ARDIS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
16
OPINION. Signed by Judge Jerome B. Simandle on 10/30/2018. (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
By: 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 is a continuation of Respondents’ motion to dismiss
the petition for writ of habeas corpus as time-barred. Motion to
Dismiss, Docket Entry 6. The Court reserved its decision and
administratively terminated the motion on March 6, 2018 after
directing the parties to submit supplemental briefing. March 6,
2018 Opinion and Order, Docket Entries 11 & 12. Pro se
Petitioner Marc Ardis opposes the motion and requests equitable
tolling. Opposition, Docket Entry 9; Motion for Equitable
Tolling, Docket Entry 14. The matter is being decided on the
papers pursuant to Federal Rule of Civil Procedure 78.
The principal issues to be decided are: (1) whether
Petitioner’s post-conviction relief petition was “pending” in
the state court between September 29, 1997 and July 22, 2002,
and if not, (2) whether Petitioner is entitled to equitable
tolling of that time. For the reasons stated below, the Court
finds that the post-conviction relief petition was not “pending”
in the state court during the relevant time and that Petitioner
is not entitled to equitable tolling. Respondent’s motion to
dismiss is therefore granted.
II. BACKGROUND
After a jury trial following a waiver from juvenile court,1
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).
1
Petitioner was sixteen at the time of his offenses.
2
Respondent’s Exhibit 1.2 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 resentencing. State v. Ardis,
No. A-508-93 (N.J. Super. Ct. App. Div. Jul. 18, 1995) (per
curiam) (slip op. at 7); Respondent’s Exhibit 2. The appellate
court instructed the trial court to make the sentences
concurrent instead of consecutive. “Defendant will still be
subject to a fifty-year parole-ineligibility term, and not be
eligible for parole until he is sixty-six years old.” Id. The
New Jersey Supreme Court denied certification on November 8,
1995. State v. Martin, 670 A.2d 1062 (N.J. 1995); Respondent’s
Exhibit 3. The trial court resentenced Petitioner on October 16,
1996. Respondent’s Exhibit 4.
Petitioner filed a petition for post-conviction relief
(“PCR”) in the state courts on April 11, 1997. Respondent’s
Exhibit 5. The PCR court denied the petition without an
evidentiary hearing on September 29, 1997. Respondent’s Exhibit
6. Petitioner appealed on July 22, 2002, Respondent’s Exhibit 7,
and the Appellate Division granted leave to appeal nunc pro tunc
2
“Respondent’s Exhibit” refers to exhibits submitted with the
motion to dismiss, Docket Entry 6.
3
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); Respondent’s Exhibit 8. The Appellate Division reversed
the denial of PCR and remanded for further proceedings.3 Id.
The PCR petition was again denied without an evidentiary
hearing on December 21, 2005. Respondent’s 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);
Respondent’s Exhibit 10. The New Jersey Supreme Court denied
certification on February 21, 2008. State v. Ardis, 944 A.2d 31
(N.J. 2008); Respondent’s 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.
filed Aug. 22, 2008) (Docket Entry 1). This Court granted his in
forma pauperis application and issued a Mason4 Notice and Order
on October 9, 2008. No. 08-4301, Docket Entries 2 & 3.
3
The remand was based on a New Jersey Supreme Court case
interpreting New Jersey Court Rule 3:22-6, which requires PCR
counsel “‘to advance any grounds insisted on by defendant
notwithstanding that counsel deems them without merit.’” State
v. Rue, 811 A.2d. 425, 433 (N.J. 2002) (quoting N.J. Ct. R.
3:22-6). See also State v. Ardis, No. A-6161-01 (N.J. Super. Ct.
App. Div. Jan. 9, 2004) (per curiam) (slip op. at 6).
4 Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000).
4
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 15.5
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 a motion to dismiss, arguing that 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 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,
5
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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causing significant delays in the state court proceedings. See
Opposition.
In reviewing the motion, the Court concluded that the
petition may have been untimely even before the original § 2254
petition was filed on August 11, 2008 due to the length of time
between the denial of Petitioner’s PCR petition, September 29,
1997, and his filing of a notice of appeal, July 22, 2002. March
6, 2018 Opinion and Order. It directed the parties to submit
supplemental briefing on whether the PCR petition remained
“pending” under state law during that time and gave Petitioner
an additional opportunity to argue for the application of
equitable tolling. See Respondent’s Supplemental Brief, Docket
Entry 13; Motion for Equitable Tolling, Docket Entry 14.
III. STANDARD OF REVIEW: STATUTE OF LIMITATIONS FOR FILING
PETITION UNDER § 2254
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
6
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).6
“[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)).
6
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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IV. ANALYSIS
A. Pendency of Post-Conviction Relief Petition
As previously noted by the Court, 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. March 6, 2018 Opinion at 6 (citing
Burton v. Stewart, 549 U.S. 147, 156–57 (2007). The limitations
period ran for 87 days before it was statutorily tolled when
Petitioner filed his PCR petition on April 11, 1997. 28 U.S.C. §
2244(d)(2).
To qualify for statutory tolling, a post-conviction
petition must be “properly filed” and “pending” in the state
courts. Id. Petitioner’s PCR petition was dismissed on September
29, 1997, and he did not file a notice of appeal until July 22,
2002. See Respondent’s Exhibit 7. The decision of the Appellate
Division to accept the appeal nunc pro tunc indicates the appeal
was properly filed as of July 22, 2002. Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80, 87 (3d Cir.
2013) (“[A] state court's practice of accepting a pleading [is]
an important indication that the pleading is properly filed.”).
Only “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
8
Prison, 701 F. App'x 118, 124 (3d Cir. 2017). The PCR petition
was not “pending” in the state courts prior to July 22, 2002,
however.
In Thompson, the Third Circuit noted “an application is
‘pending’ during the period ‘between (1) a lower court's adverse
determination, and (2) the prisoner's filing of a notice of
appeal, provided that the filing of the notice of appeal is
timely under state law.’” Id. at 121 (quoting Evans v. Chavis,
546 U.S. 189, 191 (2006) (emphasis in original)). 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). See also
Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000)(“[F]or
purposes of § 2244(d)(2) ‘pending’ includes the time for seeking
discretionary review, whether or not discretionary review is
sought.”). There is no question that Petitioner failed to file
an appeal from the denial of his PCR by November 13, 1997.
Therefore, AEDPA’s statute of limitations began to run again on
November 14, 1997 and expired 278 days7 later on August 18, 1998.
Petitioner is not entitled to statutory tolling because his
one-year limitation period under AEDPA expired nearly four years
before Petitioner filed his motion to file an out-of-time appeal
7
365 – 87 = 278.
9
on July 22, 2002. Respondent’s motion to dismiss must therefore
be granted unless Petitioner is entitled to equitable tolling.
B. Equitable Tolling
AEDPA's statute of limitations is subject to equitable
tolling in appropriate cases. Holland v. Florida, 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). “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). “Mere excusable
neglect is not sufficient.” LaCava v. Kyler, 398 F.3d 271, 276
(3d Cir. 2005).
Attorney abandonment can constitute extraordinary
circumstances. Jenkins v. Superintendent of Laurel Highlands,
705 F.3d 80, 89 (3d Cir. 2013). See also Ross, 712 F.3d at 800
(holding attorney malfeasance may warrant equitable tolling
“when combined with reasonable diligence on the part of the
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petitioner in pursuit of his rights”). However, the Court need
not determine whether Petitioner was abandoned by his attorney
because Petitioner has not established that he acted with
reasonable diligence. He must establish both elements to be
entitled to equitable tolling. Menominee Indian Tribe of Wis. v.
United States, 136 S. Ct. 750, 756 (2016) (“[W]e have expressly
characterized equitable tolling's two components as ‘elements,’
not merely factors of indeterminate or commensurable weight.”).
The obligation to act with reasonable diligence “‘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.’” Ross,
712 F.3d at 799 (quoting LaCava, 398 F.3d at 277). Based on the
materials submitted by Petitioner in support of his equitable
tolling arguments, he was not reasonably diligent in pursuing
the appeal of his PCR denial.
Petitioner’s PCR was denied in September 1997. According to
Petitioner, he was in disciplinary segregation from September
1997 to January 1998. On September 24, 1999, Petitioner wrote to
the Office of the Public Defender asking about his appeal,
indicating that he had asked his PCR counsel “to put in another
appeal for me on the decision.” Opposition, Docket Entry 9-1 at
5. He indicated he had not heard from his PCR counsel since his
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PCR petition was denied. Id. A paralegal from the Public
Defender’s Office wrote back to Petitioner on October 31, 2000.
Id. at 10. The letter states:
[W]e will probably need a statement from you as to what
steps you took to file your appeal. You mentioned that
you requested an appeal from [PCR counsel]. When did you
request it? Why didn’t you write our office sooner[?]
You said you were in detention from September 15, 1997
to January 13, 1998. Why didn’t you write to our office
after you got out of detention? Why couldn’t you write?
Can you elaborate? Please be as detailed in your response
as possible as to what steps you took to file your appeal
so that we can explain the two year delay in contacting
this office.
Id. The next letter from Petitioner to the Public Defender’s
Office is dated February 17, 2001. Id. at 4. He vaguely stated
that he had “been trying to bring this to Appeal Division
awareness, that counsel didn’t consider Defendant right to
appeal.” Id. No further information is provided about any steps
Petitioner may have taken regarding his appeal. Petitioner’s
next letter to the Public Defender’s Office is dated April 4,
2002. Id. at 11. He stated that his PCR counsel did not write to
him or instruct Petitioner how to appeal his PCR denial. Id.
Petitioner certified in support of his motion to file his
nunc pro tunc appeal that he did not find out his PCR had been
denied until PCR counsel sent him a letter on May 11, 1999.8
Certification in Support of Nunc Pro Tunc Appeal, Docket Entry
8
Petitioner did not supply this letter from PCR counsel.
12
14 ¶ 12. The Court accepts this fact as true for purposes of the
motion to dismiss, but Petitioner was not reasonably diligent in
pursuing his appeal even if the Court equitably tolled the time
prior to May 11, 1999. Petitioner waited four months to contact
the Public Defender’s Office about his appeal in September 1999.
See Docket Entry 9-1 at 5. Four months by itself is not
unreasonable, but he did not take any other action regarding his
appeal when the Public Defender’s Office did not respond to him
for almost a year.9 Although the Court does not condone the
lengthy response time, it was not reasonable for Petitioner to
wait a year before taking any other action on his appeal. See
LaCava v. Kyler, 398 F.3d 271, 279 (3d Cir. 2005)(noting
“twenty-one months of inactivity ... crosses the line of what
constitutes due diligence for purposes of employing that
principle to save an otherwise untimely filing”). See also
Holland v. Florida, 560 U.S. 631, 653 (2010) (finding reasonable
diligence where petitioner “not only wrote his attorney numerous
letters seeking crucial information and providing direction[,]
9
Petitioner’s letters to an inmate paralegal and letters to the
Atlantic County Criminal Division concern a “second” PCR
petition, not his PCR appeal. See, e.g., November 20, 2000
Letter to Judge Greenberg, Docket Entry 14 at 23 (requesting
court file second PCR petition and assign counsel). The
Appellate Division addressed the claims raised in Petitioner’s
April 2000 affidavit in its opinion and order. 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).
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[but] also repeatedly contacted the state courts, their clerks,
and the Florida State Bar Association in an effort to have
[counsel] ... removed from his case”).
Moreover, it was not reasonably diligent under the
circumstances for Petitioner to wait two more years to file his
nunc pro tunc motion once he learned no appeal had been filed on
his behalf. See Certification in Support of PCR, Docket Entry 14
at 11 ¶ 3 (“In March of 2000 I finally found a jailhouse lawyer
that I could trust and he explained to me that I needed to find
new grounds and stop waiting for [PCR counsel] or the Public
Defender’s Office to appeal the court’s September 19th ruling.”)
(emphasis added). See also Holland, 560 U.S. at 653 (“And, the
very day that Holland discovered that his AEDPA clock had
expired due to [counsel's] failings, Holland prepared his own
habeas petition pro se and promptly filed it with the District
Court.” (emphasis in original)); Schlueter v. Varner, 384 F.3d
69, 76-77 (3d Cir. 2004) (denying equitable tolling based on
lack of reasonable diligence where prisoner “knew that [counsel]
had done little, if anything, to pursue [post-conviction] relief
for more than two years”). The lack of reasonable diligence on
Petitioner's part in pursuing a PCR appeal breaks any nexus
between counsel's failure to file an appeal and Petitioner's
failure to file a timely habeas petition. Ross v. Varano, 712
14
F.3d 784, 803 (3d Cir. 2013). The motion to dismiss the habeas
corpus petition as untimely is granted.
C. Certificate of Appealability
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.
V. CONCLUSION
For the reasons stated above, the Petitioner’s request for
equitable tolling is denied, and the motion to dismiss is
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granted. The petition is dismissed as untimely, and no
certificate of appealability shall issue. An appropriate order
follows.
October 30, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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