MARTIN v. D'ILIO et al
Filing
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MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 11/9/2015. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SELWIN MARTIN,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 15-7158 (JBS)
v.
WARDEN STEPHEN D’ILIO, et al.,
MEMORANDUM OPINION
Respondents.
SIMANDLE, Chief Judge:
Petitioner is proceeding pro se with a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket Entry 1).
1.
After a jury trial, Petitioner was sentenced by the
Superior Court of New Jersey, Camden County, Law Division on
October 15, 1999, to life imprisonment with a thirty-five-year term
of parole ineligibility. (Docket Entry 1 at 1).
2.
Petitioner filed a direct appeal. The New Jersey Superior
Court Appellate Division affirmed his convictions, State v. Martin,
No. A-1742-99 (N.J. Super. Ct. App. Div. Sept. 21, 2001), and the
New Jersey Supreme Court denied certification on January 10, 2002,
State v. Martin, 791 A.2d 220 (N.J. 2002).
3.
Petitioner filed a timely petition for post-conviction
relief (“PCR”) in the state courts on October 21, 2002. (Docket
Entry 1 at 2).
4.
On April 30, 2004, the PCR court denied the petition. See
State v. Martin, No. A-3994-11, 2014 WL 7178019, at *1 (N.J. Super.
Ct. App. Div. Dec. 18, 2014).
5.
Petitioner did not appeal the denial of his PCR petition
until April 6, 2012. The Appellate Division granted his motion to
file his notice of appeal as within time on June 27, 2012. Id. at
*2.
6.
The Appellate Division affirmed the PCR court on December
18, 2014, see id., and the New Jersey Supreme Court denied
certification on April 30, 2015, State v. Martin, 112 A.3d 593
(N.J. 2015).
7.
Petitioner handed this petition for a Writ of Habeas
Corpus to prison officials for mailing on June 12, 2015. (Docket
Entry 1 at 13; Docket Entry 1-4 at 3-6).
8.
Petitioner’s habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
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.
See 28 U.S.C. § 2244(d)(1). 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
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violation of the Constitution or laws of the
United States is removed, if 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).
9.
Petitioner’s direct appeal concluded on January 10, 2002.
State v. Martin, 791 A.2d 220 (N.J. 2002). Petitioner’s conviction
became “final” for habeas purposes upon the expiration of the
ninety (90) day period in which he could have sought a writ of
certiorari from the United States Supreme Court, April 10, 2002.
10.
Petitioner’s one-year limitations period began running on
April 11, 2002,1 and was tolled when he filed his PCR petition on
October 21, 2002. See 28 U.S.C. § 2244(d)(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.”).
1
Petitioner erroneously calculated his one-year from January 11,
2002, rather than April 11, 2002. As his convictions were not
“final” within the meaning of AEDPA until the time period for
seeking certiorari expired, 28 U.S.C. § 2244(d)(1)(A), April 11,
2002 was the first day of the 365-day limitations period.
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11.
A total of 194 days elapsed before Petitioner filed his
PCR petition, leaving him with 171 days remaining in his AEDPA
limitations period.
12.
Petitioner argues his petition is timely as the Appellate
Division permitted him to file his PCR appeal out of time, and he
handed his § 2254 petition to prison officials before the
limitations period expired. (Docket Entry 1 at 12-13); see also
Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (“[A] pro se
prisoner's habeas petition is deemed filed at the moment he
delivers it to prison officials for mailing to the district
court.”).
13.
Although it appears Petitioner’s appeal was “properly
filed” under New Jersey law, the question remains as to whether it
was “pending” in the state courts between the PCR court’s denial of
the petition and Petitioner’s filing of an appeal nearly eight
years later.
14.
The Third Circuit has held collateral relief petitions
are “pending” during the time period in which a petitioner could
timely seek appellate review. Swartz v. Meyers, 204 F.3d 417 (3d
Cir. 2000) (“[F]or purposes of § 2244(d)(2) ‘pending’ includes the
time for seeking discretionary review, whether or not discretionary
review is sought.”). Therefore, Petitioner’s PCR petition was
clearly “pending” until the expiration of the forty-five-day period
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in which he could have timely sought review by the Appellate
Division. N.J. Ct. R. 2:4-1(a).
15.
The Third Circuit has also noted, however, that the
filing of a motion to file an appeal out of time does not stop the
running of the statute of limitations. 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. Meyers, 204 F.3d 417, 423
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 Butler v.
Holmes, No. 12-4681, 2015 WL 5446411, at *2 (D.N.J. Sept. 15,
2015)(“[I]f 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
timely appeal and when the appeal was actually filed.”).
16.
The last day Petitioner could have filed a timely appeal
with the Appellate Division was June 14, 2004. Petitioner’s AEDPA
deadline expired 171 days later on December 2, 2004.
17.
The § 2254 petition was not filed until June 12, 2015,
over ten years late.
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18.
Even if the filing of Petitioner’s request to file an out
of time appeal did toll the statute of limitations, it had already
expired well before the motion was filed on April 6, 2012.
19.
AEDPA’s statute of limitations is subject to equitable
tolling in appropriate cases, however. See Holland v. Florida, 560
U.S. 631, 645 (2010). “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).
20.
“The diligence required for equitable tolling purposes is
reasonable diligence, not maximum, extreme, or exceptional
diligence. . . . A determination of whether a petitioner has
exercised reasonable diligence is made under a subjective test: it
must be considered in light of the particular circumstances of the
case.” Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013).
21.
“The fact that a petitioner is proceeding pro se does not
insulate him from the ‘reasonable diligence’ inquiry and his lack
of legal knowledge or legal training does not alone justify
equitable tolling.” Id. at 799-800.
22.
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
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for the prisoner endeavoring to comply with AEDPA's limitations
period.’” Id. at 802-03 (quoting Pabon v. Mahanoy, 654 F.3d 385,
400 (3d Cir. 2011)) (emphasis in original).
23.
“In addition, for a petitioner to obtain relief there
must be a causal connection, or nexus, between the extraordinary
circumstances he faced and the petitioner's failure to file a
timely federal petition.” Ibid.
24.
In the interests of justice, Petitioner shall be ordered
to show cause, within thirty (30) days of the date of this Order,
why his Petition should not be dismissed as untimely under 28
U.S.C. § 2244(d)(1).
25.
Any response by Petitioner shall state with specificity
any facts that may entitle him to equitable tolling of the statute
of limitations, or that otherwise demonstrate why his present §
2254 petition is timely.
November 9, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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