ROBINSON v. HOLMES et al

Filing 15

OPINION fld. Signed by Judge Claire C. Cecchi on 7/31/13. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN ROBINSON,

Civil No.

Petitioner,

11-6074

(CCC)

v.
CHRISTOPHER HOLMES,

et al.,

OPINION

Respondents.

APPEARANCES:
John Robinson, Pro Se
216331
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Carolyn A. Murray
Essex County Prosecutor’s Office
50 West Market Street
Newark, NJ 07102
Attorney for Respondents
CECCHI, District Judge
Petitioner John Robinson

(“Petitioner”),

a prisoner

currently confined at the South Woods State Prison,

has

submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C.

§ 2254.

The respondents are Administrator Christopher

•

•

•

ts)

cc

CD

it

C
:5
H
CD
01
a
0)
0’
H
CD

01
H
CD

‘0
CD
it
Hit
Ho

CD

it

Hcc
CD
010
HMi

o

mtl
Hit
CDH

o

cct

ito
o

0.0

it

CD

CD
H
itE

‘‘

H
w

•

LXI

•

Z
cc

cc
Ho

4
I-”

a

‘0
‘0
CD
H
H
01
it
CD

>

0’
‘4

CD
a

0)
Mi
Mi
H-

0
it
H0
5

B

‘V
C)
!Xl

H

N)
0

‘%

H

H
‘<

os

C

•

0

H

•

LXI
)(

•

!‘
cc

0’
CD
I
H0
0.

B
0
it
H0
Z

C)
XI

‘—

N)
0
0
‘0

w

H

m

•

‘0

•

LII

•

cc

---

a

m

Mi
i-’•
H

0
it
H0

B

S
‘V
C)

H
0
H
HCD
Mi

Ha
it
H0

4

it
I
C)
0

cc

0
0

Cs’

N)
0

ui

H

H

m

g

m

4

Z

o

•

0

cc

a
0

0
it

0’
i-’
Q

H

CD

‘V
0
it
Hit
H0

I

it

C)
0
C
H

0

B

U)
C
‘0
H
CD

U)
it
0’
it
0
cc

c
5
Hit
CD
0.

it
Y

-

E

CD
H
it
H0
H
0’
H
H-

a

0
i-h

it

*
H
H-

Mi
0
H

H
CD

H-

Mi

0

it

‘V
CD
it
Hit
H0
z
CD
H

Mi
0
H

0.
0)
‘4

it

cc

H
0)

N)
0
0
H

co

0’
CD
H

o

it

o

C)

B

w

$4

•

‘V
CD
it

-..

5
HCD
0.

0.

0
C
H
it

n

0

U)
C
t
H
CD

‘4

CD
H
cc
CD

Z
CD
E

B

Mi
H
0

it
HMi
H0
0)
it
H0

C)
CD
H

Mi
0
H

CD
it
Hit
H
0
:5

N)
0
0
H

i-’

o

C
H
‘4

C

4

Cs’

•

LII
X

5
cc
•

r-.
‘

Ho
tS

cc

H-

0
H-

‘

t
Pu
0
H
H
0’
it
0

1<

Q
CD
H
cc
CD

Z
0
E

Mi

o

it

0
C
H

C)

CO
C
‘0
CD
H
H0
H

it
t)’
CD

0’
‘4

CD
a

B

0.’
Mi
Mi
HH

0
0
Z
4
H
C)
it
H0

H
W
‘0
N)

i—’

H

H

m

0’

C)
0
B

0

m

N)

•

LXI
)

•

cc

>

I-’a
it
H0
5

4

C)
0

0
Mi

it

CD

B

ct
0.
‘a

-

H

‘0

H
w

H

N)

C
5
CD

4
C
‘-‘

z’

01
cc

0.’
H
CD

0
ti

‘-‘-

‘0
CD
it
Hit

‘-0

‘0
0
:s
a
H-

it
Z’
CD

0
Mi

cc

cc

0

CD
H
I-’

B

it
H-

0

it

z
o

I-”

it

w

cc
•.

C)
0)
H
0
C
H

Mi
0
H
H
o
*

-a-

cc

H
CD

Z
0)
H

H-

B

a
H

0.

0)

H
‘<

m

H
0
0’
0’

it
H
0)
H

cc

Z

>

•

q
o
H
cc
0
‘4

s

Z
CD

C)
0
C
Z
it
‘4

Mi
0
H

CD
cc

it

a
0.’

‘-3
Y
CD

•

N)

LXI
X
tY’
H0’
Hit

CD
)C

cc

LXI
cc

5

H-

‘0
‘0
H

H

‘4
N)
H

q
C
H

0

it

E
CD
H

i-’
a
t$
01
‘0
‘0
Hz
‘.0

a
CD
‘.0
H
CD
o

Mi
HH
cc
it

Mi

0

C)
0
Z
4
HC)
it
CD
0.

cc

0’

E

5
o
H

it
I-.t
i-a0

‘V
m

IZ
Ia

1c

14
1(j)
I7
10

Il-I
I.

CD
a

cc

Hcc

B

cc

a
H-

0’
CD

Z
HH
H

‘V
0
it
Hit
H0

0

Z’

it

3

3’
CD
H
CD
H-

0’

m

it
0)
it

cc

cc

:5

0

cc

H
CD
0)

CD

it

0
H

‘<

CD

cc

4
C.
CD
H

Z
CD

0
Mi

CD
H
0)
H

CT)
CD

1$
it
it
0
H
5
0
‘4

o

it

0.

0)

cc

X
0
H

•

May 19,

2011

(petition for certification from Mew Jersey

Supreme Court denied)
This habeas petition was filed on October 11,
1)

(ECE No.

Petitioner was advised of his rights pursuant to Mason v.

.

Meyers, 208 P.3d 414
6)

2011

(3d Cir,

2000),

on May 23,

An Order to Answer was issued on August 16,

.

2012
2012

(ECF No.
(ECF No.

8).
On August 28,

2012,

Respondents answered the petition and

filed the state court record,
as an affirmative defense

raising the statute of limitations

(ECE No.

10)

.

Petitioner did not file

a reply or traverse.
II.

SThNDARD OF REVIEW
A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers.

See Estelle v.

Gamble,

Kerner,

520

429 U.S.

(1972)

.

97,

106

(1976);

Haines v.

404 U.S.

519,

A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of
tolerance.

See Royce v,

Hahn,

151 F.3d 116,

118

(3d Cir.

1998);

(3d Cir.

1989);

Lewis v. Attorney General,

878 F.2d 714,

721—22

United States v.

414 F.2d 552,

555

cert.
III.

denied,

Brierley,

399 U.S.

312

(3d Cir.

1969),

(1970)

STATUTE OF LIMITATIONS ANALYSIS

The limitations 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. The
limitation period shall run from
(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;
(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.

Pursuant to § 2244(d), evaluation of the timeliness of a § 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 post—conviction 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 t’. Meyers, 204 F.3d
417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n.1
(3d Cir. 1999); U.S. Sup. Ct. R. 13.
The limitations period is tolled during the time a properly
filed application for state post-conviction relief is pending.
28 U.S.C. § 2244(d) (2). An application for state post-conviction
relief is considered “pending” within the meaning of §
4

2244(d) (2), and the limitations period is statutorily tolled,
from the time it is initially filed “to the final disposition by
the highest court (whether decision on the merits, denial of
certiorari, or the expiration of the period of time to seek
further appellate review).”
Carey

t’.

Swartz, 204 F.3d at 422; see also

Saffold, 536 U.S. 214

(2002).

Nevertheless, “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.
Dist. Attorney of the County of Philadelphia, 247 F.3d 539,

542

(3d Cir. 2001).
Here, without even having to decide whether the limitations
period would have been tolled during the times when Petitioner
sought post-conviction relief of certain state court decisions,
this Court finds that Petitioner allowed his one year
limitations period to elapse. Specifically, more than four years
elapsed between October 9, 2001 (when Petitioner’s time for
seeking a writ of certiorari in the United States Supreme Court
on direct appeal expired) and November 15, 2005

(when his PCR

motion was filed in New Jersey state court). As such, the
tolling provision of § 2244 does not apply to Petitioner—— his
time period had expired prior to his filing of his state PCR
motion.
5

Petitioner has not filed a reply or traverse to challenge
Respondents’ argument that the matter is time—barred. Thus,
while a petitioner may be able to overcome a statutory time bar
if he or she can show that the limitations period did not expire
as determined by this Court, or if he or she can show a basis
for equitable tolling, see Fahy v. Horn, 240 F.3d 239, 244

(3d

Cir. 2001); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999);
Miller v. New Jersey State Dept. of Corrections,

618

145 F.3d 616,

(3d Cir. 1998), Petitioner here has not made such a showing.
“Generally, a litigant seeking equitable tolling bears the

burden of establishing two elements:

(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.s.
408, 416—17

(2005). The Third Circuit instructs that equitable

tolling is appropriate when “principles of equity would make the
rigid application of a limitation period unfair, such as when a
state prisoner faces extraordinary circumstances that prevent
him from filing a timely habeas petition and the prisoner has
exercised reasonable diligence in attempting to investigate and
bring his claims.” La Cava v. Kyler, 398 F.3d 271, 275—76 (3d
Cir. 2005), Mere excusable neglect is not sufficient.
Miller, 145 F.3d at 618—19; Jones, 195 F.3d at 159.

6

See id.;

Extraordinary circumstances permitting equitable tolling
have been found where:
misled;

(1) the petitioner has been actively

(2) the petitioner has been prevented from asserting his

rights in some extraordinary way;

(3) the petitioner timely

asserted his rights in the wrong forum, see Jones, 195 F.3d at
159, or (4) the court has misled a party regarding the steps
that the party needs to take to preserve a claim, see Brinson
Vaughn, 398 F.3d 225, 230

(3d Cir. 2005)

2

ti.

Even where

extraordinary circumstances exist, however, “[i]f the person
seeking equitable tolling has not exercised reasonable diligence
in attempting to file after the extraordinary circumstances
began, the link of causation between the extraordinary
circumstances and the failure to file is broken, and the
extraordinary circumstances therefore did not prevent timely
filing.” Brown
Valverde

ti.

ti.

Shannon, 322 F.3d 768, 773 (3d Cir.)

Stinson, 224 F.3d 129, 134

denied, 539 U.S. 948

(quoting

(2d Cir.2000)), cert.

(2003).

Petitioner has not shown that he exercised reasonable
diligence in light of any extraordinary circumstances and,
2

The Third Circuit
cases, attorney error,
other mistakes are not
to establish equitable
F.3d 159, 163 (3d Cir.
Fahy, 240 F.3d at 244.

has expressly held that, in non-capital
miscalculation, inadequate research, or
the extraordinary circumstances necessary
tolling.
See Johnson ti. Hendricks, 314
2002), cert. denied 538 U.S. 1022 (2003);

7

therefore, has shown no basis for equitable tolling.
Accordingly,
IV.

3
the petition is time-barred and shall be dismissed.

CERTIFICATE OF APPEALABILITY

The Court next must determine whether a certificate of
appealability should issue.
Rule 22.2.

See Third Circuit Local Appellate

The Court may issue a certificate of appealability

only if the petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C.

§ 2253(c) (2). When

a court denies a habeas petition on procedural grounds without
reaching the underlying constitutional claim,

the prisoner must

demonstrate that jurists of reason would find it debatable:

(1)

whether the petition states a valid claim of the denial of a
constitutional right;
its procedural ruling.
(2000)

.

and

(2)

whether the court was correct in

See Slack v.

McDaniel,

529 U.S.

473,

484

“Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case,
reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Id.
For the reasons discussed above,

this § 2254 habeas

petition is time-barred. The Court also is persuaded that
reasonable jurists would not debate the correctness of this
Petitioner may move to reopen this case should he wish to
argue that equitable tolling should apply and toll his
limitations period.

a

conclusion.

Consequently,

a certificate of appealability will

not be issued.
V.

CONCLUSION

For the reasons set forth above,

the Petition must be

dismissed. An appropriate order follows.

CLAIRE C. CECCHI
United States District Judge
Dated:

fl)