MCLAUREN v. LAGANA et al

Filing 16

OPINION. Signed by Judge Claire C. Cecchi on 2/2/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEROY MCLAUREN,
Civil Action No. 13-0 145 (CCC)
Petitioner,
OPINION

PAUL K. LAGANA, et al.,
Respondents.

CECCHL District Judge:

Petitioner Leroy McLauren (“Petitioner”), confined at Northern State Prison in Newark,
New Jersey, filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254

(“Petition”), challenging a sentence imposed by the State of New Jersey for murder, robbery, and
related offenses. for reasons stated below, the Court denies the Petition as time-barred.
I.

FACTUAL BACKGROUND

The Court recites only those facts relevant to this Opinion. Petitioner was convicted and
sentenced by the State of New Jersey for aggravated manslaughter, felony murder, robbery,
unlawful possession of a firearm, and possession of a firearm for an unlawful purpose, on March
7, 1988 after a jury trial. (ECF No. 1 at 2.) An appeal was filed challenging the conviction and
sentence, and they were affirmed on February 13, 1990. Id. Certification was denied by the New
Jersey Supreme Court on May 30, 1990. (ECF No. 13-8.) Thereafter, Petitioner alleges that due
to gross negligence on the part of two private attorneys that Petitioner hired to assist him in filing
a state application for post-conviction relief (“PCR”), an extraordinarily long delay occurred
between his conviction and the filing of his PCR application. (ECF No. 1 at 8-9.) Finally, in

December 2009, the PCR application was filed after Petitioner retained the services of a third
attorney. (ECF No. 14-1 at 4.) The PCR application was denied as time-barred on March 23,
2010, Id., affirmed on May 3, 2012, Id. at 2, and certification was denied on October 25, 2012.
(ECF No. 14-4 at 2.) In reaching its timeliness ruling, the Appellate Division stated:
By way of excusable neglect, McLauren points to difficulty with two
retained counsel. The first attorney was retained in late 1990, and was paid a
retainer to file a PCR petition. That attorney was eventually suspended from
practice for, among other things, failure to act with reasonable diligence. In re
Moorman, 135 N.J. 1 (1994). The retainer was eventually returned.
According to correspondence in the appendix, McLauren retained another
attorney in March 1994, and appears to have paid that attorney a retainer. Between
March 1994 and february 2002, McLauren corresponded with the second attorney
or his associate, during which time McLauren expressed frustration that no action
had been taken. We note that, in 1999, he informed the attorney that he had
prepared a PCR motion and brief himself. Significantly for the purposes of this
appeal, McLauren has provided no explanation for the delay between his last
correspondence with the second attorney in February 2002 and the filing of his
petition in December 2009, a period in excess of seven years.
Our review of the record satisfies us that the PCR judge did not abuse his
discretion in determining that McLauren had failed to prove exceptional
circumstances justifying, the filing of his petition sixteen years late. While it
appears that he was taken advantage of by his first two attorneys, McLauren has no
explanation for the subsequent seven year delay, which itself exceeds the five year
period during which an initial PCR petition must be filed. Nor is there any
explanation for his failure to file on his own the documents he had prepared in 1999
or to seek representation through appointment of the Public Defender. The
prejudice to the State in attempting to retry a case in which the underlying events
occurred twenty-five years ago is self-evident.
(ECF No. 14-1 at 10-12.)
Subsequently, Petitioner filed the instant Petition, dated January 3, 2013, on January 7,
2013.

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II.

DISCUSSION

A. Statute of Limitations
Title 28, Section 2244 of the U.S. Code requires 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.” 2$ U.S.C.

§ 2244(d)(1). The limitations period was enacted through the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which went into effect on
April 24, 1996. Artuz v. Bennett, 531 U.S. 4, 6 (2000). for convictions that occurred prior to
AEDPA’s effective date, all Courts of Appeal uniformly allowed a one-year grace period for
petitioners to file federal habeas petitions challenging their pre-AEDPA convictions. Johnson v.
United States, 544 U.S. 295, 300 (2005). The Third Circuit is one of those courts adopting the
one-year grace period. Douglas v. Horn, 359 F.3d 257, 261 (3d Cir. 2004).
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
cqunted 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 for
review of a denial of post-conviction relief. Jenkins v. Superintendent ofLaurel Highlands, 705
F.3d $0, 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.
Thus, even if the statutory time bar has passed, Petitioner may overcome that limitation if
he can show a basis for equitable tolling. Gibbs v. Goodwin, Civil Action No. 09-1046 (NLH),

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2009 WL 1307449, at *3 (May 1, 2009); 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, Respondents argue that the Petition is time-barred by AEDPA’s statute oflimitations.
The Court agrees. The instant Petition, dated January 3, 2013, some 15 years afier Petitioner’s
one-year grace period to challenge his pre-AEDPA conviction had expired, is undoubtedly
statutorily time-barred. Nevertheless, Petitioner seeks equitable tolling for the period between
1990 and 2009, essentially the entire period before his state PCR application was finally filed.
(ECF No. 1 at 8-9.) As described in the background section, Petitioner had made similar arguments
in state court regarding the timeliness of his state PCR application, which the state court rejected.

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The Court is in accord with the Appellate Division’s concerns with Petitioner’s equitable tolling
arguments.
However, the Court need not reach a conclusion on this equitable tolling argument;
Petitioner is time-barred even if the Court grants equitable tolling for all delays prior to the filing
of Petitioner’s PCR application in December of 2009. Even if Petitioner’s one-year grace period
started running in December 2009, that period still would have expired long before the instant
Petition was filed on January 3, 2013. Ordinarily, when a properly-filed state PCR application is
pending, the AEDPA limitations period would be statutorily tolled. 28 U.S.C.

§ 2244(d)(2). Yet,

when a state court has determined that a PCR application was not timely filed, statutory tolling is
not permitted under AEDPA. Face v. DiGuglielmo, 544 U.S. 40$, 417 (2005) (“[W]e hold that
time limits, no matter their form, are ‘filing’ conditions.

Because the state court rejected

petitioner’s PCRA petition as untimely, it was not ‘properly filed,’ and he is not entitled to statutory
tolling under [AEDPA]”); Allen v. Siebert, 552 U.S. 3, 5 (2007) (“[A] state postconviction petition
rejected by the state court as untimely is not ‘properly filed’ within the meaning of § 2244(d)(2)”).
Since the state court, in the instant matter, explicitly found that the PCR application was untimely,
“that would be the end of the matter, regardless of whether it also addressed the merits of the
claim, or whether its timeliness ruling was ‘entangled’ with the merits.” Face, 544 U.S. at 414
(quoting Carey v. Stafford, 536 U.S. 214, 226 (2002)) (emphasis in original). As such, the Court
finds that the instant Petition is statutorily time-barred under AEDPA, because Petitioner is not
entitled to statutory tolling for his PCR application. Furthermore, as Petitioner has not offered any
reasons for equitable tolling for the delay that occurred after December 2009, the Court denies the
Petition as untimely.

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In the interest of justice, if Petitioner has valid reasons why the Petition should not be
denied as untimely, Petitioner may file a motion to reopen stating those reasons, supported by
evidence, within 30 days from the date of entry of the accompanying Order. In Petitioner’s motion,
Petitioner should not assume that the Court will grant equitable tolling for the period between April
24, 1996, when Petitioner’s one-year grace period began, and December 2009, when Petitioner
filed his PCR application; that is, Petitioner should present good cause, supported by evidence, to
excuse that 13-year delay, particularly addressing the issues raised by the Appellate Division
decision cited above. Of course, Petitioner’s motion should also address the delay that occurred
after the PCR application was filed.
III.

CONCLUSION

For the reasons set forth above, the Petition is DENIED without prejudice as time-barred.
Petitioner may, within 30 days of the date of entry of this Order, move the Court to reopen the
case. Petitioner’s motion shall include valid reasons why the Petition is not untimely, including
any arguments, supported by evidence, why the Petition is entitled to çquitable tolling.

Claire C. Ceechi, U.S.D.J.
Dated:

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