KIETT v. BONDS et al

Filing 10

OPINION. Signed by Judge Jerome B. Simandle on 5/21/2019. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RALPH KIETT,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 17-2543 (JBS)

v.
WILLIE BONDS, et al.,

OPINION
Respondents.

Ralph Kiett, Petitioner Pro Se
202244/047670B
South Woods State Prison
215 Burlington Road South
Bridgeton, New Jersey 08302
DAMON G. TYNER, Atlantic County Prosecutor
JOHN J. SANTOLIQUIDO, Assistant Prosecutor
Atlantic County Prosecutor’s Office
4997 Unami Blvd, Suite 2
PO Box 2002
Mays Landing, New Jersey 08330
Attorney for Respondents
SIMANDLE, U.S. District Judge:
I. INTRODUCTION
This matter comes before the Court on an Order to Show
Cause issued sua sponte as to why Ralph Kiett’s petition for
writ of habeas corpus should not be dismissed as time barred.
[Order to Show Cause, Docket Entry 3]. Petitioner Ralph Kiett
opposes the dismissal and requests equitable tolling. [Show
Cause Reponse, Docket Entry 4]. Respondent Willie Bonds argues
Petitioner is not entitled to equitable tolling. [Limited

Answer, Docket Entry 9]. The matter is being decided on the
papers pursuant to Federal Rule of Civil Procedure 78.
The principal issue to be decided is whether Petitioner has
demonstrated that equitable tolling of the statute of
limitations under the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) is warranted based on his alleged mental
disability and new case law. The Court concludes that equitable
tolling is inappropriate in this case for the reasons stated
below. Therefore, the Court dismisses the petition as time
barred.
II. BACKGROUND
On September 17, 1985, Petitioner pled guilty to murder,
N.J.S.A. § 2C:11-3(a), and second-degree escape, N.J.S.A. §
2C:29-5(a). [Docket Entry 1 ¶¶ 5-6]. He was sentenced by the
Superior Court of New Jersey, Atlantic County, Law Division, to
life imprisonment with a thirty-year term of parole
ineligibility on November 25, 1985. [Id. ¶¶ 2-3]. Petitioner
appealed to the New Jersey Superior Court Appellate Division
(“Appellate Division”) seeking to withdraw his guilty plea. The
Appellate Division denied his request, but the New Jersey
Supreme Court vacated the guilty plea and remanded to the trial

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court. State v. Kiett, 582 A.2d 630 (N.J. 1990).1 [Docket Entry 1
¶ 9(g)].
On remand, Petition again pled guilty and was resentenced
on April 26, 1991. [Docket Entry 1 at 4]. He filed another
appeal, this time challenging the validity of the search. [Id.].
Petitioner indicates the New Jersey Supreme Court denied
certification of this appeal on July 17, 1992. [Id.].
Petitioner filed a petition for post-conviction relief
(“PCR”) on March 12, 2008 raising ineffective assistance of
counsel claims. [Docket Entry 9-3 at 2].2 The PCR Court denied
the petition on April 12, 2010. [Id.]. The Appellate Division
affirmed “substantially for the reasons set out in [the PCR
Court’s] written opinion.” State v. Kiett, No. A-5166-09, 2011
WL 2416876, at *2 (N.J. Super. Ct. App. Div. June 17, 2011).

1.

Petitioner’s plea agreement removed the death penalty as a
possible sentence. The New Jersey Supreme Court held that
Petitioner was entitled to withdraw his guilty plea when he
discovered that the death penalty was never applicable to his
crimes because he was a juvenile at the time of the crimes. See
Kiett, 582 A.2d at 633 (“If a defendant is misinformed about his
or her eligibility for the death sentence, and if that
misunderstanding is material to the plea, he or she cannot be
deemed to have entered a guilty plea with a full understanding
of the penal consequences.”).
2 The petition states Petitioner’s first PCR was filed on March
11, 2010. [Docket Entry 1 ¶ 11]. The Court will use the earlier
date provided by the Appellate Division in its opinion denying
Petitioner’s second PCR appeal as the difference in filing dates
does not change the ultimate outcome of the matter. [Docket
Entry 9-3 at 2; State v. Kiett, No. A-005316-15 (N.J. Super. Ct.
App. Div. Mar. 23, 2017)].
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In October 2014, Petitioner filed a petition for “a new
trial based on newly discovered evidence.” [Docket Entry 1 ¶
11(b)]. He argued “[t]he statute used to waive jurisdiction of
the defendant from juvenile court to Law Division was in an
[sic] improper ex post facto application and/or based on a nonexistent law/unconstitutional act” and that “[t]he invalid
waiver based on non-existent law/unconstitutional act creates a
lack of jurisdiction.” [Id.]. The trial court denied the motion
as untimely on November 13, 2014 and denied Petitioner’s motion
for reconsideration on December 11, 2014. [Id. at 13-14].
Petitioner had argued that he never received a copy of the
Appellate Division decision denying his motion to withdraw his
guilty plea, but the trial court noted that “[y]ou obviously had
access to this opinion because you appealed it.” [Id. at 15].
The Appellate Division affirmed for the reasons cited by the
trial court. [Id. at 21; State v. Kiett, No. A-2457-14 (N.J.
Sup. Ct. App. Div. July 20, 2016)]. The New Jersey Supreme Court
denied certification on December 7, 2016. [Docket Entry 1 at
23].
Petitioner filed a motion to correct an illegal sentence
on November 18, 2015, which was construed as a second PCR
petition. [Docket Entry 9-3 at 3; Kiett, No. A-005316-15, slip
op. at 3]. He “insisted that the Law Division never had
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jurisdiction over him because ‘the Statute relied upon to waive
[him] from Juvenile Court to Superior Court, Criminal Division,
[which he identified as N.J.S.A. 2A:4-48] constituted an
improper ex post facto application of the law and resulted in an
invalid waiver.’” [Docket Entry 9-3 at 3; Kiett, No. A-00531615, slip op. at 3 (alterations in original)]. The PCR Court
denied the petition on June 28, 2016 without an evidentiary
hearing. [Docket Entry 1 at 9]. Petitioner appealed, and the
Appellate Division affirmed for the reasons stated by the PCR
Court on March 23, 2017. [Docket Entry 9-3; Kiett, No. A-00531615].
Petitioner thereafter filed this petition for writ of
habeas corpus under 28 U.S.C. § 2254 on April 10, 2017. [Docket
Entry 1]. The Court reviewed the petition under Habeas Rule 4
and noted that it appeared to be untimely under AEDPA. The Court
issued an Order to Show Cause why the petition should not be
dismissed as untimely. [Docket Entry 3]. Petitioner filed a
response, [Docket Entry 4], and the Court concluded a limited
answer on the issue of timeliness was warranted from Respondent
Willie Bonds. [Docket Entry 5]. Respondent filed the limited
answer, [Docket Entry 9], and Petitioner did not file a
response.

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The matter is now ripe for decision without oral argument.
Fed. R. Civ. P. 78(b).
III. STANDARD OF REVIEW
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 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).
Nevertheless, a federal district court must dismiss a
habeas corpus petition if it appears from the face of the
petition that the petitioner is not entitled to relief. 28
U.S.C. § 2254 Rule 4; see also McFarland v. Scott, 512 U.S. 849,
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856 (1994); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert.
denied, 490 U.S. 1025 (1989).
IV. ANALYSIS
Petitioner’s conviction became final before AEDPA went into
effect on April 24, 1996; therefore, he had until April 23, 1997
to file a timely § 2254 petition. See Burns v. Morton, 134 F.3d
109, 111 (3d Cir. 1998) (establishing one-year “grace period”).3
Even after giving him the benefit of the AEDPA grace period,
Petitioner’s habeas petition is still twenty years too late and
must be dismissed unless some form of tolling applies.
“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.” 28
U.S.C. § 2244(d)(2). Petitioner filed his first PCR petition in
2008, long after the one-year statute of limitations expired
under AEDPA. Statutory tolling is therefore inapplicable, and
the petition is barred as untimely unless equitable tolling
applies. The Court gave Petitioner notice and opportunity to

3

Petitioner’s conviction became final ninety days after the New
Jersey Supreme Court denied certification of Petitioner’s second
direct appeal on July 17, 1992: October 15, 1992. See Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80, 84 (3d Cir.
2013) (“[T]he expiration of the time for seeking direct review
is the deadline for petitioning for certiorari to the United
States Supreme Court.”).
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argue for the application of equitable tolling in an Order to
Show Cause. [Docket Entry 3].
“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). 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 for the prisoner endeavoring to comply with AEDPA's
limitations period.’” Ross v. Varano, 712 F.3d 784, 802-03 (3d
Cir. 2013) (quoting Pabon v. Mahanoy, 654 F.3d 385, 400 (3d Cir.
2011)) (emphasis in original).
Petitioner appears to give two reasons why this Court
should apply equitable tolling: (1) because has a mental
disability; and (2) the New Jersey Supreme Court’s decision in
State v. Zuber, 152 A.3d 197 (N.J.), cert. denied, 138 S. Ct.
152 (2017), was not available to him until January 11, 2017.
[Docket Entry 4 at 5-6].
In Zuber, the New Jersey Supreme Court extended the United
States Supreme Court’s decision in Miller v. Alabama, 567 U.S.
460 (2012), which banned the imposition of mandatory life
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without parole sentences on defendants who were under 18 at the
time of their crimes, to “sentences that are the practical
equivalent of life without parole . . . .” 152 A.3d at 201.
Zuber is a matter of state law and therefore does not provide a
basis for federal habeas relief. Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). To the extent a claim could be based on
Miller, it is unexhausted in the state courts, see 28 U.S.C. §
2254(b)(1)(A), and likely untimely under 28 U.S.C. §
2244(d)(1)(C). Miller was decided by the Supreme Court on June
25, 2012; a timely habeas petition based on Miller would have
been due on June 25, 2013. More importantly, Petitioner has not
satisfactorily explained why Miller’s date of decision prevented
him from filing a timely habeas petition regarding his ex post
facto claim, the only claim mentioned in his petition.
The Court also concludes equitable tolling is not warranted
based on Petitioner’s alleged mental disability. The sole
evidence provided in support of Petitioner’s argument in favor
of equitable tolling on the basis of a mental disability is
language quoted from the New Jersey Supreme Court’s decision
finding that he had a right to withdraw his guilty plea based on
the misunderstanding that he was eligible for the death penalty.
The New Jersey Supreme Court quoted from the sentencing hearing:
At the conclusion of the penalty hearing, the court
found:
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It is reasonable to conclude that the two aggravating
factors do not, beyond a reasonable doubt, outweigh the
mitigating factors of which there is evidence. Inasmuch
as the defendant was a juvenile at the time of the
offense, his age may be deemed a mitigating factor.
[N.J.S.A.
2C:11-3c(5)(c).]
His
borderline
mental
retardation and substance abuse problems may be
considered as having, to a significant degree, impaired
his capacity to conform his conduct to the capacity of
the law. [N.J.S.A. 2C:11-3c(5)(d).] The early childhood
emotional and physical trauma experienced by him may
have [sic] deemed to interfere with his character
development so as to adversely impact upon his ability
to live as a law-abiding citizen. [N.J.S.A. 2C:113c(5)(h).]
State v. Kiett, 582 A.2d 630, 632 (N.J. 1990) (alterations in
original). Petitioner does not provide any other evidence in
support of his equitable tolling argument.
“[M]ental incompetence is not a per se reason to toll a
statute of limitations.” Nara v. Frank, 264 F.3d 310, 3204 (3d
Cir. 2001) (citing Lake v. Arnold, 232 F.3d 360, 371 (3d Cir.
2000), overruled in part on other grounds by Carey v. Saffold,
536 U.S. 214 (2002). “Rather, the alleged mental incompetence
must somehow have affected the petitioner's ability to file a
timely habeas petition.” Id. (citing Miller v. New Jersey State
Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998)). See also Laws
v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (“Where a habeas
petitioner's mental incompetence in fact caused him to fail to
meet the AEDPA filing deadline ... the deadline should be
equitably tolled.”).
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The sentencing court’s statement does not provide an
explanation as to how Petitioner’s alleged mental disability
caused the delay in filing a timely § 2254 petition. The
statement reflected Petitioner’s mental state in 1985. There is
no evidence before the Court what Petitioner’s state was between
April 24, 1996 and April 23, 1997 or any time since then. Cf.
Nara, 264 F.3d at 320 (remanding for evidentiary hearing where
petitioner provided “evidence of ongoing, if not consecutive,
periods of mental incompetency”). In addition, the sentencing
court’s statement was an acknowledgement that Petitioner’s
mental deficiencies could have had “an adverse impact upon his
ability to live as a law-abiding citizen[,]” but made no mention
of an effect on Petitioner’s ability to understand the need to
timely file materials or act diligently in court matters. See
Kiett, 582 A.2d at 632.
Petitioner “did not put forth any particular evidence to
show that his mental illness prevented him from asserting his
rights.” United States v. Johnson, 734 F. App'x 153, 159 (3d
Cir.), cert. denied, 139 S. Ct. 471 (2018). Therefore, he has
failed to carry his burden on showing there is a nexus between
the extraordinary circumstances his condition allegedly caused
and the failure to file a timely habeas petition. Ross v.

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Varano, 712 F.3d 784, 803 (3d Cir. 2013). The petition is
therefore dismissed as time barred.
AEDPA provides that an appeal may not be taken to the court
of appeals from a final order in a § 2254 proceeding unless a
judge issues a certificate of appealability on the ground that
“the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The United States
Supreme Court held in Slack v. McDaniel that “[w]hen 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.” 529 U.S.
473, 484 (2000).
This Court denies a certificate of appealability because
jurists of reason would not find it debatable that dismissal of
the petition as untimely is correct.

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IV. CONCLUSION
For the reasons stated above, the petition is dismissed as
untimely.

No certificate of appealability shall issue. An

appropriate order follows.

May 21, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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