ALVARADO v. D'ILIO et al
Filing
30
OPINION. Signed by Judge Stanley R. Chesler on 8/23/2016. (seb)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NEWARK VICINAGE
Jorge Alvarado,
Petitioner,
v.
Stephen D’Ilio,
Respondent.
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Civ. Action No. 15-3878 (SRC)
OPINION
APPEARANCES:
Jorge Alvarado
New Jersey State Prison
P.O. Box 861
Trenton, N.J. 08625
Petitioner, pro se
Stephanie Davis-Elson, Assistant Prosecutor
Office of the Hudson County Prosecutor
Administration Building, 595 Newark Ave.
Jersey City, New Jersey 07306
Counsel for Respondent
I.
BACKGROUND
On June 8, 2015, Petitioner filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 1), and Respondent
filed a limited answer (ECF No. 6), arguing that the petition
should be dismissed as barred by the statute of limitations, 28
U.S.C. § 2244(d). There is no dispute that Petitioner filed his
habeas petition after the one-year statute of limitations expired.1
On August 15, 2016, this Court held an evidentiary hearing on
whether the lack of Spanish language materials and translation
assistance in New Jersey State Prison created a severe obstacle in
Petitioner’s attempt to comply with the one-year habeas statute of
limitations.
See
Pabon
v.
Mahoney,
654
F.3d
385
(3d
Cir.
2011)(requiring evidentiary hearing on equitable tolling where
Petitioner made showing that lack of Spanish language materials
and translation assistance posed a severe obstacle to timely filing
of federal habeas petition.)
II.
DISCUSSION
Petitioner
submitted
copies
of
forms
“New
Jersey
State
Prison, Request for Legal Assistance, General Population” which he
filed in 2007, 2008 and 2011. (Petitioner’s Rule 60(b)(6) Motion
for Relief for Writ of Habeas Corpus, Exhibits, ECF No. 21 at 1126.) Petitioner had requested assistance because there were no
Spanish language materials in the prison law library, and the
Spanish-speaking paralegals in the prison did not translate legal
The statute of limitations expired on or about August 19, 2009,
one-year and 90 days after the New Jersey Supreme Court denied
Petitioner’s petition for certification. (Answer, Ex. 8, ECF No.
6-8, Order Denying Petition for Certification.) The Court
dismissed Petitioner’s habeas petition as barred by the statute of
limitations (Order, ECF No. 17), but vacated that decision on May
27, 2016, and ordered an evidentiary hearing on equitable tolling
(Order, ECF No. 24.)
1
2
papers. Petitioner’s written requests for assistance made clear
that
he
was
waiting
for
a
decision
on
his
petition
for
certification from the New Jersey Supreme Court, and he was not
sure whether his next step was to file his federal habeas petition
or his petition for post conviction relief in Superior Court.
Complicating matters is the fact that Petitioner did not
receive, until February 2010, the Public Defender’s letter, dated
May 23, 2008,2 notifying him that the New Jersey Supreme Court
denied his petition for certification. The New Jersey Supreme Court
decision triggered the 90-day period to petition for certification
to the U.S. Supreme Court, and, upon the expiration of the 90-day
period, the start of the one-year habeas statute of limitations
under 28 U.S.C. § 2244(d)(1)(A). See Jones v. Morton, 195 F.3d
153, 157 (3d Cir. 1999)(quoting Kapral v. United States, 166 F.3d
565, 575 (3d Cir. 1999)(“[under § 2244(d)(1)(A), a state court
criminal judgment becomes “final,’ and the statute of limitations
begins to run, “at the conclusion of review in the United States
Supreme Court or when the time for seeking certiorari review
expires.’”)
At the hearing, Petitioner testified that, because he could
not read and understand the law written in English, he relied on
advice of a prison paralegal who told him the next step in the
Petitioner’s Reply to Respondent’s Answer to Petition for Writ
of Habeas Corpus, ECF No. 7, Exs. A and B, Letters.
2
3
appeal process was to file his petition for post-conviction relief
in state court. While this advice was technically accurate because
a state prisoner must exhaust his state remedies before filing a
federal habeas petition, the advice was incomplete.
The federal habeas statute of limitations is only one year,
and begins upon the conclusion of direct appeal, but the period to
file a post-conviction petition in New Jersey is five years from
conviction or sentencing, whichever is challenged. See State v.
Milne, 178 N.J. 486, 291 (2004)(quoting State v. Goodwin, 173 N.J.
583, 594 (2002)(citing N.J. Court Rule 3:22-12.)) If a New Jersey
state prisoner waits too long to file his petition for postconviction relief in state court, the federal habeas statute of
limitations may expire, and it will be too late for the state postconviction proceedings to toll the statute of limitations under 28
U.S.C. § 2244(d)(2).
Based on the records in this matter and Petitioner’s testimony
at the evidentiary hearing, this Court finds that Petitioner filed
his § 2254 petition for a writ of habeas corpus after the statute
of limitations expired in reliance on the advice of a prison
paralegal. The fact that he did not timely receive notice of the
decision of the New Jersey Supreme Court was also a contributing
factor. Believing that his next step was to file a petition for
post-conviction relief in state court, Petitioner was not diligent
in
complying
with
the
one-year
4
federal
habeas
statute
of
limitations. Petitioner testified that he filed his federal habeas
petition when he learned from another inmate that the prison
paralegal’s advice was incorrect.
The Third Circuit has held that an attorney’s mistake in
calculating the due date for a § 2254 habeas petition is not an
extraordinary circumstance justifying equitable tolling of the
statute of limitations. Johnson v. Hendricks, 314 F.3d 159, 163
(3d Cir. 2002). The same must apply to the advice of a prison
paralegal, because erroneous advice does not prevent a petitioner
from asserting his rights. Id. Therefore, Petitioner has not shown
an extraordinary circumstance to justify equitable tolling of the
statute of limitations under 28 U.S.C. § 2244(d)(1)(A).
III. CONCLUSION
For the reasons discussed above, in the accompanying opinion
filed herewith, the Court will dismiss Petitioner’s § 2254 habeas
petition as barred by the statute of limitations.
Dated: August 23, 2016
___s/ Stanley R. Chesler____
Stanley R. Chesler
United States District Judge
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