GARCIA v. BARTKOWSKI

Filing 2

OPINION. Signed by Judge Dennis M. Cavanaugh on 8/1/2012. (nr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AGUSTIN GARCIA,
Civil Action No,

11-3689

(DM0)

Petitioner,
v.

:

OPINION

GREG BARTKOWSKI,
Respondent.

APPEARANCES:

Petitioner pg se
Agustin Gardia
New Jersey State Prison
Trenton, NJ
08625

CAVANAUGH,

District Judge

Petitioner Agustin Garcia,

a prisoner currently confined at

New Jersey State Prison at Trenton,

New Jersey,

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.

§ 1915(a).

The respondent is Administrator Greg

Bartkowski.

‘

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.

Because

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. §

2243.
I.

BACKGROUND

The facts surrounding Petitioner’s conviction are briefly
set forth in the opinion of the Superior Court of New Jersey,
Appellate Division.
2
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
wedding festivities.
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.

2

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
evidence.”
2

State v.
12,

Garcia,

2011 WL 3516933,

*1

(N.J.

Super. App.Div, Aug.

2011)
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.
10,

2004,

State v.

On September

the Supreme Court of New Jersey denied certification.
Garcia,

181 N.J.

545

(2004)

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,

2007.

2005.

On November 6,

2009,

Division affirmed the denial of PCR relief,
WL 3808269
2010,
v.

(N.J.

Super. App.Div. Nov.

6,

The PCR court denied
the Appellate
State v.

2009),

Garcia,

and on June 21,

the Supreme Court of New Jersey denied certification,

Garcia,

202 N.J.

348

2009

State

(2010).

While the appeal of the first PCR petition was pending,
Petitioner filed a second state PCR petition on April 15,

2008.

The PCR court found the second PCR petition untimely and also
denied on the merits the claims presented therein,
August 12,

2011,

Similarly,

on

the Appellate Division affirmed the PCR court’s

findings in their entirety,

holding the second PCR petition both

untimely and meritless.

3

Because more than five years had passed from the
entry of the judgment of conviction, review of
defendant’s contentions is precluded.
R. 3:22-12.
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
proceedings.
State v,

Garcia,

2011 WL 3516933,

Aug.

2011)

On March 9,

12,

.

2012,

*3*4

(N.J.

Super.

App.Div.

the Supreme Court denied

certification with respect to this second state PCR petition.
State v.

Garcia,

209 N.J.

596

(2012).

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,

2011.

2010.

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

decided.

In his attached brief, Petitioner states that he mailed
his third PCR petition on November 8, 2010.
(Brief at 11.)
4

In this Petition, Petitioner asserts the following grounds
4
for relief:
trial,

(1)

multiple claims of ineffective assistance of

appellate,

and PCR counsel;
5

prosecutorial misconduct,
perjured testimony,

(2)

multiple claims of

including claims of procurement of

tampering with evidence,

and failure to

provide material exculpatory evidence in violation of Brady v.
Maryland,

373 U.s.

83

(1972);

(3)

denial of the right to be tried

by a fair and impartial jury;

(4)

erroneous jury instructions;

(5)

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;
6

(9)

(7)
(8)

(6)

error in

Petitioner’s oral
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.
Accordingly, it
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.
2676 (1988))
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
corpus action.
See 28 U.S.C. § 2254(i).
6

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
5

Petitioner’s due process rights when it denied certain pre-trial
motions,

including motions for experts and motions to disqualify

the prosecutor and trial judge;

(10)

Plaintiff is actually

innocent of murder and should have been convicted of
passion/provocation manslaughter.
It appears that this Petition is untimely,

however,

and

Petitioner will be ordered to show cause why it should not be
dismissed.
II.

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
thereto.
Thus,

“Federal courts are authorized to dismiss summarily

any habeas petition that appears legally insufficient on its
face.”

McFarland v.

Scott,

512 U.S.

849,

856

(1994)

See also

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
to a
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.
...

6

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

(emphasis added))
Moreover,

“[h]abeas corpus petitions must meet heightened

pleading requirements.”

McFarland v.

Scott,

512 U.S.

at 856,

A

petition must “specify all the grounds for relief” and must set
forth “facts supporting each ground.”

Rule 2(b)

of the Rules

Governing Section 2254 Cases in the United States District
Courts.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
U.S.

97,

106

(1976);

Haines v.

Kerner,

Estelle v.

404 U.S.

519,

Gamble,
520

429

(1972).

A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
v.

Hahn,

151 F.3d 116,

118

General,

878 F.2d 714,

721-22

Brierly,
U.S.

912

414 F.2d 552,
(1970)

.

555

(3d Cir.

1998); Lewis v. Attorney

(3d Cir.

(3d Cir.

Nevertheless,

Royce

1989);

1969),

United States v.

cert.

denied,

399

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.
Lonchar v.
F.2d 37,

45

Thomas,

517 U.S.

(3d Cir.

See also 28 U.S.C.

314,

320

(1996);

1985),

cert.

denied,

§ 2243,

2254,

2255.

7

Siers v.

490 U.S.

Ryan,

1025

j
773

(1989).

III.
A.

ANALYSIS

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:
7
(1) A 1-year period of limitations shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.
The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
(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
State action;
(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
cir. 2002).
8

Here,

Plaintiff has alleged no facts suggesting that the

limitations period for any of his viable claims should be
8
measured from any date other than the date that his conviction
became final,

under § 2244 Cd) (1) (A)

.

Thus,

evaluation of the

timeliness of this § 2254 petition requires a determination of,
first,

when the pertinent judgment became “final,” and,

second,

the period of time during which an application for state 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,

419

(3d Cir.

Horn,

Cir.

1999);

2000); Morris v,
U.S.

Sup.

Ct.

R.

13.

187 F.3d 333,

204 F.3d 417,

337 n.l

(3d

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)
Quartermain,
Here,
2004,

555 U.S.

113

.

Jimenez v.

(2009).

Petitioner’s conviction became final on December 9,

ninety days after the Supreme Court of New Jersey denied

certification on September 10,

2004.

B

Thus,

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.
9

9,

2005,

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
governing filings.
These usually prescribe, for
example, the form of the document, the time limits upon
its delivery, the court and office in which it must be
lodged, and the requisite filing fee.
In some
jurisdictions the filing requirements also include, for
example, preconditions imposed on particular abusive
filers, or on all filers generally.
But in common
usage, the question whether an application has been
“properly filed” is quite separate from the question
whether the claims contained in the application are
meritorious and free of procedural bar
Artuz v,

Bennett,

omitted>

(finding that a petition was not “[im]properly filed”

531 U.S.

4,

8-9

(2000)

(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,

however,

it was not “properly

filed” and the petitioner is not entitled to statutory tolling
under § 2244(d) (2).

Pace v.

Diguglielmo,

10

544 U.S.

408

(2005)

This is so even where,

in the alternative,

the state court

addresses the merits of the petition in addition to finding it
untimely.

Carey v.

Saffold,

536 U.S.

214,

225-26

(2002)

An application for state post—conviction relief is
considered “pending” within the meaning of § 2244 (d) (2),

and the

limitations period is statutorily tolled from the time it is
“properly filed,” during the period between a lower state court’s
decision and the filing of a notice of appeal to a higher court,
Carey v,

Saffold,

536 U.S.

214

which an appeal could be filed,
filed,

Swartz v.

Meyers,

(2002),

and through the time in

even if the appeal is never

204 F.3d at 420—24,

More specifically,

“The time that an application for state post conviction review is
‘pending’

includes the period between

determination,

and

(2)

(1)

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.”
(2006)

Evans v.

Chavis,

546 U.S.

189,

191

(finding that time between denial of post-conviction

relief and filing of appeal was not tolled where appeal was
untimely,

even where state considered untimely appeal on its

merits)

However,

.

“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
28 U.S.C.

§ 2244 (d) (2)

,“

Stokes v.

11

District Attorney of the

County of Philadelphia,
denied,

534 U.S.

959

247 E.3d 539,

542

cert,
159

denied,

(3d Cir,

Corrections,

cert.

(2001)

The limitations period of § 2244(d)
equitable tolling.

(3d Cir,),

Fahy v.

534 U.S.

944

Horn,

also is subject to

240 F.3d 239,

(2001);

244

Jones v. Morton,

(3d Cir.),
195 F,3d 153,

1999); Miller v. New Jersey State Dept.
145 E.3d 616,

618

(3d Cir.

1998)

.

of

Equitable tolling

applies
only when the principles of equity would make the rigid
application of a limitation period unfair.
Generally,
this will occur when the petitioner has in some
extraordinary way been prevented from asserting his or
her rights.
The petitioner must show that he or she
exercised reasonable diligence in investigating and
bringing the claims.
Mere excusable neglect is not
sufficient.
Miller,

145 F.3d at 618-19

omitted)

.

(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.

at 159.
(Stevens,

See also Duncan v. Walker,
J.,

joined by Souter,

the Court’s narrow holding

J.,

533 U.S.

167,

Jones,
183

195 F.3d

(2001)

concurring in part)

(“neither

[that the limitations period is not

statutorily tolled during the pendency of a premature federal
habeas petition],

nor anything in the text or legislative history

of AEDPA, precludes a federal court from deeming the limitations
12

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
final.

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.

More specifically,

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.

As

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.
13

equitable tolling,

where the ineffectiveness is due to counsel’s

negligence or mistake.
non-capital cases,
research,

e.g.,

Fahy,

240 F.3d at 244

attorney error, miscalculation,

(“In

inadequate

ore other mistakes have not been found to rise to the

‘extraordinary’
Johnson v.

circumstances required for equitable tolling.”);

Hendricks,

314 F.3d 159

(3d Cir.

2002)

(applying Fahy

rule where state PCR counsel provided erroneous advice as to
federal habeas filing deadline),
(2003)

.

Thus,

cert.

denied,

538 U.S.

1022

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,

2011,

after receiving from prison

officials the necessary account certification for his application
to proceed in forma paiiperis.

Thus,

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.
B.

“Mason” Notice
This Court is required by Mason v. Meyers,

Cir.

2000),

208 F,3d 414

(3d

to notify Petitioner of certain consequences of

filing a § 2254 Petition under the Antiterrorism and Effective
Death Penalty Act

(“AEDPA”)

and to give Petitioner an opportunity

to file one all—inclusive § 2254 Petition.

14

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,

except in

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,
U.S.C.

28

§ 2244(d).

Should Petitioner contend that his Petition is timely,
must notify the Court whether he wishes
ruled upon as filed or

(b)

(a)

to have the Petition

to withdraw the Petition and file one

all-inclusive petition within the limitations period.
Petitioner chooses option

he

(a)

above,

If

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.
C.

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.”

15

There is no absolute constitutional right to appointed
counsel in a federal habeas corpus proceeding.
Thompson,
247,

263

501 U.S.
(3d Cir.

722,

752

1991),

(1991); Reese v.

cert.

denied,

Coleman v.

Fulcomer,

503 U.S.

988

superseded on other grounds by statute,

28 U.S.C.

Pursuant to 18 U.S.C.

however,

§ 3006A(a) (2) (B),

946 F.2d

(1992),

§ 2254(d),
this Court may

appoint counsel to represent an indigent habeas petitioner if it
determines “that the interests of justice so require.”
28 U.S.C.

§ 1915(e)

See also

(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
the court.
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.
Courts have
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.”
Reese,

946 F.2d at 263—4

(citations omitted)

This standard is essentially the same as that applied under
28 U.S.C.
(3d Cir.

§ 1915(e).
1997)

.

See Parham v.

Johnson,

126 F.3d 454,

456—57

In determining whether to appoint counsel to

16

civil litigants proceeding

forma pauperis,

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
following factors:
(1) the plaintiff’s ability to present his or her
own case;
(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
such investigation;
(4) the amount a case is likely to turn on
credibility determinations;
(5) whether the case will require the testimony of
expert witnesses;
(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).]
This list
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
frivolous cases.
Id. at 157.
...

Parham,

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
barred.

In addition,

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

17

it

the state court record.

For the foregoing reasons,

the

application for appointment of counsel will be denied.
IV.

CONCLUSION

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
Dated:

18

Judge