KIETT v. BONDS et al

Filing 2

MEMORANDUM, OPINION. Signed by Chief Judge Jerome B. Simandle on 5/24/17. (jbk, )

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.,

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
1.

Petitioner pled guilty to murder, N.J. STAT. ANN. §

2C:11-3(a), and second-degree escape, N.J. STAT. ANN. § 2C:295(a). Petition ¶¶ 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.
2.

Petitioner appealed to the New Jersey Superior Court

Appellate Division seeking to withdraw his guilty plea. The
Appellate Division denied his request, but the New Jersey

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Petitioner’s application to proceed in forma pauperis is denied
as his prisoner trust account has had more than $200 within the
past six months. See Local Civil Rule 81.2(c). The Court will
continue its Rule 4 review as Petitioner has paid the filing
fee, however.

Supreme Court vacated the guilty plea and remanded to the trial
court. State v. Kiett, 582 A.2d 630 (N.J. 1990); Petition ¶
9(g).
3.

On remand, Petition again pled guilty and was

resentenced on April 26, 1991. Petition Exhibit A. 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.
4.

Petitioner filed a petition for post-conviction relief

(“PCR”) in the state courts on March 11, 2010 raising
ineffective assistance of counsel claims. Petition ¶ 11. The
trial court denied the petition on April 16, 2010. Id.
5.

Petitioner next filed a petition for “a new trial

based on newly discovered evidence” in October 2014. Id. ¶
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.
6.

The Law Division judge denied the motion as untimely

on November 13, 2014 and denied Petitioner’s motion for
reconsideration on December 11, 2014. Id.; Petition Exhibit C.
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7.

The Appellate Division affirmed for the reasons cited

by the Law Division judge, State v. Kiett, No. A-2457-14 (N.J.
Sup. Ct. App. Div. July 20, 2016); Petition Exhibit E, and the
state Supreme Court denied certification on December 7, 2016.
Petition Exhibit F.
8.

Petitioner paid the filing fee for this habeas action

on January 25, 2017, and his petition was mailed on April 11,
2017.
9.

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.
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
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(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).
10.

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. However, Petitioner had until April 23, 1997 to file a
timely § 2254 petition because his conviction became final
before AEDPA went into effect on April 24, 1996. See Burns v.
Morton, 134 F.3d 109, 111 (3d Cir. 1998) (establishing one-year
“grace period”). Giving Petitioner the benefit of the AEDPA
grace period, his habeas petition is still twenty years too late
and must be dismissed unless some form of tolling applies.
11.

Petitioner is not entitled to statutory tolling as the

time in which he could have filed a timely § 2254 petition
expired before he filed his PCR petition in 2010. 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.”).
12.

AEDPA’s statute of limitations is subject to equitable

tolling in appropriate cases, however. See Holland v. Florida,
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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).
13.

“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).
14.

“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.
15.

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.’” Id. at 802-03 (quoting Pabon v. Mahanoy,
654 F.3d 385, 400 (3d Cir. 2011)) (emphasis in original).

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16.

“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.” Id.
17.

In the interests of justice, Petitioner shall be

ordered to show cause why his petition should not be dismissed
as untimely under 28 U.S.C. § 2244(d)(1).
18.

Any response by Petitioner shall state with

specificity any facts that may entitle him to equitable tolling
of the statute of limitations.

May 24, 2017
Date

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

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