DIXON v. BARTKOWSKI et al

Filing 28

OPINION. Signed by Judge Dennis M. Cavanaugh on 10/1813. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DARNELL DIXON,
Civil Action No.

11-3213

(DMC)

Petitioner,

v.
GREG BARTKOWSKI,

:

OPINION

et al.,

Respondents.

APPEARANCES:
DARNELL DIXON, Petitioner pro se
# 291129/487146-B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
STEPHEN A. POGANY, ESQ.
ESSEX COUNTY PROSECUTOR’S OFFICE
50 West Market Street
Newark, New Jersey 07102
Counsel for Respondents
CAVANAUGH,

District Judge

Petitioner Darnell Dixon

(“Petitioner” or “Dixon”),

a

convicted state prisoner presently 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 1998 New Jersey state court judgment of
conviction.

For the reasons stated herein,

dismissed as time-barred under 28 U.S.C.

the Petition is

§ 2244(d).

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10

assault charge to be served consecutive to the reckless
manslaughter conviction and the sentence on Indictment No. 22876-95.

Judge Giles also sentenced Petitioner to concurrent tens

as follows: a prison ten of 10 years with five years parole
ineligibility on the conviction for unlawful possession of a
weapon; a prison ten of 20 years with a 10-year parole
disqualifier on possession of a weapon for an unlawful purpose;
and a prison ten of five years on possession of a dangerous
weapon by a convicted felon.
Dixon appealed his conviction and sentence to the Superior
Court of New Jersey, Appellate Division.

On June 1, 2000, the

Appellate Division affined Dixon’s conviction, but remanded the
matter for resentencing.

Dixon filed a petition for

certification with the Supreme Court of New Jersey on June 22,
2000.

The New Jersey Supreme Court denied certification on

November 7, 2002.
On October 31, 2000, Judge Giles re-sentenced Petitioner in
accordance with the remand.

Specifically, on Indictment No.

3394-10-96, Dixon was sentenced to an extended ten of 20 years
in prison with a 10-year parole disqualifier on Count One, the
reckless manslaughter charge, to be served consecutive to the
sentence on Indictment No. 2287-6-95, and a prison ten of 10
years with five years parole ineligibility on Count Four, the
3

aggravated assault charge,

to be served consecutive to the

reckless manslaughter charge and to the sentence on Indictm
ent
No.

2287-6-95.

Dixon also was sentenced to a prison term of

five years on the unlawful possession of a weapon charge
to be
served concurrently with Counts One and Four,
the sentence on Indictment No.

2287-6-95.

of a weapon for an unlawful purpose,

reckless manslaughter.

but consecutive to

Count Six,

possession

was merged with Count One,

On Indictment No.

3395-10-96,

of a dangerous weapon by a convicted felon,

possession

Dixon was sentenced

to 7 years in prison to be served consecutive to Indictment
Nos.
3394-10-96 and 2287-6-95.

In short,

Petitioner was sentenced to

an aggregate term of 37 years in prison with 15 years parole
ineligibility.
Petitioner appealed his resentencing to the Appellate
Division,

On October 15,

the resentencing.

2001,

the Appellate Division affirmed

On November 7,

2002,

the New Jersey Supreme

Court denied certification.
On January 22,

2003,

for post-conviction relief

Dixon filed his first pro se petition
(“PCR”).

This petition was

subsequently withdrawn by Dixon due to problems with counse
l.
(Respondents’

at 6:6-15.)

Exhibit N

-

November 2,

2007 PCR Motion Transcript

Petitioner thereafter filed a second state PCR

petition on September 19,

2006.

PCR counsel was assigned and
4

filed a supporting brief on March 27,
2007,

On November 1,

2Q07.

Dixon filed a motion for withdrawal of his PCR counsel.

On November 2,

2007,

the Honorable Michael J.

Nelson,

J.S,C.

filed an Order denying the PCR petition.
On February 28,

2008,

Petitioner filed an appeal from

denial of his PCR petition.

Later,

on August 20,

2008,

Petitioner filed a motion for summary reversal of the Order
denying the PCP. petition,

arguing that the PCR court had not

filed a written opinion referenced in the Order denying postconviction relief.

On September 19,

2008,

the Appellate

Division filed an order denying the motion for summary reversal,
but temporarily remanding the matter to Judge Nelson for
development of the record concerning the timeliness of the PCR
petition,

and for findings of fact and conclusions of law

regarding both timeliness and merits of the petition.

The

Appellate Division retained jurisdiction over the case,

noting

that there was confusion between a 2002 PCR petition relating to
Indictment No.

2287-6-95 and the 2003 PCR petition relating to

Indictment Nos.
On March 5,

3394-10-96 and 3395-10-96.
2009,

Judge Nelson filed a written opinion with

the Appellate Division denying the PCR petition.

The Appellate

Division affirmed denial of the PCR petition on June 29,

2010.

The New Jersey Supreme Court denied certification on January 7,
5

2011.

Dixon filed this habeas petition on or about May 27,

2011.
On September 14,

2011,

this Court issued an Opinion and

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

2011,

(Dkt,

(Dkt.

## 4, 5.)

# 7.)

Petitioner responded on October 26,

On February 3,

2012,

motion to stay his habeas proceedings.
his motion on May 30,

2012,

.

(Dkt.

# 11.)

petition on June 5,

(Dkt.

# 8.)

He withdrew

after this Court had issued a Notice

and Order pursuant to Mason v.
2000)

Petitioner filed a

Meyers,

208 F.3d 414

(3d Cir.

Petitioner then filed a supplemental
2012.

# 13.)

(Dkt.

On October 9,

2012,

the

Court issued an Order directing Respondents to answer the

petition.

(Dkt,

# 16.)

Respondents filed an answer to the petition,
relevant record on December 26,
January 14,

2013,

2012.

(Dkt.

with the

4*# 23, 24.)

On

Petitioner filed this motion seeking a stay

and abeyance of his federal habeas petition while he returned
to
state court to exhaust additional claims of ineffective
assistance of counsel.

(Dkt.

# 25.)

This Court denied Petitioner’s motion for a stay and
abeyance in an Opinion and Order filed on September 25,
(Dkt.

## 26, 27.)
6

2013.

II.

DISCUSSION

The State asserts that this habeas petition is time-barred
under 28 U.S.C.

§ 2244(d),

which states in relevant part:

(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to a 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
subsection.
Therefore, pursuant to the applicable statute of
limitations provision,

evaluating the timeliness of the instant

petition first requires a determination of when petitioner’s
state court judgment became final.

The judgment is determined

to be final by the conclusion of direct review,
expiration of time for seeking such review,

or the

including the

ninety-day period for filing a petition for writ of certiorari
in the United States Supreme Court.
U.S.

----,

132 S.

However,

Ct.

641,

653-54,

See Gonzalez v.
181 L.Ed.2d 619

Thaler,

(2012)

the statute of limitations may be statutorily

tolled during the time in which properly filed state post

7

conviction relief petition is pending.
2244(d) (2).

See 28 U.S.C.

§

The Third Circuit has explained that:

A prisoner’s application for state collateral review is
“‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing
filings[j” Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct.
361, 148 L.Ed.2d 213 (2000) (emphasis omitted), including
“time limits, no matter their form,” Pace v. DiGuglielmo,
544 U.S. 408, 417, 125 S. Ct. 1807, 161 L.Ed.2d 669 (2005)
Thus, if a state court determines that an application is
untimely, “‘that [is) the end of the matter’ for purposes
of statutory tolling of AEDPA’s limitation period, id. at
414 (quoting Carey v. Saffold, 536 U.S. 214, 226, 122 5.
Ct. 2134, 153 L.Ed.2d 260 (2002)), “regardless of whether
it also addressed the merits of the claim, or whether its
timeliness ruling was ‘entangled’ with the merits[j”
Carey, 536 U.S. at 226. But if a state court fails to rule
clearly on the timeliness of an application, a federal
court “must . .. determine what the state courts would have
held in respect to timeliness.” Evans v. Chavis, 546 U.S.
189, 198, 126 S. Ct. 846, 163 L.Ed.2d 684 (2006) .‘

Jenkins v.

86

(3d Cir,

Superintendent of Laurel Highlands,

2013).

Furthermore,

705 F.3d 80,

85-

the 90-day time period during

which a state prisoner may file a petition for writ of
certiorari in the United States Supreme Court from the denial
of

his state post-conviction petition does not toll the one-year
statute of limitations under 28 U.S.C.
v.

1

Florida,

549 U.S.

327,

332

§ 2244(d) (2).

Lawrence

(2007)

In Evans, the Supreme Court also held that the time between
denial of post-conviction relief and the filing of an appeal
from that decision was not tolled where the appeal was
untimely,
even where the state court considered the untimely appeal on
the
merits.
Evans, 546 U.S. at 191.
8

In this case, the State argues that Petitioner’s first PCR
petition was filed on September 19, 2006, long after
Petitioner’s judgment of conviction became final under 28 U.S.C.
§ 2244 Cd) (1), and thus, the PCR petition did not serve to toll
the limitations period under § 2244 Cd) (2).

Specifically, more

than 44 months had elapsed between February 7, 2003

(when the

90-day period for seeking a writ of certiorari to the U.S.
Supreme Court expired) and September 19, 2006 (when Dixon filed
his first state PCR motion).

Dixon cannot rely on his initial

flR motion submitted in state court on January 22, 2003, because
he voluntarily withdrew that application, and did not re-file
his petition until September 19, 2006.

Moreover, the state PCR

court ruled that the state PCR petition was untimely pursuant to
N.J.Ct.R. 3:22-12, because it was filed on September 19, 2006,
834 years after Dixon was sentenced on May 20, 1998, or 334 years

after the five-year limitations under Rule 3:22-12 had expired,
and Dixon had provided no explanation for this untimeliness.
CDkt. $t 23-18, RE X at 7, 11.)

Consequently, the Court

concludes that the tolling provision under § 2244 Cd) (2) does not
apply because the one-year limitations period had expired well
before September 19, 2006, and the state court had determined
that the PCR petition was time-barred.
85-86.
9

See Jenkins, 705 F.3d at

Because the statutory tolling provision does not apply
here,

Dixon had until February 7,

habeas petition.
27,

2011,

2004 to file his federal

He did not file this habeas petition until May

more than seven years beyond the limitations period.

Accordingly,

this federal habeas petition is time-barred unless

Petitioner can demonstrate extraordinary circumstances to
justify equitable tolling of the limitations period.
In Holland v.

Florida,

the Supreme Court held that AEDPA’s

one-year limitations period is subject to equitable tolling in
appropriate cases,

on a case-by-case basis.

S.

2560,

Ct,

2549,

712 F.3d 784,

2554,
798

177 L.Ed.2d 130

(3d Cir.

2013)

560 U.S.

(2010) ;

631,

Ross v.

he has been pursuing his rights diligently,

and

extraordinary circumstance stood in his way.”
----,

U.S.

130 S.

408,

418

Ct.

at 2562

(2005));

Varano,

A litigant seeking equitable

.

tolling bears the burden of establishing two elements:

at

130

(quoting Pace v.

see also Jenkins,

(2)

“(1)

that

that some

Holland,

560 U.S.

DiGuglielmo,

544

705 F.3d at 89.

The diligence required for equitable tolling is reasonable
diligence,
Holland,

not maximum,

130 S.

Ct.

extreme,

at 2565.

or exceptional diligence.

“This obligation 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.”
10

LaCava v.

Kyler,

398

F.3d 271,

277

(3d Cir.

2005)

(citing Jones,

195 F.3d at 160)

Reasonable diligence is examined under a subjective test,

and it

must be considered in light of the particular circumstances
of

the case.
F.3d 69,

See Ross,
74

(3d Cir.

712 F.3d at 799;

2004)

maximum feasible diligence,
circumstances.”)

Schlueter v,

Varner,

384

(“Due diligence does not require the
but it does require diligence in the

(internal quotation marks and citations

omitted)

The court also must determine whether extraordinary
circumstances exist to warrant equitable tolling.
variety claim[s)

“[GJarden

of excusable neglect” by a petitioner’s

attorney do not generally present an extraordinary circumstance
meriting equitable tolling.

Holland,

130 S.

Ct.

(citations omitted);

see also Merritt v. Blame,

168

Rather,

(3d Cir.

2003)

.

at 2564
326 F,3d 157,

equitable tolling could be

triggered only when “the 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,

Holland,

at 25 62

130 5.

Ct.

398 F.3d at 275-276;
(relying on Pace,

11

see also

544 U.S.

at 418)

Indeed,
where:

(a)

extraordinary circumstances have been found only

the respondent has actively misled the plaintiff,

(b)

the petitioner has in some extraordinary way been prevented from
asserting his rights,

(c)

the petitioner has timely asserted his

rights mistakenly in the wrong forum,
159,

or

see Jones,

195 F.3d at

the court itself has misled a party regarding the

Cd)

steps that the party needs to take to preserve a claim.
Brinson v,

Vaughn,

Nevertheless,

398 F.3d 225,

230

(3d Cir,

it must be restated that,

extraordinary circumstances do exist,

See

2005).
even where

“if 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.”
v.

Shannon,

322 F.3d 768,

773

(3d Cir.

2003)

v.

Stinson,

224 F.3d 129,

134

(2d Cir.

Brown

2000)).

(quoting Valverde

There are no bright lines in determining whether equitable
tolling is warranted.
(3d Cir.

2011).

appropriate,

See Pabon v. Mahanoy,

654 F.3d 385,

399

In determining whether equitable tolling is

“the particular circumstances of each petitioner

must be taken into account,”
case-by-case basis.

see id., and each decision made a

See Holland,
12

130 S.

Ct. at 2563.

The Third

Circuit has explained,
Holland,

130 S.

Ct,

consistent with Supreme Court holdings in

at 2562 and Pace,

544 U.S.

at 418,

that

“equitable tolling is appropriate when principles of equity
would make rigid application of a limitation period unfair,

but

that a court should be sparing in its use of the doctrine.”
Ross,

712 F.3d at 799

(citing Pabon,

Jenkins,

705 F.3d at 89;

(3d Cir.

654 F.3d at 399);

see also

2008)

In this case,

Urcinoli v.

Cathal,

546 F.3d 269,

278

Petitioner appears to contend that equitable

tolling should apply due to misconduct by a court official and
his attorneys,

and not simply a miscalculation of the

limitations period.
2

To support this claim in response to this

Court’s September 14,

2011 Order to Show Cause

(Dkt.

## 4, 5),

Dixon submitted letters he exchanged with the public defender
concerning the status of his state PCP. petitions on his 1995
conviction and his 1996 petition.

The letters indicate that

a general rule, miscalculation of the remaining time on a
limitations period does not constitute extraordinary
circumstances to permit equitable tolling.
Fahy v. Horn, 240
F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001); see
also Johnson v. Hendricks, 314 F.3d 159, 161, 163 (3d Cir.
2002), cert. denied, 538 U.S. 1022 (2003).
Moreover, in a noncapital case such as this, “attorney error is not a sufficient
basis for equitable tolling of the AEDPA’s one-year period of
limitation.” Schlueter, 384 F.3d at 76.
See also Lawrence, 549
U.S. at 336—37 (“Attorney miscalculation is simply not
sufficient to warrant equitable tolling, particularly in the
postconviction context where prisoners have no constitutional
right to counsel”).
13

Petitioner communicated with the Office of the Public Defender
several times about the status of his state PCR petition
challenging the convictions on the 1996 indictments,

that

Petitioner was led to believe that his PCR petition was filed in
2003,

that the case was assigned to attorney Sheri Woliver for

handling on February 4,

2004,

and that on June 14,

2004,

Ms.

Woliver informed Petitioner that his PCR petition had not
been
filed.

The first letters attached by Plaintiff to public

defender attorneys regarding his PCR petition are dated March 3,
2005.

Petitioner also wrote to Ms. Woliver,

Region PCR Unit,

on March 3,

issues in his PCR case.

2005,

of the Somerset

asking her to raise certain

That letter indicates that Dixon wrote

to Ms. Woliver for the first time in December 24,
7,

P.App.l-5.)

2004.

(Dkt.

4

Dixon also alleges that he has had problems with

Darryl Vartabedian of the Essex County Criminal Division
Manager’s Office regarding the filing of his PCR petition,
that PCR petitions had been disposed in the trash can,
7 at 7-8.)

and

(Dkt.

4

There appears to be no documentary support for

Petitioner’s allegations about Mr. Vartabedian and the disposal
of PCR petitions by Mr. Vartabedian’s office.
Petitioner’s argument for equitable tolling tries to track,
although to a lesser degree,

Holland, supra.

In Holland,

the factual circumstances in

the Supreme Court remanded a
14

habeas proceeding to the Court of Appeals for the Eleven
th
Circuit to determine whether the attorney’s conduct in not
timely filing a habeas petition and not communicating with
petitioner for a period of years rose to the level of
“extraordinary circumstances” to permit equitable tolling
of the
one-year statute.

Holland,

130 S.

Ct.

at 2564-65.

The Court

expressly noted that Holland “not only wrote his attorney
numerous letters seeking crucial information and providing
direction;
clerks,
have

he also repeatedly contacted the state courts,

their

and the Florida State Bar Association in an effort to

[counsell—the central impediment to the pursuit of his

legal remedy—removed from his case.

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.”
2565

Id.

at

(emphasis in original)
On a related issue,

the Supreme Court addressed an

attorney’s abandonment in handling a petitioner’s state PCR
application.

Maple v.

181 L.Ed.

(Jan.

807

18,

Thomas,
2012)

.

---

U.S.

----,

In Maples,

132 5.

Ct.

912,

petitioner’s PCR

application was prepared by two New York attorneys associated
with a certain New York-based law firm.

While that PCR

application was pending before the trial court,
15

petitioner’s New

York attorneys left their firm for other employ without
notifying either the petitioner or the trial court about their
inability to continue the petitioner s representation.
t
petitioner’s PCR application was denied,

When the

notices of the same

were sent to the attorneys at their former firm’s address and
returned to the trial court undelivered and unopened.
court clerk attempted no further mailing,

The trial

hence leaving the

petitioner without notice that his time to appeal was triggered.
Having no such notice,
his PCR appeal,

the petitioner procedurally defaulted on

and that procedural default barred him from

raising his claims in his federal habeas petition.
Ct.

at 916—17,

Id.,

132 S.

919—21.

Performing an analysis substantively analogous to that
conducted in Holland,

the Supreme Court found that petitioner

had shown “cause” for the purposes of overcoming the procedural
default bar on the grounds of attorney abandonment,

which took

away not only the petitioner’s ability to timely raise his
appellate PCR challenges but also the petitioner’s ability to
raise his federal habeas claims.
927-28;

compare Schlueter,

Maples,

132 5.

384 F.3d at 77-78

Ct.

at 923-24,

(where attorney had

allegedly represented that he would file a PCR application, but
the prisoner had not taken “affirmative steps to ensure the

16

timely filing” of such PCR application,

equitable tolling was

unwarranted)
Following the instruction in Holland,

this Court here has

carefully reviewed the factual circumstances as submitted by
Petitioner on the issue of equitable tolling.

The Court finds

that the circumstances in this case do not rise to an
extraordinary level to warrant equitable tolling.

First,

there

is no indication of attorney misconduct or abandonment as
displayed in Holland and Maple,
on PCR review,
petition,

The facts,

as determined

show that Dixon voluntarily withdrew his PCR

which he initially filed in January 2003.

(Respondents’
15.)

supra.

Ex.

N

-

Nov.

2,

2007 PCR Motion Transcript at 6:6-

Dixon did not write to the public defender or Ms.

regarding his PCR petition until March 3,
limitations period had expired.

2005,

Woliver

well after the

Even if the Court were to

acknowledge the December 2004 date referenced in the March 3,
2005 letter to Ms.

Woliver,

that date still post-dates the

expiration date of Dixon’s one-year AEDPA period.

In addition,

Petitioner’s case has a convoluted history because it is
intertwined with another criminal conviction preceding the 1996
conviction under review here.

Understandably,

there was

confusion by counsel and Dixon regarding the PCR petitions to be

17

filed in both matters, which does not tend to support a claim
of
attorney abandonment or malfeasance.
Further, Dixon’s bald allegation of malfeasance by court
official Mr. Vartabedian is not supported by any documentary
evidence or proof.

The Court also observes that the issue of

timeliness as to the filing of the PCR petition was litigated in

state court, and the allegation of Mr. Vartabedian’s malfeasance
was not raised at that time when it would have been appropriate
to do so if such alleged malfeasance had in fact occurred.
Moreover,

equitable tolling must be balanced against any

clear indication of Petitioner’s dilatoriness in pursuing PCR
review.

Holland does not change the law regarding equitable

tolling,

which requires that a petitioner must demonstrate

that he has been pursuing his rights diligently,

and

(2)

(1)

that

some “extraordinary circumstances stood in his way and prevented
timely filing.”

130 S.

Ct.

at 2562.

This Court finds that the

facts in this case do not establish that Petitioner exercised
reasonable diligence in pursuing his rights.

First,

the state

PCR court ruled that Dixon’s PCR petition was untimely under
N.J.Ct.R.

3:22-12,

because it was filed on September 19,

8 years after Dixon was sentenced on May 20,

18

1998,

2006,

or 3 years

after the five-year limitations under Rule 3:22-l2 had expired.
(Dkt.

4* 23-18, RE X at 7.)

The court further remarked that

Dixon failed to offer any explanation for this untimeliness.
Dixon failed to assert excusable neglect or allege fundamental
injustice as an exceptional circumstance,
Second,

petition,
19,

2006.

RE X at 11,)

Dixon’s letters to counsel concerning his state PCR

petition do not overcome the fact,
PCR courts,

(Id.,

as determined by the state

that Petitioner withdrew his January 2003 PCR

and did not file a new PCR petition until September
Significantly,

the letters post-date the expiration

of the one-year limitations period.

Dixon’s one-year AEDPA

statute of limitations expired on February 7,

2004,

and the

letters attached by Petitioner to counsel were dated March 3,
2005,

one year beyond expiration of the limitations period.

Even Dixon’s reference to his first letter to Ms.
December 2004 post-dates the February 7,
10 months.
that time,

Thus,

Woliver in

2004 expiration date by

even if counsel had filed a PCR petition at

it still would not have tolled the statutory period

and does not serve to excuse Petitioner’s tardiness in asking
about the status of his PCR petition.

Thus,

this Court finds

This
3 Court notes that Dixon was resentenced on remand on October
31, 2000.
Using the later re-sentencing date for purposes of
determining the timeliness of Dixon’s PCR petition, the petition
was filed ll months after the limitations period expired.
Thus, the petition was still time-barred under Rule 3:22-12.
19

that Petitioner has not exhibited diligence in pursuing his PCR
claims.
2003,

Dixon filed his first state PCR petition in January

which was timely,

but he withdrew it to pursue a grievance

against his first PCR counsel.

Dixon then waited for a year

after the expiration of the statutory period to inquire about
his state PCR petition,
September 19,

2006,

and more than three years later,

to file his amended PCR petition

on

(raising

substantially the same claims as originally filed).
Third,

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.
Shannon,

See Ross,

322 F.3d 768,

774

712 F.3d at 800

(3d Cir.

2003)

(citing Brown v,

(holding that

equitable tolling not justified where petitioner had one month
left in limitations period in which he could have “fil[ed)

at

least a basic pro se habeas petition” at the time that
petitioner’s attorney informed him that he would not file an
appeal in state court on his behalf and could no longer
adequately represent him)

variety claim[sj

.

Indeed,

as observed above,

“garden

of excusable neglect” do not constitute

extraordinary circumstances for purposes of equitable tolling.
Holland,

130 5,

Ct.

at 2564.

20

Finally,

even if Dixon claims that his PCR counsel rendered

ineffective assistance of counsel,

such claim does not provide a

basis for equitable tolling of the AEDPA one—year limitations
period.

See Garcia v.

3221306,

*4

(D.N.J.

Warren,

Jun.

25,

Civ. No.

2013)

12-7680

(JAP),

(finding that general

allegations of ineffective assistance of PCR counsel,
a reliance on Martinez
,
4

2013 WL

along with

did not show extraordinary circumstance

prevented petitioner from timely filing his federal habeas
petition) ;
(M.D.Pa.

Silfies v.

June 17,

Walsh,

2013)

No.

02—1777,

2013 WL 3049096,

at *3

(“Martinez did not provide that post-

conviction counsel’s ineffectiveness could establish an
exception to or equitable tolling of AEDPA’s one-year statute of
limitations for filing a federal habeas corpus petition.”)
(citations omitted);

Saunders v.

at *6

Feb.13,

943351,

(E.D.Pa.

Lamas,

2013)

No.

12-1123,

2013 WL

(“The Supreme Court does

not state in Martinez that a blanket allegation of
ineffectiveness of PCRA counsel can constitute a basis for
equitable tolling of the habeas statute of limitations.

The

Martinez decision did not allow for equitable tolling of the
AEDPA deadlines.”)

(citations omitted),

report and

Martinez
4 v. Ryan,
U.S.
132 5. Ct, 1309, 182 L.Ed.2d
272 (2012),
In Martinez, the Supreme Court held that inadequate
assistance of counsel at initial state PCR proceedings may
establish cause for a prisoner’s procedural default of a claim
of ineffective assistance at trial.
132 5. Ct. at 1317-18.
21
---

----,

recommendation adopted by,
2013);

Terry v.

(D.N.J,

Cathel,

Sept.27,

implicated,

2012)

No.

2013 WL 943356
12—5263,

(E.D.Pa.

Mar.11,

2012 WL 4504590,

at *4

(“No aspect of the Martinez decision

addressed or even reflected on the issue of

untimeliness of the litigant’s federal habeas petition.”>;
also Scaife v.
(D.Colo.
if Mr.

Apr.

Falk,
9,

No.

2013)

12—2530,

2013 WL 1444236,

see

at *5

(“[A]lthough Martinez might be relevant

Scaife were seeking to overcome a procedural default in

the context of exhaustion of state court remedies,

nothing in

Martinez demonstrates the existence of any extraordinary

circumstances to justify equitable tolling of the one-year
limitation period.”).
Therefore,

this Court concludes that equitable tolling does

not apply in this case and the habeas petition is now timebarred.

Further,

there is no basis to conduct an evidentiary

hearing to determine whether Petitioner’s unsupported
allegations of misconduct by counsel and a court official
constitute extraordinary circumstances for equitable tolling
because this Court has determined that Petitioner’s letters to
counsel post-dated the expiration of the AEDPA one-year
limitations period and the record shows no attorney malfeasance
that would rise above garden-variety neglect.
the petition is dismissed with prejudice.
22

Accordingly,

IV.

CERTIFICATE OF APPEALABILITY

This 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
correct in its procedural ruling.
473,

484

(2000),

(2)

whether the court was

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.”
reasons discussed above,

barred.

Id.

For the

this § 2254 habeas petition is time

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.

23

V.
For the above reasons,

CONCLUSION
this Court finds that the § 2254

habeas petition must be dismissed as time-barr
ed,
certificate of appealability will not issue.

and that a

An appropriate

Order follows.

DENNI S M. CAVNAUG}-{
United State District J

24

ge