CROMER v. BARTKOWSKI et al

Filing 25

OPINION fld. Signed by Judge Susan D. Wigenton on 4/30/15. (sr, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EUSTACE CROMER,
Petitioner,
v.
GREG BARTKOWSKI, et al.,
Respondents.

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Civil Action No. 11-1915 (SDW)

OPINION
April 30, 2015

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Eustace Cromer
(“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging his state court conviction. (ECF
No. 1). Respondents filed a response (ECF No. 15, 16, 17), to which Petitioner replied (ECF No.
24). For the following reasons, the Court will dismiss the petition as time barred and no certificate
of appealability shall issue.

I. BACKGROUND
As this Court will dismiss this petition as time barred, only a brief recitation of the facts of
the underlying conviction is necessary. The New Jersey Appellate Division summarized the facts
of Petitioner’s criminal case as follows:
[Petitioner] was convicted of conspiracy to commit murder,
attempted murder, aggravated assault,[] possession of a firearm for
unlawful purpose, and unlawful possession of a firearm. After
merge, he was sentenced to fifty-five years with twenty years of
parole ineligibility on the attempted murder conviction and a

concurrent sentence on the unlawful possession violation.
The evidence at trial revealed that Bryant Jackson’s car was
shot at on the Garden State Parkway [on October 17, 1995]. A
passenger in Jackson’s car, Dierdre Mullen, recognized “Ditto” as
the shooter. “Ditto” is a nickname used by [Petitioner].
Mullen did not testify at the trial. Other passengers, victims
Jackson and Checora Washington, did testify, but repudiated their
similar prior identifications of defendant.[ 1 ] However, their
identifications were admitted as prior inconsistent statements after a
Gross hearing. See State v. Gross, 121 N.J. 1 (1990). Moreover,
Jackson identified defendant while in the Newark jail, and defendant
was well known to Washington. “Ditto” was her nephew.
On direct appeal, [the New Jersey Appellate Division] found
the identification evidence admissible and the evidence sufficient to
sustain the conviction.
In his [post conviction relief] petition, [Petitioner] claimed
defense counsel did not investigate the alibi defense, presented no
notice of alibi, and called no alibi witness. He also claimed that
counsel did not investigate the claim that Jackson was shot by
“Shariff.” He further claimed that counsel failed to impeach
Jackson with respect to the fact that “Shariff” was the shooter.
State v. Weeks, No. A-2343-07T4, 2009 WL 3488720, at *1 (N.J. App. Div. Oct. 29, 2009), certif.
denied, 201 N.J. 497 (2010).2
Following his conviction, the trial court in this matter entered judgment against him on

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All three passengers, who knew Petitioner well, provided the New Jersey State Police with
detailed descriptions of Petitioner as the shooter on the night of the shooting, and also identified
his photograph when presented with a photo array. (See PCR Opinion, Attached as Document
26 to ECF No. 16, at 7).
“Weeks” is a pseudonym of Petitioner, Eustace Cromer, and this case is fully captioned State v.
Eustace Weeks a/k/a Eustace Cromer.
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March 12, 1999. (Document 12 attached to ECF No. 16).3 Petitioner filed a timely notice of
appeal on May 28, 1999. (Document 13 attached to ECF No. 16). The New Jersey Appellate
Division affirmed Petitioner’s conviction by way of an opinion dated January 23, 2001.
(Document 18 attached to ECF No. 16). The New Jersey Supreme Court denied petitioner’s
petition for certification on April 3, 2001. (Document 20 attached to ECF No. 16). Petitioner
did not file a petition for certiorari. On September 11, 2001, 161 days after certification was
denied and 71 days after the 90 day period for filing a petition for certiorari had passed, Petitioner
filed his initial petition for post-conviction relief. (Document 21 attached to ECF No. 16). For
various reasons, the petition was not heard by the trial court until 2007.
Finding that Petitioner had pled a prima facie case for post-conviction relief, the trial court
held an evidentiary hearing on the petition limited to Petitioner’s ineffective assistance of counsel
arguments on April 19, 2007. (Document 2 attached to ECF No. 17). At the hearing, Petitioner
testified that he had informed his attorney prior to trial and on the mornings of all court hearings
that he had an alibi and witnesses who would testify to that alibi. (Id. at 13-16). Petitioner stated
that, on the night of the shooting, he had stayed in his apartment with his ex-girlfriend, his friend
Al-Tariq Little, and Little’s former girlfriend “Kiki.” (Id.). Petitioner claimed that they had
spent the entire night of the shooting in-doors at his apartment, and had not left until the following
morning. (Id. at 14). Petitioner also testified that he had told his trial counsel that the shooter
had been another individual named “Shariff” who had been fighting with the victim prior to the

The State’s exhibit numbers do not line up with the ECF document numbers as the State has
two documents listed as Exhibit 9. As such, this Court uses the ECF Document numbers when
referring to the attachments to ECF No. 16.
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shooting, and that the shooter had admitted his action to the victim. (Id. at 11).
Petitioner also called Al-Tariq Little as a witness during the PCR hearing. Little testified
that he had been with Petitioner on the night of the shooting, and that they had stayed indoors all
night drinking and smoking marijuana. (Id. at 25-26). Little also testified that he had never
spoken with an investigator about the case until the onset of the PCR proceedings in 2007. (Id.
at 26-27). On cross examination, Little testified that during the twelve years between the shooting
in October of 1995 and the PCR hearing in April of 2007, he had made no efforts to clear his
friends name or otherwise testify as to Petitioner’s alibi claims. (Id. at 29). Little also testified
that the reason he had not come forth was because he had had “warrants” out for his arrest at the
time of trial, and he had never been called as a witness. (Id. at 29-30). Little then admitted that
Petitioner had never asked him to “come in and clear [his] name” or ask him to be an alibi witness
in his criminal trial. (Id. at 30). Upon questioning by the PCR Court, Little also stated that he
had never been asked to aid Petitioner even though he had lived with Petitioner between the 1995
shooting and Petitioner’s trial in 1999. (Id. at 31-32).
Petitioner also called the victim, Bryant Jackson, as a witness in the PCR proceedings.
Jackson testified, as he had at trial, that his initial identification of Petitioner as his shooter was
incorrect, and that he had in fact been shot by someone named “Shariff” who he allegedly knew
well, but whose last name or address was unknown to him. (Id. at 33-40). Jackson also testified
that “Shariff” had directly admitted that he had shot Jackson as part of an ongoing “turf war”
between the two. (Id. at 34-35). Indeed, Jackson testified that he still saw and spoke with
“Shariff,” having just spoken with him, apparently amicably, at the barber shop the day before the
PCR hearing. (Id.). Jackson also testified that, a week prior to his initial identification of
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Petitioner as his shooter, “Shariff” had directly threatened his life, a point he did not mention to
authorities following the shooting. (Id. at 39). Finally, on cross examination Jackson testified
that he had known Petitioner very well at the time of his initial shooting, and that he had made his
initial identification within hours of the shooting and long before making the “Shariff” claim about
which he testified at trial. (Id. at 41-43).
Although Petitioner had apparently intended to call his ex-girlfriend, Shakeeda Covington,
as a witness during the hearing, she could not be found. (Id. at 5-6, 44-46). Ms. Covington
purportedly would also have testified as to the alibi Petitioner now claimed he had raised to his
trial counsel, but she failed to appear in court and testify in spite of attempts to locate her
throughout the day of the PCR hearing. (Id. at 44-46).
His final alibi witness unavailable, Petitioner finally called his trial attorney. His former
attorney, Michael J. DeBliss, Jr., testified that he could not clearly remember the case given the
twelve year intervening period and the large number of cases he had tried during that period. (Id.
at 49-64). DeBliss testified that he was assigned this case as a pool case through the Public
Defender’s office, and as such the file was maintained and kept by the Public Defender, and not
by him. (Id. at 49-52, 64-65). While DeBliss stated that he had no independent memory of the
case aside from what he read in the paperwork presented to him, documentary evidence was
provided which indicated that DeBliss had sent an investigator to interview the victim, Jackson,
but the investigator had been unable to contact or speak with Jackson after multiple attempts. (Id.
at 51-52).
The court denied Petitioner’s PCR petition by way of an order and opinion entered on
August 31, 2007, in which the PCR judge separately, and thoroughly, analyzed each witness’s
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testimony. In the opinion, the PCR judge made the following statements regarding the credibility
of Petitioner:
Eustace Cromer testified that he had met with his trial attorney,
Michael DeBlis[s] on several occasions prior to trial in court and
one time at his office. Petitioner informed Mr. DeBliss that Bryant
Jackson, the victim, was told by a man named “Shariff” that it was
Shariff that had shot him on the night in question. In addition,
Petitioner informed Mr. DeBlis[s] that he had alibi witnesses.
Petitioner claimed that he was with Shakeeda Covington, Al-Tariq
Little, and a woman named Kiki when the victim was shot.
Petitioner testified that no notice of alibi was filed and that no
investigation had been conducted.
I find Petitioner’s testimony had little credibility due to his
tone and demeanor combined with the extreme motive to fabricate.
(PCR Opinion, Attached as Document 26 to ECF No. 16, at 8).
The PCR court next addressed the testimony of Petitioner’s friend and alibi witness, AlTariq Little, finding incredible Little’s explanation for why he did not provide testimony as to
Petitioner’s alleged alibi at trial.

Al-Tariq Little testified that on October 16, 1995, that he was
with the Petitioner, Shakeeda Covinton, and a woman named
“Nakia.” Mr. Little testified that Petitioner never left his presence
the entire evening and that the evening was spent at the house
drinking and smoking marijuana. When asked by [the State] if Mr.
Little had made attempts to notify anyone that he was with Petitioner
at the time of the shooting[,] Mr. Little stated that he was not called
upon to testify at the trial and that he had “situations” and “little
warrants” which precluded him from coming to court. Mr. Little
also testified that the Petitioner did not make any attempts to have
Mr. Little clear his name despite the fact they were living together
for a substantial period of time prior to trial.
I find Mr. Little to have no credibility. Mr. Little did not
come forward either prior to or during the trial despite living with
the Petitioner. Mr. Little’s reasons for not coming forward were
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unpersuasive. Furthermore, his intoxication, by both alcohol and
marijuana, on the night [in] question may have clouded his
recollection.
(Id.).
The PCR court then evaluated the credibility of the victim, Bryant Jackson. The court
found that Jackson’s testimony also lacked credibility:
Bryant Jackson testified that at Petitioner’s trial he stated
that [a] man named Shariff had shot him and not Petitioner. The
basis for this knowledge was that Mr. Jackson had served time in
Annandale Youth Correctional Facility and that Shariff approached
him upon his return and told Mr. Jackson that he had in fact been
the shooter. Mr. Jackson also testified that he had an argument with
Shariff in the weeks prior to the shooting over drug turf. In
addition, Mr. Jackson testified that he had seen Shariff the day
before the evidentiary hearing.
I find Mr. Jackson’s testimony lacking in credibility due to
his tone and demeanor. Furthermore, Mr. Jackson did not have an
independent basis for identifying the shooter at trial or at the hearing
[as Shariff].
(Id. at 8-9).
Thereafter, the PCR court discussed the testimony of Petitioner’s trial counsel, Michael J.
DeBliss. Unlike Petitioner, Little, and Jackson, the court found credible counsel’s testimony that
he was unable to locate Bryant Jackson to testify at trial, and that he did not recall many of the
specific facts of Petitioner’s case.
Michael J. DeBliss testified that he drafted an investigation
request form requiring an investigator to attempt to contact Bryant
Jackson as the[re] was a possibility of his recantation. The
investigator responded that his attempt to contact Mr. Jackson was
unsuccessful. Mr. DeBlis[s] had a poor recollection of the case due
to the number of cases he had been involved with since and due to
the lapse of time.
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I found Mr. DeBliss to be credible. Mr. DeBliss was
forthcoming with the information he could recall and was
cooperative in the examination by both parties.
(Id. at 9).
Based on these credibility findings, the PCR Court denied the PCR Petition, rejecting both
Petitioner’s claim that his counsel had failed to investigate his alibi defense and that counsel had
failed to interview the victim about the claim that “Shariff” had shot him.

(Id. at 12).

Specifically, the PCR Court found that
Both assertions fail to rise to ineffective assistance of counsel. As
for the alibi defense, the only individual who testified that the
Petitioner had an alibi and had informed trial counsel of same, is the
Petitioner. Of the three alleged alibi witnesses, only one could be
found to testify at the hearing, Al-Tariq Little. Mr. Little simply
lacked credibility. It was especially telling that despite living with
the Petitioner after the shooting, but before trial, that [Little] failed
to come forward on Petitioner’s behalf. Therefore, trial counsel’s
performance was not deficient because there was no corroboration
that Petitioner had even informed him of the alibi and even if he had,
the alibi lacked substantiation. Even if counsel’s performance in
this regard was deficient, it did not cause prejudice to the Petitioner.
There is no basis for alleging that trial counsel failed to
investigate and interview the victim. Trial counsel made an
appropriate request and the investigator’s attempt to contact him
was unfruitful. Furthermore, trial counsel knew that the Petitioner
could not and would not identify him as the shooter. The jury
simply did not find that this rose to the level of reasonable doubt.
Trial counsel made a good faith attempt to contact Mr. Jackson.
Trial counsel’s efforts were not deficient . . . [and] did not cause
prejudice to the Petitioner.
(Id. at 12).
Petitioner appealed the PCR court’s judgment, and the Appellate Division affirmed the trial
court’s ruling on October 29, 2009. (App. Div. Opinion attached as Document 28 to ECF No.
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16). The New Jersey Supreme Court denied certification on April 22, 2010. See State v. Weeks,
201 N.J. 497 (2010). Petitioner thereafter filed this Petition on or about April 4, 2011.4 (ECF
No. 1). Petitioner subsequently filed a second PCR petition in the state trial court, which has since
been denied as untimely and that denial affirmed by the Appellate Division. (See Second PCR
Trial and Appellate opinions, Documents 30 and 33 attached to ECF No. 16).

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” The petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S.
Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death
Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), the district courts are required to give great deference
to the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 77273 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
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It is not entirely clear when Petitioner handed his Petition over to be mailed. The letter he
attached to his Petition is dated March 25, 2011, but there is no date on the Petition itself. Both
were received by the clerk’s office on April 4, 2011. In any event, as is discussed below, the
Petition would be untimely regardless, so this issue is immaterial.
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not grant an application for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for the purposes of the statute
where it is clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the
United States Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015).
“When reviewing state criminal convictions on collateral review, federal judges are required to
afford state courts due respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Id. Where a petitioner challenges an allegedly
erroneous factual determination of the state court, “a determination of a factual issue made by a
State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

B. Analysis
1. This Petition was untimely filed.
The State argues, and this Court agrees, that this petition should be dismissed as time
barred. Petitions for a writ of habeas corpus brought pursuant to 28 U.S.C. 2254 are subject to a
one year statute of limitations. 28 U.S.C. § 2244(d)(1). In most cases, including this one, the
one year statute of limitations applicable to petitions brought under § 2254 begins to run on the
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“date on which the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review including the 90-day period for filing a petition for writ of
certiorari in the United States Supreme Court.” See Figueroa v. Buechele, No. 15-1200, 2015
WL 1403829, at *2 (D.N.J. Mar. 25, 2015); see also Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2009). The statute of limitations, however, is tolled during the pendency of a valid state court
post-conviction review (“PCR”). Figueroa, 2015 WL 1403829 at *2.
Here, the New Jersey Supreme Court denied certification on direct review on April 3, 2001.
As Petitioner did not file for certiorari, the statute of limitations began to run when the time to file
a petition for certiorari had run ninety days later on July 2, 2001. Petitioner did not file his initial
PCR petition until September 11, 2001. Seventy-one days had thus elapsed from the one year
statute of limitations prior to the filing of the PCR petition. The New Jersey Supreme Court
denied certification on the PCR petition on April 22, 2010.5 Petitioner’s application thus had to
be filed February 10, 2011 to be filed within the one year provided by the statute of limitations,
given the seventy one days that had elapsed prior to the PCR filing. Even giving Petitioner the
benefit of the doubt and using the March 25, 2011, date of the letter attached to his petition, this
petition was filed after the statute of limitations had run. This petition is, therefore, untimely
under the statute.

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That Petitioner filed a second PCR petition after he filed this action does not provide a basis
for tolling the statute of limitations. See, e.g., Bryant v. Hendricks, No. 01-21, 2007 WL
316518, at *3 n. 7 (D.N.J. Jan. 30, 2007) (Second PCR filed after statute had run does not toll
statute of limitations and PCR petition filed PCR is not “properly filed” and thus could not
suffice to establish tolling regardless, citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005));
Ransome v. Holmes, No. 12-4889, 2013 WL 6253668, at *3 (D.N.J. Dec. 4, 2013) (citing Long v.
Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004)).
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The statute of limitations, however, is subject to certain equitable considerations. One
such consideration is a showing of actual innocence. See McQuiggin v. Perkins, --- U.S. ---, ---,
133 S. Ct. 1924, 1934-46 (2013). In order to use actual innocence as a gateway claim to bypass
the statute of limitations, Petitioner “must show that it is more likely than not that no reasonable
juror would have convicted him in the light of” newly raised evidence. Id. at 1935. Any
unexplained delays in presenting new evidence bears on the determination of “whether the
petitioner has made the requisite showing.” Id. It is not enough that a petitioner claim actual
innocence, he must show actual innocence through “new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence –
that was not presented at trial.” Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004)
(quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)).

Claims for actual innocence are thus rarely

successful, and will be granted in only in those exceptional cases where the “evidence of innocence
[is] so strong that a court cannot have confidence in the outcome of the trial” as “no reasonable
juror” could have convicted the petitioner. McQuiggin, 133 S. Ct. at 1936.
In his reply brief, Petitioner argues that, although his petition is time-barred, the petition
should not be dismissed as such because he has made a claim of actual innocence. Petitioner
argues that the “new evidence” he is required to provide is the testimony elicited at his PCR hearing
in 2007. Petitioner, however, fails to make a showing of actual innocence. The only “new
evidence” Petitioner points to are factual claims which were found incredible by the state trial
court and upheld by the state appellate court: Petitioner’s uncorroborated claim that he had told
his attorney he had an alibi, Al-Tariq Little’s claim that Petitioner spent the night of the shooting
with him, and the testimony of the victim that he had been told by “Shariff” that “Shariff” had shot
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him. As to the “Shariff” issue, as the victim repudiated his identification of Petitioner and made
the “Shariff” claim at trial, that claim in no way is new evidence. Indeed, the jury heard that claim
in Petitioner’s criminal trial and convicted him in spite of it.
As to the alibi claim, Petitioner’s new evidence is essentially made up of his testimony and
that of his former roommate, Al-Tariq Little. In raising his actual innocence claim and naming
this testimony as his supporting evidence, Petitioner is effectively asking this court to overturn the
PCR court’s factual determination that, based upon their testimony and demeanor, both Petitioner
and Little were completely lacking in credibility. This Court finds that Petitioner has presented
no evidence, let alone clear and convincing evidence, to suggest that the PCR court’s factual
determination was unreasonable. As the PCR court found, the testimony that both Petitioner and
his then roommate knew that Petitioner had an alibi, and that neither of them came forth to present
that claim throughout the three years between Petitioner’s arrest and conviction beggars belief.
The story these individuals presented in their PCR testimony is inherently incredible and
thoroughly unbelievable. As such, the PCR Court’s findings, as upheld by the Appellate Division,
were not based upon an unreasonable determination of the facts and are thus presumed correct by
this Court. 28 U.S.C. § 2254(d)(2)-(e)(1). As the testimony upon which Petitioner relies has
been rejected as lacking in credibility, Petitioner has not presented the “new credible evidence”
required to make a showing of actual innocence. Hubbard, 378 F.3d at 339-40. Even if the Court
did consider that evidence, however, this Court is satisfied that it is not sufficient to undermine
this Court’s confidence in the outcome of Petitioner’s trial, and as such Petitioner has failed to
make a showing of actual innocence. McQuiggin, 133 S. Ct. at 1936. As Petitioner has failed to
make a showing of actual innocence, Petitioner’s claim of innocence does not warrant the
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consideration of his claims after the running of the statute of limitations. The Petition must
therefore be dismissed as time-barred.6

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), Petitioner may not appeal from a final order in a habeas
proceeding where Petitioner’s detention arises out of a state court proceeding unless Petitioner has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

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This Court notes that although Petitioner does not argue it in his reply brief, he did attach the
March 25, 2011, letter to his petition which claimed he did not receive notice of the certification
denial on his PCR petition until June of 2010. To the extent that this letter, supported only by
the fact that the Public Defender wrote Petitioner on May 4, 2010 (see Document 1 attached to
ECF No. 1), informing him of the New Jersey Supreme Court’s decision, is meant to raise
equitable tolling, this Court rejects such an argument. Equitable tolling is proper only when the
“principles of equity would make [the] rigid application [of a limitation period] unfair . . .
because the petitioner has in some extraordinary way . . . been prevented from asserting his or
her rights.” Miller v. New Jersey Dep’t of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998); see also
United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013). Equitable tolling should be
permitted only sparingly, and only if Petitioner shows that “he has been pursuing his rights
diligently, and . . . that some extraordinary circumstance stood in his way and prevented timely
filing.” Thomas, 713 F.3d at 174 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
Petitioner has presented no evidence that he diligently pursued his rights during the period
between June 2010 and March 2011, nor that any extraordinary circumstance prevented his
timely filing of his petition. As such, equitable tolling is not warranted here. See, e.g.,
Thomas, 713 F.3d at 174-75 (rejecting a request for equitable tolling where the petitioner argued
he should receive an extension of time because he spent 120 days out of the one year statute of
limitations without access to legal materials due to a prison transfer); Fahy v Horn, 240 F.3d
239, 244 (3d Cir. 2001) (in non-capital cases “attorney error, miscalculation, inadequate research
or other mistakes” are inadequate to warrant equitable tolling).
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As Petitioner’s claims are time barred, he has failed to make a substantial showing that he was
denied a constitutional right, and no certificate of appealability shall therefore issue.

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IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is
DISMISSED as time barred, and no certificate of appealability shall issue. An appropriate order
follows.

s/ Susan D. Wigenton, U.S.D.J.

Orig:
cc:

Clerk
Parties
Magistrate Judge Steven C. Mannion

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