely a petition for

certification with the New Jersey Supreme Court after the proper
time for doing so expired.

The New Jersey Supreme Court denied

his petition for certification April 29, 2002.

At this point,

the statute of limitations began to run again.

See id.

5

Petitioner then waited 357 days to file his first federal
habeas petition.

After that petition was dismissed without

prejudice and his second round of PCR petition and related
motions concluded, Petitioner waited 294 days to file the
instant Petition.
The untolled periods of time between when Petitioner’s
conviction became final and when he filed the instant Petition,
excluding his second PCR petition process and appeals, 2 amount to
950 days, well over the one-year statute of limitations provided
in § 2244(d)(1).

Petitioner did not file a reply to the

Respondent’s Answer, despite having been provided forty-five
days in which to do so by Order of Court, ECF No. 3, and has
made no argument regarding the timeliness of his Petition.
Accordingly, the Petition is time-barred unless Petitioner can
demonstrate extraordinary circumstances to justify equitable
tolling of the limitations period.
In Holland v. Florida, the Supreme Court held that AEDPA's
one-year limitations period is subject to equitable tolling in
appropriate cases, on a case-by-case basis.
50 (2010).
2013).

560 U.S. 631, 649–

See Ross v. Varano, 712 F.3d 784, 798 (3d Cir.

A litigant seeking equitable tolling bears the burden of

2

Petitioner’s second PCR petition appeals and related motions
span over a decade, and the calculation of tolled and untolled
time during this period would be inefficient and unnecessary to
the disposition of the Petition’s timeliness.
6

establishing two elements: “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way.”

Holland, 560 U.S. at 649 (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)).

See also Jenkins v.

Superintendent of Laurel Highlands, 705 F.3d 80, 89 (3d Cir.
2013).
The diligence required for equitable tolling is reasonable
diligence, not maximum, extreme, or exceptional diligence.
Holland, 560 U.S. at 653.

“This obligation does not pertain

solely to the filing of the federal habeas petition, rather it
is an obligation that exists during the period appellant is
exhausting state court remedies as well.” LaCava v. Kyler, 398
F.3d 271, 277 (3d Cir. 2005) (citation omitted).

See also

Alicia v. Karestes, 389 F. App'x 118, 122 (3d Cir. 2010)
(holding that the “obligation to act diligently pertains to both
the federal habeas claim and the period in which the petitioner
exhausts state court remedies”).

Reasonable diligence is

examined under a subjective test, and it must be considered in
light of the particular circumstances of the case.

See Ross,

712 F.3d at 799; Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.
2004) (“Due diligence does not require the maximum feasible
diligence, but it does require diligence in the
circumstances.”).

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The court also must determine whether extraordinary
circumstances exist to warrant equitable tolling.

“[G]arden

variety claim[s] of excusable neglect” by a petitioner's
attorney do not generally present an extraordinary circumstance
meriting equitable tolling.
omitted).

Holland, 560 U.S. at 651 (citations

Cir. 2003).

See also Merritt v. Blaine, 326 F.3d 157, 168 (3d
Rather, equitable tolling can 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, 398 F.3d at 275–276.

See also Holland, 560 U.S. at 648–

49 (relying on Pace, 544 U.S. at 418); Jenkins, 705 F.3d at 89
(holding that equitable tolling should be applied sparingly, and
only when the “principles of equity would make the rigid
application of a limitation period unfair”).
Indeed, extraordinary circumstances have been found only
where (a) the respondent has actively misled the plaintiff, (b)
the petitioner has in some extraordinary way been prevented from
asserting his rights, (c) the petitioner has timely asserted his
rights mistakenly in the wrong forum, or (d) the court itself
has misled a party regarding the steps that the party needs to
take to preserve a claim.

See Brinson v. Vaughn, 398 F.3d 225,
8

230 (3d Cir. 2005).

Nevertheless, it must be restated that,

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)).
Petitioner has twice been on notice regarding the
untimeliness of his federal habeas petitions.

First, during his

original habeas petition in which the respondent raised the
habeas statute of limitations as a defense, and now in
Respondent’s Answer, where Respondent makes the same argument
for dismissal.

Here, Petitioner had an opportunity to respond

to the Answer, see ECF No. 3, but has offered no explanation for
the delay in bringing his federal habeas petitions which would
allow this Court to consider equitable tolling.

Furthermore,

the Court has reviewed Petitioner’s filings and sees no
circumstances which could potentially trigger equitable tolling.
Nonetheless, in an exercise of caution, the Court will
dismiss the Petition without prejudice.

Petitioner will have

thirty (30) days in which to present the Court with any argument

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he wishes to make regarding equitable tolling.

Failure to do so

will result in the Petition being dismissed with prejudice.
III. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254.

A certificate of appealability (“COA”) may issue “only

if the applicant has made a substantial showing of the denial of
a constitutional right.”

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 v. Cockrell, 537 U.S. 322, 327 (2003)

(citation omitted), cited in United States v. Williams, 536 F.
App'x 169, 171 (3d Cir. 2013).
“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.”

Slack v. McDaniel, 529 U.S. 473, 484
10

(2000), cited in Kaplan v. United States, No. 13–2554, 2013 WL
3863923, *3 (D.N.J. July 24, 2013).
Here, jurists of reason would not find it debatable whether
this Court is correct in its procedural ruling.

No certificate

of appealability shall issue.
IV.

Conclusion
For the reasons set forth above, this Court finds that the

§ 2254 habeas petition should be dismissed as untimely filed
under 28 U.S.C. § 2244(d), and a certificate of appealability
will not issue accordingly.

Petitioner will be afforded thirty

(30) days to make any application to re-open the matter based on
equitable tolling.
An appropriate Order follows.

Dated: March 22, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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