GARCIA v. BARTKOWSKI

Filing 44

OPINION. Signed by Judge Dickinson R. Debevoise on 4/23/2015. (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NOT FOR PUBLICATION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
On February 27, 2015, the Court denied Agustin Garcia’s 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

Court found that Garcia’s § 2254 Petition was barred by the one-year statute of limitations and
denied a certificate of appealability. Garcia filed a notice of appeal, as well as a motion for
reconsideration. The Court denied the motion for reconsideration on April 16, 2015. Garcia now

seeks leave to file an over length amended petition for a certificate of appealability. The motion
to file an over length amended petition for a certificate of appealability will be denied.
Section 2253 of Title 28 of the United States Code provides that an appeal may not be
taken from an order denying a writ of habeas corpus under § 2254 “unless the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the
district court denies a habeas petition on procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Section 2253
“mandates that both showings be made before the court of appeals may entertain the appeal.” Id.
In this case, the Court found that Garcia’s § 2254 Petition was barred by the one-year
statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A). The Court denied a certificate of
appealability because jurists of reason would not conclude that the dismissal of the Petition as time
barred was debatable or incorrect. This Court sees no reason to disturb this determination or to
revisit the question. The Court will file an order denying the pending motion.

s/Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
U.S.S.D.J.
Dated:

April 23, 2015

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