GARCIA v. BARTKOWSKI

Filing 33

OPINION. Signed by Judge Dickinson R. Debevoise on 2/27/2015. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AGUSTIN GARCIA,
Petitioner,

Civil Action No. 11-3689 (DRD)

v.
GREG BARTKOWSKI,

OPINION

Respondents.

APPEARANCES:
AGUSTIN GARCIA, #822642B
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
Petitioner Pro Se
ANNMARIE COZZI, ASSISTANT PROSECUTOR
BERGEN COUNTY PROSECUTOR
10 Main Street
Hackensack, New Jersey 07601
Attorneys for Respondents
Debevoise, Senior U.S. District Judge
Agustin Garcia filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. ' 2254
challenging a judgment of conviction filed in the Superior Court of New Jersey, Bergen County,
on February 1, 2002, and amended on May 13, 2004, after a jury found him guilty of the murder
of Gladys Ricart, his former girlfriend, and related charges. The State filed an Answer limited to
the statute of limitations and Garcia filed several documents in opposition.

After carefully

reviewing the arguments of the parties and the state court record, this Court will deny habeas relief
as time barred and decline to issue a certificate of appealability.

I. BACKGROUND
A. The Crime
The Appellate Division of the Superior Court of New Jersey outlined the facts as follows:
The convictions arose out of an incident in which defendant appeared at his former
girlfriend’s wedding as an uninvited guest and shot and killed her at close range in
the presence of witnesses, including children. The shooting was captured by the
wedding videographer on high resolution video tape, which was copied exactly by
Ridgefield Police Lieutenant David Cassirer to a VHS tape for viewing in court.
Contrary to what the tape revealed, defendant testified that after he entered the
bride’s house where the wedding was being held, her brother and others attacked
him, he reached for his gun to protect himself, and at some point during the struggle
he blacked out and learned that the bride had been killed. Defendant also claimed
that upon learning of the bride’s death, he stated he wanted to kill himself. After
the final shot, defendant was restrained when he attempted to reload the gun.
State v. Garcia, 2009 WL 3808269 at *1 (N.J. Super. Ct., App. Div., Nov. 6, 2009).
B. The State Court Proceedings
On February 1, 2002, the trial judge sentenced Garcia to life in prison, with 30 years of
parole ineligibility for murder, a consecutive four-year term for third-degree unlawful possession
of a weapon, and two concurrent four-year terms for endangering the welfare of a child. Garcia
appealed. On May 11, 2001, the Appellate Division affirmed the convictions and sentences
imposed on the murder and weapons offenses, but reversed the convictions for endangering the
welfare of a child. (ECF No. 23-2.) On May 13, 2004, the trial court filed an amended judgment
of conviction. The New Jersey Supreme Court denied certification on September 10, 2004. See
State v. Garcia, 181 N.J. 545 (2004).
The parties dispute the date on which Garcia filed his first petition for post-conviction relief
in the trial court. Garcia maintains that he filed it on January 3, 2005, the date on his cover letter
addressed to the trial court. (ECF No. 23-6 at 1.) Respondent contends that the filing date is
2

May 13, 2005, the date of the trial court’s date stamp on the cover letter and on the first page of
the post-conviction relief petition. (ECF No. 23-6 at 1, 2.) On May 4, 2007, the trial court denied
the first petition for post-conviction relief on the merits, without conducting an evidentiary hearing.
See State v. Garcia, 2009 WL 3808269 at *1 (N.J. Super. Ct., App. Div., Nov. 6, 2009). Garcia
appealed, and on November 6, 2009, the Appellate Division affirmed. Id. On June 21, 2010, the
New Jersey Supreme Court denied certification. See State v. Garcia, 202 N.J. 348 (2010).
Garcia filed his second petition for post-conviction relief (“PCR”) on April 15, 2008. See
State v. Garcia, 2011 WL 3516933 (N.J. Super. Ct., App. Div., Aug. 12, 2011). On February 17,
2010, the trial court denied relief without conducting an evidentiary hearing. On August 12, 2011,
the Appellate Division affirmed on the ground that the second PCR application was untimely under
New Jersey Court Rules. Id. The New Jersey Supreme Court denied certification on March 9,
2012. See State v. Garcia, 209 N.J. 596 (2012).
Garcia filed his third PCR petition on November 10, 2010. (ECF No. 23 at 11.) The trial
court denied it without an evidentiary hearing on December 15, 2010. See State v. Garcia, 2013
WL 2096208 (N.J. Super. Ct., App. Div., May 16, 2013). Garcia appealed, and on May 16, 2013,
the Appellate Division affirmed, finding that the claims were procedurally barred because it did
not rely on a new rule of constitutional law, assert that the factual predicate for the relief sought
could not have been discovered earlier, or present a prima facie case of ineffective assistance of
PCR counsel, as required by New Jersey Court rule 3:22-4(b)(2)(A) - (C). The New Jersey
Supreme Court denied certification on February 4, 2014. See State v. Garcia, 209 N.J. 284
(2014).
C. Procedural History of § 2254 Petition
3

Garcia filed the § 2254 Petition on June 7, 2011, the date on which he signed his application
to proceed in forma pauperis. (ECF No. 2 at 5.)

The Clerk received it on June 20, 2011. The

Petition raises the following 15 grounds, which are set forth below verbatim:
Ground One: THE DEFENDANT WAS DENIED HIS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH
AMENDMENT OF THE UNITED STATES CONSTITUTION[.]
Ground Two: THE STATE COURT[’]S ORDERS DENYING DEFENDANT’S
PETITIONS MUST BE REVERSED SINCE THE PROSECUTOR TAMPERED
WITH AND WITHHELD EVIDENCE. MOREOVER, THE PROSECUTOR
CONSCIOUSLY USED A NEVER ENDING PARADE OF PERJURY
TESTIMONIES. ALL IN VIOLATION OF BRADY V. MARYLAND . . . ,
NAPUE V. ILLINOIS . . . , GIGLIO V. UNITED STATES[.]
Ground Three: THE PROSECUTION FAILED TO DISCLOSE TO THE
DEFENSE IMPEACHMENT EVIDENCE MATERIAL TO PETITIONER’S
DEFENSE (BLATANT OBSTRUCTION OF JUSTICE)[.]
Ground Four: DEFENDANT WAS DENIED THE CONSTITUTIONALLY
PROTECTED RIGHT TO BE TRIED BY FAIR AND IMPARTIAL JURY,
GUARANTEE[D] BY THE SIXTH AMENDMENT OF THE UNITED STATES
CONSTITUTION: (A) THE COURT REFUSED TO ASK SUFFICIENT
QUESTIONS OF JURORS TO ALLOW DEFENSE TO ESTABLISH JUROR’S
BIAS, PARTICULARLY, CONFRONTED WITH THE FOLLOWING: (1) THE
PRESENCE OF 50 PERCENT OF JURY POOL ADMITTING BEFORE TRIAL
IN CONTEMPT OF COURT, THAT BASE[D] ON PRETRIAL PUBLICITY
THEY HAD ALREADY FORMED THE OPINION THAT DEFENDANT WAS
GUILTY; 13T 113-12 TO 113-19; (2) “THEY FORMED THEIR OPINION
BASED ON THE PRESS ACCOUNT AND WHATNOT, AND IN ALL OF
THEM BY AND LARGE OPINIONS, THE LATTER WHO WERE
REHABILITATED BY THE COURT. THE OPINION WAS HE WAS
GUILTY. NOBODY HAS COME IN TO EXPRESS THAT HE’S INNOCENT
OR WRONGLY ACCUSED.” 10T 199-22 TO 200-5; (3) EVEN PROSECUTOR
AFFIRMED OPPOSING MOTION FOR CHANGE OF VENUE: “IF YOU
SAW THE TELEVISION HE’S BEING BROUGHT IN THE COURTROOM IN
THE BERGEN COUNTY JAIL UNIFORM WITH SHACKLES.” 13t 107-14 TO
107-19[.]
Ground
Five:
THE
TRIAL
COURT’S
CHARGE
PASSION/PROVOCATION MANSLAUGHTER WAS ERRONEOUS[.]
4

OF

Ground Six: THE TRIAL COURT DENIED DEFENDANT DUE PROCESS OF
LAW AND A FAIR TRIAL BY RESTRICTING HIS COUNSEL’S
SUMMATION.
Ground Seven: THE TRIAL COURT ERRED BY RULING THAT THE
“WEDDING VIDEOTAPE” WAS [ ] ADMISSIBLE.
Ground Eight: THE TRIAL COURT ERRED BY FAILING TO SUPPRESS
DEFENDANT’S ORAL STATEMENT [WHICH] SHOULD HAVE BEEN
SUPPRESSED BECAUSE DEFENDANT’S FEDERAL FIFTH, EIGHTH AND
FOURTEENTH AMENDMENT[] RIGHT[S] . . . WERE EGREGIOUSLY
VIOLATED WHEN STATE’S WITNESS ROBERT ANZILOTTI AFTER
FLAGRANTLY VIOLATING DEFENDANT[’S] MIRANDA RIGHTS, ALSO
VIOLATED FEDERAL JENCKS STATUTE, BY DESTROYING HIS HANDWRITTEN
NOTES
TOGETHER
WITH
CONCEALMENT
OF
INTERROGATION VIDEO TAPE, ALLOWED THE STATE TO CONCEAL
THE FACTS THAT ALLEGED CONFESSION WAS COMPLETELY
FABRICATED AND THAT DEFENDANT WAS IN FACT SUBJECTED TO
ILLEGAL PSYCHOLOGICAL TORTURE FOR MORE THAN 10
CONSECUTIVE HOURS. THEREAFTER, STATE WITNESS ROBERT
ANZILOTTI REPEATEDLY COMMITTED PERJURY WHILE TESTIFYING
AT MIRANDA HEARING CONCERNING DEFENDANT’S ALLEGED
STATEMENT.
Ground Nine: THE DEFENDANT’S SENTENCE WAS EXCESSIVE.
Ground Ten: DEFENDANT’S CONSTITUTIONAL PROCEDURAL DUE
PROCESS OF LAW RIGHT, GUARANTEED TO HIM BY THE FIFTH AND
FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION, WAS
FLAGRALNTLY VIOLATED WHEN PCR COURT ARBITRARILY DENIED
HIS DISCOVERY MOTIONS FOR PRODUCTION BY THE STATE OF
CRITICAL DISCOVERY ESSENTIAL AND/OR INDISPENSABLE TO A
FAIR, ROUNDED DEVELOPMENT OF MATERIAL FACTS AND/OR
DEFENDANT’S MERITORIOUS ISSUES.
Ground Eleven: THE LOWER COURT ORDER DENYING THE PETITION
MUST BE REVERSE[D] SINCE DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL WHO PROVIDED ASSISTANCE
WITH EGREGIOUS REPRESENTATION WHEN HE FAILED TO RAISE THE
OBVIOUS MERITORIOUS ISSUES RAISED ON THIS PETITION.

5

Ground Twelve: THE LOWER COURT ORDER DENYING THE PETITION
MUST BE REVERSE[D] SINCE THE PROSECUTOR TAMPERED WITH AND
WITHHELD MATERIAL AND RELEVANT EXCULPATORY EVIDENCE.
Ground Thirteen: THE LOWER COURT ERRED IN NOT GRANTING
DEFENDANT’S REQUEST FOR AN EVIDENTIARY HEARING AND TYHE
LOWER COURT MUST THEREFORE BE REVERSED.
Ground Fourteen: THE LOWER COURT ERRED WHEN IT ARBITRARILY
DENIED WITHOUT RULING ON THE MERIT OF FOLLOWING TIMELY
AND PROPERLY FILED DEFENDANT’S MOTIONS: (1) MOTION TO
COMPEL PAYMENT FOR THE SERVICES OF AN AUDIBILITY EXPERT TO
TEST THE WEDDING VIDEO TAPE . . . ; (2) MOTION TO COMPEL
PAYMENT FOR THE SERVICES OF A DNA EXPERT TO TEST “THE
SHEETS OF HIS BED FROM WHICH HE MAINTAINED WOUD CONTAIN
THE DNA MATERIAL BELONG[ING] TO MS. RICART. DEFENDANT
MAINTAINS THAT THE SHEETS, HAD THEY BEEN TESTED, WOULD
HAVE PROVED THAT DEFENDANT AND MS. RICART HAD HAD SEXUAL
RELATIONSHIP DURING THE MORNING HOURS BEFORE THE
WEDDING, THEREBY SUPPORTING DEFENDANT’S VERSION OF
EVENTS AND CONTRADICTING THE STATE’S THEORY OF THE CASE . .
. ; (3) MOTION TO COMPEL PRODUCTION OF TYHE ORIGINAL VIDEO
TAPES . . . ; (4) MOTION TO DISQUALIFY F.S. AS THE PROSECUTOR . . . ;
(5) MOTION TO DISQUALIFY JUDGE MEEHAN FROM HANDLING THE
CASE . . . . THE MOTION IS BASED ON STATEMENTS MADE BY JUDGE
MEEHAN DURING PRE-TRIAL PROCEEDINGS, JURY SELECTION AND
SENTENCING PROCEEDINGS. DEFENDANT SUBMITS THAT THESE
STATEMENTS “EVIDENCED A PREDISPOSITION AS TO THE
DEFENDANT’S GUILT PRIOR TO TRIAL . . .”
Ground Fifteen:
THIS MATTER SHOULD BE REVERSED AND/OR
REMANDED BECAUSE IT PRESENTS A CLEAR ACTUAL INNO[CE]NCE
CASE.
WHEREAS COURT’S CONSTITUTIONAL ERRORS CAUSED
ERRONEOUS MURDER GUILTY CONVICTION INSTEAD OF
PASSION/PROVOCATION MANSLAUGHTER CONVICTION.
(ECF No. 1 at 21, 30, 33, 38, 43, 48, 52, 56, 58, 60, 62, 65, 67, 70, 74.)
Prior to ordering an answer, Judge Cavanaugh ordered Garcia to show cause in writing
why the Petition should not be dismissed as barred by the one year statute of limitations set forth
in 28 U.S.C. § 2244(d). (ECF No. 3.) In an Opinion accompanying the Order, Judge Cavanaugh
6

observed that the statute of limitations appeared to have begun on December 9, 2004, when the
time to file a petition for certiorari expired. (ECF No. 2 at 9.) Judge Cavanaugh observed that
the limitations period apparently ran for 25 days until it was statutorily tolled, pursuant to 28 U.S.C.
§ 2244(d)(2), by Garcia’s filing of his first PCR petition on January 3, 2005, and that tolling
continued until June 21, 2010, the date on which the New Jersey Supreme Court denied
certification with respect to that petition. (ECF No. 2 at 13.) Judge Cavanaugh noted that the
limitations period picked up at day 26 on June 22, 2010, and expired 340 days later on Friday,
May 27, 2011.

Judge Cavanaugh determined that the one year limitations period was not

statutorily tolled, pursuant to § 2244(d)(2), during the pendency of Garcia’s second and third PCR
petitions because those petitions were untimely under New Jersey law and, therefore, were not
“properly filed” within the meaning of § 2244(d)(2). Because the statute of limitations expired
on May 27, 2011, and Garcia did not hand his § 2254 Petition to prison officials for mailing to the
Clerk of this Court until June 6, 2011, at the earliest, the Petition appeared to be 10 days late.
Judge Cavanaugh rejected Garcia’s contention that he was entitled to equitable tolling where
Garcia alleged that his post-conviction relief counsel told him that his federal petition would be
timely if he filed it on or before July 9, 2011. Id. at 13-14. Judge Cavanaugh directed Garcia to
show cause in writing why his § 2254 Petition should not be dismissed as time barred.
Garcia filed 12 responses to the Order to Show Cause, generally arguing that the Petition
was timely and that equitable tolling was warranted. (ECF Nos. 6-17.) On April 22, 2014, the
Court ordered service of the Petition, directed Respondent to file an answer and record limited to
the timeliness of the Petition, and allowed Garcia to file a reply. (ECF No. 19.) On July 18,
2014, Respondent filed an Answer, arguing that this Court should dismiss the Petition as time
7

barred. (ECF Nos. 23, 26.) Garcia filed five documents in response to the Answer. (ECF Nos.
28-31.)
II. DISCUSSION
A.

Statute of Limitations
The Anti-Terrorism and Effective Death Penalty Act’s 365-day statute of limitations begins

on the latest of the following dates:
(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 . . . .
28 U.S.C. § 2244(d)(1).
Section 2244(d)(2) requires statutory tolling under the following circumstances: “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.” 28 U.S.C. § 2244(d)(2). An application is “filed” when it
“is delivered to, and accepted by, the appropriate court officer for placement into the official
record.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations omitted). 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
8

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, 531 U.S. at 8-9 (citations omitted); see also Allen v. Siebert, 552 U.S. 3 (2007) (petition for
state post-conviction relief that was rejected by the state courts as untimely is not “properly filed”
under § 2244(d)(2)).
In this case, the statute of limitations is governed by § 2244(d)(1)(A). The New Jersey
Supreme Court denied certification on direct review on September 10, 2004, and the time to file a
petition for certiorari in the United States Supreme Court expired 90 days later on December 9,
2004. See Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012); Wali v. Kholi, 131 S. Ct. 1278,
1282 (2011); Lawrence v. Florida, 549 U.S. 327, 332-333 (2007); Merritt v. Blaine, 326 F.3d 157,
161 (3d Cir. 2003). The limitations period began the next day, on December 10, 2004, and ran
until the date on which Garcia filed his first PCR petition in the trial court. Because nothing
indicates that this first post-conviction relief petition was not properly filed, the filing date
triggered statutory tolling under 28 U.S.C. § 2244(d)(2).
The parties dispute the date of filing of Garcia’s first PCR petition. Garcia contends that,
because he signed his first petition for post-conviction relief on January 3, 2005, and the cover
letter is dated January 3, 2005, under the mailbox rule, this Court should consider it to have been

9

filed on that date.1 See Houston v. Lack, 487 U.S. 266 (1988). Respondent argues that the filing
date is May 13, 2005, insofar as the New Jersey Superior Court date stamped the cover letter and
the first page of the petition on that date. This Court notes that the parties acknowledge the
existence of a New Jersey State Prison postage remit signed by Garcia on January 22, 2005. (ECF
No. 28.3.) The postage remit is date stamped January 24, 2005, and it reflects an $8.00 charge on
that date to send certified mail to the Superior Court of New Jersey in Bergen County. Id. The
parties also acknowledge that on January 26, 2005, someone signed a certified mail return receipt
addressed to that court. Id.
The Supreme Court held in Artuz that the question of the proper filing of a state postconviction relief application is a matter of state procedural law governing post-conviction filings.
See Artuz, 531 U.S. at 8 (“And an application is ‘properly filed’ when its delivery and acceptance
are in compliance with the applicable laws and rules governing filings.”) (emphasis in original);
see also Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction relief petition
is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)”) (internal
quotation marks and citation omitted). Thus, Garcia’s statute of limitations tolled on the date,
under New Jersey law, that his first petition for post conviction relief was “filed.” See Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80, 83 n.1 (3d Cir. 2013) (“Pursuant to the
Pennsylvania prisoner mailbox rule, the date of delivery of the PCRA petition by the defendant to

Garcia states that he “actually filed his first PCR on May 30, 2004,”, and that he sent an amended
petition to the court on December 14, 2004. (ECF No. 28 at 2.) This Court rejects these
contentions because the record provides no support for these dates and Garcia has provided nothing
to substantiate his assertion.
1

10

the proper prison authority or to a prison mailbox is considered the date of filing of the petition”)
(citation and internal quotation marks omitted); Douglas v. Horn, 359 F.3d 257, 262 (3d Cir. 2004)
(court “must look to state law governing when a petition for collateral relief is properly filed.”)
(quoting Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001)).2
This Court’s research indicates that the New Jersey Supreme Court has not squarely
considered whether the prisoner mailbox rule applies to a prisoner’s filing a post-conviction relief
petition. This Court found only one New Jersey court opinion, an unpublished Appellate Division
opinion, considering the prisoner mailbox rule and citing Houston v. Lack, 487 U.S. 266 (1988).
See Oliver v. Lee, 2012 WL 1414081 (N.J. Super. Ct., App. Div., April 25, 2012). In that case,
the Appellate Division declined to decide whether the mailbox rule applied to a prisoner’s request
to extend the time to file a claim under the New Jersey Tort Claims Act because the prisoner
provided no evidence of the date on which he handed the document to prison officials. However,
in State v. Culley, 250 N.J. Super. 558 (App. Div. 1991), without citing Houston or discussing the
prisoner mailbox rule, the Appellate Division held that Culley’s post-conviction relief petition,
which was dated November 1, 1989, and stamped by a judge’s chambers as “received” on

2

See also Orpiada v. McDaniel, 750 F.3d 1086 (9th Cir. 2014) (applying Nevada law to determine
that mailbox rule did not govern the filing of a state post-conviction relief application with respect
to § 2244(d)(2)); Ray v. Clements, 700 F.3d 993, 995 (7th Cir. 2012) (holding that “the prisoner
mailbox rule governs whether a state post-conviction document is ‘properly filed’ under the
AEDPA limitations period unless the state has clearly rejected it.”); Fernandez v. Artuz, 402 F.3d
111 (2d Cir. 2005) (because New York law set no time limit for filing of a coram nobis petition
and the state courts had not considered whether the prisoner mailbox rule governed the filing date
of such a petition, the Ninth Circuit held that the coram nobis petition was filed when prisoner
handed it to prison officials for mailing to state court); Garcia v. Shanks, 351 F.3d 468 (10th Cir.
2003) (holding that, where New Mexico’s rules required receipt by the clerk, New Mexico
prisoner’s state post-conviction relief petition was filed on date the state court clerk received it).
11

November 15, 1989, was untimely because it was filed on November 15, 1989, which was six days
after the five-year statute of limitations expired on November 9, 1989 (five years after he was
sentenced on November 9, 1984).
The postage remit Garcia presented to this Court shows that he handed his first PCR
petition to prison officials, with a request for deducting the cost of postage from his prisoner
account, on January 22, 2005, even though he signed the petition itself on January 3, 2005. The
return receipt addressed to the Superior Court Criminal Division indicates that the court received
the petition on January 26, 2005. The record shows, therefore, that Garcia handed his petition to
prison officials for mailing with postage on January 22, 2005, and that the court received it on
January 26, 2005. Applying the mailbox rule, this Court finds that 44 days ran on the statute of
limitations, or from December 10, 2004, see State v. Garcia, 181 N.J. 545 (2004), until January
22, 2005 (date on which Garcia handed first PCR to prison officials for mailing) when tolling
began. The statute of limitations picked up again at day 45 on June 21, 2010, when the New
Jersey Supreme Court denied certification on the first PCR petition, see State v. Garcia, 202 N.J.
348 (2010), and ran for the next 321 days until it expired on Monday, May 9, 2011. 3 Because
Garcia did not sign his affidavit filed with his § 2254 Petition until June 7, 2011, the Petition was
filed 30 days late, absent additional statutory or equitable tolling.
Alternatively, even if this Court were to assume that January 3, 2005, was the date on which
Garcia’s first post-conviction relief petition was filed, then Garcia’s § 2254 Petition was

3

Because the 321st day is Sunday, May 8, 2011, this Court will use the following work day as the
expiration date.
12

nevertheless filed 11 days after the 365-day statute of limitations expired. In that case, the 365day statute of limitations began to run on December 10, 2004, as in the prior calculation. If
Garcia’s first petition for post-conviction relief was filed on January 3, 2005, then 25 days elapsed
on the 365-day limitations period by the time it was statutorily tolled on January 3, 2005; tolling
continued until June 21, 2010, the date on which the New Jersey Supreme Court denied
certification. In the absence of further statutory or equitable tolling, the statute of limitations
picked up on June 22, 2010, at day 26 and it expired 340 days later on Friday, May 27, 2011. As
Garcia handed his § 2254 Petition to prison officials on June 7, 2011, the Petition was out of time
by 11 days, absent additional statutory or equitable tolling.
Statutory tolling is not available for Garcia’s second PCR petition because it was not
properly filed within the meaning of § 2244(d)(2). Although Garcia filed his second state PCR
petition on April 15, 2008, see State v. Garcia, 2011 WL 3516933 (N.J. Super. Ct., App. Div.,
Aug. 12, 2011), and the New Jersey Supreme Court denied certification on March 9, 2012, see
State v. Garcia, 209 N.J. 596 (2012), the Appellate Division found that the second PCR petition
was time barred under New Jersey Court Rule 3:22-12 because it was filed more than five years
after the date the judgment of conviction was entered. See Garcia, 2011 WL 3516933 at *4 (“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 3:22-12(a) and are not persuaded.”)
Because the second PCR petition was time barred pursuant to N.J. Court Rule 3:22-12(a),4 it was

N.J. Court Rule 3:22-12(a)(1) provides that “no petition shall be filed pursuant to this rule more
than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is
being challenged unless it alleges facts showing that the delay beyond said time was due to
13
4

not “properly filed” and it did not statutorily toll the 365-day statute of limitations under §
2244(d)(2). See Pace, 544 U.S. at 414 (“When a postconviction petition is untimely under state
law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2)”) (quoting Carey v. Saffold, 536
U.S. 214, 226 (2002); see also Allen v. Siebert, 552 U.S. 3, 7 (2007) (“Because Siebert’s petition
for state postconviction relief was rejected as untimely by the Alabama courts, it was not ‘properly
filed’ under § 2244(d)(2).”).
Similarly, the limitations period was not statutorily tolled by Garcia’s third PCR petition,
which he filed on November 10, 2010, two years after he filed his untimely second PCR petition.
The Appellate Division affirmed the dismissal of the third PCR petition on the ground that Garcia
failed to assert a basis for relief pursuant to N.J. Court Rule 3:22-4(b)(2), which provides that a
second or subsequent PCR petition “shall be dismissed unless” it relies on a new rule of

defendant’s excusable neglect and that there is a reasonable probability that if the defendant’s
factual assertions were found to be true enforcement of the time bar would result in a fundamental
injustice.” Rule 3:22-12(a)(2) extends the statute of limitations for an additional year after the
latest of three dates, i.e., the date on which the constitutional right asserted was initially recognized
by the United States Supreme Court of New Jersey Supreme Court if that right was newly
recognized and made retroactive, or the date on which the factual predicate for the relief sought
was discovered, or the date of the denial of the first or subsequent petition for post-conviction
relief where ineffective assistance of counsel that represented the defendant on the first or
subsequent PCR petition is being alleged. The Appellate Division explained in State v. Brewster,
429 N.J. Super. 387, 398 (App. Div. 2013), that Rule 3:22-12(a)(1) sets a five-year time limitation
for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing
. . . . By its subsection (a)(2), Rule 3:22-12 allows an additional one-year limitation period if the
courts recognize a new constitutional right or defendant discovers a previously unknown factual
predicate justifying relief from the conviction.” The court applied subsections (a)(1) and (a)(2) to
Brewster’s first PCR petition, even though subsection (a)(2) refers to a second or subsequent
petition because “[t]he amended rule would be anomalous if it deemed timely a second or third
PCR petition based on a new constitutional right or a factual predicate newly-discovered but did
not afford the same time period for a first PCR petition raising the same ground for relief.”
Brewster, 429 N.J. Super. at 399 n.4.
14

constitutional law, or it relies on a factual predicate that could not have been discovered earlier, or
it alleges ineffective assistance of prior PCR counsel. See State v. Garcia, 2013 WL 2096208
(N.J. Super. Ct., App. Div., May 16, 2013). The third PCR petition did not trigger statutory tolling
under § 2244(d)(2) because, like the second PCR petition, the third PCR petition was also time
barred under N.J. Court Rule 3:22-12(a).
This Court notes that the Appellate Division did not expressly find that the third PCR
petition was time barred. In the absence of a “clear indication” by the state courts that an
application is untimely, the federal court “must itself examine the delay in each case and determine
what the state courts would have held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189,
198 (2006); accord Jenkins, 705 F.3d at 85-86 (“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.’”) (quoting Evans, 546 U.S. at 198)). In this case, the New Jersey
courts did not reach the merits of Garcia’s third PCR petition or consider timeliness, but found that
it was barred by N.J. Court Rule 3:22-4(b). However, there is no doubt that, had they considered
timeliness, the New Jersey courts would have found that Garcia’s third PCR petition, which was
filed two years after his untimely second PCR petition, was also untimely under N.J. Court Rule
3:22-12(a)(1), since it was filed more than five years after the judgment of conviction. The third
PCR petition was also untimely under N.J. Court Rule 3:22-12(a)(2) because, while Garcia
claimed in in the third PCR petition that counsel representing him in his first PCR petition was
ineffective, the Appellate Division’s opinion affirming the denial of the third PCR petition found
that Garcia “ha[d] not alleged a prima facie case of ineffective assistance of PCR counsel.”

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Garcia, 2013 WL 2096208 at*3. Accordingly, the third PCR petition was untimely, it was not
properly filed, and it did not trigger statutory tolling under § 2244(d)(2).
B.

Equitable Tolling
Garcia argues that equitable tolling is warranted because he filed his § 2254 Petition within

one year of the New Jersey Supreme Court’s order of June 21, 2010, denying certification of the
Appellate Division opinion’s affirming the denial of his first PCR petition relief, in accordance
with the advice of his PCR counsel.5 The one year statute of limitations is subject to equitable
tolling. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013); Holland v. Florida, 560 U.S.
631, 645 (2010); Ross v. Varano, 712 F.3d 784, 798-800 (3d Cir. 2013). A court extends the
remedy of equitable tolling “only sparingly,” “when principles of equity would make the rigid
application of a limitation period unfair.” Jenkins, 705 F.3d at 89 (citations and internal quotation
marks omitted). A habeas “’petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.’” McQuiggin, 133 S.Ct. at 1931 (quoting Holland, 560 U.S. at
649) (internal quotation marks omitted). A court must “exercise judgment in light of prior
precedent, but with awareness of the fact that specific circumstances, often hard to predict in
advance, could warrant special treatment in an appropriate case.” Holland, 560 U.S. at 650.
Although “a garden variety claim of excusable neglect, such as a simple miscalculation
that leads a lawyer to miss a filing deadline, does not warrant equitable tolling,” Holland, 569
U.S. at 652 (citations and internal quotation marks omitted), extraordinary circumstances may be

5

Garcia filed numerous repetitive certifications, primarily concerning the merits of his claims.
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found where unprofessional attorney conduct is egregious or where a client is effectively
abandoned by his lawyer. Id. at 651. Other potentially extraordinary situations may be found on
the basis of “inability to read or understand English, combined with denial of access to translation
or legal assistance,” Pabon v. Mahanoy, 654 F.3d 385, 400 (3d Cir. 2011), and “where a court has
misled a party regarding the steps that the party needs to take to preserve a claim.” Munchinski
v. Wilson, 694 F.3d 308, 329-330 (3d Cir. 2012) (quoting Brinson v. Vaughn, 398 F.3d 225, 230
(3d Cir. 2005)).
In this case, Garcia first claims that his attorney incorrectly told him that his federal habeas
petition would be timely if he filed it by June 21, 2011 (one year after the New Jersey Supreme
Court denied certification on his first PCR petition). This Court agrees with Judge Cavanaugh
that Garcia’s attorney error claim is the sort of “garden variety” claim that does not warrant
equitable tolling. See Holland, 569 U.S. at 652; LaCava v. Kyler, 398 F.3d 271276 (3d Cir. 2005).
To summarize, Garcia handed his § 2254 Petition to prison officials for mailing to the Clerk
of this Court after the 365-day statute of limitations expired. Because he is not entitled to statutory
tolling regarding his second and third PCR petitions and he has not shown that extraordinary
circumstances prevented him from timely filing his Petition, this Court finds that the Petition is
time barred.
III. CERTIFICATE OF APPEALABILITY
The AEDPA provides that an appeal may not be taken to the court of appeals from a final order
in a § 2254 proceeding unless a judge issues a certificate of appealability on the ground that “the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). This Court denies a certificate of appealability because jurists of reason would not find it

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debatable that dismissal of the Petition as time barred is correct. See Slack v. McDaniel, 529 U.S.
473, 484 (2000).

IV. CONCLUSION
This Court dismisses the Amended Petition with prejudice and denies a certificate of
appealability.

s/Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
U.S.S.D.J.
Dated: February 27, 2015

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