DELLOBUONO v. SOUTHWOODS STATE PRISON et al

Filing 5

OPINION. Signed by Judge Noel L. Hillman on 10/27/2015. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Petitioner,
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v.
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WARDEN SOUTHWOODS STATE
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PRISON, et al.,
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Respondents.
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JOHN DELLOBUONO,

Civ. No. 15-5689 (NLH)
OPINION

APPEARANCES:
John Dellobuono, # 20778B-608772
Southwoods State Prison
215 Burlington Road
Bridgeton, NJ 08302
Petitioner Pro se

HILLMAN, District Judge
Petitioner John Dellobuono, a prisoner confined at
Southwoods State Prison in Bridgeton, New Jersey, files this
writ of habeas corpus under 28 U.S.C. § 2254, challenging his
2008 New Jersey state court conviction.

For the reasons

discussed below, the Petition is dismissed without prejudice as
time-barred under 28 U.S.C. § 2244(d).
I.

BACKGROUND

Petitioner filed this § 2254 habeas petition on or about
July 22, 2015. (ECF No. 1).

According to the allegations

contained in the Petition, Petitioner pled guilty to one count

of first degree kidnapping, in violation of N.J.S.A. 2C:132b(1), in the Superior Court of New Jersey, Law Division, Camden
County.

He was sentenced on May 2, 2008 to 13 years’

imprisonment subject to the No Early Release Act (NERA), with
85% of the sentence to be served before being eligible for
parole. (Pet. 2, ECF No. 1).
Petitioner did not file a direct appeal.

Instead, on April

21, 2011 — nearly three years after he was sentenced —
Petitioner filed a petition for Post-Conviction Relief (“PCR”).
(Pet. 4, ECF No. 1).

The PCR Court denied his petition on

November 9, 2012. (Pet. 4, 9-10, 12 ECF No. 1).

The appellate

division affirmed the PCR Court’s denial on September 5, 2014.
(Pet. 9, ECF No. 1); see State v. Dellobuono, No. A-2387-12T4,
2014 WL 4375683, at *1 (N.J. Super. Ct. App. Div. Sept. 5,
2014).

The New Jersey Supreme Court denied certification on

March 27, 2015. (Pet. 13, ECF No. 1); see State v. Dellobuono,
221 N.J. 286, 112 A.3d 592 (2015).

Petitioner then filed this

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
II.

STATUTE OF LIMITATIONS ANALYSIS

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

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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 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 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
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, Petitioner was sentenced on May 2, 2008.

Under New

Jersey state law, Petitioner had 45 days after the imposition of
the sentence in which to file a direct appeal. N.J. Ct. R. 2:41(a).

Petitioner concedes that he did not pursue a direct

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appeal.

Thus, Petitioner’s conviction became final for purposes

of § 2244(d) — and the one-year statute of limitations period
began to run — on June 16, 2008, when the 45 day period in which
to file a direct appeal expired.

Unless the statute of

limitations was tolled, the applicable statute of limitations
would have expired a year later, on June 16, 2009.
Normally, a properly filed PCR application will statutorily
toll the AEDPA limitations period. See 28 U.S.C. § 2244(d)(2).
However, Petitioner in this case did not file his PCR
application until April 21, 2011, long after the one-year period
for the filing of a petition pursuant to § 2254 had expired.
Thus, the fact that Petitioner sought post-conviction relief
does nothing to change to fact that the one-year statute of
limitation expired on June 16, 2009. See Long v. Wilson, 393
F.3d 390, 394–95 (3d Cir. 2004) (state PCR petition had no
effect on tolling because the limitations period had already run
when it was filed).
With no apparent statutory tolling, Petitioner's federal
habeas petition is untimely, having been filed on April 21,
2011, almost two years after the June 16, 2009 expiration of the
one-year limitations period.

Accordingly, this federal habeas

petition is time-barred unless Petitioner can demonstrate
extraordinary circumstances to justify equitable tolling of the
limitations period.
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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. 560 U.S. 631, 649–50
(2010); Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013).

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.” 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;
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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.”) (internal
quotation marks and citations omitted).
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. Holland, 560 U.S. at 651 (citations
omitted); see also Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir.
2003).

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”) (citations omitted).
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
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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,
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)).
In his habeas petition, Petitioner gives no explanation for
the delay in bringing his state PCR petition which would allow
this Court to consider equitable tolling.

Accordingly, the

petition will be dismissed as untimely.
This dismissal is without prejudice to Petitioner filing a
motion to re-open this case for consideration of statutory or
equitable tolling issues. United States v. Bendolph, 409 F.3d
155, 169 (3d Cir. 2005) (en banc) (holding that district courts
should provide petitioners with notice and opportunity to
respond to a finding of untimeliness).

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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 (2000),
cited in Kaplan v. United States, No. 13–2554, 2013 WL 3863923,
*3 (D.N.J. July 24, 2013).
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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.

This dismissal is without

prejudice, however, to Petitioner filing a motion to reopen this
case within 60 days of the date of this Order for consideration
of equitable tolling issues.
An appropriate Order follows.

____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge
Dated: October 27, 2015
At Camden, New Jersey

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