SHABAZZ v. HASTINGS et al

Filing 9

OPINION. Signed by Judge Dennis M. Cavanaugh on 6/24/13. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

OMARI SHABAZZ,
Civil Action No. 12-3487 (DMC)
Petitioner,
v.

OPINION

BEVERLY HASTINGS, et a!..
Respondents.
APPEARANCES:
OMARI SHABAZZ, Petitioner pro se
270622 / 970732A
East Jersey State Prison
Lock BagR
Rahway, N.J. 07065
CAVANAUGH, District Judge
Petitioner Oman Shabazz (“Petitioner”), a prisoner currently confined at East Jersey State
Prison in Rahway, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C.

§ 2254 challenging his convictions for robbery.

The Respondents are Beverly 1-lastings

and the Attorney General of the State of New Jersey.
By Opinion and Order (Docket Entry Nos. 3-4) entered November 14, 2012, Petitioner was
directed to show cause why this Petition should not be dismissed with prejudice as untimely.
Petitioner has filed his Response (Docket Entry No. 7) and this matter is now ready for decision.
I. BACKGROUND
The relevant facts underlying Petitioners conviction are set forth in the opinion of the

Superior Court of New Jersey, Appellate Division.’
An armed assailant robbed four retail stores at gunpoint between December 27.
1993 and January 6, 1994. The stores were within a three block area, and the same
modus operandi was employed in each case.

Defendant was apprehended immediately after the last robbery, apparently while
he was attempting to flee the scene of the crime.
State of New Jersey v. Shabazz, A-0203-10T2 (N.J. Super. Ct. App. Div. Oct. 5, 2011).
At the conclusion of a jury trial, Petitioner was convicted of three counts of first degree
robbery, N.J.S.A. 2C:15-1; three counts of second degree possession ofa weapon for an unlawful
purpose. N.J.S.A. 2C:39-4a: and three counts of third degree unlawful possession of a weapon.
NJ.S.A. 2C: 59-5b. Id. The trial court sentenced Petitioner to consecutive fifteen year terms in
prison with five years parole ineligibility for the robbery convictions and concurrent terms of five
years in prison for the weapons convictions. Id
On direct appeal, the Superior Court of New Jersey, Appellate Division, affirmed the
conviction and sentence. Slate v. Shabazz. No. A-5761-94 (App. Div. June 13, 1997). The
Supreme Court of New Jersey denied certification on September 9, 1997. Slate

i’.

Shaha;. 151

N.J. 468 (1997). Petitioner did not seek a writ of certiorari from the United States Supreme CourL
Petitioner filed his first state petition for post-conviction relief (“PCR”) on April 21, 1999,
(Pet.

¶

1 1(a)(3).) According to the Petition, Petitioner’s PCR petition was dismissed without

prejudice on that same day for failure to file a brief. (Id. at ¶ il (a)(8).)
Petitioner filed his second state petition for post-conviction relief on January 3. 2000. (Id.

‘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.”

at ¶ 1 l(b)(3),) His petition was denied on December 16, 2009. (Id. at ¶ 11 (b)(8).) The
Appellate Division affirmed the denial and the New Jersey Supreme Court denied certification on
March 20, 2012. (Pet, Att. 5.)
On June 3, 2012, Petitioner filed the instant petition.
2
II. DISCUSSION
A. Legal Standard
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28

U.S.C.

§ 2254 now provides, in pertinent 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.
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, “[fjederal courts are authorized to dismiss summarily any habeas petition that

appears legally insufficient on its face.” McFarlandv, Scott, 512 U.S. 849, 856 (1994). See also
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts C’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
A pro se pleading is held to less stringent standards than more formal pleadings drafted by

pro se prisoners habeas petition is deemed filed at the moment he delivers it to prison
officials for mailing to the district court.” Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998)
(citing Houston v. Lack, 487 U.S. 266 (1988)).

lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Names v. Kerner, 404 U.S. 519. 520
(1972). 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); Lewis v.
Attorney General, 878 F.2d 714,721—22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969). Nevertheless, 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 Lonchar v.
Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37,45 (3d Cir. 1985).
B. Analysis
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. 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 ofthe Constitution or laws ofthe
United States is removed, ifthe 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.

Here, Petitioner alleges no facts or arguments suggesting a later starting date than the date
the challenged judgment became final, under 28 U.S.C.
timeliness of this

§

§ 2244(d)(1)(A).

Thus, evaluation of the

2254 petition requires determination of. first, when the pertinent judgment

became “tinal,” and, second, the period of time during which any application for state
post-conviction relief was “properly filed” and “pending.”
A state-court criminalj udgrnent 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
Sw’ariz v.

Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn. 187 F.3d 333, 337

ii.

I (3d

Cir. 1999); U.S. Sup.Ct. R. 13.
Here, the challenged judgment became “final,” and the federal habeas limitations period
began to run on December 9, 1997, which is ninety days after September 9, 1997, the date the
Supreme Court of New Jersey denied certification in Petitioner’s direct appeal. Thus, Petitioner
had until December 9, 1998 to file his federal habeas petition, unless there were grounds for
tolling.
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, 531 U.S. 4, 8—9 (2000) (citations and footnote omitted) (finding that a petition
was not “[imjproperly filed” 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, 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. Safjöld, 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 courts decision and the filing of a notice of appeal to a
higher court, Carey v. Sa/jöld, 536 U.S. 214 (2002), and through the time in which an appeal could
be filed, even if the appeal is never filed, Swarlz v. Meyers, 204 F.3d at 420—24. More
specifically, “[t]he time that an application for state post conviction review is ‘pending’ includes
the period between (1) a lower court adverse determination, and (2) the prisoners filing of a
s
t
notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans
v. Chavis, 546 U.S. 189, 191 (2006) (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.

District Attorney ofthe Cnty. ofPhiladelphia, 247 F.3d 539, 542 (3d Cir. 2001).
Here, to permit tolling of the one-year limitations period under 28 U.S.C.

§ 2244(d)(2),

Petitioner would have had to file his state PCR petition before the one-year period had expired, or
before December 9, 1998. Otherwise, the state PCR petition would not serve to toll the statute of

limitations. Petitioner did not file his first PCR petition until April 21, 1999, well after the statute
of limitations had already expired.
While Petitioner does not dispute any of the foregoing dates or findings, he, nevertheless,
contends that the limitations period should be equitably tolled. Petitioner states that he does not
know anything about criminal law and did not always have access to a law library, but despite this,
he did his best to pursue his case with due diligence.
As stated in this Court’s prior opinion, the limitations period of § 2244(d) is subject to
equitable tolling. “Generally, a litigant seeking equitabletolling 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.” LaCava v. Kyler, 398
F.3d 271,275—76 (3d Cir. 2005). Mere excusable neglect is not sufficient. Id.; Miller, 145 F.3d
at 618—19; Jones. 195 F.3d at 159.
Extraordinary circumstances permitting equitable tolling have been found where: (1) the
petitioner has been actively misled; (2) the petitioner has been prevented from asserting his rights
in some extraordinary way; (3) the petitioner timely asserted his rights in the vrong 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 v. Vaughn, 398 F.3d 225,230 (3d Cir. 2005). 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 v. Shannon, 322
F.3d 768,773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
This Court finds that Petitioner is not entitled to equitable tolling on the grounds that he
asserts, namely, that he knows nothing about criminal law and did not always have access to a law
library. First, Petitioner cannot claim his ignorance ofthe law or a miscalculation ofthe statute of
limitations to excuse his late habeas petition under equitable tolling. Federal courts have
consistently held that miscalculation of the time remaining on a limitations period does not
constitute extraordinary circumstances to permit equitable tolling. See Fahey, 240 F.3d at 244;
see also Johnson v. Hendricks, 314 F.3d 159, 161, 163 (3d Cir. 2002), cert denied, 538 U.S. 1022
(2003). Furthermore, even if Petitioner was ignorant of the fact that his limitations period began
to run on December 9, 1997, this ignorance of the law, even for an incarcerated pro se petitioner,
generally does not excuse prompt filing. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999).
Courts have been loathe to excuse late filings simply because a pro se prisoner misreads or
misunderstands the law. Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (“While judges are
generally lenient with pro se litigants, the Constitution does not require courts to undertake heroic
measures to save pro se litigants from the readily foreseeable consequences of their own
inaction.”); see also Jones, 195 F.3d at 159—60.
Petitioner claims that he is entitled to equitable tolling because he “did not always have
access to the law library.” “However, without providing a good ground for viewing these
conditions as an extraordinary circumstance impeding [Petitioner] from filing a timely § 2254

Petition, such conditions of confinement do not evidence the rare and extraordinary circumstances
that justify equitable tolling.” Douglas v. Beard, No. 004935,2002 U.S. Dist. LEXIS 6406,
2002 WL 550474, at .5 (E.D.Pa. Apr. 12, 2002); see also Garrick v. Vaughn, No. 00-4845,2003
U.S. Dist. LEXIS 26203,2003 WL 22331774, at 4 (E.D.Pa. Sept. 5, 2003) (“Routine aspects of
prison life such as lockdowns

...

do not constitute extraordinary circumstances sufficient to

equitably toll the statute of limitations.”) (citation and internal quotations omitted); Washington v.
Byrd, No. 00-6389,2002 U.S. Dist. LEXIS 5010,2002 WL 461729, at 7 (E.D.Pa. Mar. 22, 2002)
(holding that lockdown and limited library access do not justify equitable tolling). Furthermore.
“the petitioner [must] demonstrate a causal relationship between the extraordinary circumstances
on which the claim for equitable tolling rests and the lateness of his filing.” Brown, 322 F.3d at
773 (quoting Valverde v. Stinson, 224 F.3d at 134). Petitioner does not explain when this “limited
access” occurred or how these circumstances affected his ability to file his federal habeas petition,
especially considering the fact that he was able to file his first state petition for post-conviction
relief on April 21, 1999. As such, Petitioner has not demonstrated that (1) he had been actively
misled by state officials; (2) he had been prevented from asserting his rights in some extraordinary
way; (3) he timely asserted his rights in the wrong forum, see Jones, 195 F.3d at 159, or (4) the
court had misled him regarding the steps that he needed to take to preserve a claim, see Brinson v.
Vaughn, 398 F.3d at 230.
Therefore, the Court concludes that the habeas petition is time-barred and this habeas
petition will be dismissed with prejudice accordingly.
III. CERTIFICATE OF APPEALABILITY
The Court next must determine whether a certificate of appealability should issue. See
Third Circuit Local Appellate Rule 22.2. 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; and (2) whether the court was correct in its procedural ruling. Slack v. icDaniel. 529 U.S.
473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a 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 clearly

time-barred. The Court also is persuaded that reasonable jurists would not debate the correctness
of this conclusion. Consequently, a certificate of appealability will not be issued.
IV.

CONCLUSION
For the foregoing reasons, this Court finds that the petition for a writ of habeas corpus

under 28 U.S.C.

§

2254 is time-barred pursuant to 28 U.S.C.

appealability will issue pursuant to 28 U.S.C.

§

§

2244(d). No certificate of

2253(c)(2). An appropriate order follows.

Dated:

United States Distric