YARRELL v. BARTKOWSKI et al

Filing 6

OPINION. Signed by Judge Faith S. Hochberg on 10/18/11. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MALIK YARRELL,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.

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Civil Action No. 10-5337 (FSH)
OPINION

APPEARANCES:
MALIK YARRELL, Petitioner pro se
#442508 SBI #856203B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
HOCHBERG, District Judge
Petitioner Malik Yarrell, a convicted state prisoner
currently confined at the New Jersey State Prison in Trenton, New
Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 2003 New Jersey
state court conviction.

For the reasons stated herein, the

Petition will be dismissed as time-barred.
I.

PROCEDURAL BACKGROUND

Petitioner, Malik Yarrell (“Yarrell”), filed a petition for
habeas corpus relief on or about October 12, 2010.1
1

Pursuant to the
is deemed filed on the
officials for mailing,
filed with the court.
(1988); see also Burns
1988) (applying prison

According to

“prison mailbox rule,” a habeas petition
date the prisoner delivers it to prison
not on the date the petition is ultimately
See Houston v. Lack, 487 U.S. 266, 270-71
v. Morton, 134 F.3d 109, 112-13 (3d Cir.
mailbox rule set forth in Houston, which

the allegations contained in his petition, Yarrell was convicted
on or about January 17, 2003, in the Superior Court of New
Jersey, Law Division, Essex County, on multiple indictments
charging him with conspiracy to commit murder, purposeful or
knowing murder, and weapons offenses.

Yarrell had entered a

guilty plea to all charges in three indictments, on December 18,
2000, pursuant to a plea agreement wherein he consented to
testify truthfully against his co-defendants in exchange for the
State to dismiss a fourth indictment and recommend an aggregate
sentence of 30 years with a 30-year period of parole
ineligibility.

On January 17, 2003, the sentencing judge found

that Yarrell had breached his plea agreement by refusing to
testify against two of his co-defendants, and sentenced Yarrell
to consecutive life sentences with 30-year periods of parole
ineligibility.
Yarrell filed a direct appeal from his conviction and
sentence to the Superior Court of New Jersey, Appellate Division.

dealt with filing of an appeal, to a pro se prisoner’s filing of
a habeas petition). Often times, when the Court is unable to
determine the exact date that a petitioner handed his petition to
prison officials for mailing, it will look to the signed and
dated certification of the petition. See Henderson v. Frank, 155
F.3d 159, 163-64 (3d Cir. 1988) (using date prisoner signed
petition as date he handed it to prison officials for purposes of
calculating timeliness of habeas petition). Here, Yarrell signed
his petition on October 12, 2010. Therefore, the Court will use
the date October 12, 2010, for statute of limitation purposes, as
the date this habeas action was filed, rather than the date the
petition was received by the Court on October 15, 2010.
2

On October 20, 2005, the Appellate Division affirmed the
conviction and sentence in part, finding that the consecutive
life sentences and aggregate 60-year period of parole
ineligibility were not manifestly excessive or unduly punitive
and did not constitute an abuse of discretion.

The court found

that the murder convictions were based on separate and distinct
acts of violence, involving multiple victims, and were
predominantly independent of each other.

However, the court

reversed in part and remanded for entry of corrected judgments of
conviction merging the convictions for possession of a weapon for
an unlawful purpose with the murder convictions and sentencing of
defendant separately on the convictions for unlawful possession
of weapons without a permit.

See State v. Yarrell, 2005 WL

2665472 (N.J. Super. App. Div., Oct. 20, 2005).

The Supreme

Court of New Jersey denied certification on April 4, 2006.
State v. Yarrell, 186 N.J. 603 (2006).

See

Yarrell did not file a

petition for a writ of certiorari with the Supreme Court of the
United States.
Yarrell states that he filed a petition for post-conviction
relief (“PCR”), in the Superior Court of New Jersey, Law
Division, Essex County, on or about June 5, 2006.
at ¶ 11(a)(3).
2007.

See Petition

His state PCR petition was denied on February 22,

Yarrell then appealed from denial of his state PCR

petition to the Appellate Division.

3

The Appellate Division

affirmed denial of post conviction relief on April 9, 2009.
State v. Yarrell, 2009 WL 937216 (N.J. Super. App. Div., April 9,
2009); see also Petition at ¶ 11(a)(8).
certification on July 15, 2009.

The Supreme Court denied

State v. Yarrell, 200 N.J. 207

(2009); see also Petition at ¶ 11(b)(8).
As stated above, Yarrell filed this federal habeas petition
on October 12, 2010.

On February 24, 2011, this Court issued an

Opinion and Order directing Yarrell to show cause in writing why
his habeas petition should not be dismissed as time-barred under
28 U.S.C. § 2244(d).

(Docket entry nos. 2, 3).

response on or about March 11, 2011.

Yarrell filed a

(Docket entry no. 5).

In his response, Yarrell appears to argue that equitable
tolling should apply because he had limited access to the prison
law library, and that he relied, mistakenly, on the advice of law
library paralegals that the 90-day period for a petition for
certiorari to the United States Supreme Court would be applied,
thus making his habeas petition timely.

(Petitioner’s Response,

Docket entry no. 5, pg. 3).
II.

STANDARD OF REVIEW

A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.

Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.

See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

4

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).

Because petitioner is a pro se litigant, the

Court will accord his petition the liberal construction intended
for pro se petitioners.
III.

STATUTE OF LIMITATIONS ANALYSIS

The limitation period for a § 2254 habeas petition is set
forth in 28 U.S.C. § 2244(d), which provides in pertinent part:
(1) A 1-year period of limitations shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run 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; ...
(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 section.
Section 2244(d) became effective on April 24, 1996 when the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
was signed into law.

See Burns v. Morton, 134 F.3d 109, 111 (3d

Cir. 1998); Duarte v. Herschberger, 947 F. Supp. 146, 147 (D.N.J.
1996).

The Third Circuit has ruled that state prisoners whose

convictions became final before the April 24, 1996 enactment of
AEDPA are permitted one year, until April 23, 1997, in which to
file a federal habeas petition under § 2254.
at 111.

See Burns, 134 F.3d

See also Lindh v. Murphy, 521 U.S. 320, 326-27

(1997)(“[t]he statute reveals Congress’ intent to apply the
5

amendments to chapter 153 only to such cases as were filed after
the statute’s enactment”).
Thus, pursuant to § 2244(d), evaluation of the timeliness of
a § 2254 petition requires a determination of, first, when the
pertinent judgment became “final,” and, second, the period of
time during which an application for state post-conviction relief
was “properly filed” and “pending.”
A state-court criminal judgment becomes “final” within the
meaning of § 2244(d)(1) by the conclusion of direct review or by
the expiration of time for seeking such review, including the 90day period for filing a petition for writ of certiorari in the
United States Supreme Court.

See Swartz v. Meyers, 204 F.3d 417,

419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d
Cir. 1999); U.S. Sup. Ct. R. 13.
As noted above, where a conviction became final prior to
April 24, 1996, the effective date of § 2244(d), a state prisoner
has a one-year grace period after that effective date to file a
§ 2254 petition.

Burns, 134 F.3d at 111.

However, that

limitations period is tolled during the time a properly filed
application for state post-conviction relief is pending.
U.S.C. § 2244(d)(2).

28

An application for state post-conviction

relief is considered “pending” within the meaning of
§ 2244(d)(2), and the limitations period is statutorily tolled,
from the time it is “properly filed,”2 during the period between
2

An application is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws and rules
6

a lower state court’s decision and the filing of a notice of
appeal to a higher court, Carey v. Saffold, 536 U.S. 214 (2002),
and through the time in which an appeal could be filed, even if
the appeal is never filed, Swartz v. Meyers, 204 F.3d at 420-24.
Nevertheless, § 2244(d)(2) does not toll the one year statute of
limitations during the pendency of a state prisoner’s petition
for writ of certiorari in the United States Supreme Court.
Lawrence v. Florida, 549 U.S. 327, 332-33 (2007);

See

Stokes v.

District Attorney of the County of Philadelphia, 247 F.3d 539,
542 (3d Cir.), cert. denied, 534 U.S. 959 (2001).
Here, Yarrell’s judgment of conviction became final after
the

enactment of AEDPA.

The judgment of conviction was entered

on or about January 17, 2003, and Yarrell filed a direct appeal
shortly thereafter.

On October 20, 2005, the Appellate Division

affirmed the conviction and the sentences for consecutive life
sentences with an aggregate 60-year period of parole
ineligibility but remanded the matter for entry of corrected
judgments of conviction merging the convictions for possession of
a weapon for an unlawful purpose with the murder convictions and

governing filings. These usually prescribe, for example, the
form of the document, the time limits upon its delivery, the
court and office in which it must be lodged, and the requisite
filing fee. In some jurisdictions the filing requirements also
include, for example, preconditions imposed on particular abusive
filers, or on all filers generally. But in common usage, the
question whether an application has been “properly filed” is
quite separate from the question whether the claims contained in
the application are meritorious and free of procedural bar.
Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (footnotes and citations
omitted).
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sentencing Yarrell separately on the convictions for unlawful
possession of weapons without a permit.

The New Jersey Supreme

Court thereafter denied certification on April 4, 2006.

Yarrell

did not file a petition for a writ of certiorari with the Supreme
Court of the United States.

Therefore, Yarrell’s judgment of

conviction became final 90 days after Aril 4, 2006, or on July 5,
2006.

See Swartz, 204 F.3d at 419; Morris, 187 F.3d at 337 n.1;

U.S. Sup. Ct. R. 13.
Accordingly, Yarrell had one year from the date on which his
judgment of conviction became final under § 2244(d)(1)(A), July
5, 2006, or until July 5, 2007, to timely file his federal habeas
petition under § 2254.
To permit tolling of the one-year limitations period under
28 U.S.C. § 2244(d)(2), Yarrell would have had to file his state
PCR petition before the one-year period had expired, or before
July 5, 2007.

Otherwise, the state PCR petition would not serve

to toll the statute of limitations.

In this case, Yarrell filed

his state PCR petition on June 5, 2006.

Therefore, statutory

tolling commenced before expiration of the one-year statute of
limitations on July 5, 2007.
The limitations period continued to toll until state court
review in Yarrell’s PCR proceedings completed on July 15, 2009,
when the New Jersey Supreme Court denied certification on appeal
from denial of Yarrell’s state PCR petition.

Therefore, Yarrell

had one year from July 15, 2009, or until July 15, 2010, to

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timely file his federal habeas petition.

See Lawrence v.

Florida, 549 U.S. at 332-33; Stokes, 247 F.3d at 542
(§ 2244(d)(2) does not toll the one year statute of limitations
during the pendency of a state prisoner’s petition for writ of
certiorari in the United States Supreme Court).
Yarrell did not file his habeas petition until October 12,
2010, almost three months after his limitations period had
expired.

In his response to this Court’s February 24, 2011 Order

to Show Cause, Yarrell states that his delay should be excused,
ostensibly on grounds of equitable tolling, because he mistakenly
relied on the advice of law library paralegals at the prison that
his petition would be timely because the 90-day period for
certiorari filing would apply, which it does not.

See Lawrence

v. Florida, 549 U.S. at 332-33; Stokes, 247 F.3d at 542
(§ 2244(d)(2) does not toll the one year statute of limitations
during the pendency of a state prisoner’s petition for writ of
certiorari in the United States Supreme Court).
Yarrell’s argument fails to overcome this statutory time bar
by equitable tolling.

See Fahy v. Horn, 240 F.3d 239, 244 (3d

Cir.), cert. denied, 534 U.S. 944 (2001); Jones v. Morton, 195
F.3d 153, 159 (3d Cir. 1999); Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998).

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

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stood in his way and prevented timely filing.”

Lawrence, 549

U.S. at 336; Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005);
Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003).
The Third Circuit instructs that equitable tolling is
appropriate when “principles of equity would make the rigid
application of a limitation period unfair, such as when a state
prisoner faces extraordinary circumstances that prevent him from
filing a timely habeas petition and the prisoner has exercised
reasonable diligence in attempting to investigate and bring his
claims.”

LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005).

However, the court cautioned that courts should use the equitable
tolling doctrine “sparingly,” “only in the rare situation where
it is demanded by sound legal principles as well as the interest
of justice.”

Lacava, 398 F.3d at 275 (3d Cir. 2005).

A mere

showing of “excusable neglect is not sufficient” to warrant
equitable tolling.

Id. at 276; Miller, 145 F.3d at 618-19;

Jones, 195 F.3d at 159.
Extraordinary circumstances permitting equitable tolling
have been found where:

(1) the petitioner has been actively

misled; (2) the petitioner has been prevented from asserting his
rights in some extraordinary way; (3) the petitioner timely
asserted his rights in the wrong forum, see Jones, 195 F.3d at
159, or (4) the court has misled a party regarding the steps that
the party needs to take to preserve a claim, see Brinson v.
Vaughn, 398 F.3d 225, 230 (3d Cir.), cert. denied, 546 U.S. 957

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(2005).3

Even where extraordinary circumstances exist, however,

“[i]f the person seeking equitable tolling has not exercised
reasonable diligence in attempting to file after the
extraordinary circumstances began, the link of causation between
the extraordinary circumstances and the failure to file is
broken, and the extraordinary circumstances therefore did not
prevent timely filing.”

Brown v. Shannon, 322 F.3d 768, 773 (3d

Cir.)(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.
2000)), cert. denied, 539 U.S. 948 (2003).
In this case, Yarrell’s reliance on erroneous advice from
prisoner paralegals would not serve to excuse his late filing.
For equitable tolling to apply, Yarrell still must show “(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.”

See Lawrence, 549 U.S. at 336.

See also Holland v.

Florida, __ U.S. __, 130 S.Ct. 2549, 2562 (June 14, 2010)(holding
that the one-year limitations period under AEDPA is subject to
equitable tolling “in appropriate cases,” where the petitioner
demonstrates (1) that he has been pursuing his rights diligently,
and (2) that some “extraordinary circumstances stood in his way
and prevented timely filing”).

Here, Yarrell simply can not show

diligent effort in pursuing his rights.
3

He does not explain how

The Third Circuit has expressly held that, in non-capital
cases, attorney error, miscalculation, inadequate research, or
other mistakes are not the extraordinary circumstances necessary
to establish equitable tolling. Johnson v. Hendricks, 314 F.3d
159, 163 (3d Cir. 2002), cert. denied 538 U.S. 1022 (2003); Fahy,
240 F.3d at 244.
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limited access to the prison law library prevented his timely
filing.

Indeed, this Court finds that if Yarrell had exercised

reasonable diligence, he could have brought his claims in a
timely fashion.

Yarrell has not demonstrated that (1) he had

been actively misled by state officials; (2) he had been
prevented from asserting his rights in some extraordinary way;
(3) he timely asserted his rights in the wrong forum, see Jones,
195 F.3d at 159, or (4) the court had misled him regarding the
steps that he needed to take to preserve a claim, see Brinson v.
Vaughn, 398 F.3d at 230.
Rather, Yarrell’s only excuse would appear to be that he
miscalculated the statutory limitations period based on the
advice of a prisoner paralegal.

Miscalculation of the remaining

time on a limitations period does not constitute extraordinary
circumstances to permit equitable tolling.

Fahey, 240 F.3d at

244; see also Johnson v. Hendricks, 314 F.3d 159, 161, 163 (3d
Cir. 2002), cert. denied, 538 U.S. 1022 (2003).

Moreover, even

if Yarrell was ignorant of the fact that the limitations period
began to run on July 15, 2009, when the state Supreme Court
denied certification on appeal from denial of Yarrell’s state PCR
petition, ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.

Fisher v.

Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied, 531
U.S. 1164 (2001).

Courts have been loathe to excuse late filings

simply because a pro se prisoner misreads the law.

12

Delaney v.

Matesanz, 264 F.3d 7, 15 (1st Cir. 2001)(“While judges are
generally lenient with pro se litigants, the Constitution does
not require courts to undertake heroic measures to save pro se
litigants from the readily foreseeable consequences of their own
inaction.”); see also Jones, 195 F.3d at 159-60.
Therefore, the Court concludes that the habeas petition is
time-barred and this habeas petition will be dismissed with
prejudice accordingly.
IV.

CERTIFICATE OF APPEALABILITY

The Court next must determine whether a certificate of
appealability should issue.
Rule 22.2.

See Third Circuit Local Appellate

The Court may issue a certificate of appealability

only if the petitioner “has made a substantial showing of the
denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

When a court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claim, the
prisoner must demonstrate that jurists of reason would find it
debatable:

(1) whether the petition states a valid claim of the

denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling.
473, 484 (2000).

Slack v. McDaniel, 529 U.S.

“Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.”

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Id.

For the reasons discussed above, this § 2254 habeas petition is
clearly time-barred.

The Court also is persuaded that reasonable

jurists would not debate the correctness of this conclusion.
Consequently, a certificate of appealability will not be issued.
CONCLUSION
For the foregoing reasons, this Court finds that the
petition for a writ of habeas corpus under 28 U.S.C. § 2254 is
time-barred pursuant to 28 U.S.C. § 2244(d).

No certificate of

appealability will issue pursuant to 28 U.S.C. § 2253(c)(2).

An

appropriate order follows.

s/ Faith S. Hochberg
FAITH S. HOCHBERG
United States District Judge
DATED: October 18, 2011

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