DELLOBUONO v. SOUTHWOODS STATE PRISON et al

Filing 9

OPINION. Signed by Judge Noel L. Hillman on 5/31/2016. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

___________________________________
:
JOHN DELLOBUONO,
:
:
Petitioner,
:
:
v.
:
:
WARDEN SOUTHWOODS STATE
:
PRISON, et al.,
:
:
Respondents.
:
___________________________________:

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
Presently before the Court is a Motion to Reopen (ECF No.
7) by Petitioner John Dellobuono.

For the reasons set forth

below, Petitioner’s motion will be DENIED.

I.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner, a prisoner confined at Southwoods State Prison
in Bridgeton, New Jersey, filed this writ of habeas corpus under
28 U.S.C. § 2254 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:13-2b(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
on July 22, 2015.
In an Order dated October 27, 2015, this Court dismissed
the Petition without prejudice as time-barred under 28 U.S.C. §
2244(d).

Petitioner was granted leave to file a motion to

reopen this case within 60 days of the date of this Order for
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consideration of equitable tolling issues.

On or about December

28, 2015, Petitioner filed the instant motion and argues that
the statute of limitations should be tolled, and his Petition
should be deemed timely filed, for equitable reasons.

II.

DISCUSSION

The Court’s October 27, 2015 Opinion (ECF No. 2) included a
thorough discussion as to the statute of limitations under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) and the
timeliness of the instant Petition.

The details of that

analysis need not be repeated here; and the Court notes only
that the Petition was filed beyond the one-year statute of
limitations. See 28 U.S.C. § 2244(d); see also, Jones v. Morton,
195 F.3d 153, 157 (3d Cir. 1999); 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).

Petitioner does not challenge this determination.

Instead, Petitioner argues that extraordinary circumstances
exist to justify equitable tolling of the limitations period.
A. EQUITABLE TOLLING
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).
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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;
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).
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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. 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
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,
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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)).
B. ANALYSIS
Petitioner devotes the majority of his motion to his
argument that extraordinary circumstances stood in the way of
him filing an appeal.

However, as set forth above, even

assuming that extraordinary circumstances existed, Petitioner
must show that he exercised reasonable diligence in order to
invoke equitable tolling. See Brown, 322 F.3d at 773.

With

respect to his reasonable diligence, Petitioner recites the
procedural history of his case.

Namely, he explains that he was

sentenced in 2008, that he did not file a direct appeal, and
that he filed a PCR petition almost three years after his
sentence. (Mot. 3, ECF No. 7).

Petitioner notes that the PCR

court denied his petition, that the state appellate court
affirmed the denial, and that the New Jersey Supreme Court
denied certification on March 27, 2015.
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Petitioner then states

“Petitioner filed his writ of habeas corpus; some 120 days after
his State Court remedies became final.

Therefore, it appears

that Petitioner’s [sic] exercised within reasonable diligence
[sic] in pursuing his appeals in State Court.” (Id.).

This

argument is unavailing.
A recitation of the procedural history of this case does
nothing to establish reasonable diligence.

Although Petitioner

may successfully argue reasonable diligence in pursuing his
rights after exhausting his remedies in PCR court, Petitioner
does not adequately explain his lack of diligence in pursuing
his rights during the nearly three-year time period between his
sentencing date and the filing of his PCR petition.

As set

forth above, tolling requires that a petitioner show he acted
with reasonable diligence during the time period he seeks to
toll. Holland, 560 U.S. at 653-54.

Therefore, the Court’s

subjective analysis of a petitioner’s diligence, see Ross, 712
F.3d at 799, includes consideration of his behavior throughout
the entire period between his conviction and subsequent filings.
See Alicia, 389 F. App'x at 122; see also Markus v. United
States, No. 15-7545, 2015 WL 8490959, at *5 (D.N.J. Dec. 10,
2015).
Here, even assuming that an extraordinary circumstance
existed which prevented Petitioner from filing his appeal,
Petitioner does not explain why he waited nearly 3 years to file
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his PCR petition or otherwise seek, or inquire about, postconviction relief. See, e.g., Markus, No. 15-7545, 2015 WL
8490959, at *5 (citing Ross, 712 F.3d at 799-800) (“[A]
petitioner who sits on his rights for a significant portion of
[the time period between his conviction and filing] after the
extraordinary circumstances in question no longer barred his
filing will not warrant tolling.”).
Furthermore, the Court notes that Petitioner has not
demonstrated that an extraordinary circumstance existed which
prevented him from filing a timely habeas petition.

In his

motion, Petitioner appears to assert that he was prevented from
filing a direct appeal because his trial counsel failed to
properly explain his rights, and because he received conflicting
information from the judge at sentencing.

Specifically,

although Petitioner concedes that his counsel discussed his
“appeal rights form” at the time he signed it, and that the
sentencing judge “explained to him that he had 45 days from the
day of sentencing to file a Notice of Appeal,” Petitioner
asserts that both his counsel and the judge failed to explain
that it was not necessary to waive his right to appeal as a
condition of the plea. (Mot. 4, ECF No. 7).

In support of this

argument, Petitioner attaches part of the transcript from his
sentencing hearing.

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Petitioner’s argument does not establish the existence of
an extraordinary circumstance.

The transcript attached to

Petitioner’s motion suggests — and Petitioner does not dispute —
that he entered knowingly and voluntarily into his plea
agreement, which included a waiver of the right to appeal. (Mot.
8-12, Ex. 3: Transcript, ECF No. 7).

Moreover, despite the fact

that Petitioner waived his right to appeal as part of the
negotiated plea, the record shows that two separate times during
the sentencing hearing the sentencing judge clearly and
unequivocally discussed the appeal process, including applicable
deadlines, with Petitioner. (Id. at 10, 11).

Finally, even

assuming that Petitioner was misinformed regarding the
requirement to waive his right to appeal, Petitioner has failed
to explain how this misinformation served as an obstacle which
prevented him from filing an appeal, a timely habeas petition,
or otherwise seeking post-conviction relief. See Ross, 712 F.3d
at 802–03 (stating that the proper inquiry is how “severe an
obstacle” the attorney’s conduct was to the petitioner’s filing
a timely petition); see also Holland, 560 U.S. at 651 (holding
that a “garden variety claim of excusable neglect” by a
petitioner's attorney does not generally present an
extraordinary circumstance meriting equitable tolling); Fahy v.
Horn, 240 F.3d 239, 244 (3d Cir. 2001) (“In non-capital cases,
attorney error, miscalculation, inadequate research, or other
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mistakes have not been found to rise to the ‘extraordinary’
circumstances required for equitable tolling.”) (citations
omitted); White v. Pennsylvania, No. 02-6578, 2004 WL 1588233,
at *2 (E.D. Pa. July 15, 2004) (holding that equitable tolling
would not apply even if petitioner had directed his attorney to
file an appeal and she failed to do so).

Therefore, even

accepting as true Petitioner’s assertion that “it was not
necessary to waive his right to appeal as a condition of the
plea” (Id. at 4), Petitioner has failed to show extraordinary
circumstances which would warrant equitable tolling.
Accordingly, Petitioner’s motion to reopen will be denied.

III. CERTIFICATE OF APPEALABILITY 1
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

1

It is unclear whether a certificate of appealability is
required to appeal the denial of a motion to reopen. See, e.g.,
McPherron v. Dist. Attorney of Cty. of Chester, 621 F. App'x
704, 707 (3d Cir. 2015) (citing Morris v. Horn, 187 F.3d 333,
340–41 (3d Cir. 1999) and Wilson v. Sec'y Pa. Dep't of Corr.,
782 F.3d 110, 115 (3d Cir. 2015)) (discussing whether a
certificate of appealability is required to appeal the denial of
habeas-related Rule 60(b) motions). To the extent a certificate
of appealability is required, this Court declines to grant one
for the reasons discussed.
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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).
Here, jurists of reason would not find it debatable whether
this Court is correct in its procedural ruling.
of appealability shall issue.

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No certificate

IV.

CONCLUSION

For the foregoing reasons, the Court finds that Petitioner
is not entitled to equitable tolling and the § 2254 habeas
petition is untimely filed under 28 U.S.C. § 2244(d).
Accordingly, Petitioner’s motion to reopen is denied.
An appropriate Order follows.
___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: May 31, 2016
At Camden, New Jersey

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