WOODALL v. PORRINO et al

Filing 27

OPINION. Signed by Judge Renee Marie Bumb on 1/22/2019. (dmr)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

DARA WOODALL,
Petitioner,
v.
WILLIAM ANDERSON, et al.,
Respondents.

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Civil Action No. 17-1847 (RMB)

OPINION

Appearances:
Stanley O. King, Esq.
King & King
231 S. Broad St.
Woodbury, New Jersey 08096
John J. Lafferty, IV, Esq.
4997 Unami Blvd.
Mays Landing, New Jersey 08226
BUMB, United States District Judge
I.

INTRODUCTION
On March 16, 2017, Petitioner Dara Woodall (“Petitioner”), a

state prisoner incarcerated in Edna Mahan Correctional Facility in
Clinton, New, Jersey, filed a pro se Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person In State Custody,
challenging her October 8, 2009 conviction and sentence in Atlantic
County, New Jersey for murder and weapons charges. (Pet., ECF No.

1, ¶¶1-5.) Respondents filed a motion to dismiss the petition as
barred by the statute of limitations (Mot. to Dismiss, ECF No. 8),
and Petitioner filed a brief in opposition to the motion to
dismiss. (“Petr’s Opp. Brief,” ECF No. 9.)
On February 1, 2018, this Court issued an Opinion and Order,
finding

that

the

one-year

statute

of

limitations

period

for

Petitioner’s petition for writ of habeas corpus under 28 U.S.C. §
2254 began to run on March 8, 2012 and expired on March 8, 2013.
(Opinion, ECF No. 10 at 9.) When Petitioner filed her PCR petition
on March 4, 2014, it was too late to toll the statute of limitations
under 28 U.S.C. § 2244(d)(2). (Id.)
Petitioner

argued

that

abandonment

by

her

PCR

attorney

justified equitable tolling of the statute of limitations. (Id.)
She alleged that
after petitioner’s state direct appeal became
final
on
March
7,
2012,
she
was
in
communication repeatedly with Stephen Kirsch,
the attorney who represented her on direct
appeal, requesting that the Public Defender
proceed with preparation and filing of her
post-conviction relief petition. She was
repeatedly told to “wait” and “give it time”
and the Public Defender never did prepare and
file the documents. Finally, petitioner
prepared and filed her own petition in March
2014.
(Id. at 9-10.) Petitioner also alleged that the New Jersey Public
Defender’s Office typically sends letters advising inmates of the
results of their state court appeals and advises inmates to file

2

their federal habeas petitions. (Id. at 10.) Petitioner asserted,
however, that she was under the impression that her appellate
lawyer would represent her in the post-conviction proceedings,
including habeas corpus. (Opinion, ECF No. 10 at 10.) This Court
administratively
appointed

terminated

counsel

to

Respondents’

represent

motion

Petitioner,

and

to

dismiss,

scheduled

an

evidentiary hearing on the issue of equitable tolling. (Id. at
11.)
II.

DISCUSSION
A.

Legal Standard for Equitable Tolling
Limitations Under 28 U.S.C. § 2244(d).

Equitable

tolling

applies

to

the

of

one-year

Statute

of

statute

of

limitations under 28 U.S.C. § 2244(d) in appropriate cases. Holland
v. Florida, 560 U.S. 631, 645 (2010). A petitioner is entitled to
equitable tolling if “he shows: ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Id. (quoting Pace
v. DiGuglielmo, 544 U.S 408, 418 (2005). Garden variety attorney
neglect, such as a miscalculation that leads to missing a deadline,
is

not

an

extraordinary

circumstance

that

warrants

equitable

tolling, but more serious instances of attorney misconduct may
warrant equitable tolling. Id. at 651-52.
The diligence required of a habeas petitioner in pursuing his
or her remedies is “‘reasonable diligence, not maximum feasible

3

diligence.’” Munchinski v. Wilson, 694 F.3d 308, 330 (3d Cir. 2012)
(quoting Holland, 130 S.Ct. at 2565 (internal quotation marks and
citations omitted)). “The diligence inquiry is fact-specific and
depends on the circumstances faced by the particular petitioner.”
Id. at 331. Thus, “[i]f a petitioner ‘did what he reasonably
thought

was

necessary

to

preserve

his

rights

...

based

on

information he received ..., then he can hardly be faulted for not
acting more ‘diligently’ than he did.’” Id. (quoting Holmes v.
Spencer, 685 F.3d 51, 65 (1st Cir. 2012)). The reasonable diligence
obligation extends to the period when the appellant is exhausting
state court remedies. Ross v. Verano, 712 F.3d 784, 799 (3d Cir.
2013) (citing LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005)
(citing Jones v. Morton, 195 F.3d 153, 160) (3d Cir. 1999)). “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.
The Supreme Court in Holland noted that
Holland not only wrote his attorney
numerous
letters
seeking
crucial
information and providing direction; he
also repeatedly contacted the state
courts, their clerks, and the Florida
State Bar Association in an effort to
have Collins—the central impediment to
the pursuit of his legal remedy—removed
from his case. And, the very day that
Holland discovered that his AEDPA clock
had expired due to Collins' failings,
4

Holland prepared his own habeas petition
pro se and promptly filed it with the
District Court.
Id. at 653.
B.

The Evidentiary Hearing

An evidentiary hearing was held in this matter on October 10,
2018 and continued October 19, 2018. (Minute Entry, ECF No. 23;
Transcript of Proceedings, ECF Nos. 22, 24.) Stephen Kirsch, Atiya
Woodall,

and

Petitioner

Dara

Woodall

testified.

The

Court

requested the parties to submit post-trial briefs. (Minute Entry,
ECF No. 23.)
C.

The Parties’ Post-Trial Briefs
1.

Petitioner contends her failure to timely file
her habeas petition should be excused based on
gross negligence by her appellate attorney

Petitioner contends that she exercised reasonable diligence
in pursuing her habeas corpus action in this Court. (Petitioner’s
Post-trial

Brief,

ECF

No.

25

at

2.)

Petitioner

has

been

incarcerated since 2009 and had a ninth or tenth grade education
when incarcerated. (Id.) She did not know the meaning of postconviction relief, and no one explained the appellate process to
her. (Id.) Her appellate attorney, Stephen Kirsch, testified that
he did not remember speaking to her about the PCR process. (Id.)
Petitioner believed Kirsch was assigned to her case “to help her
fight for her life.” (Id.) Petitioner testified that Kirsch told
her to be patient because these things take time. (Id.)
5

Petitioner contends she diligently pursued communications
with Kirsch to “check up on her case.” (Id.) She first learned
that Kirsch would represent her [on direct appeal] by letter dated
September

9,

2010.

(Id.)

Petitioner

spoke

to

Kirsch

on

two

occasions, one by a video conference in late 2010 or January 2011
and the other by telephone approximately four months after Kirsch
was assigned to represent Petitioner. (Id.)
Petitioner attempted to call Kirsch on numerous occasions to
check on her case. (Id.) She sent him one handwritten note. (Id.)
Kirsch did not respond to her. (Id.) Petitioner asked her aunt,
Atiya Woodall, to contact Kirsch. (Id.) Atiya Woodall testified
that she had two conversations with Kirsch on behalf of Petitioner.
(Id.) Their first conversation occurred early in the direct appeal
process. (Id.) After that, Atiya Woodall called Kirsch eight to
ten times and he did not return her calls. (Id.)
Atiya Woodall’s second conversation with Kirsch occurred
after Petitioner’s direct appeal in the Appellate Division failed.
(Id.) Kirsch told Atiya that Petitioner’s petition was still
pending before the New Jersey Supreme Court. (Id.) Kirsch did not
speak with Atiya or Petitioner after the New Jersey Supreme Court
denied certification. (Id.)
Years after her direct appeal, Petitioner learned from a
fellow inmate, whom she referred to as in-house counsel because
the inmate assisted her with legal paperwork, that her direct
6

appeal

had

been

unsuccessful.

(Id.)

This

inmate

assisted

Petitioner in filing her Verified Petition for Post-Conviction
Relief on March 4, 2014. (Petitioner’s Post-trial Brief, ECF No.
25 at 3.) The PCR petition was denied on October 16, 2014, and
Petitioner filed a notice of appeal on November 20, 2014. (Id.)
After the Appellate Division affirmed the PCR Court on April 5,
2016, Petitioner filed a petition for certification in the New
Jersey Supreme Court, which was denied on November 29, 2016. (Id.)
Petitioner filed her habeas petition on March 16, 2017. (Id. at
4.)
Mr. Kirsch testified that he sent six letters to Petitioner.
(Id. at 5.) Petitioner acknowledged receiving a January 28, 2011
cover letter from Kirsch, forwarding a copy of her appellate brief,
appendix and presentence report. (Id.) Petitioner signed a copy,
acknowledging receipt. (Id.) On December 9, 2011, Kirsch sent
Petitioner a letter advising her that the New Jersey Supreme Court
denied her petition for certification and that Kirsch would no
longer represent her. (Id.) Petitioner testified that she did not
receive the December 9, 2011 letter. (Id.) Kirsch never followed
up with Woodall to confirm that she received and understood his
letters to her. (Id. at 6.) Petitioner asserts that her failure to
timely file her PCR petition, resulting in her failure to timely
file her habeas petition, was caused by Kirsch’s gross negligence
in failing to communicate with her. (Id. at 7-8.)
7

2.

Respondents argue Petitioner is not entitled to
equitable tolling of the habeas statute of
limitations.

Respondents note that in granting Petitioner an evidentiary
hearing on the issue of equitable tolling of the habeas statute of
limitations, this Court stated,
If indeed Woodall’s public defender agreed to
represent
her
in
her
post-conviction
proceedings and told her to wait and give it
time before starting the proceedings, without
informing her of the potential consequences to
her federal habeas claims, Woodall may be
entitled to equitable tolling.
(Respondents’ Post-trial Brief, ECF No. 26 at 1.) Based on his
credible testimony at the hearing, Kirsch never agreed to represent
Petitioner on PCR or any subsequent proceedings. (Id.) Kirsch told
Petitioner only that a PCR comes after a direct appeal. (Id. at
2.) Even if Petitioner did not receive Kirsch’s December 9, 2011
letter, Petitioner did not follow up with Kirsch after that,
undermining her argument that her untimely filing was Kirsch’s
fault. (Id. at 2.)
III. FINDINGS OF FACT
1.

The Court finds Mr. Kirsch’s testimony fully credible.

2.

Mr. Kirsch is an Appellate Public Defender in the
Trenton, New Jersey Office. (Oct. 10, 2018 Hr’g Tr. at
6:21-23, ECF No. 22.)

3.

Mr. Kirsch has worked for the New Jersey Public
Defender’s Office since August 1989. (Id. at 7:2-3.) He
has 31 years of experience in criminal appellate
practice. (Id. at 8:1-9.)

8

4.

Whenever Mr. Kirsch receives an assignment to serve as
an Appellate Public Defender, he sends his client a
letter providing his contact information. (October 10,
2018 Hr’g Tr. at 10:19-11:7, ECF No. 22.) He sent such
a letter to Petitioner on September 9, 2010. (Id. at
18:21-25.)

5.

A letter dated September 9, 2010 from the Office of the
Public Defender, Appellate Section to Petitioner was
submitted into evidence as Exhibit 6. (Id. at 79:2580:2) The body of the letter states:
The Office of the Public Defender has
filed an appeal on your behalf. The
Assistant Deputy Public Defender who will
represent you in this appeal is: Stephen
W. Kirsch, Office of the Public Defender,
Hughes Justice Complex, P.O. Box 850, 25
West Market Street, Trenton, New Jersey
08625.
Enclosed are the transcripts and the
Adult Presentence Report in your case.
These have been filed with the Appellate
Division and will be relied on in your
appeal. You will hear from your attorney
as soon as he or she has reviewed your
file.
Please acknowledge receipt of these
materials by signing the enclosed copy of
this letter and returning it to your
attorney in the enclosed self-addressed
stamped envelope.
(ECF No. 25-3 at 2.)

6.

On October 28, 2010, Kirsch sent Petitioner another
letter, acknowledging several phone messages from her
requesting a visit, but stating that he would set up a
videoconference with her. (Oct. 10, 2018 Hr’g Tr. at
19:1-5, ECF No. 22 at 19.)

7.

The October 28, 2010 letter from Mr. Kirsch to Petitioner
was submitted into evidence as Exhibit 7. (Id. at 80:34.) The body of the October 28, 2010 letter states:

9

As you are already aware, I am the attorney assigned
to represent you on appeal. I have received a couple
of phone messages from you requesting that I visit
you. I am going to set up a videoconference with
you in the near future, but I want to wait to do so
until I have read the transcripts in your case.
That way we can have a meaningful discussion of the
issues. I will be out of the office for about a
week in the very early part of November, but I will
read your transcripts as soon as I return, and set
up a videoconference thereafter. If you have any
questions about this letter or about the case,
please call me collect at 609-292-1746, but be
aware that I won’t really be able to discuss the
merits of the appeal until I have read the
transcripts, at which point we will talk via
videoconference.
(ECF No. 25-6 at 2.)
8.

Kirsch wrote another letter to Petitioner in November
2010, informing her that he was assigned an emergency
appeal and he would have to set up their videoconference
for December 2010 or January 2011. (October 10, 2018
Hr’g Tr. at 19:6-10.)

9.

A letter from Mr. Kirsch to Petitioner, dated November
17, 2010, was submitted into the record as Exhibit 8.
(Id. at 80:5-6.) The body of the letter states:
I
am
writing
to
tell
you
that,
unfortunately, it will likely be a while
longer before I have a videoconference
with you. I was about to begin work on
your case when I was handed an emergency
appeal to work on first. As a staff
attorney, I do not control the assignment
of cases, so I have to work on them as I
am ordered to do so. I would anticipate
speaking to you sometime in December, or
at worst, early January, once I have
fully read your transcripts. Sorry for
the news about the delay, but I wanted to
keep you in the loop and not have you
wondering what was going on.
(ECF No. 25-7 at 2.)
10

10.

The only conversation Mr. Kirsch could recall having
with Petitioner was at their videoconference. (October
10, 2018 Hr’g Tr. at 15:20-16:2, ECF No. 22.)

11.

During the videoconference, Mr. Kirsch explained the
general appellate process to Petitioner. Petitioner said
that there were ineffective assistance of counsel claims
she wanted to raise. Mr. Kirsch told her that in New
Jersey, ineffective assistance of counsel claims should
not be raised on direct appeal but should be raised later
in PCR proceedings. (Id. at 16:6-17:1.) Petitioner
seemed to understand. (Id.) Mr. Kirsch particularly
recalls having an animated discussion because Petitioner
was upset with her trial attorney. (Id. at 81:1-4.) They
discussed sorting through which issues were appropriate
for direct appeal and which were appropriate for PCR.
(Id. at 81:4-8.)

12.

On January 28, 2011, Mr. Kirsch sent Petitioner a cover
letter enclosing a copy of her direct appeal brief,
appendix and a copy of the presentence report. (Id. at
19:11-13.)

13.

The January 28, 2011 letter from Mr. Kirsch to Petitioner
was submitted into evidence as Exhibit 11. (Id. at 80:1112.) The body of the letter states:
Enclosed please find a copy of your brief
and appendix and a copy of the Adult
Presentence Report filed on your behalf,
in the above matter. The transcripts were
forwarded to you on September 9, 2010,
under separate cover.
Kindly sign the enclosed copy of this
letter, acknowledging that you have
received these documents and return the
copy of the letter to me.
(ECF No. 25-8 at 2.)

14.

A letter from Mr. Kirsch to Petitioner, dated March 3,
2011, was submitted into evidence as Exhibit 10.
(October 10, 2018 Hr’g Tr. at 80:9-10.) The body of the
letter states:

11

Enclosed is a copy of the Court’s brief.
I have requested oral argument in your
case and I will advise you of the result
in the case when I receive it. Call me
collect at 609-292-1746 if you have any
questions.
(ECF No. 25-9 at 2.)
15.

A letter from Mr. Kirsch to Petitioner, dated July 1,
2011, was submitted into evidence as Exhibit 9. (October
10, 2019 Hr’g Tr. at 80:7-8.) The body of the letter
states:
I am sorry to say that the Appellate
Division upheld your convictions and
sentence in the enclosed opinion. I will
petition the New Jersey Supreme Court to
hear your case and I will inform you of
the result when I receive it. Call me
collect at 609-292-1746 if you have any
questions.
(ECF No. 25-10 at 2.)

16.

Mr. Kirsch recalled having one phone conversation with
a relative of Petitioner’s, whom he thought might have
been her mother. (Id. at 33:1-4, ECF No. 22.) He
remembered the call occurring after the appeal was
denied, and possibly when the petition was pending in
the Supreme Court. (Id. at 33:8-18.) Mr. Kirsch
remembered that Petitioner’s “mother” was annoyed that
the appeal was denied. (Id.) He was not certain whether
the call occurred before or after the “cert. denial.”
(Id. at 35:8-15.) The only communication Mr. Kirsch had
with Petitioner after the denial of certification by the
New Jersey Supreme Court was the letter he sent to her
on December 9, 2011. (Id. at 35:17-36-2.)

17.

A letter from Mr. Kirsch to Petitioner, dated December
9, 2011, was submitted into evidence as Exhibit 4.1 The
body of the letter states:

1

Exhibit 3 is a duplicate of Exhibit 4, except Exhibit 3 is dated
July 19, 2018, rather than December 9, 2011. (Ex. 3, ECF No. 2511 at 2.) The Court credits Mr. Kirsch’s testimony that he first
produced this letter to Mr. King in discovery in this matter on
12

I am sorry to inform you that the NJ
Supreme Court has denied your petition
for certification in the enclosed order.
Because I see no chance that the federal
courts will provide any relief for you,
I must inform you that this office will
no longer represent you on appeal in this
matter. However, if you wish to continue
the matter further on your own, and file
a petition for state post—conviction
relief (PCR), you should go to the law
library at the prison, fill out the PCR
form and file it with the criminal case
manager in Atlantic County, and a lawyer
will
be
appointed
to
handle
that
petition. Do this as soon as possible
because the one-year deadline for filing
for federal habeas corpus (if you
eventually choose to file for habeas
corpus on your own) runs until you file
those state PCR papers. Call me collect
at
609-292-1746
if
you
have
any
questions.
(Id. at 39:23-40:1; ECF No. 25-4 at 2.)
18.

Mr. Kirsch did not follow up with Petitioner or her
family members to see if Petitioner received his
December 9, 2011 letter. (October 10, 2018 Hr’g Tr. at
49:5-11, ECF No. 22 at 49.)

19.

Mr. Kirsch’s employer directs its Appellate Public
Defenders to inform clients that they must initiate the
PCR process by filing a pro se document with the criminal
case manager, which will trigger representation on PCR
by the Public Defender’s Office. Appellate Public
Defenders do not handle trial-level PCR petitions, and
they have not done so since the mid-1990s. (Id. at 62:420.)

July 19, 2018. Rather than retrieve the original letter from the
file in his Newark Office, Mr. Kirsch printed a copy of the letter
from his computer file in his Trenton office. His computer
generated the date of June 19, 2018, although the letter was
originally dated December 9, 2011. (October 10, 2018 Hr’g Tr., ECF
No. 25:6-11; 27:8-25; 29:2-8, ECF No. 22.)
13

20.

Mr. Kirsch never spoke to Petitioner about the PCR
process. (October 10, 2018 Hr’g Tr. at 63:9-19, ECF No.
22.) During their one conversation by videoconference,
Mr. Kirsch did not tell Petitioner he would represent
her on PCR. (Id. at 63:20-24.) The only thing Mr. Kirsch
said to Petitioner about her PCR proceedings is that
ineffective assistance of counsel claims would have to
wait for the PCR process. (Id. at 64:6-17.)

21.

Atiya Woodall (“Atiya”), Petitioner’s maternal aunt,
testified at the hearing on October 10, 2018. (Id. at
82:4-83:3.)

22.

Petitioner told Atiya that Stephen Kirsch was appointed
to represent her. (Id. at 83:12-17.)

23.

The first conversation Atiya had with Mr. Kirsch
occurred when he was first appointed to represent
Petitioner, and Petitioner asked Atiya to call him on
her behalf. Mr. Kirsch explained to Atiya “the
difference between the appeal and what I was - - the
information that I was giving him.” (Id. at 84:13-20.)
The Court finds “the information” Atiya referred to was
ineffective assistance of counsel claims that Petitioner
wanted to raise, and that Mr. Kirsch explained the
difference between direct appeal and PCR issues.

24.

Atiya had unsuccessfully tried to call Mr. Kirsch
several
times
between
their
first
and
second
conversations.
(Id.
at
86:9-15.)
Petitioner
had
contacted Atiya because she was frustrated that she
could not reach Mr. Kirsch, prompting Atiya to call him
on her behalf. (Id. at 86:19-23.) Atiya had a second
conversation with Mr. Kirsch, which she said occurred
“after we learned that her [Petitioner’s] appeal was
denied.” (Id. at 85:25-86:1.)

25.

During her second conversation with Mr. Kirsch after
Petitioner’s direct appeal was denied, Mr. Kirsch did
not tell Atiya that his representation of Petitioner had
ceased. (Id. at 91:9-24.)

26.

Atiya stated that when Petitioner’s appeal was denied
“she never mentioned having a conversation with Kirsch.
She just recalled the letter that she was denied.” (Id.
at 92:6-14.)
14

27.

Petitioner testified at the evidentiary hearing on
October 19, 2018. (October 19, 2018 H’rg Tr. at 3:2-9,
4:11-13, ECF No. 24.)

28.

Petitioner testified that she received a letter from Mr.
Kirsch around September 9, 2010, and she signed the
bottom of the letter. (Id. at 6:14-7:4.)

29.

Petitioner tried to reach Mr. Kirsch without success
until a social worker set up a phone call for her. (Id.
at 8:10-25.)

30.

Petitioner remembers having a videoconference with
someone about her case, but she only recalled that the
person was a white man, the conversation lasted three to
five minutes, and she recalled being told to be patient.
(Id. at 9:1-24.)

31.

Petitioner understood that Mr. Kirsch was a lawyer
assigned to her case “to help me fight for my life.”
(Id. at 12:15-18.)

32.

Petitioner reviewed Exhibit 9, the July 1, 2011 letter
to her from Mr. Kirsch, and testified that she did not
remember seeing that specific letter, but she had seen
“previous denials from other people.” (Id. at 14:2015:9.) She said she was never aware that the Appellate
Division had upheld her conviction or that the matter
had gone to the state Supreme Court. (Id. at 15:1616:5.)

33.

Petitioner testified that she was never told about
anything that Mr. Kirsch did on her behalf. (Id. at 17:412.)

34.

Petitioner reviewed Exhibit No. 11, the January 28, 2011
letter from Mr. Kirsch to her, and testified that she
must have seen the letter before because her signature
was on it. (Id. at 18:7-18.)

35.

Petitioner reviewed Exhibits 3 and 4, two identical
letters, except Exhibit 3 was dated June 19, 2018 and
Exhibit 4 was dated December 9, 2011. (Id. at 19:922:19.) Petitioner testified that she had never seen
those letters before Mr. King, her counsel for the
evidentiary hearing, showed them to her in June 2018.
15

Petitioner testified that she was never put on notice
that her appeal was denied. (October 19, 2018 Hr’g Tr.
at 22:20-22, ECF No. 24.)
36.

Petitioner gave her aunt,
to call Mr. Kirsch on her
Petitioner testified that
Mr. Kirsch “at all.” (Id.

37.

Petitioner tried to call Mr. Kirsch “very often” to check
up on her case. (Id. at 24:16-23.) She also wrote to him
once. (Id. at 25:9-11). He never responded. (Id. at
25:12-13.)

38.

Petitioner believed that her first phone conversation
with Mr. Kirsch, where he told her to be patient about
her appeal, occurred a few months after she received the
September 9, 2010 letter from him. (Id. at 32:17-33:14.)
The videoconference with him was also very brief, and
the substance was the same as the phone call. (Id. at
33:15-34:2.)

39.

The Court finds Petitioner was not credible when she
testified that: (1) she did not discuss the merits of
her appeal during the videoconference with Mr. Kirsch;
(2) she did not talk about her trial; (3) she did not
discuss issues she wanted to raise on appeal; and (4)
she did not talk about anything her trial attorney had
done. (Id. at 34:3-35:2.) The Court also finds not
credible Petitioner’s testimony that she never received
a letter from Mr. Kirsch or the Public Defender’s Office
after the videoconference. (Id. at 35:11-24.)

40.

The Court finds not credible Petitioner’s testimony that
she learned her appeal was denied around the time inhouse counsel started to help her, which was years after
the videoconference. (Id. at 35:25-36:18.) The Court
finds Petitioner learned her appeal was denied when she
received one or both of Mr. Kirsch’s letters dated July
1, 2011 and December 9, 2011, and Petitioner shared the
information with Atiya. The Court finds Petitioner not
credible when she testified that Atiya Woodall never
spoke to Mr. Kirsch on her behalf. The Court finds
credible Atiya Woodall’s testimony that her second
conversation with Mr. Kirsch was brought about after she
learned that Petitioner’s appeal had been denied. There
is no evidence that Petitioner attempted to contact Mr.
16

Atiya Woodall, authorization
behalf. (Id. at 23:11-24:15.)
Atiya never had contact with
at 26:2-4.)

Kirsch after her appeal was denied (except through
Atiya’s second conversation with Mr. Kirsch before the
New Jersey Supreme Court denied certification). Even if
Petitioner tried but could not reach Mr. Kirsch by phone
after her direct appeal was denied, there is no evidence
that she wrote to him or wrote to the courts for
information about her appeal or PCR proceedings.
41.

Petitioner remembered going to in-house counsel to get
help filling out post-conviction relief forms, because
she remembers making claims that her trial attorney and
Mr. Kirsch did not provide her with effective assistance
of counsel. (Id. at 37:10-21.) Petitioner remembered
having a hearing in front of a judge in Atlantic County
in 2015, and the outcome was that her appeal was denied.
(Id. at 38:19-39:3.) She does not remember appealing
that decision. (Id. at 39:4-8.)

42.

Petitioner filed a brief in response to Respondents’
motion to dismiss her habeas petition on September 18,
2017. (Petr’s Opp. Brief, ECF No. 9.) She argued, in
part:
[i]n petitioner's case, she had little or
no knowledge of federal habeas procedure,
not even the basics on what form to use
and the statute of limitations. The
prison paralegals failed to or did not
adequately explain to petitioner the
intricacies
of
habeas
procedure.
Finally, petitioner knew nothing about
what books (if any) in the prison law
library contained the habeas statutes. In
addition to the deficiencies of legal
assistance at petitioner's place of
imprisonment, it must also be pointed out
that the New Jersey Public Defender's
Office
provides
no
assistance
or
representation to prison inmate seeking
to pursue habeas corpus claims in federal
courts. The office advises inmates by
letter of the results of their state
court appeals and then suggests that the
inmate might wish to file a federal
habeas petition. The letter does not
include a habeas corpus form to use, nor
does it inform inmates of the complex
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procedural rules involved in habeas
corpus litigation, such as the time
deadlines and need to exhaust all claims.
Finally,
petitioner
was
under
the
impression that her appellate lawyer
would continue to represent her through
her
entire
post-conviction
process
attacking her conviction and sentence,
including federal habeas corpus. She was
unaware that the attorney who represented
her in her state post-conviction relief
and appeal therefrom would not continue
to represent her in her federal habeas
corpus proceeding. . . . Petitioner's
lack of diligence is largely attributable
to her being unaware of the strict time
deadlines for habeas filings which in
turn was based on the inadequacies of the
Public Defender's Office and prison law
library workers.
(ECF No. 9 at 5-9.)
IV.

CONCLUSIONS OF LAW
1.

Petitioner’s direct appeal counsel, Stephen Kirsch, did
not abandon Petitioner during her PCR proceedings
because he no longer represented her after informing her
by letter dated December 9, 2011, that her direct appeal
was final, that she needed to seek appointment of PCR
counsel, and that the one-year habeas statute of
limitations would run until PCR proceedings were
initiated. See McKeithan v. Varner, 108 F. App’x 55, 58
(3d Cir. 2004) (petitioner not entitled to equitable
tolling where petitioner did not allege his attorney
deceived or misled him about time constraints in filing
habeas petition).

2.

Petitioner was not reasonably diligent in pursuing her
PCR petition or her federal habeas petition. See LaCava,
398 F.3d at 277 (petitioner did not exercise reasonable
diligence by allowing more than 21-months to lapse until
he inquired with the state supreme court about the status
of his petition).

3.

Petitioner’s lack of legal knowledge and her difficulty
in learning the habeas statute of limitations is not an
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extraordinary
circumstance
justifying
equitable
tolling. Even if a prison paralegal misinformed
Petitioner about the habeas statute of limitations, that
is not an extraordinary circumstance that will justify
equitable tolling. See Johnson v. Hendricks, 314 F.3d
159, 163 (3d Cir. 2002) (an attorney’s mistake in
determining a date a habeas petition is due is not an
extraordinary circumstance for purposes of equitable
tolling); Schlueter v. Varner, 384 F.3d 69, 77 (3d Cir.
2004) (attorney’s failure to pursue PCR relief for two
years was not an extraordinary circumstance where
Petitioner knew attorney had not pursued PCR relief).
IV.

CONCLUSION
For

the

reasons

discussed

above,

Respondents’

motion

to

dismiss the petition (ECF No. 8) will be granted. The case will be
dismissed with prejudice.
V.

CERTIFICATE OF APPEALABILITY
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. 28 U.S.C. § 2253(c)(1)(A). A
certificate of appealability 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

Cockrell, 537 U.S. 322, 327 (2003).

19

further.”

Miller-El

v.

For the reasons discussed above, jurists of reason could not
disagree that Petitioner’s habeas petition is barred by the oneyear statute of limitations, and that Petitioner is not entitled
to equitable tolling. Therefore, the Court will deny a certificate
of appealability.
An appropriate order follows.
Dated: January 22, 2019

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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