TYKOT v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
8
OPINION. Signed by Judge Noel L. Hillman on 12/28/2018. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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:
:
Petitioner,
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v.
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:
STEVEN JOHNSON, et al.,
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Respondents.
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___________________________________:
BRIAN J. TYKOT,
Civ. No. 17-92 (NLH)
OPINION
APPEARANCES:
Brian J. Tykot, No. 453577/305899C
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner Pro Se
Jennifer L. Bentzel, Esq.
Burlington Prosecutor’s Office
49 Rancocas Road
Mount Holly, NJ 08060
Counsel for Respondents
HILLMAN, District Judge
Petitioner Brian J. Tykot, a prisoner presently confined at
the 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 2003 New Jersey state court convictions.
No. 1.
ECF
Respondent filed an Answer raising as an affirmative
defense the statute of limitations, arguing that the Petition is
untimely.
ECF No. 5.
Petitioner filed a reply.
ECF No. 6.
For the reasons discussed below, the Court will deny the
Petition as time-barred under 28 U.S.C. § 2244(d).
I.
BACKGROUND
In 2003, Petitioner pled guilty to and was convicted of
three counts of murder in violation of N.J. Stat. 2C:11-32(3) in
New Jersey state court.
ECF No. 5-7 (judgment of conviction).
He was sentenced on May 29, 2003 to life imprisonment with an
85% period of parole ineligibility consecutive to each count. 1
Id.
Pursuant to Petitioner’s guilty plea agreement, Petitioner
agreed to waive his right to file an appeal.
ECF No. 5 at 7.
Four years later, Plaintiff filed a direct appeal to the
Appellate Division of the New Jersey Superior Court on July 31,
2007, see ECF Nos. 5 at 9, 5-13 at 5, 2 which appeal was denied on
April 29, 2008.
ECF No. 5-8 (order denying appeal).
denying the appeal was not filed until May 7, 2008.
The order
Id.
Petitioner then filed a petition for writ of certification with
1
According to Respondent, Petitioner was sentenced to three
consecutive life sentences for each count of first-degree
murder. The sentencing judge calculated a life sentence to be
75 years. Under the No Early Release Act, defendant must serve
85% of each life sentence (approximately 63¾ years of each
sentence) before being eligible for parole. According to public
records, Petitioner’s current parole eligibility date is 2193.
2
The record demonstrates that Petitioner’s direct appeal was not
filed until July 31, 2007. Respondent does not provide a copy
of the notice of appeal dated July 31, 2007. However,
Petitioner has never disputed this date in this proceeding or in
the underlying proceedings.
2
the New Jersey Supreme Court.
October 22, 2008.
certification).
That petition was denied on
ECF No. 5-9 (table opinion denying
Petitioner did not file a petition for writ of
certiorari with the Supreme Court of the United States, and his
time for doing so expired on January 20, 2009.
While his petition for certification was pending,
Petitioner filed a motion for post-conviction relief on November
19, 2008.
See ECF No. 5-10 (PCR brief identifying date of
filing of PCR petition).
The PCR petition was denied by the
Superior Court of New Jersey on July 29, 2010.
(letter opinion denying PCR petition).
ECF No. 5-11
Petitioner then appealed
the denial of his PCR petition on August 20, 2010.
(PCR appeal brief identifying date of appeal).
ECF No. 5-12
His PCR petition
denial was affirmed on appeal by the Appellate Division on July
24, 2013.
ECF No. 5-14 (opinion denying appeal).
Petitioner
filed a petition for certification regarding the affirmance of
the denial of his PCR petition with the Supreme Court of New
Jersey, which was denied on April 14, 2014.
opinion denying petition for certification).
ECF No. 5-15 (table
Petitioner did not
file a petition for writ of certiorari with the Supreme Court of
the United States regarding his PCR petition.
Petition filed the instant Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 on December 22, 2016.
ECF
No. 1 at 11 (Petitioner’s certification that the Petition was
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placed in the prison’s mailing system on that date).
In it, he
argues that his convictions should be vacated because his
confession was obtained in violation of his Fifth Amendment
right to remain silent.
Petition).
See ECF No. 1-1 (brief in support of
On the issue of timeliness, Petitioner states that
his post-conviction relief became final on April 14, 2014, and
thus his habeas petition would have been due by April 14, 2015.
ECF No. 1 at 9.
He argues, however, that “[d]ue to a clerical
error at the Office of the Public Defender, petitioner did not
receive the final state court decision until November 23, 2016,”
and he requests “equitable tolling from April 14, 2015 to
November 23, 2016 due to attorney neglect.”
II.
Id.
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;
28 U.S.C. § 2244(d).
See also Jones v. Morton, 195 F.3d 153,
157 (3d Cir. 1999).
4
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 Supreme Court of the United States.
See Gonzalez v.
Thaler, 132 S. Ct. 641, 653–54 (2012); Kapral v. United States,
166 F.3d 565, 570 (3d Cir. 1999).
“If a defendant does not
pursue a timely direct appeal to the court of appeals, his or
her conviction and sentence become final, and the statute of
limitations begins to run, on the date on which the time for
filing such an appeal expired.”
Kapral, 166 F.3d at 577.
Here, Petitioner’s judgment of conviction was entered on
May 29, 2003.
Forty-five (45) days later, on July 14, 2003, 3 his
time for filing a direct appeal with the Appellate Division of
the Superior Court of New Jersey expired.
See N.J. Ct. R.
2:4(a) (providing forty-five days in which to file a notice of
appeal to the Appellate Division).
3
Once Petitioner’s time for
The Court notes that the forty-fifth day landed on July 13,
2003, which was a Sunday, and thus Petitioner would have had
until the next day, a Monday, to file his direct appeal to the
Appellate Division.
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filing a timely direct appeal expired, his conviction became
final for the purpose of § 2244(d).
The next day, on July 15,
2003, his habeas statute of limitations became to run and then
expired a year later, on July 15, 2004.
2244(d)(1)(a).
See 28 U.S.C. §
That Petitioner eventually filed an untimely
direct appeal over four years after his judgment of conviction
was entered is immaterial to Petitioner’s case because the
federal statute of limitations — and his right to file a 2254
petition — had already expired.
See, e.g., Ellis v. Ricci, No.
09-cv-5124, 2010 WL 1741593, at *2 (D.N.J. April 28, 2010)
(“Petitioner's conviction and sentence became final for purposes
of § 2254 on November 18, 2002, the date on which Petitioner
lost his opportunity for a timely direct appeal to the New
Jersey Supreme Court.
Petitioner's attempt to appeal his
conviction to the New Jersey Supreme Court six years later
cannot be considered for statute of limitation purposes because
it was not timely.
The statute of limitations for a valid §
2254 petition expired on November 18, 2003, one year after his
conviction and sentence became final.”).
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
6
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
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
7
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.”
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
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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)).
Although Petitioner has raised an argument for why his
Petition should be considered timely after the expiration of his
PCR proceedings, Petitioner has failed to address the timeliness
issue as it relates to his direct appeal.
The Court has
reviewed Petitioner’s filings and sees no circumstances which
could potentially trigger equitable tolling.
The Court will
dismiss the Petition without prejudice as untimely.
Petitioner
shall have thirty (30) days in which to present the Court with
any argument he wishes to make regarding equitable tolling as to
the untimely direct appeal.
Failure to do so will result in the
Petition being dismissed with prejudice.
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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 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.
Dated: December 28, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
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