BUTLER v. HOLMES et al
OPINION fld. Signed by Judge Claire C. Cecchi on 9/15/13. (sr, )
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 12-4681 (C CC)
CHRISTOPHER HOLMES, et a!.,
CECCHI, District Judge:
Petitioner Hakiem Butler (“Petitioner”), confined at South Woods State Prison in
Bridgeton, New Jersey, files the instant Petition for a Writ of Habeas Corpus (“Petition”) pursuant
to 2$ U.S.C.
§ 2254, challenging a sentence imposed by the State of New Jersey for robbery and
carjacking. Respondents Christopher Holmes and Ann Milgram (“Respondents”), in their Answer,
argue that the Petition is untimely. For reasons stated below, the Court denies the Petition as timebarred.
The Court recites only those facts relevant to this Opinion. Petitioner was convicted and
sentenced by the State of New Jersey for robbery, carjacking, and firearm offenses on March 24,
2000, after a jury trial. (ECF No. 10-2 at 2.) An appeal was filed challenging the conviction and
sentence, and they were affirmed on february 21, 2002. (ECF No. 10-4 at 2.) Certification was
denied by the New Jersey Supreme Court on May 22, 2002. (ECF No. 10-5 at 2.).
Thereafter, on September 11, 2002, Petitioner filed for post-conviction relief (“PCR”).
(ECF No. 1-1 at 3.) Petitioner’s request for PCR was denied on July 3, 2008. (ECF No. 10-7 at
2.) An appeal from the PCR denial was filed out-of-time on June 18, 2009. (ECF No. 10-9 at 2.)
The denial of PCR was affirmed on August 31, 2011. (ECF No. 10-14 at 2.) The New Jersey
Supreme Court denied certification on February 9, 2012. (ECF No. 10-17 at 2.) On July 26, 2012,
Petitioner filed the instant Petition, which was not dated, although a letter submitted to the Court
along with the Petition was dated July 20, 2012. (ECF No. 1-1.) Respondents filed an Answer on
february 13, 2013. (ECF No. 9.)
A. Statutory Tolling
Title 28, Section 2244 of the U.S. Code 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). In most cases and in this particular case, the one-year
period begins on “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). Based on the
statutory language, the Supreme Court held that even when a defendant does not file a petition for
certiorari with the United States Supreme Court on direct review, the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) one-year limitations period starts to run when the time for
seeking such review expires. Gonzalez v. Thaler, 132 S. Ct. 641, 653 (2012); Clay v. United States,
537 U.S. 522, 532 (2003); Gibbs v. Goodwin, No. 09-1046, 2009 WL 1307449, at *2 (D.N.J. May
1, 2009) (citing Swartz v. Meyers, 204 f.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187 f.3d
333, 337 n. 1 (3d Cir. 1999)) (holding that the period of direct review “include[s] the 90-day period
for filing a petition for writ of certiorari in the United States Supreme Court”).
However, “[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 any period of limitation under this subsection.” 28 U.S.C.
§ 2244(d)(2). In other
words, while a valid state post-conviction review is pending, the one-year limitation is tolled. This
tolling does not include any petition for writ of certiorari in the United States Supreme Court for
review of a denial of post-conviction relief. Jenkins v. Superintendent ofLaurel Highlands, 705
F.3d 80, 85 n.5 (3d
cir. 2013) (citing Lawrence v. florida, 549 U.S. 327, 332 (2007)). Overall,
“AEDPA’s limitation period ‘does not set forth an inflexible rule requiring dismissal whenever its
clock has run.” Id. at 84-85 (quoting Holland v. Florida, 560 U.S. 631, 645 (2010)). Rather, the
limitations period is subject to both statutory and equitable tolling. Id. at 85. If a denial of postconviction relief is appealable in state court but an appeal was not filed, statutory tolling includes
“the time during which an appeal could be filed even if the appeal is not eventually filed.” Swartz,
204 F.3d at 424 (3d Cir. 2000). However, if an out-of-time appeal is filed, even if the appeal is
accepted as properly filed by the state appeals court, statutory tolling does not include the period
between the expiration of timely appeal and when the appeal was actually filed. Id. at 423 n.6
agree that the time during which Swartz’s nunc pro tunc request for allowance of appeal
was pending does not toll the statute of limitation.”).
Here, Respondents argue that the Petition is time-barred by AEDPA’s statute of limitations.
The Court agrees. Petitioner’s conviction and sentence was final, for the purposes of AEDPA’s
statute of limitations, 90 days after the New Jersey Supreme Court denied certification on his direct
appeal, which was August 20, 2002. Petitioner filed for PCR on September 11, 2002, so his statute
of limitations ran for 22 days for this short delay, at which point it was tolled for the duration of
his PCR application. His PCR application was denied on July 3, 2008, and no timely appeal was
filed. This means that his statutory tolling under AEDPA began to run again at the expiration of
his time to appeal the trial court’s PCR decision, which was 45 days after the denial
200$. See N.J. Court Rules, R. 2:4-4(a); Lombardi v. Masso, 207 N.J. 517, 540-41 (2011).
As such, his one-year limitations period ran from August 17, 200$, until when he finally
filed his notice of appeal on June 1$, 2009, for a period of 305 days. Assuming that the appeal
was accepted by the state court as properly filed, the one-year limitations period was tolled again,
until the New Jersey Supreme Court denied certification on February 9, 2012. See Gibbs v.
Bartkowsld, No. 13-2242, 2015 WL 1881061 (3d Cir. Apr. 17, 2015). At that point, 327 days had
run from the one-year limitations period, so Petitioner had 38 days, or until March 18, 2012, to file
a timely habeas petition with this Court. As stated above, although the Petition was not dated, the
accompanying letter was dated July 20, 2012, so the Court finds that the Petition, for the purposes
of the statute of limitations issue, was filed on that day. Therefore, the Petition is statutorily timebarred.
B. Equitable Tolling
Even if the statutory time bar has passed, Petitioner may overcome that limitation if he can
show a basis for equitable tolling. Gibbs, 2009 WL 1307449, at *3; Fahy v. Horn, 240 F.3d 239,
244 (3d Cir. 2001). “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
circumstances stood in his way.” Ross v. Varano, 712 f.3d 784, 798 (3d Cir. 2013) (citations
omitted). “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 wrong forum,
or (4) the court has misled a party regarding the steps that the party needs to take to preserve a
claim.” Gibbs, 2009 WL 1307449, at *3 (internal citations omitted).
“The diligence required for equitable tolling purposes is reasonable diligence.” Ross, 712
f.3d at 799. “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.” Id. “The fact that a petitioner is proceeding pro se does not insulate him from the
‘reasonable diligence’ inquiry and his lack of legal knowledge or legal training does not alone
justify equitable tolling.” Id. at 800.
Here, Petitioner makes a single argument for equitable tolling that he was prevented from
filing a timely federal habeas petition afier exhausting state court remedies, because prison
officials caused a 161-day delay in responding to his request for a prison account statement, for
the purposes of Petitioner’s informapauperis application. (ECF No. 1-2.) However, the docket
shows that there was no need for an informa pauperis application; Petitioner submitted his fivedollar filling fee with his Petition. (See ECF No. 1.) Therefore, there was no actual impediment
to Petitioner’s filing of the Petition, regardless of how much delay prison officials might have
caused in responding to Petitioner’s request for an account statement. That Petitioner made a
mistake in believing that an informa pauperis application was needed to file his Petition is not a
valid ground for equitable tolling. See Ayers v. Phelps, 723 F. Supp. 2d 718, 722 (D. Del. 2010)
(“[A] petitioner’s lack of legal knowledge or miscalculation regarding the one-year filing period
does not constitute an extraordinary circumstance triggering equitable tolling.”); Lewis
672 F. Supp. 2d 669, 674 (D. Del. 2009); Covert v. Tennis, No. 06-421, 2008 WL 4861449, at *5
(M.D. Pa. Nov. 7, 2008) (“[I]gnorance of the law, even for an incarcerated pro se petitioner,
generally does not excuse prompt filing.”).
Furthermore, as described above, the bulk of the delay that occurred in this case was due
to Petitioner’s untimely appeal of his PCR denial, for which Petitioner offers no justification.
Although Petitioner’s mistake was unfortunate and he is not entitled to equitable tolling, that
mistake might not have been fatal to the Petition had Petitioner diligently pursued his state court
remedies—without the 305-day delay in the PCR appeal, the alleged 161-day delay in filing the
Petition would still have been well within the one-year limitations period under AEDPA. As such,
Petitioner cannot place the blame of his untimely filing on the prison officials. See Rinaldi v.
Gulls, 248 F. App’x 371, 381 (3d Cir. 2007) (finding that equitable tolling was not warranted for
the alleged extraordinary circumstance that occurred in state PCR proceedings, when the petitioner
still had one-and-one-half month left to file a federal habeas petition after exhausting state
remedies). Accordingly, the Court finds that equitable tolling is not warranted, and the Petition is
time-barred by AEDPA.
C. Certificate of Appealability
Finally, the Court denies a certificate of appealability. 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). In Slackv. McDaniel, 529
U.S. 473, 484 (2000), the United States Supreme Court held that “(w]hen 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
Here, the Court denies a certificate of appealability pursuant to 28 U.S.C.
because jurists of reason would not find it debatable that dismissal of the Petition is correct.
For the reasons set forth above, the Petition is DENIED as time-barred.
Claire C. Cecchi, U.S.D.J.
Dated: September i, 2015
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