GARCIA v. BARTKOWSKI
OPINION. Signed by Judge Dennis M. Cavanaugh on 8/1/2012. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No,
Petitioner pg se
New Jersey State Prison
Petitioner Agustin Garcia,
a prisoner currently confined at
New Jersey State Prison at Trenton,
has submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254’ and an application to proceed in forma pauperis pursuant
to 28 U.S.C.
The respondent is Administrator Greg
Section 2254 provides in relevant part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a 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,
Based on his affidavit of indigence, the Court will grant
Petitioner’s application to proceed jj forma pauperis.
it appears from a review of the Petition that the Petition is
untimely, this Court will order Petitioner to show cause why the
Petition should not be dismissed with prejudice.
See 28 U.S.C. §
The facts surrounding Petitioner’s conviction are briefly
set forth in the opinion of the Superior Court of New Jersey,
Defendant is serving a life sentence with a
thirty-year period of parole ineligibility following a
lengthy jury trial and his conviction for murdering his
former girlfriend, Gladys Ricart, shooting her three
times at close range in her home on the day of her
intended wedding to another man.
The shooting was
witnessed by several wedding guests and recorded by the
videographer hired by the bride to memorialize the
Defendant testified in his
defense, explaining he was attacked by the bride’s
brothers after he entered the house, there was a
struggle, he reached for his gun and blacked out; later
learning the bride had been killed.
On February 1,
2002, defendant was sentenced to life in prison for the
murder, subject to a thirty-year period of parole
ineligibility. A consecutive four-year term of
imprisonment was imposed for the weapons offense along
with two concurrent four-year terms for endangering the
welfare of a child.
Pursuant to 28 U.S.C. § 2254(e) (1), “In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct.
The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
2011 WL 3516933,
Super. App.Div, Aug.
On direct appeal,
the Appellate Division affirmed
Petitioner’s convictions and the sentences imposed for murder and
the weapons offenses.
The Appellate Division reversed the
convictions for endangering the welfare of a child.
the Supreme Court of New Jersey denied certification.
Petitioner did not seek a
writ of certiorari from the Supreme Court of the United States.
Petitioner alleges that he filed his first Petition for
post-conviction relief on January 3,
relief on May 4,
On November 6,
Division affirmed the denial of PCR relief,
Super. App.Div. Nov.
The PCR court denied
and on June 21,
the Supreme Court of New Jersey denied certification,
While the appeal of the first PCR petition was pending,
Petitioner filed a second state PCR petition on April 15,
The PCR court found the second PCR petition untimely and also
denied on the merits the claims presented therein,
the Appellate Division affirmed the PCR court’s
findings in their entirety,
holding the second PCR petition both
untimely and meritless.
Because more than five years had passed from the
entry of the judgment of conviction, review of
defendant’s contentions is precluded.
We have considered defendant’s argument that there
is sufficient evidence supporting excusable neglect to
warrant a waiver of the time bar imposed by Rule 3:2212(a) and are not persuaded.
Defendant maintains the
time spent presenting his direct appeal and first PCR
qualifies as excusable neglect.
Were this an
acceptable position, the limitation of the rule would
be rendered meaningless,
Defendant had ample
opportunity to present claims of error in these prior
2011 WL 3516933,
On March 9,
the Supreme Court denied
certification with respect to this second state PCR petition.
Petitioner asserts that he filed a third state PCR petition
on October 23,
20l0, which was denied on December 15,
Reconsideration was denied on March 3,
Based on the
discussion of the third state PCR petition contained in the Brief
attached to the Petition,
it appears that the third state PCR
petition also was dismissed as untimely.
Petitioner asserts that
the appeal of his third state PCR petition has not yet been
In his attached brief, Petitioner states that he mailed
his third PCR petition on November 8, 2010.
(Brief at 11.)
In this Petition, Petitioner asserts the following grounds
multiple claims of ineffective assistance of
and PCR counsel;
multiple claims of
including claims of procurement of
tampering with evidence,
and failure to
provide material exculpatory evidence in violation of Brady v.
denial of the right to be tried
by a fair and impartial jury;
erroneous jury instructions;
denial of the right to present a full defense;
the admission of the wedding videotape;
statement should have been suppressed;
process rights by the PCR court;
violations of due
the trial court denied
Although the Petition is undated, Petitioner’s attached
certification is dated May 30, 2011,
A separate certification
regarding Petitioner’s institutional account statement, attached
to the application for leave to proceed j forma pauperis which
accompanied the Petition, is dated June 7, 2011.
does not appear that the Petition could have been mailed before
June 7, 2011, which will be deemed the date of filing for
purposes of this Opinion.
Burns v. Morton, 134 F.3d 109 (3d
Cir. 1998) (typically, a pro se prisoner’s habeas petition is
deemed filed at the moment he delivers it to prison officials for
mailing to the district court) (citing Houston v. Lack, 487 U.S.
Nevertheless, the same result would obtain if the
Petition were deemed filed on May 30, 2011.
Ineffective assistance of counsel in state post-conviction
relief proceedings is not a ground for relief in a federal habeas
See 28 U.S.C. § 2254(i).
Errors in state post-conviction relief proceedings are
collateral to the conviction and sentence and do not give rise to
a claim for federal habeas relief.
e.g., Hassine v.
Zimmerman, 160 F.3d 941, 954 (3d Cir.1998), cert. denied, 526
U.S. 1065 (1999) (“The federal role in reviewing an application
Petitioner’s due process rights when it denied certain pre-trial
including motions for experts and motions to disqualify
the prosecutor and trial judge;
Plaintiff is actually
innocent of murder and should have been convicted of
It appears that this Petition is untimely,
Petitioner will be ordered to show cause why it should not be
STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28,
Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an
application for a writ of habeas corpus shall forthwith
award the writ or issue an order directing the
respondent to show cause why the writ should not be
granted, unless it appears from the application that
the applicant or person detained is not entitled
“Federal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its
Rule 4 of the Rules Governing Section 2254 Cases in the United
for habeas corpus is limited to evaluating what occurred in the
state or federal proceedings that actually led to the
petitioner’s conviction; what occurred in the petitioner’s
collateral proceeding does not enter into the habeas
calculation.... Federal habeas power is ‘limited
determination of whether there has been an improper detention by
virtue of the state court judgment,”); Ferguson v. State, 1996 ML
1056727 (D.Del. 1996) and cases cited therein.
States District Courts
(“If it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief in the district court,
the judge must dismiss the petition
“[h]abeas corpus petitions must meet heightened
petition must “specify all the grounds for relief” and must set
forth “facts supporting each ground.”
of the Rules
Governing Section 2254 Cases in the United States District
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
151 F.3d 116,
878 F.2d 714,
414 F.2d 552,
1998); Lewis v. Attorney
United States v.
a federal district court can
dismiss a habeas corpus petition if it appears from the face of
the petition that the petitioner is not entitled to relief.
See also 28 U.S.C.
Untimeliness of the Petition
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.
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;
(B) the date on which the impediment to filing an
application created by State action in violation of the
constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
(c) the date on which the constitutional right
asserted was initially recognized by the Supreme court,
if the right has been newly recognized by the Supreme
court and made retroactively applicable to cases on
collateral review; or
(d) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(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.
The limitations period is applied on a claim-by-claim
basis. .Q Fielder v. Verner, 379 F.3d 113 (3d cir. 2004), cert.
denied, 543 U.S. 1067 (2005); Sweger v. chesney, 294 F.3d 506 (3d
Plaintiff has alleged no facts suggesting that the
limitations period for any of his viable claims should be
measured from any date other than the date that his conviction
under § 2244 Cd) (1) (A)
evaluation of the
timeliness of this § 2254 petition requires a determination of,
when the pertinent judgment became “final,” and,
the period of time during which an application for state postconviction 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 90-
day period for filing a petition for writ of certiorari in the
United States Supreme Court,
See Swartz v. Meyers,
2000); Morris v,
187 F.3d 333,
204 F.3d 417,
A state court’s grant of leave
to file an out-of-time direct appeal resets the date when the
conviction becomes final under § 2244 (d) (1)
Petitioner’s conviction became final on December 9,
ninety days after the Supreme Court of New Jersey denied
certification on September 10,
he had until December
That the factual predicate of Petitioner’s claims related
to his post-conviction relief proceedings, or the performance of
counsel in those proceedings, did not arise until after the date
Petitioner’s conviction became final is not relevant, as those
claims do not provide a basis for federal habeas relief.
to file his federal habeas petition,
unless there is
some grounds to toll the limitations period.
To statutorily toll the limitations period,
a state petition
for post-conviction relief must be “properly filed.
An application is “filed,” as that term is
commonly understood, when it is delivered to, and
accepted by the appropriate court officer for placement
into the official record.
And an application is
“properly filed” when its delivery and acceptance are
in compliance with the applicable laws and rules
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.
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
(finding that a petition was not “[im]properly filed”
(citations and footnote
merely because it presented claims that were procedurally barred
under New York law on the grounds that they were previously
determined on the merits upon an appeal from the judgment of
conviction or that they could have been raised on direct appeal
but were not)
Where a state court has rejected a petition for post
conviction relief as untimely,
it was not “properly
filed” and the petitioner is not entitled to statutory tolling
under § 2244(d) (2).
This is so even where,
in the alternative,
the state court
addresses the merits of the petition in addition to finding it
An application for state post—conviction relief is
considered “pending” within the meaning of § 2244 (d) (2),
limitations period is statutorily tolled from the time it is
“properly filed,” during the period between a lower state court’s
decision and the filing of a notice of appeal to a higher court,
which an appeal could be filed,
and through the time in
even if the appeal is never
204 F.3d at 420—24,
“The time that an application for state post conviction review is
includes the period between
a lower court’s adverse
the prisoner’s filing of a notice of
appeal, provided that the filing of the notice of appeal is
timely under state law.”
(finding that time between denial of post-conviction
relief and filing of appeal was not tolled where appeal was
even where state considered untimely appeal on its
“the time 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
§ 2244 (d) (2)
District Attorney of the
County of Philadelphia,
247 E.3d 539,
The limitations period of § 2244(d)
also is subject to
240 F.3d 239,
Jones v. Morton,
195 F,3d 153,
1999); Miller v. New Jersey State Dept.
145 E.3d 616,
only when the principles of equity would make the rigid
application of a limitation period unfair.
this will occur when the petitioner has in some
extraordinary way been prevented from asserting his or
The petitioner must show that he or she
exercised reasonable diligence in investigating and
bringing the claims.
Mere excusable neglect is not
145 F.3d at 618-19
(citations and punctuation marks
Among other circumstances,
the Court of Appeals for
the Third Circuit has held that equitable tolling may be
appropriate ‘if the plaintiff has timely asserted his rights
mistakenly in the wrong forum,” i.e.,
if a petitioner has filed a
timely but unexhausted federal habeas petition.
See also Duncan v. Walker,
joined by Souter,
the Court’s narrow holding
concurring in part)
[that the limitations period is not
statutorily tolled during the pendency of a premature federal
nor anything in the text or legislative history
of AEDPA, precludes a federal court from deeming the limitations
period tolled for such a petition as a matter of equity”); 533
U.S. at 192
(Breyer, J., dissenting, joined by Ginsburg, J.)
(characterizing Justice Stevens’s suggestion as “sound”).
Here, Petitioner filed his first, timely, state habeas
petition on January 3, 2005, 25 days after his conviction became
Accordingly, the limitations period was tolled until June
21, 2010, when the Supreme Court of New Jersey denied
certification with respect to that Petition.
As of June 21,
2010, Petitioner had 340 days remaining on his one-year federal
limitations period, or until May 27, 2011, barring some other
basis for statutory or equitable tolling.
barring some other basis for statutory or equitable tolling,
Petitioner had until May 27, 2011, a Friday, to place his federal
habeas petition into the prison mail system.
There does not appear to have been any further basis for
statutory or equitable tolling.
The second and third state
habeas petitions were not timely filed under state law;
accordingly, they cannot toll the federal limitations period.
to the issue of equitable tolling, Petitioner alleges in his
brief that he was advised by his public defender that he needed
to file a federal petition for writ of habeas corpus within one
year of July 9, 2010.
Ineffective assistance of counsel is not
generally considered an extraordinary circumstance, justifying
The basis for the July 9 date is not clear.
where the ineffectiveness is due to counsel’s
negligence or mistake.
240 F.3d at 244
attorney error, miscalculation,
ore other mistakes have not been found to rise to the
circumstances required for equitable tolling.”);
314 F.3d 159
rule where state PCR counsel provided erroneous advice as to
federal habeas filing deadline),
any erroneous advice by Petitioner’s state PCR
counsel regarding the federal habeas filing deadline does not
provide a basis for equitable tolling.
Petitioner did not place his Petition into the prison mail
system until at least June 7,
after receiving from prison
officials the necessary account certification for his application
to proceed in forma paiiperis.
it appears that the Petition
is time-barred and this Court will order Petitioner to show cause
why the Petition should not be dismissed with prejudice.
This Court is required by Mason v. Meyers,
208 F,3d 414
to notify Petitioner of certain consequences of
filing a § 2254 Petition under the Antiterrorism and Effective
Death Penalty Act
and to give Petitioner an opportunity
to file one all—inclusive § 2254 Petition.
As noted above,
under the AEDPA, prisoners challenging the
legality of their detention pursuant to the judgment of a State
court must marshal in one § 2254 Petition all the arguments they
have to collaterally attack the State judgment and,
extremely limited circumstances,
file this one all-inclusive
Petition within one year of the date on which the judgment of
conviction becomes final by the conclusion of direct review or
the expiration of the time for seeking such review,
Should Petitioner contend that his Petition is timely,
must notify the Court whether he wishes
ruled upon as filed or
to have the Petition
to withdraw the Petition and file one
all-inclusive petition within the limitations period.
Petitioner chooses option
then Petitioner will lose
the ability to file a second or successive petition under § 2254,
absent certification by the Court of Appeals for the Third
Circuit and extraordinary circumstances.
This Court makes no
finding as to whether any later-filed petition would be timely.
Application for Appointment of Counsel
Petitioner has asked this Court to appoint counsel to
represent him in this proceeding.
In support of his application,
Petitioner asserts that he is indigent,
that his case is complex,
and that “the obvious meritorious issues require effective
assistance of counsel.”
There is no absolute constitutional right to appointed
counsel in a federal habeas corpus proceeding.
(1991); Reese v.
superseded on other grounds by statute,
Pursuant to 18 U.S.C.
§ 3006A(a) (2) (B),
this Court may
appoint counsel to represent an indigent habeas petitioner if it
determines “that the interests of justice so require.”
(permitting appointment of counsel for
indigent civil litigants proceeding j forma pauperis).
In exercising its discretion under §3006A,
the district court must first decide if the petitioner
has presented a nonfrivolous claim and if the
appointment of counsel will benefit the petitioner and
Factors influencing a court’s decision
include the complexity of the factual and legal issues
in the case, as well as the pro se petitioner’s ability
to investigate facts and present claims.
held, for example, that there was no abuse of a
district court’s discretion in failing to appoint
counsel when no evidentiary hearing was required and
the issues in the case had been narrowed, or the issues
were “straightforward and capable of resolution on the
record,” or the petitioner had “a good understanding of
the issues and the ability to present forcefully and
coherently his contentions.”
946 F.2d at 263—4
This standard is essentially the same as that applied under
See Parham v.
126 F.3d 454,
In determining whether to appoint counsel to
civil litigants proceeding
a court should
consider the following factors:
As a preliminary matter, the plaintiff’s claim must
have some merit in fact and law,
If the district
court determines that the plaintiff’s claim has some
merit, then the district court should consider the
(1) the plaintiff’s ability to present his or her
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will
be necessary and the ability of the plaintiff to pursue
(4) the amount a case is likely to turn on
(5) whether the case will require the testimony of
(6) whether the plaintiff can attain and afford
counsel on his own behalf,
[Tabron v. Grace, 6 F.3d 147, 155-56, 157 n.5 (3d Cir.
1993), cert. denied, 510 U.S. 1196 (1994).]
of factors is not exhaustive, but instead should serve
as a guide post for the district courts.
Correspondingly, courts should exercise care in
appointing counsel because volunteer lawyer time is a
precious commodity and should not be wasted on
Id. at 157.
126 F.3d at 457-58.
Analysis of these factors reveals that appointment of
counsel is not appropriate at this time,
As an initial matter,
it appears that the Petition is subject to dismissal as time
it is clear that Petitioner has an
encyclopedic knowledge of the facts and law relevant to his
asserted grounds for relief.
There will be no need to develop
any facts or hear from any expert witnesses; to the contrary,
appears that the case will be capable of resolution based upon
the state court record.
For the foregoing reasons,
application for appointment of counsel will be denied.
For the reasons set forth above,
Petitioner will be ordered
to show cause why the Petition should not be dismissed with
prejudice as untimely.
An appropriate order follows.
Dennis N. Cavanaugh
United States Distri
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