ALVARADO v. D'ILIO et al

Filing 8

MEMORANDUM AND ORDER TO SHOW CAUSE: that Petitioner shall file a written response, within 21 days of the date of this Order, showing cause why his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 should not be dismissed as barred by the statute of limitations, etc.. Signed by Judge Stanley R. Chesler on 10/6/2015. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NEWARK VICINAGE

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Jorge Alvarado,
Petitioner,

v.
Stephen D’Ilio,
Respondent.

Civ. Action No. 15-3878 (SRC)

MEMORANDUM AND
ORDER TO SHOW CAUSE

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).

Petitioner replied that the statute of limitations should be
equitably tolled because his appellate attorney did not timely
notify

him

certification
language

that
of

legal

the
his

New
direct

materials

Jersey

Supreme

appeal;
and

and

Spanish

Court

the

lack

language

had

denied

of

Spanish

translation

assistance contributed to his failure to comply with the statute
of limitations. (Petitioner’s Reply to Respondent’s Answer to
Petition for Writ of Habeas Corpus (ECF No. 5.))
Garden variety claims of attorney negligence that cause a
petitioner to miss the statute of limitations filing deadline do

not warrant equitable tolling. Holland v. Florida, 560 U.S. 631,
651-52 (2010). Here, it appears that Petitioner’s attorney timely
mailed him a notice of the New Jersey Supreme Court’s denial of
certification in May 2008, with advice on Petitioner’s next steps
for seeking relief, but Petitioner did not receive the letter until
his attorney mailed it a second time in February 2010. (ECF No. 7
at 10-12.) This is the type of garden variety claim of attorney
negligence that does not warrant equitable tolling.
However, Petitioner also asserted that his inability to read,
write or speak English well is an impediment that precluded him
from filing a timely petition. Petitioner stated “[b]ecause there
is not enough evidence in the record to demonstrate [Petitioner’s]
language deficiency actually caused the delay in bringing his
habeas, an evidentiary hearing is warrant[ed].” (ECF No. 7 at 5.)
Petitioner further asserted “Petitioner is prepared to argue at an
evidentiary hearing the issues of the lack of Spanish language
materials

and

Spanish

language

translation

assistance

in

the

prison.” (Id.)
Before Petitioner is entitled to an evidentiary hearing on
the issue of whether his deficiencies in reading, writing and
speaking English were an extraordinary circumstance justifying
equitable tolling of the statute of limitations, he must first
establish how he exercised reasonable diligence in bringing his
habeas claims. See Pabon v. Mahoney, 654 F.3d 385, 402 (3d Cir.
2

2011)

(“[e]ven

if

a

petitioner

has

faced

extraordinary

circumstances, he must also “exercise[ ] reasonable diligence in
... bringing [the] claims.” (quoting Miller v. New Jersey State
Dept.

of

Corrections,

145

F.3d

616,

618–619

(3d

Cir.

1998)

(internal quotation marks omitted)). In Pabon, where the Third
Circuit held that an evidentiary hearing was required on the
extraordinary circumstances prong of the petitioner’s equitable
tolling claim, the petitioner submitted documents showing:
ten
or
more
efforts
where
he
sought
assistance, both before and after the AEDPA
deadline. After ascertaining that there were
no Spanish-language legal materials in the
RHU, Pabon wrote to his PCRA attorney, in
Spanish, before October 28, 2004. He wrote a
second letter seeking help from that attorney
before November 30, 2004. At various times
before September 7, 2006, he submitted
“numerous written requests” seeking legal
materials or assistance within the prison
system. While in the RHU, he submitted a
letter to the general population law library,
with help from an English-speaking inmate,
requesting
assistance
from
the
staff
paralegal, but was denied assistance on
September 19, 2006. On November 6, 2006, Pabon
filed an “Official Inmate Grievance,” with the
assistance of inmate José Ortiz, again
requesting access to legal services and
stating that he does not speak, read, or write
in English. That grievance was denied without
explanation. All of these efforts occurred
before the AEDPA filing deadline of November
6, 2006.
Pabon's efforts did not stop there. Before
December 22, 2006, he again sought help from
an attorney. He submitted a second appeal for
access to paralegal services before January
23, 2007. On February 4, 2007, he requested
3

the appointment of an Inmate Legal Reference
Aide, but never received a response to his
request. Thereafter, he found a bilingual
inmate who agreed to help him with his pro se
habeas petition. That petition was signed
(and, as noted, delivered to prison officials)
on September 20, 2007.

Pabon, 145 F.3d at 402. Additionally, Petitioner should describe,
in his written response to this Order, what he proposes to present
at an evidentiary hearing to support his claim that his English
reading, writing and speaking deficiencies were an extraordinary
circumstance

justifying

equitable

tolling

of

the

statute

of

limitations.
IT IS on this 6th day of October, 2015,
ORDERED that Petitioner shall file a written response, within
21 days of the date of this Order, showing cause why his Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254 should not be
dismissed as barred by the statute of limitations; the written
response

shall

include:

(1)

a

description

of

how

Petitioner

exercised reasonable diligence in bringing his habeas claims; (2)
a

description

of

what

Petitioner

proposes

to

present

at

an

evidentiary hearing in support of his claim that his English
reading, writing, and speaking deficiencies were an impediment to
timely

filing

his

habeas

petition;

documents; and it is further

4

and

(3)

any

supporting

ORDERED that Respondent may file a reply to Petitioner’s
written submission within seven days after the written submission
is filed; and it is further
ORDERED that the Clerk of the Court shall serve this Order on
Petitioner by regular mail.

____s/ Stanley R. Chesler________
Stanley R. Chesler
United States District Judge

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