ARDIS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 11

OPINION. Signed by Judge Jerome B. Simandle on 3/5/2018. (tf, n.m.)

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

MARC ARDIS,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 17-2912 (JBS)

v.
THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,

OPINION

Respondents.

MARC ARDIS, Petitioner Pro Se
118171/922004B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
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 Respondents’ motion
to dismiss the petition for writ of habeas corpus as timebarred. Motion to Dismiss, Docket Entry 6. Pro se Petitioner
Marc Ardis opposes the motion. Opposition, Docket Entry 9. The
matter is being decided on the papers pursuant to Federal Rule
of Civil Procedure 78. For the reasons stated below, the Court
will reserve ruling on the motion pending supplemental briefing.

II. BACKGROUND
After a jury trial following a waiver from juvenile court,
Petitioner received a sixty-eight year sentence for first-degree
aggravated sexual assault, N.J. STAT. ANN. § 2C:14-2(a); thirddegree aggravated criminal sexual conduct, N.J. STAT. ANN. §
2C:14-3(a); second-degree burglary, N.J. STAT. ANN. § 2C:18-2;
second-degree sexual assault, N.J. STAT. ANN. § 2C:14-2(c); thirddegree terroristic threats, N.J. STAT. ANN. § 2C:12-3(a); and
first-degree kidnapping, N.J. STAT. ANN. § 2C:13-1(b). Motion
Exhibit 1. The judgment of conviction was entered on June 1,
1993. Id. Petitioner appealed to the Superior Court of New
Jersey, Appellate Division (“Appellate Division”).
The Appellate Division affirmed his convictions, but
remanded to the trial court for reconsideration of the sentence
under state law as “defendant, a sixteen-year old at the time of
the offenses, will be in prison without parole eligibility until
he is seventy-four years of age.” State v. Ardis, No. A-508-93
(N.J. Super. Ct. App. Div. Jul. 18, 1995) (per curiam) (slip op.
at 7); Motion Exhibit 2. The New Jersey Supreme Court denied
certification on November 8, 1995. State v. Martin, 670 A.2d
1062 (N.J. 1995); Motion Exhibit 3.
Petitioner was resentenced on October 16, 1996. The court
revised Petitioner’s sentence to a custodial term of fifty
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years, the entirety of which Petitioner would be ineligible for
parole. Motion Exhibit 4.
Petitioner filed a petition for post-conviction relief
(“PCR”) in the state courts on April 11, 1997. Motion Exhibit 5.
The PCR court denied the petition without an evidentiary hearing
on September 29, 1997. Motion Exhibit 6. Petitioner appealed on
July 22, 2002, Motion Exhibit 7, and the Appellate Division
granted leave to appeal nunc pro tunc on August 22, 2002. See
State v. Ardis, No. A-6161-01 (N.J. Super. Ct. App. Div. Jan. 9,
2004) (per curiam) (slip op. at 3 n.2); Motion Exhibit 8. The
Appellate Division reversed the denial of PCR and remanded for
further proceedings. Id.
The PCR petition was again denied without an evidentiary
hearing on December 21, 2005. Motion Exhibit 9. The Appellate
Division affirmed. State v. Ardis, No. A-4602-05, 2007 WL
3342104, at *2 (N.J. Super. Ct. App. Div. Nov. 13, 2007); Motion
Exhibit 10. The New Jersey Supreme Court denied certification on
February 21, 2008. State v. Ardis, 944 A.2d 31 (N.J. 2008);
Motion Exhibit 11.
On August 11, 2008, Petitioner submitted a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 to this
Court, accompanied by a motion for a stay and abeyance pending a
return to the state courts. Ardis v. Ricci, No. 08-4301 (D.N.J.
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filed Aug. 22, 2008) (Docket Entry 1). This Court granted his in
forma pauperis application and issued a Mason1 Notice and Order
on October 9, 2008. No. 08-4301, Docket Entries 2 & 3.
Petitioner wrote back to the Court inquiring as to the status of
the motion for a stay, and the Court ordered Respondents to
respond to the stay motion. No. 08-4301, Docket Entries 4 & 5.
Respondents filed a letter opposing the stay on March 11, 2009.
No. 08-4301, Docket Entry 8. The Court granted Petitioner’s
motion for a stay on May 19, 2010. No. 08-4301, Docket Entry 15.2
On April 28, 2017, Petitioner submitted an amended § 2254
petition. It was assigned to the Honorable Renée Marie Bumb,
U.S.D.J., and reassigned to the undersigned on June 8, 2017. The
Court ordered Respondent to answer or file an appropriate motion
on July 13, 2017. Order to Answer, Docket Entry 3. Respondent
filed the instant motion to dismiss on August 18, 2017.
Respondent argues the § 2254 petition is untimely under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
as Petitioner did not comply with this Court’s order staying the

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Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000).
On August 11, 2014, the Court received a letter from Petitioner
expressing difficulties with his PCR proceedings and counsel.
No. 08-4301, Docket Entry 16. The Court temporarily vacated the
stay order and reopened the matter solely to respond to
Petitioner’s letter, and informed Petitioner that the Court was
unable to provide him with legal advice. No. 08-4301, Docket
Entries 17 and 18. The Court reinstated the stay order on
September 19, 2014. No. 08-4301, Docket Entry 19.
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habeas proceedings, which required Petitioner to return to the
state courts within 30 days. Petitioner opposes the motion,
arguing his PCR attorneys were ineffective in preparing and
presenting his PCR petitions, causing significant delays in the
state court proceedings.
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.

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28 U.S.C. § 2244(d)(1).3
“[T]he 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” is excluded from the
one-year statute of limitations. 28 U.S.C. § 2244(d)(2). “In
determining whether a petition is ‘properly filed,’ a federal
court ‘must look to state law governing when a petition for
collateral relief is properly filed.’” Douglas v. Horn, 359 F.3d
257, 262 (3d Cir. 2004) (quoting Fahy v. Horn, 240 F.3d 239, 243
(3d Cir. 2001)).
IV. ANALYSIS
Respondents argue the petition became untimely when
Petitioner failed to comply with this Court’s stay orders of May
19, 2010 and September 19, 2014. However, it appears
Petitioner’s § 2254 petition was untimely before it was filed on
August 11, 2008.
Petitioner’s conviction became final within the meaning of
AEDPA at the latest on January 14, 1997, 90 days after the
filing of the amended judgment of conviction. Motion at 3. See
also Burton v. Stewart, 549 U.S. 147, 156–57 (2007) (noting
AEDPA limitations period does not begin “until both

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Petitioner’s conviction became final after AEDPA’s April 24,
1996 effective date; therefore, he is subject to its one-year
statute of limitations.
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[petitioner's] conviction and sentence ‘became final by the
conclusion of direct review or the expiration of the time for
seeking such review’” (emphasis in original)); Berman v. United
States, 302 U.S. 211, 212 (1937) (“Final judgment in a criminal
case means sentence. The sentence is the judgment.”). The
limitations period ran for 87 days before it was statutorily
tolled when Petitioner filed his first PCR petition on April 11,
1997. 28 U.S.C. § 2244(d)(2).
Petitioner’s first PCR petition was dismissed on September
29, 1997, and he did not file a notice of appeal until July 22,
2002. See Motion Exhibit 7. Respondent states that the period of
time between September 29, 1997 and July 22, 2002 does not count
towards the statute of limitations because the Appellate
Division granted Petitioner’s motion to file the appeal out of
time. Motion at 4. The Third Circuit has recently stated in an
unpublished decision that “the time between the request to
consider the [appeal] as within time and the decision to accept
the [appeal] as within time” is tolled under § 2244(d)(2).
Thompson v. Adm'r N.J. State Prison, 701 F. App'x 118, 124 (3d
Cir. 2017). See also Fernandez v. Sternes, 227 F.3d 977, 979
(7th Cir. 2000) (“[T]he right period of exclusion is all time
between the filing of the request to excuse the default and the
state court's decision on the merits (if it elects to excuse the
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default) . . . .”)). The Court of Appeals did not, however, toll
the time before the motion was filed. Thompson, 701 F. App'x at
124.
“A prisoner's ‘properly filed’ application for state
collateral review statutorily tolls AEDPA's limitation period
during the time it is ‘pending.’” Jenkins v. Superintendent of
Laurel Highlands, 705 F.3d 80, 85 (3d Cir. 2013) (emphasis
added). “[A] state court's practice of accepting a pleading [is]
an important indication that the pleading is properly filed,”
id. at 87, but the Court of Appeals has not ruled in a
precedential opinion whether a collateral relief petition is
“pending” prior to the filing of a motion for leave to file an
out of time appeal.
“[F]or purposes of § 2244(d)(2) ‘pending’ includes the time
for seeking discretionary review, whether or not discretionary
review is sought.” Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir.
2000). Petitioner had forty-five days, until November 13, 1997,
to file a timely appeal in the Appellate Division. N.J. Ct. R.
2:4-1(a). If Petitioner’s first PCR petition was no longer
“pending” on November 14, 1997, AEDPA’s statute of limitations
began to run again and expired 278 days4 later on August 18,
1998, expiring well before Petitioner filed his motion to file

4

365 minus 87 = 278 days.

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an out-of-time appeal on July 22, 2002. Using these
calculations, there would have been nothing left to toll by the
time the motion was filed in 2008. As the Court is raising this
issue sua sponte, the parties will have an opportunity to
supplement their briefs to address this issue. Petitioner may
also supplement his equitable tolling argument to account for
the period of time between September 29, 1997 and July 22, 2002.
IV. CONCLUSION
For the reasons stated above, the Court reserves ruling on
the motion to dismiss pending supplemental briefing. The motion
shall be administratively terminated, subject to reopening upon
completion of the supplemental briefing which is due 45 days
from each party.

An appropriate order follows.

March 5, 2018
Date

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

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