JONES v. WARREN et al

Filing 11

OPINION. Signed by Judge Kevin McNulty on 10/15/13. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KEVIN JONES,
Petitioner,

Civ. No. 12-4046 (KM)
OPINION

V.

CHARLES WARREN, et al.,
Respondents.

KEVIN McNULTY, U.S.D.J.
Petitioner, Kevin Jones, is a state prisoner currently incarcerated at New Jersey State
Prison in Trenton, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C.

§

2254. Jones challenges his 1993 conviction for robbery and possession

of a weapon for an unlawful purpose. He was sentenced to life imprisonment with twenty-five
years of parole ineligibility. For the following reasons, the petition will be denied as untimely
under the applicable one-year statute of limitations. 28 U.S.C.
I.

§ 2244(d)(1).

BACKGROUND

Procedural History

The following essential dates appear to be undisputed, except as noted.
Jones was convicted of robbery and weapons charges. On July 9, 1993, he was sentenced.
On March 23, 2000, the New Jersey Superior Court, Appellate Division, granted him leave to
file his otherwise untimely direct appeal mine pro tune. (See Dkt. No. 7-3.) On November 3,
2003, the Appellate Division affirmed Jones’s conviction and sentence. State v. Jones, No. A
4070-99. On January 21, 2004, the New Jersey Supreme Court denied certification of that

appeal. (See Dkt. No. 7-6.) The 90-day deadline for filing a petition to the U.S. Supreme Court
for a writ of certiorari expired on April 20, 2004.
‘i’he sole PCR petition in the record is dated November 1, 2006, over 2 V years later (the
2
“2006 PCR petition”).’ On May 20, 2008, that 2006 PCR petition was denied by the Superior
Court of New Jersey, Law Division. (See Dkt. No. 7-12.) On October 5, 2010, the Appellate
Division affirmed the denial of Petitioner’s 2006 PCR petition. State v. Jones, 2010 WL 3932893
(App. Div. Oct 5, 2010). (See Dkt. No. 7-15.) On March 22, 2012, the New Jersey Supreme
Court denied the petition for certification. State v. Jones, 210 N.J. 27 (2012). (See Dkt. No. 718.)
On June 22, 2012, Jones filed this federal habeas petition. It appeared to the Court that it
might not be timely under the applicable one-year statute of limitations, see 28 U.S.C.

§

2244(d)(1). The one-year limitations period expired on April 20, 2005, and the PCR petition
(which potentially tolled the limitations period) was not filed until November 1, 2006, some
eighteen months later. Jones contends, however, that he attempted to file an earlier PCR petition
on October 30, 2004

—

within the one-year limitations period

--

by delivering it to New Jersey

State prison officials for mailing (the “alleged 2004 PCR petition”). There is no court record of
that petition, and respondents have no record of it. (See Dkt. No. 9 at p. 3.)

This will be deemed the date of filing. Pursuant to the prisoner “mailbox rule,” a petitioner’s
court filing is deemed filed on the date he delivered it to prison officials for mailing. See Houston v.
Lack, 487 U.S. 266, 270-7 1 (1988). When a court is unable to determine the exact date that a prisoner
handed his petition to a prison official for mailing, it will look to the signed and dated certification of the
petition. See Henderson v. Frank, 155 F.3d 159, 163-64 (3d Cir 1998) (using date prisoner signed
petition as date he handed it to prison officials for mailing); Maples v. Warren, No. 12-0993, 2012 WL
1344828, at *1 n.2 (D.N.J. Apr. 16, 2012) (“Often times, when the court is unable to determine the exact
date that a petitioner handed his petition to prison officials for mailing, it will look to the signed and dated
certification of the petition.”). Logically, that is the earliest date it could have been delivered to prison
officials for mailing.
2

On September 12, 2012, I ordered respondents to file an answer confined to the issue of
the timeliness of the habeas petition, attaching relevant portions of the state court record. (Dkt.
No. 3) That order also authorized Jones to file a traverse, deemed to be a supplement to his
petition, on the issue of timeliness, and directed him to attach, or direct the Court to, any
evidence in support of his position. On October 25, 2012, respondents filed their limited answer
and exhibits. (Dkt. Nos. 6, 7) On December 17, 2012, petitioner filed his traverse, together with
an aflidavit of counsel. (Dkt. Nos. 9, 10).
The September 12, 2012 Order

For ease of reference, I here reproduce the most pertinent parts of my September 12,
2012 Order (Dkt. No. 3), which sets the legal and procedural context for this opinion:
6.

The Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”)

provides

that a “1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment
of a State court.”

28 U.S.C.

§ 2244(d) (1).

That one-year limitations

period starts to run from “the date on which the judgment became
final.”

28 U.S.C.

§ 2244(d) (1).

A state-court criminal judgment

becomes “final” within the meaning of § 2244(d) (1)

at 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 a writ of
certiorari in the United States Supreme Court.
204 F.3d 417,
(3d Cir.
7.

419

1999);

(3d Cir.

U.S.

Sup.

2000); Morris v.
Ct.

R.

See Swartz v.

Horn,

187 F.3d 333,

tolling doctrines:

statutory tolling

Merritt v.

326 F.3d 157,

State Dep’tof Corr.,

337 n.l

13

The one-year statute of limitations under § 2244(d)

Blame,

Meyers,

161

145 F.3d 616,

3

...

is subject to two

and equitable tolling.

(3d Cir.
617-18

See

2003); Miller v. N.J.

(3d Cir.

1998).

8.

By statute,

under Section 2244(d) (2),

“[t]he 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”
limitation.

28 U.S.C.

§ 2244(d) (2).

the AEDPA one-year time
Such tolling applies,

however,

only

when the application for state post-conviction review was filed before
the expiration of the limitations period;

filing a new application for

post-conviction relief will not revive an AEDPA limitation period that
has already expired.

Thus,

for example,

no statutory tolling results

if a PCR application is filed more than a year after the litigant’s
judgment became final.
Cir.
9.

2004) ;

As noted,

See Long v.

Schlueter v.

Varner,

Wilson,

393 F.3d 390,

384 F.3d 69,

78-79

394-95

(3d Cir.

(3d

2004)

the AEDPA statute of limitations is also subject to equitable

tolling,

for which the standards are different.

Florida,

130 S.

145 F.3d 616,

Ct.

618

2549

(2010); Miller v. N.J.

(3d Cir.

1998).

“[A]

See Holland v.
State Dep’t of Corr.,

litigant seeking equitable

tolling bears the burden of establishing two elements:
been pursuing his rights diligently,

and

circumstance stood in his way.”
(2005) ;

Ct.

see also Holland,

130 S.

IDiGuglielmo,

2549.

that he has

that some extraordinary

(b)

Pace v.

(a)

544 U.S.

408,

418

The Third Circuit instructs

that equitable tolling is appropriate only when “the 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.

see also Holland,

130 5.

Kyler,
Ct.

398 F.3d 271,

2549

(same)

.

275-276

(3d Cir.

2005);

Excusable neglect is not

sufficient to warrant equitable tolling for purposes of federal habeas
review.

See Id.;

see also Merritt v.
4

Blame,

326 F.3d 157,

168

(3d

Cir.

2003);

Jones v.

Morton,

195 F.3d 153,

159

(3d Cir.

“Extraordinary circumstances” have been found where:
has actively misled the plaintiff;

(b)

1999).

(a)

the respondent

the petitioner has in some

extraordinary way been prevented from asserting his rights;

the

(c)

petitioner has timely asserted his rights mistakenly in the wrong
forum,

see Jones,

195 F.3d at 159;

or

Cd)

the court itself 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,

addition to extraordinary circumstances,

230

(3d Cir.

2005)

.

In

the Petitioner must

demonstrate reasonable diligence in asserting his rights.

“If 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.”
768,

773

(3d Cir.

2003)

Brown v.

(quoting Valverde v.

Shannon,

Stinson,

322 F.3d

224 F.3d 129,

134

(2d Cir.
10.

2000)

Finally,

federal courts “must presume that the factual findings of both

state trial and appellate courts are correct,

a presumption that can

only be overcome on the basis of clear and convincing evidence to the
contrary.”
(3d Cir.
11.

Stevens v.

Delaware Correctional Center,

295 F.3d 361,

368

2002)....

Solely for purposes of setting an outer limit,
without deciding

-

this Court will assume

that the Appellate Division’s grant of Petitioner’s

application to file a direct appeal nunc p tunc in 2000 extended the
period of Petitioner’s direct appeal for purposes of AEDPA
assumption,

On that

Petitioner’s AEDPA limitations period would not have

started running until April 20,

2004

(i.e., the expiration of the 90

day period to seek a writ of certiorari after the Supreme Court of New

5

-

Jersey denied certification on Petitioner’s direct appeal on January
21,

2004)

On that favorable assumption,

.

argument here,

adopted only for purposes of

the pendency of Petitioner’s direct appeal would have

extended the expiration of the one-year AEDPA period through April 19,
2

2005
12.

The question remains whether a petition for post-conviction relief,
filed or pending within the AEDPA limitations period,
expiration of that limitations period.
recitation of procedural history,
filed on November 1,
19,

2005,

2006.

tolled the

According to the state court’s

Petitioner’s sole PCR application was

That was more than 18 months after April

the latest date that Petitioner’s AEDPA period could have

expired under the most favorable assumptions

(see paragraph 11,

If this was indeed the sole PCR application,

it came too late,

above)
and

could not have revived the already-expired limitations period via
statutory tolling; under this scenario,
since April 19,
13.

the Petition has been untimely

2005.

Was this the only PCR application? The state court stated that there
was no PCR application from Petitioner other than the one dated
November 1,

2006.

Petitioner disagrees.

October 30,

2004,

he “mailed a state petition for postconviction relief

(PCR)

to the Superior Court of New Jersey,

See Docket Entry No.
1,

Petitioner states that on

2006,

1,

at 22.

Law Division,

According to Petitioner,

Union County.”
the November

PCR application was a refiling that was necessary because of

“inaction on the initial

[October 30,

Petitioner’s lengthy Petition

2004]

(23-pages,

PCR petition

single-spaced)

.

.

.“

See id.

does not advert

to any independent evidence or offer any further significant
explanation.

2

It now appears that April 20, 2004, not April 19, is the
immaterial to the result.
6

correct

date. The difference is

14.

alleged

The

statutory tolling only if

issue

of a 2004
if

factually

prison

from

Respondents may wish to deal with

infra,

existence

the

Factually,

legally.

and/or

In their additional

“properly filed.”

was

astray,

went

records.

Assuming

that

a

equitable

statutory or

application is one accepted by the

“properly filed”

irrespective of

for placement in the public record,
contained
bar.”
not

in

involve

application

the

Bennett,

Artuz v.
or

discuss

are

531 U.S.
a

4,

8-9

the

Lack held that

the

announced

Court
pro

(2000)

mailing

prison

.

of

a

court

the

“whether the claims

however,
not

was

are

did

contested

487 U.S.

Lack,

“prisoners’

procedural

of

free

it

appeal

held that

has

clerk of

In Houston v.

notices

the

astray,

That case,

mishap;

so-called

se prisoners’

and

meritorious

that the clerk received the petition.
(1988),

Supreme Court

The

tolling.

Even

that for purposes

parties may wish to address the legal consequences of
of

not

ascertainable

went

mailing

prison

or

records.

be

fact of mailing might

the

triggered

have

would

petition

PCR

PCR filing should be ascertainable from court

mailing

a

it

see paragraph 15,

submissions,
this

2004

30,

October

266

mailbox

rule.”

“filed”

at

the

moment of delivery to prison authorities for forwarding to the district
court,
of

delivery

dispute

a prisoner

because

that

to

prison

the

clerk

necessarily

authorities.
had

eventually

loses
In

all

Lack,

received

the only issue was whether the date of mailing,
by the clerk,
15.

...

control
however,

at

the

there

the papers

for

moment
was

filing;

or the date of receipt

should be considered the date of filing.

The Court therefore directs Respondents to file a limited answer

(“Limited Answer”)

addressing,

at this juncture,

solely the issue of

timeliness
16.

Noting Petitioner’s failure to address the issue of equitable tolling
and mindful of Petitioner’s pro se status,

this Court will permit

Petitioner to file a Traverse or response to the Limited Answer.
7

no

That

Traverse will be deemed a supplement to the Petition.
chooses to file such a Traverse,
not contained in the Petition,

If Petitioner

he shall state any additional facts,

that are relevant to the issue of

timeliness.

Any such submission shall be confined to the issue of

timeliness,

and shall attach or direct the Court to any documentary or

other evidence in support of Petitioner’s position.

II.

The statute of limitations for a

DISCUSSION

§ 2254 petition is set forth in 28 U.S.C. § 2244(d), which

states in relevant part:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to a
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;
(2) The time during which a properly filed application for State
postconviction 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.
The one year statute of limitations, then, runs from the date that petitioner’s state court judgment
became final. A judgment becomes final at the conclusion of direct review, or the expiration of
time for seeking such review, including the ninety-day period for filing a petition for writ of
certiorari in the United States Supreme Court. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.

2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999) (noting that state supreme court’s
decision became final after ninety days because the time for seeking certiorari expired).
That one-year limitations period is statutorily tolled during the time in which a properly
filed state PCR petition is pending. See 28 U.S.C.

§ 2244(d)(2). A prisoner’s application for

state collateral review is “properly filed’ when its delivery and acceptance are in compliance
with the applicable laws and rules governing fihings[,j” Artziz v. Bennett, 531 U.S. 4, 8 (2000)
8

(emphasis omitted), including “time limits, no matter their form[.]” Pace v. DiGigulielmo, 544
U.S. 408, 417 (2005). Thus, if a state court determines that a PCR application is untimely, it will

not statutorily toll AEDPA’s limitation period, “regardless of whether [the state court] also
addressed the merits of the claim, or whether its timeliness ruling was entangled with the
merits.” (‘urey v. Sqj’jold, 536 U.S. 214, 226 (2002). However, “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.” Jenkins v. Superintendent of Laurel Highlands,
705 F.3d 80, 85-86 (3d Cir. 2013) (quoting Evans v. Chavis, 546 U.S. 189, 198 (2006)).
In this case, petitioner’s state court judgment became final on April 20, 2004, ninety days
after the New Jersey Supreme Court denied certification on petitioner’s direct appeal nunc pro
3
tune. Accordingly, unless the statute of limitations was tolled, it expired a year later, on April
20, 2005.

Jones filed the 2006 PCR petition on November 1, 2006, well after the AEDPA statute of
limitations expired in April 2005. Statutory tolling is therefore unavailable; a period that has
already expired cannot be suspended or tolled. See Long v. Wilson, 393 F.3d 390, 394-95 (3d
Cir. 2004) (state post-conviction relief petition had no effect on tolling because the limitations
period had already run when it was filed).
In the alternative, however, the petitioner may be able to overcome the time bar if he can
show a basis for equitable tolling. “There are no bright lines in determining whether equitable
tolling is warranted in a given case.” See Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011),
cert. denied, Kerestes v. Pabon, U.S.
-

-,

132 5. Ct. 2430 (2012). “[Tjhe particular circumstances

of each petitioner must be taken into account,” Id., and each decision made on a case-by-case
I make the very petitioner-favorable assumption that the Appellate Division’s acceptance of
petitioner’s direct appeal nunc pro tune, some seven years after petitioner’s conviction, retroactively
rendered it timely for purposes of AEDPA.
9

basis. See Hollandv. Florida, 560 U.S. 631, 130 S. Ct. 2549, 2563 (2010). “[E]quitable tolling
is appropriate when the principles of equity would make rigid application of a limitations period
unfair, but.

.

.

a court should be sparing in its use of the doctrine.” Ross v. Varano, 712 F.3d

784, 799 (3d Cir. 2013) (citing Pabon, 654 F.3d at 399; Jones v. Morton, 195 F.3d 153, 159 (3d
Cir. 1999)) (footnote omitted).
“Generally, a litigant seeking equitable tolling [of the AEDPA’s statute of limitations]
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, 544 U.S. at 418; see also
Jenkins, 705 F.3d at 89.

The diligence that is the first requirement for equitable tolling must be reasonable under
the circumstances:
The diligence required for equitable tolling purposes is reasonable
diligence, not maximum, extreme, or exceptional diligence.
Holland, 130 S. Ct. at 2565. “This obligation does not pertain
solely to the filing of the federal habeas petition, rather it is an
obligation that exists during the period appellant is exhausting state
court remedies as well.” LaCava v. Kyler, 398 F.3d 271, 277 (3d
Cir. 2005) (citing Jones, 195 F.3d at 160). A determination of
whether a petitioner has exercised reasonable diligence is made
under a subjective test, it must be considered in light of the
The fact that a petitioner
particular circumstances of the case.
pro se does not insulate him from the “reasonable
is proceeding
diligence” inquiry and his lack of legal training does not alone
justify equitable tolling. See Brown v. Shannon, 322 F.3d 768, 774
(3d Cir. 2003).
.

.

.

Ross, 712 F.3d at 799-800 (internal citations and footnote omitted).

The second requirement, an “extraordinary circumstance,” may be found where (1) the
petitioner has been actively misled; (2) the petitioner has in some extraordinary way been
prevented from asserting his rights; or (3) where the petitioner has timely asserted his rights in
the wrong forum. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing Jones, 195 F.3d at
10

159). However, “[i]n non-capital cases, attorney error, miscalculation, inadequate research, or
other mistakes have not been found to rise to the ‘extraordinary’ circumstances required for
equitable tolling.” Id. (citations omitted).
Jones contends that he has in some extraordinary way been prevented from asserting his
rights. (He does not claim that anyone actively misled him or that he timely asserted his rights in
an improper forum.) He seeks equitable tolling from October 30, 2004, to November 1, 2006,
based on the following alleged facts: On October 30, 2004, before the AEDPA statute of
limitations expired, he handed to New Jersey State prison officials a state PCR petition for
mailing. (See Dkt. No. 9 at p. 3.) The prison officials, he says, never mailed this 2004 alleged
PCR petition to the state court. He attempted to ascertain the status of his alleged 2004 PCR
petition several times, but it was not until September 2006 that he learned that “the October 2004
petition had not been filed.” (Id) Thus, according to the petitioner, the 2006 PCR petition was
actually a replacement for the earlier, lost petition. (Id.) Jones contends that, because his alleged
timely filing of the 2004 petition was obstructed for reasons beyond his control, the time between
the 2004 and 2006 petitions should be subject to equitable tolling.
For the following reasons, these allegations fail to establish that petitioner is entitled to
equitable tolling. There is neither a sufficient record of the filing (or attempted filing) of the
alleged 2004 PCR petition, nor evidence that the petitioner exercised reasonable diligence.
Saleem v. Hendricks, 306 F. App’x 739 (3d Cir. 2009), though not precedential, is
suggestive as to both issues. There, a prisoner’s deadline to file a federal habeas petition was
September 16, 1997. He timely filed his first federal habeas petition, but the federal court entered
an order dismissing it without prejudice so that he could exhaust his claims in state court. See Id.
at 740. Because of a problem with the mail system, Saleem did not receive a copy of that federal

11

court order until July 7, 1999, about 11 months after it was signed. See id. Saleem delayed
another 20 months, until March 2001, before filing a state PCR petition, in an attempt to exhaust
his claims. The state court denied the PCR petition, finding it untimely and also finding that the
grounds therein should have been raised on direct appeal. See id.
Saleem returned to federal court to renew his habeas petition. Arguing for equitable
tolling, Saleem asserted that he had filed another, pro se PCR petition in state court in October
1999. That date, which fell 3 months (rather than 20 months) after he received the federal court
order returning him to state court, would perhaps have been timely. The Third Circuit, however,
affirmed the district court’s rejection of Saleem’s equitable tolling argument:
Though Saleern claims he filed apro se post-conviction petition in
October 1999, there is nothing in the record to support that
assertion. [FN 1] The burden lies on the petitioner to prove that
he has been reasonably diligent in pursuing his petition, see
Urcinoli v. Cathel, 546 F.3d 269, 277 (3d Cir. 2008), and Saleem
has presented no evidence that would indicate that he was
reasonably diligent because unsupported allegations do not
constitute sufficient evidence. See Morse v. Lower Merion Sch.
Disi., 132 F.3d 902, 906 (3d Cir. 1997).
[FN 11 Saleem’s appellate brief does not allege that
he tiled a petition in October 1999. Rather, the
State’s appellate brief alludes to such a filing and
the District Court’s opinion below discussed the
factual dispute regarding the October 1999 petition.
To its credit, the State acknowledges Saleem’s
contention at the District Court that he filed apro se
post-conviction petition on October 1, 1999. No
documents relating to this alleged filing are in the
record and none were found by the State. However,
there is a letter, dated July 17, 2000, from the Office
of the Public Defender to the New Jersey state court
that indicates that Saleem filed apro se petition on
an unspecified date. The State correctly argues that
this record is insufficient to show that Saleem
actually filed a petition in 1999.
Saleem, 306 F. App’x at 741.
12

Adopting the approach of Saleem, I find that petitioner Jones in this case has not
presented sufficient evidence that he ever attempted to file the alleged 2004 PCR petition or, in
any case, that he was reasonably diligent in pursuing his rights and meeting applicable deadlines.
As noted above, I entered an order in which I instructed the petitioner as to the law governing the
equitable tolling issue; invited him to submit any and all facts and evidence to support equitable
tolling; and suggested the sort of proofs that might be submitted. Petitioner has neither presented
nor directed me to sufficient proofs.
Jones states, long after the fact, that he attempted to file a state PCR petition on October
30, 2004. He does not present a copy of the alleged October 30, 2004 PCR petition. He does not
offer any record, from the prison or otherwise, of his attempt to mail it. He does not offer any
documentary or other evidence of his claimed attempts to ascertain the status of the alleged 2004
PCR petition.
What Jones does submit is the affidavit of an attorney, Paul Casteleiro, Esq., dated
December 18, 2012 Casteleiro states that, at the request of Jones’s family, he visited Jones in
prison in the fall of 2004. Casteleiro states that Jones told him in 2004 that he “feared” that his
outgoing legal mail was not being posted by the institution. According to Casteilero, Jones also
said that his papers were being lost or destroyed, accidentally or in retaliation, in connection with
his many moves within the prison, which were connected to alleged institutional infractions. (See
Dkt.No. l0atp. 1.)
Jones’s general complaint that he feared his legal mail was being obstructed falls far short
of evidence that he attempted to file a PCR petition in 2004. The affidavit is most notable for
what it does not include. There is no reference to any attempt to file a PCR petition, a specific
concern that Jones naturally would have raised if it were the case. The visit from Casteilero, at

13

the request of Jones’s family, suggests that Jones had contact with the outside world and some
means of checking on whether his mail was getting through. Indeed, Jones’s statements to
Casteilero indicate that he was alerted to the possibility or likelihood that his mail was being
obstructed; under the circumstances, he should have checked or had someone check on his PCR
filing. If prison officials had purposely not forwarded his PCR petition, as Jones claimed, that
would have been wrongful, to be sure. But it also would have alerted Jones to the need to
confirm that his papers had been filed and he had met the relevant deadline.
What is left of Jones’s equitable tolling argument is essentially an unsupported allegation.
This does not constitute sufficient evidence to show that he in fact sent a PCR in October 2004,
or that, having done so, he was reasonably diligent in in pursuing his claims. See Saleem, supra
(citing Morse, 132 F.3d at 906); see also Nelson v. Superintendent ofSCI-Huntingdon, No. 071453, 2009 WL 918097, at *5..6 (W.D. Pa. Apr. 2, 2009) (finding that petitioner was not

reasonably diligent in pursuing his claims when he failed to provide sufficient evidence that he
was checking to see if his petition for allowance of appeal had been denied by the Pennsylvania
Supreme Court).
Jones asserts that prison officials destroyed or lost legal documents and papers he had
kept. Casteilero, in his affidavit, confirms that he sent certain papers to Jones in 2004, and that
he sent Jones a second set of trial transcripts in May 2005. Nevertheless, Jones did not actually
file a PCR petition until November 1, 2006. This, too, indicates a lack of reasonable diligence.
Even if the mislaying of the PCR petition in October 2004 were an extraordinary circumstance,
Jones’s subsequent failure to follow up would break the chain of causation and disqualify his
case from equitable tolling: “If the person seeking equitable tolling has not exercised reasonable
diligence in attempting to file after the extraordinary circumstances began, the link of causation

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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)). Petitioner is not
entitled to equitable tolling.
As neither statutory nor equitable tolling saves the petition, the petition will be denied as
untimely under the one-year AEDPA statute of limitations. 28 U.S.C.
III.

Pursuant to 28 U.S.C.

§

2244(d)(l).

CERTIFICATE OF APPEALABILITY

§ 2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C.

§

2254. A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2).

“A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). Applying that standard, the Court declines to issue a certificate of appealability in this
case.
IV.

CONCLUSION

For the foregoing reasons, the habeas petition will be denied as untimely, and a certificate
of appealability will not issue. An appropriate order will be entered.

DATED: October 15, 2013
KEVIN McNULTY
United States District Judge

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