WESSEL v. WARREN et al
OPINION. Signed by Judge Claire C. Cecchi on 10/27/2017. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 12-7853 (CCC)
CHARLES WARREN, et al.,
CECCHI, District Judge:
Petitioner Albert Wessel (“Petitioner”), confined at New Jersey State Prison in Trento
New Jersey, files the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
(“Petition”), challenging a sentence imposed by the State of New Jersey for murder
robbery. For reasons stated below, the Court denies the Petition as time-barred.
The Court recites only those facts relevant to this Opinion. On July 13, 2005, Petitioner
was convicted and sentenced by the State of New Jersey for knowing and purposeful
felony murder, armed robbery, burglary theft, possession of a weapon for an unlawf
and possession of a weapon not manifestly appropriate for its use, after a jury trial. (ECF
No. 1 at
2-3). An appeal was filed challenging the conviction and sentence, and both were
June 20, 2007. (Id. at 3). Certification was denied by the New Jersey Supreme Court
26, 2007. State v. Wessel, 192 N.J. 482 (2007).
Thereafter, according to Respondents, Petitioner filed for post-conviction relief
on May 16, 2008. (ECF No. 11 at 15). His PCR request was denied on November
3, 2008, and
affirmed on May 21, 2010. State v. Wessel, No. A-1807-08T4, 2010 WL 2010856,
at *1 (N.J.
Super. Ct. App. Div. May 21, 2010). Certification was denied by the New Jersey Suprem
on October 21, 2010. State v. Wesset, 204 N.J. 41(2010). While his first PCR applica
still before the New Jersey Supreme Court, Petitioner filed a second PCR application
on July 28,
2010. Statev. Wesset, No. A-1397-10T4, 2011 WL 5105458, at *1 (N.J. Super. Ct.
App. Div. Oct.
28, 2011). On September 15, 2010, the trial court denied the second PCR applica
tion, and the
denial was affirmed on October 28, 2011. Id. Certification was denied by the New Jersey
Court on October 25, 2012. State v. Wessel, 212 N.J. 432 (2012). Petitioner then filed
Petition dated December 14, 2012. (ECF No. 1 at 15).
A. Statutory Tolling
Title 28, Section 2244 of the U.S. Code requires that “[a] 1-year period of limitation
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). Inmost cases and in this particular case, the one-year
period begins on “the date on which the judgment became final by the conclusion of
or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). Based on this
statutory language, the Supreme Court held that when a defendant does not file
a petition for
certiorari with the United States Supreme Court on direct review, the Antiterrorism
Death Penalty Act of 1996’s (“AEDPA”) one-year limitations period starts to
run when the time
for seeking such review expires. Gonzalez v. Thaler, 565 U.S. 134, 149 (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 90day 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.” 2$ 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
review of a denial of post-conviction relief. See Jenkins v. Superintendent ofLaurel Highlands,
705 F.3d 80, 85 n.5 (3d Cir. 2013) (citingLawrence v. florida, 549 U.S. 327, 332 (2007)). Overal
“AEDPA’s limitation period ‘does not set forth an inflexible rule requiring dismissal whene
“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. See Id. at 85.
Here, Respondents argue that the Petition is time-barred by AEDPA’s statute of limitations.
The Court agrees. For the purposes of AEDPA’s statute, of limitations, Petitioner’s conviction
sentence became final 90 days after the New Jersey Supreme Court denied certification on his
direct appeal on September 26, 2007, i.e., December 25, 2007. Petitioner then filed his first
application, and ultimately relief was denied when the New Jersey Supreme Court decline
certification on October 21, 2010. The instant Petition, on the other hand, was dated Decem
14, 2012. Had Petitioner’s pursuit of state court remedies ended with his first PCR applica
the instant Petition would be statutorily time-barred, because it was filed over two years after the
denial of certification; statutory tolling would have ended at the conclusion of PCR review
Nevertheless, as noted, while Petitioner’s first PCR application was still pending before
the New Jersey Supreme Court, Petitioner filed a second PCR application on July 28, 2010.
September 15, 2010, the trial court denied the second PCR application on the ground that the
application failed to satisfy any of the prerequisites under New Jersey Court Rules, R. 3:22-4(b)(2)
for second or subsequent petitions for PCR. See Wesset, 2011 WL 510545$, at *1. The denial of
the second PCR application was affirmed on the same ground on October 28, 2011. Id. at *2. The
Appellate Division stated, “[w]e only note that defendant’s brief relies primarily upon arguments
we have already rejected on his direct appeal and his appeal from the denial of his first petition
and that defendant has failed to address the limitations upon second or subsequent petitions for
post-conviction relief.” Id. Certification was denied by the New Jersey Supreme Court on October
25, 2012. Wessel, 212 N.J. 432.
As stated above, if statutory tolling applied only during the pendency of Petitioner’s first
PCR application, then the instant Petition is clearly untimely. The operative issue here, then, is
whether Petitioner is entitled to statutory tolling during the pendency of Petitioner’s second PCR
§ 2244, a state PCR application is “properly filed,” for the purpose of deciding
whether AEDPA statutory tolling applies, only “when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8
(2000). In Artuz, the Supreme Court was confronted with the issue of whether a state PCR
application that contained only procedurally defaulted claims was nevertheless “properly filed”
for the purposes of AEDPA statutory tolling. See Id. The Court found that “[am 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.” Id. “[Filing requirements] 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.” Id. However, the Court also
recognized that other filing requirements or preconditions may be imposed upon abusive filers or
all filers generally. See Id. at 2-9.
The Artuz Court rejected the argument that an application containing only procedurally
defaulted claims is not “properly filed” under AEDPA. The Court based its reasoning primarily
on the distinction between an application and a claim. See Id. at 9-10. Since procedural default is
claim-based, the court held that it cannot be a condition of filing for an application. Id. at 9. To
hold otherwise would “require judges to engage in verbal gymnastics when an application contains
some claims that are procedurally barred and some that are not.” Id. at 10. A mixed application
would require “a court
 to say that the application is
‘properly filed’ as to the nonbarred claims,
and not ‘properly filed’ as to the rest,” but the statute “refers only to ‘properly filed’ applications
and does not contain the peculiar suggestion that a single application can be both ‘properly filed’
and not ‘properly filed.” Id.
Later, with Artuz in mind, the Supreme Court held in Face v. DiGuglielmo, that a time limit
on filing a state PCR application is a filing requirement, and rejection of a PCR application for
failure to satisfy that precondition renders the PCR application not “properly filed,” thus ineligible
for statutory tolling under AEDPA during the pendency of that application. See 544 U.S. 408, 417
(2005) (“[W]e hold that time limits, no matter their form, are ‘filing’ conditions.”). The Court
expressly referred to the statement in Artuz that time limits are conditions of filing. See Id. at 413.
The discrete issue presented to the Pace Court was whether a time limit that permitted certain
exceptions qualified as a filing requirement under AEDPA, because judicial scrutiny was needed
to decide whether those exceptions applied.
The Court found that “[i]n common
understanding, a petition filed after a time limit, and which does not fit within any exceptions to
that limit, is no more ‘properly filed’ than a petition filed after a time limit that permits no
The petitioner in Face had argued that the need for judicial scrutiny to consider the
exceptions required the PCR court to accept the application before it could review the application
for timeliness, but the Pace Court rejected that argument. “We fail to see how timeliness is any
less a ‘filing’ requirement than the mechanical rules that are enforceable by clerks, if such rules
exist.” Id. at 414-15. The Face Court further noted that few, if any, filing requirements are truly
mechanical, and clerks often have very limited authority to refuse petitions; a categorical rule
classifying filing requirements based strictly on their mechanics might produce the absurd result
of having no requirement being qualified as a “filing” requirement. See Id. at 415 n.5. “On
petitioner’s theory, a state prisoner could toll the statute of limitations at will simply by filing
untimely state postconviction petitions. This would turn
§ 2244(d)(2) into a de facto extension
mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay.” Id.
The Face Court also addressed the petitioner’s argument that because
§ 2244(d)(2) refers
to a “properly filed application,” the time-limit in question, with exceptions based on the nature of
claims raised in the application, cannot be a condition of filing. See id. at 415. The court rejected
that argument, stating that even § 2244(d)(2) itself referred to a “properly filed application.
respect to the pertinentjudgment or claim.” Id. at 416 (quoting 2$ U.S.C.
§ 2244(d)(2)) (emphasis
in original). That is, an application can be rejected under the rule in question even if the reviewing
court had to analyze the claims raised in the application. See Id.
In the instant matter, the Court finds that the successive petitions bar under R. 3:22-4(b) is,
like a time limit, a filing condition. While neither the Third Circuit nor courts in this district have
previously ruled on this issue, at least one circuit has held that a successive petitions bar, like the
one here in New Jersey, is a condition of filing, and therefore any petition rejected on that basis is
not “properly filed” for the purposes of AEDPA. In Williams v. Birkett, 670 F.3d 729 (6th Cir.
2012), the Sixth Circuit directly addressed this issue with regard to Michigan law, which has a
successive motions bar similar to New Jersey.’ See id. at 732-33; accord Thompson v. Southers,
No. 12-123, 2012 WL 5269261, at *3 n.7 (E.D. Pa. Oct. 25, 2012) (relying on Williams for support
and explaining “[b]ecause Williams’s second post-conviction motion was denied under [state
procedural law], and thus was not ‘properly filed’ under
§ 2244(d)(2), his successive motion did
not toll AEDPA’s one-year time limitation” and “[t]herefore, Williams’s habeas petition was
untimely, unless equitably tolled”). The petitioner in Williams, like Petitioner here, had filed a
Michigan law does not allow a second or subsequent motion for post-conviction relief
unless there exists “a retroactive change in law that occurred afier the first motion for relief from
judgment or a claim of new evidence that was not discovered before the first such motion.” Mich.
Ct. R. 6.502(G)(2). This is substantially identical to New Jersey’s successive petitions bar, which
A second or subsequent petition for post-conviction relief shall be dismissed unless
(A) that the petition relies on a new rule of constitutional law, made retroactive
to defendant’s petition by the United States Supreme Court or the Supreme Court
of New Jersey, that was unavailable during the pendency of any prior proceedings;
(B) that the factual predicate for the relief sought could not have been
discovered earlier through the exercise of reasonable diligence, and the facts
underlying the ground for relief, if proven and viewed in light of the evidence as a
whole, would raise a reasonable probability that the relief sought would be granted;
(C) that the petition alleges a prima facie case of ineffective assistance of
counsel that represented the defendant on the first or subsequent application for
N.J. Ct. R. 3:22-4(b).
second PCR application in state court while his first PCR application was still pending. See
Williams, 670 F.3d at 732. The Michigan state court dismissed the second PCR application, based
on the fact that the application had not satisfied any of the limited circumstances under which a
second or subsequent PCR application would be allowed. See id. at 731.
The Sixth Circuit held that a PCR application rejected by a successive petitions bar is not
“properly filed” within the meaning of AEDPA. See id. at 733. It reasoned that although the
Williams case did not involve a time limit, Michigan’s successive petitions bar, which addresses
applications, is more like the time limit in Pace, than the claim-based procedural default addressed
in Artuz. See Id. “Michigan law, instead of imposing a time limit on successive motions, flatly
forbids them, unless they fall within two narrow exceptions.” Id. The Sixth Circuit cited to Pace
for the proposition that “a petition that cannot even be initiated or considered.
is not ‘properly
filed” when a requirement “go[es] to the very initiation of a petition and a court’s ability to
consider that petition.” Id. (citing 544 U.S. at 417).
Because the Sixth Circuit found that
“Michigan’s rule against successive motions prevents a secçnd petition from even being
considered by the court,” it held that a PCR application rejected under Michigan’s successive
petitions bar, like the time limit in Pace, is not “properly filed.” Id.
New Jersey’s successive petitions bar, like that of Michigan, similarly prohibits state courts
from considering an impermissible second or successive application. See NJ. Ct. R. 3:22-4(b).
“A second or subsequent petition for post-conviction relief shall be dismissed unless [certain
enumerated circumstances, supra, are satisfied].” Id. (emphasis added). As with the time limit in
Pace, the fact that some judicial scrutiny is required to enforce the rule does not change its inherent
nature as a condition of filing. “[I]f ‘conditions of filing’ were limited to those situations solely
handled by the clerk.
few if any rules would constitute ‘filing’ conditions.” Williams, 670 F.3d
at 734 (citing Pace, 544 U.S. at 415 n.5). furthermore, also like the time limit in Pace, the New
Jersey successive petitions bar directs New Jersey courts to dismiss applications if the
preconditions are not met. As Pace instructs, it does not matter that the inquiry involved requires
the court to review the application by looking to the claims asserted. “The fact that a state judge
must examine a successive motion in Michigan to determine whether one of the exceptions in
M.C.R. 6.502(G)(2) applies is no different than the federal rule relied upon in Pace where a federal
judge must see whether any of the requirements for filing a successive motion are met.” Id. 73435. This Court finds the Williams court’s reasoning persuasive and, as such, the Court holds that
the New Jersey successive petitions bar is a condition of filing, and that a state PCR application
denied under that bar is not “properly filed” within the meaning of AEDPA.2 Accord Thompson,
2012 WL 5269261, at *3 n.7 (relying on Williams for support and explaining “[b]ecause
Williams’s second post-conviction motion was denied under [state procedural law], and thus was
not ‘properly filed’ under
§ 2244(d)(2), his successive motion did not toll AEDPA’s one-year time
limitation” and “[t]herefore, Williams’s habeas petition was untimely, unless equitably tolled”).
The Court recognizes that a later Sixth Circuit opinion, Thomas v. Meko, 828 F.3d 435,
438-39 (6th Cir. 2016), seemed to have limited the application of Williams. However, Thomas is
clearly distinguishable from the instant matter because (1) the state court addressed the claims in
the second PCR application on the merits; (2) the state court construed the petitioner’s filing as
two separate motions—one as a successive PCR application and the other as a motion for
reconsideration—and addressed both of them on the merits, so even if the petitioner was not
entitled to statutory tolling for the PCR application, tolling would still apply to the motion for
reconsideration; and (3) the petitioner himself conceded that his second PCR application was not
“properly filed.” See id. at 439-40. Here, the state court rejected Petitioner’s second PCR
application expressly on the successive petition ground and did not reach the merits, leaving no
ambiguity on the successive petition question, unlike Thomas. Indeed, a subsequent Sixth Circuit
decision reaffirmed Williams. See Tolbert v. Woods, No. 17-1247, 2017 WL 3973947, at *2 (6th
Cir. July 18, 2017), petition for cert. filed, No. 17-6469 (Oct. 24, 2017).
Here, the state court found that Petitioner raised no new claims in his second PCR
application that had not already been raised either on direct appeal or in his first PCR application.
If this Court is to hold that Petitioner’s second PCR application is entitled to statutory tolling,
future petitioners can simply toll the AEDPA statute of limitations period indefinitely, through
repeat filings of state PCR applications that raise no new claims, even though they certainly would
be denied by the state court under the successive petitions bar. As the Supreme Court instructed
in Face, such a ruling would “turn § 2244(d)(2) into a defacto extension mechanism, quite contrary
to the purpose of AEDPA, and open the door to abusive delay.”
Pace, 544 U.S. at 413.
Accordingly, the Court finds that the Petition is statutorily time-barred.
B. Equitable Tolling
Even though 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 (citations omitted).
The diligence required for equitable tolling purposes is reasonable diligence, not
maximum, extreme, or exceptional diligence. “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.”. 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.
Ross, 712 F.3d at 799-800 (citations omitted).
Here, Petitioner argues that he is entitled to equitable tolling because he has diligently
pursued his claims, but was “transferred to New Hampshire State Prison for approx. one year,”
and that he had “no independent access to a law library, legal references, case law, or photo
copying.” (ECF No. 1 at 14). Petitioner further alleges that “[t]his system has substantially
hindered my ability to research, discover, and execute legal claims in the state courts in a
manner,” and that he has “done everything [he] possibly could to
exhaust said claims at the
state level.” Id. The Court does not question Petitioner’s sincerity in his arguments; indeed, the
record supports Petitioner’s contention that he has diligently pursued his state court claims.
However, as the Court found above, Petitioner’s untimely filing here in federal court was not
to any negligence or carelessness on his part, but simply because he made a legal mistake
choosing to pursue a procedurally-barred second PCR application in state court instead of filing
federal habeas petition. A petitioner’s mistake in law is not a valid ground for equitable tolling.
See Lewis v. Phelps, 672 F. Supp. 2d 669, 674 (D. Del. 2009); Ayers v. Phelps, 723 F. Supp.
718, 722 (D. Del. 2010) (“[A] petitioner’s lack of legal knowledge or miscalculation regard
one-year filing period does not constitute an extraordinary circumstance triggering equitab
tolling.”); Covert v. Tennis, No. 06-421, 2008 WL 4861449, at *5 (M.D. Pa. Nov. 7,
(“[I]guorance of the law, even for an incarcerated pro se petitioner, generally does not excuse
Moreover, even though Petitioner may have sincerely believed that he was diligently
pursuing his state court claims, he nevertheless raised no new claims in his second
application. As stated earlier, the Court cannot allow petitioners to file and refile identical
applications in state court to toll their federal habeas time limits. Accordingly, the Court finds that
equitable tolling is not warranted, and the Petition is time-barred.
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 Slack v. 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 [certificate of appealability] 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.”
Here, the Court denies a certificate of appealability pursuant to 28 U.S.C.
Although as stated above, neither this Court nor the Third Circuit has addressed the issue of
whether a state successive petitions bar should be considered a condition of filing for the purposes
of AEDPA, the Court’s research has not revealed any contrary opinion that contradicts the
reasoning of the Sixth Circuit. As such, the Court finds that 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.
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