SEVERS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 12

OPINION. Signed by Judge Noel L. Hillman on 3/19/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
WILLIAM SEVERS,
:
:
Petitioner,
:
Civ. No. 15-6421 (NLH)
:
v.
:
OPINION
:
THE ATTORNEY GENERAL OF THE STATE :
OF NEW JERSEY, et al.,
:
:
Respondents.
:
___________________________________:
APPEARANCES:
William Severs, No. 188285-B
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner Pro Se
Jennifer Webb-McRae
Cumberland County Prosecutor
115 Vine Street
Bridgeton, NJ 08302
Counsel for Respondent
HILLMAN, District Judge
Petitioner William Severs, a prisoner confined at New
Jersey State Prison in Trenton, New Jersey, filed a Petition for
a Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his
2005 New Jersey state court conviction.

ECF No. 1.

For the

reasons discussed below, Respondents’ Motion to Dismiss the
Petition as time-barred under 28 U.S.C. § 2244(d), ECF No. 10,
will be granted and the Petition dismissed.

I.

BACKGROUND
In 2005, Petitioner was convicted in New Jersey state court

of the offenses of murder, unlawful possession of a firearm,
unlawful possession of a weapon requiring an ID, and obstructing
the administration of the law.

See ECF No. 1, Pet. at 2.

Petitioner filed a timely direct appeal, which became final on
December 10, 2009, ninety (90) days after the New Jersey Supreme
Court denied his Petition for Certification on September 11,
2009.

See id. at 3-8.

On November 5, 2009, Petitioner filed a state court PCR
petition.
2011.

Id.

Id. at 8.

The PCR petition was denied on October 4,

Petitioner notified the Office of the Public

Defender by letter dated October 3, 2011 of his intent to appeal
his PCR petition denial and requested the copies of the briefing
from his direct appeal process so that he might use them in his
PCR petition appeal.

ECF No. 11, at 6.

Petitioner wrote to his

PCR attorney by letter dated October 20, 2011, stating as
follows:
As you well know, we were denied an evidentiary
hearing, on the date, September 22, 2011, and prior to
leaving the courtroom, you made Judge Fineman aware of
the fact, that your client, William Severs would need
a copy of the Judge’s decision, also you informed the
Judge that we would be appealing the decision of the
court. Mr. Paul, you explained to me that you were
going to handle the filing of the appeal. As of this
date (10-20-11), I have not heard anything from you.
In the meantime, I have written to Ms. Jodi Ferguson
(on 9-26-11), and to Mr. Raymond Black, (on 10-03-11);
2

I made them aware that I am filing for an appeal, on
my Post Conviction Relief petition, in which I was
denied the right to an evidentiary hearing.
ECF No. 11, at 8.

Petitioner’s time for filing a timely appeal

to the Appellate Division of the New Jersey Superior Court
expired on November 18, 2011, forty-five days after the entry of
the order denying the PRC Petition on October 4, 2011. 1

Over a

year later, Petitioner filed the appeal of his PCR denial on
October 15, 2012.

ECF No. 1, at 12.

The Appellate Division

affirmed the denial of the PCR petition on March 14, 2014.
Petitioner next filed a petition for certification with the
Supreme Court of New Jersey on March 19, 2014, which was denied
on September 22, 2014.

Id., at 15.

Petitioner effectively filed this Petition on August 21,
2015, the date on which he placed the Petition into the prison’s
mailing system, although it was not docketed by the clerk until
August 26, 2015.

See id. at 28.

Respondents filed a Motion to

Dismiss on August 10, 2017, in which they assert the Petition
should be dismissed as untimely under § 2244(d).
1.

ECF No. 10, at

Petitioner filed a response on the issue of timeliness

raised in the motion to dismiss.

ECF No. 11.

Relevant to the

instant Motion, Petitioner includes a “certification” from his
PCR attorney, in which the attorney states that he was involved

1

N.J. Ct. R. 2:4(a) (providing forty-five days in which to file
a notice of appeal to the Appellate Division).
3

in a serious car accident and was unable to timely perfect
Petitioner’s appeal.

See id. at 4.

This certification appears

to have been executed for the purposes of Petitioner’s untimely
PCR appeal to the Appellate Division.

See id. (dated February

29, 2012).
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

4

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, the New Jersey Supreme Court denied Petitioner’s
petition for certification on direct appeal on September 11,
2009.

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 December 10, 2009.

Petitioner,

however, filed his PCR petition on November 5, 2009, prior to
his conviction becoming final, so federal habeas statute of
limitations did not begin to run on December 10, 2009.
U.S.C. § 2244(d)(2).

See 28

Instead, the limitations period initially

began to run November 19, 2011, which is the day after his time
for filing an appeal of his denied PCR petition expired.
Ct. R. 2:4-1(a) (providing for 45 days for appeal).

N.J.

See Douglas

v. Horn, 359 F.3d 257, 263 (3d Cir. 2004) (rejecting notion that
by “filing a nunc pro tunc petition for leave to appeal a
petitioner could obtain further tolling after the time for even
discretionary review of a judgment has expired”); Swartz v.
5

Meyers, 204 F.3d 417, 424, n.6 (3d Cir. 2000) (“We . . . agree
that the time during which Swartz's nunc pro tunc request for
allowance of appeal was pending does not toll the statute of
limitation.”); see also Alvarenga v. Lagana, No. 13-4604, 2016
WL 3610156, at *1 (D.N.J. July 1, 2016) (“When an out-of-time
appeal is filed, even if the appeal is accepted as properly
filed by the state appeals court, statutory tolling does not
include the period between the expiration of time to appeal and
when the appeal was actually filed.”), aff'd sub nom Alvarenga
v. Admin N. State Prison, No. 16-3538 (3d Cir. Dec. 14,
2016)(denying certificate of appealability); Smith v. Holmes,
No. 13-1876, 2016 WL 1464649, at *1 (D.N.J. Apr. 14, 2016)
(“when an untimely appeal is filed—even if the appeal is
accepted as properly filed by the state appeals court—statutory
tolling does not include the period between expiration of the
time to appeal and when the appeal was actually filed”); Martin
v. D'Ilio, No. 15-7158, 2017 WL 1003246, at *2 (D.N.J. Mar. 15,
2017) (same).
Here, Petitioner’s federal habeas statute of limitations
began to run on November 19, 2011, and continued to run until he
filed his appeal of the denied PCR petition on October 15, 2012—
for a total of 330 days.

Then, the statute of limitations was

tolled during the pendency of the PCR appeal and the timely
filed petition for certification to the New Jersey Supreme
6

Court, but started to run again once the New Jersey Supreme
Court denied review on September 22, 2014.

At this point, 35

days remained on the federal habeas statute of limitations,
which expired on October 27, 2014.

Thus, Petitioner had until

October 27, 2014 to file the instant petition but did not do so
until August of 2015.

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

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
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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.”).
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.”
8

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.
230 (3d Cir. 2005).

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

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 response to the Motion to Dismiss, Petitioner gives
little explanation for his delay filing an appeal of his PCR
petition.

He cites and includes as an exhibit the
9

aforementioned attorney certification.

Although an attorney who

was prevented from filing an appeal on behalf of a petitioner
because he was involved in a serious car accident may, under
other circumstances, provide cause for equitable tolling, it
does not in this matter.

First, Petitioner fails to provide

specific facts regarding when his attorney was in a car
accident, for how long his attorney was incapacitated, and when
his attorney’s capacity was regained.

The Court is thus unable

to assess Petitioner’s diligence and whether the circumstances
were truly extraordinary.
Second, Petitioner fails to explain the nearly year-long
delay for filing the PCR appeal.

Once again, the Court is

unable to assess Petitioner’s diligence after he discovered that
his appeal was not filed.

Finally, the letters submitted by

Petitioner demonstrate that (1) Petitioner intended to file the
appeal, and (2) Petitioner was aware that, as of October 20,
2011, no PCR appeal had been taken by his attorney and that his
attorney had not been in communication with him for almost a
month.

These letters tend to undercut any argument in favor of

equitable tolling.

Petitioner has thus failed to meet his

burden to demonstrate the factors necessary to invoke equitable
tolling.

10

Petitioner also cites 28 U.S.C. § 2244(d)(1)(B) in support
of the timeliness of his Petition.

That subsection provides, in

pertinent part:
A one-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of—
. . .
(B) the date on which the impediment to file an
application created by the State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing such State action.”
28 U.S.C. § 2244(d)(1)(B).

Here, however, Petitioner does not

allege or provide any facts that support that he was prevented
from filing any such State action.

Accordingly, the Petition

will be dismissed as untimely.
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
11

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.

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.
An appropriate Order follows.
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

Dated: March 19, 2018
At Camden, New Jersey
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