DIXON v. BARTKOWSKI et al

Filing 36

OPINION. Signed by Judge Susan D. Wigenton on 7/14/2015. (ld, )

*NOT FOR PUBLICATION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

DARNELL DIXON,
Petitioner,
v.

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GREG BARTKOWSKI, et al.,
Respondents.

Civil Action No. 11-3213 (SDW)

OPINION
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WIGENTON, District Judge:
Presently before the Court is Petitioner Darnell Dixon’s application for relief from a
judgment or order pursuant to Rule 60(b). (ECF No. 34).

For the following reasons, this Court

will deny Petitioner’s Rule 60(b) motion.

I. BACKGROUND
Because Judge Cavanaugh recounted the facts underlying Petitioner’s petition for a writ of
habeas corpus in his written decision dated October 18, 2013, only a brief recitation of that decision
and the subsequent history of Petitioner’s case is necessary here. On October 18, 2013, this Court
denied Petitioner’s habeas petition as time barred. (ECF No. 28 at 7-24). Specifically, this Court
found that Petitioner was originally sentenced on May 20, 1998. (Id. at 2). Petitioner appealed,
and the matter was remanded for resentencing, with Petitioner being resentenced on October 31,
2000. (Id. at 3). Petitioner once again appealed, and the New Jersey Appellate Division affirmed
on October 15, 2001. (Id. at 4). Petitioner thereafter petitioned for certification to the New
Jersey Supreme Court, which was denied on November 7, 2002. (Id.). Petitioner filed his initial

post-conviction relief application on January 22, 2003. (Id.). Petitioner, however, withdrew that
application at some point in 2003. (Id.; Exhibit N attached as Document 8 to ECF No. 23 at 6).
Petitioner didn’t refile his PCR application until September 19, 2006. (ECF No. 28 at 4). The
PCR court ultimately denied that application and found the 2006 PCR petition to be time-barred.
(Id. at 9). This Court therefore found that as more than a year had elapsed between the withdrawal
of the first PCR petition and the filing of the second, untimely petition, and because the second
PCR petition was filed more than a year after the time to petition for certiorari on Petitioner’s
direct appeal expired on February 7, 2004, petitioner’s § 2254 petition was untimely filed. (Id. at
9-10).
Because statutory tolling was unavailable to Petitioner as he filed his second PCR more
than one year after the withdrawal of his initial petition had passed, this Court then considered
whether Petitioner had shown exceptional circumstances and reasonable diligence sufficient to
benefit from equitable tolling. (Id. at 10-13). As to exceptional circumstances, this Court
rejected Petitioner’s argument that alleged attorney error or unsupported allegations of misconduct
by court staff sufficed to meet Petitioner’s burden. (Id. at 13-14). Specifically, this Court held
that
[f]irst, there is no indication of attorney misconduct or abandonment
[here]. The facts, as determined on PCR review, show that Dixon
voluntarily withdrew his PCR petition, which he initially filed in
January 2003. Dixon did not write to the public defender or
[counsel] regarding his PCR petition until March 3, 2005, well after
the limitations period had expired. Even if the Court were to
acknowledge the December 2004 date referenced in the March 3,
2005[,] letter to [counsel], that date still post-dates the expiration 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 instant conviction]. Understandably,
there was confusion by counsel and Dixon regarding the PCR
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petitions to be 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[s] is not supported by any documentary evidence or proof.
(Id. at 17-18). This Court also rejected Petitioner’s contention that he had diligently pursued his
rights given the lengthy period between the withdrawal of Petitioner’s first PCR petition in 2003
and his contacting counsel in 2005, let alone his filing of his 2006 PCR. (Id. at 19-20). This
Court therefore found no basis for equitable tolling and dismissed Petitioner’s habeas petition as
untimely.
After this Court’s order and opinion were entered, Petitioner filed a notice of appeal on
November 22, 2013. (ECF No. 30). The Third Circuit construed the notice of appeal as also
making a request for a certificate of appealability, and ultimately denied Petitioner a certificate of
appealability on May 19, 2014. (ECF No. 32). In so doing the Third Circuit made the following
ruling:
[Petitioner’s] application for a certificate of appealability is denied.
Even if reasonable jurists might debate the District Court’s ruling
that [Petitioner’s] habeas petition was untimely (including the
District Court’s reliance on the Post Conviction Relief (“PCR”)
court’s conclusion that appellant withdrew a PCR petition that he
filed in 2003), reasonable jurists would not debate whether appellant
has stated a valid claim of the denial of a constitutional right. See
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484
(2000). In particular, reasonable jurists would not debate whether
the state courts’ rejection of the four claims [Petitioner] asserted in
his habeas petition is contrary to or an unreasonable application of
clearly established federal law, primarily for the reasons the state
courts explained. See 28 U.S.C. § 2254(d)(1). Reasonable jurists
also would not debate the merits of the six claims that [Petitioner]
asserted in his “supplement.” In addition, even if [Petitioner’s]
initial habeas petition were deemed timely, the claims he asserted in
his supplement do not relate back to that petition and are untimely
because [Petitioner] filed his supplement well more than one year
after the latest date on which the statute of limitations could be
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deemed to have begun running. See United States v. Thomas, 221
F.3d 430, 436 (3d Cir. 2000). For these reasons, appellant’s claims
do not deserve “encouragement to proceed further.” Slack, 529
U.S. at 484 (quotation marks omitted).
(ECF No. 32 at 1).

II. PETITIONER’S RULE 60(b) MOTION
A. Legal Standard
“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of
his case, under a limited set of circumstances including fraud, mistake, and newly discovered
evidence.” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). “The remedy provided by Rule 60(b)
is extraordinary, and special circumstances must justify granting relief under it.”

Jones v.

Citigroup, Inc., Civil Action No. 14-6547, 2015 WL 3385938, at *3 (D.N.J. May 26, 2015)
(quoting Moolenaar v. Gov’t of the Virgin Islands, 822 F.3d 1342, 1346 (3d Cir. 1987). A Rule
60(b) motion “may not be used as a substitute for appeal, and that legal error, without more cannot
justify granting a Rule 60(b) motion.” Holland v. Holt, 409 F. App’x 494, 497 (3d Cir. 2010)
(quoting Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988)). A motion under Rule 60(b) may not
be granted where the moving party could have raised the same legal argument by means of a direct
appeal. Id.

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B. Analysis
In his Rule 60(b) motion, Petitioner argues at length that this Court should excuse his
procedural default and permit him to litigate his habeas petition on the merits. 1 To the extent that
Petitioner attempts to argue that Martinez v. Ryan, 132 S. Ct. 1309 (2012), would permit him to
excuse his timeliness problems by showing inadequate assistance of counsel during his first PCR,
this Court has already addressed that argument and rejected it.

(ECF No. 28 at 21-22).

Regardless of Petitioner’s arguments as to procedural default, Petitioner has failed to present any
meritorious argument as to the timeliness of his petition, and therefore has provided no basis for
relief from this Court’s prior order.
Petitions brought pursuant to 28 U.S.C. § 2254 are subject to a one year statute of
limitations which begins to run on the “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). The New Jersey
Supreme Court denied Petitioner’s petition for certification on November 7, 2002. The 90 days
for filing a petition for certiorari on that appeal therefore had run as of February 7, 2003. Thus,
absent tolling, Petitioner’s habeas petition would be untimely if not filed by February 7, 2004.
Normally, a properly filed PCR application will statutorily toll the AEDPA limitations
period. Id. Although Petitioner filed a PCR application in 2003, he withdrew that application in

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Petitioner is unclear as to whether he’s seeking to reopen this Court’s opinion and order or the
judgment of the Third Circuit. As this Court lacks the jurisdiction or authority to do the latter,
this Court will assume for the purposes of this opinion that Petitioner seeks relief from this
Court’s final order and opinion.
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that same year. Petitioner did not file another PCR application until September 19, 2006, long
after the one year period had run from the withdrawal of Petitioner’s first PCR application in 2003.
As such, even had the 2006 PCR application been timely and sufficient to toll the limitations
period, it would have been of no benefit to Petitioner as the one-year AEDPA limitations period
had already run. Thus, this petition is time barred absent equitable tolling.
Equitable tolling “is a remedy which should be invoked ‘only sparingly.’” United States
v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174,
179 (3d Cir. 1998)).

To merit equitable tolling, a petition must show “(1) that he faced

‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that he exercised
reasonable diligence.” United States v. Johnson, 590 F. App’x 176, 179 (3d Cir. 2014) (quoting
Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). In non-capital cases such as this one, an
attorney’s “malfeasance or non-feasance is typically not an ‘extraordinary circumstance which
justifies equitable tolling of a [habeas petition].” Bass, 268 F. App’x at 199; see also Schlueter v.
Varner, 384 F.3d 69, 76 (3d Cir. 2004). The exception to this general rule applies only in that
small group of cases where the attorney’s malfeasance comes in the form of an affirmative
misrepresentation to the petitioner and is coupled with extreme diligence on the part of the
petitioner. See Schlueter, 384 F.3d at 76; see also Seitzinger v. Reading Hosp. & Med. Ctr., 165
F.3d 236, 239-42 (3d Cir. 1999).
As this Court found in its October 2013 opinion, Petitioner has failed to show either
extraordinary circumstances or reasonable diligence. As to the circumstances, Petitioner argues
ineffective assistance of counsel, effectively attorney nonfeasance or malfeasance, and that certain
court officials acted improperly. Neither argument is availing to Petitioner as there is no evidence

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in the record to support the latter assertion, and the former in and of itself is patently insufficient
to establish extraordinary circumstances to warrant tolling. See Bass, 268 F. App’x at 199;
Schlueter, 384 F.3d at 76. (See also ECF No. 28 at 17-20). Likewise, this Court’s prior opinion
was entirely correct that Petitioner’s failure to take any action in regards to his PCR between
withdrawing the first Petition in 2003 and writing to the PD’s office in 2005 indicates that
Petitioner failed to show that he was reasonably diligent in pursuing his PCR and habeas rights.
As such, even were Petitioner able to show extraordinary circumstances, he would not be entitled
to equitable tolling. His petition was therefore properly dismissed as time barred, and Petitioner’s
arguments provide no basis for the granting of relief from this Court’s October 2013 order.
Aside from the lack of a basis for tolling, Petitioner’s 60(b) motion faces an additional
hurdle in so much as he has already appealed this Court’s order and had his request for a certificate
of appealability denied. Although the Third Circuit did not decide the timeliness question as to
all of Petitioner’s claims in its order denying the certificate, the Court of Appeals did hold that
reasonable jurists would not debate whether appellant has
stated a valid claim of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In particular, reasonable jurists would not debate whether the state
courts’ rejection of the four claims [Petitioner] asserted in his habeas
petition is contrary to or an unreasonable application of clearly
established federal law, primarily for the reasons the state courts
explained. See 28 U.S.C. § 2254(d)(1). Reasonable jurists also
would not debate the merits of the six claims that [Petitioner]
asserted in his “supplement.” In addition, even if [Petitioner’s]
initial habeas petition were deemed timely, the claims he asserted in
his supplement do not relate back to that petition and are untimely
because [Petitioner] filed his supplement well more than one year
after the latest date on which the statute of limitations could be
deemed to have begun running.
(ECF No. 32 at 1). The Third Circuit has therefore rejected Petitioner’s habeas arguments in its

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order denying a certificate of appealability. As Petitioner had the opportunity to raise these
arguments in his request for a certificate of appealability before the Third Circuit, and as the Third
Circuit rejected the merits of his habeas claims in denying his request, there is no basis for granting
Petitioner’s motion. See Holland, 409 F. App’x at 497 (motion cannot be used to litigate issues
that could have been raised on appeal).

IV. CONCLUSION
For the reasons stated above, Petitioner’s Rule 60(b) motion is DENIED. An appropriate
order follows.

Dated: July 14, 2015

_s/ Susan D. Wigenton_______
Hon. Susan D. Wigenton,
United States District Judge

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