ZEIGLER v. YATES et al

Filing 4

OPINION. Signed by Judge Susan D. Wigenton on 1/30/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANDRE ZEIGLER,

Civil Action No. 16-8341 (SDW)

Petitioner,
v.

OPINION

SHERRY YATES, et al.,
Respondents.

WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Andre Zeigler
(“Petitioner”) brought pursuant to 28 U.S.C. § 2254 challenging Petitioner’s state court conviction
(ECF No. 1). On November 17, 2016, this Court ordered Petitioner to show cause why his petition
should not be dismissed as time barred. (ECF No. 2). Petitioner filed a response to that order on
December 8, 2016. (ECF No.3). For the following reasons, this Court will dismiss the petition
with prejudice as time barred and will deny Petitioner a certificate of appealability.

I. BACKGROUND
Because the sole issue before this Court is whether or not Petitioner’s current petition for
a writ of habeas corpus is timely, only a brief recitation of the procedural history of this matter is
necessary to provide context for the Court’s opinion. In the order directing Petitioner to show
cause, this Court summarized that procedural history as follows:
In most cases, including this one, the one year statute of limitations
applicable to petitions brought under § 2254 begins to run 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
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including the 90-day period for filing a petition for writ of certiorari
in the United States Supreme Court.” See Figueroa v. Buechele, No.
15-1200, 2015 WL 1403829, at *2 (D.N.J. Mar. 25, 2015).
Petitioner was sentenced on November 5, 2008. (ECF No. 1
at 2). Petitioner appealed, and the New Jersey Appellate Division
affirmed his conviction and sentence on June 8, 2010. (Id. at 3).
Petitioner does not appear to have filed a petition for certification
with the New Jersey Supreme Court on direct appeal. 1 Because
Petitioner did not file a petition for certification, his conviction
became final and his limitations period began to run when the time
for filing such a petition expired twenty days later on June 28, 2010.
See Figueroa, 2015 WL 1403829, at *2; N.J. Court Rule 2:12-3(a)
(notice of petition for certification must be filed “within 20 days”
after the entry of judgment by the Appellate Division). Absent
equitable or statutory tolling, then, Petitioner’s one year habeas
statute of limitations had run as of June 28, 2011, more than five
years before this petition was filed.
The AEDPA statute of limitations, however, can be
statutorily tolled by a properly filed petition for post-conviction
relief, Id. at *2. In this matter, Petitioner states that he filed his
petition for post-conviction relief on February 1, 2013. (ECF No. 1
at 19). Because Petitioner’s post-conviction relief petition was not
filed until approximately a year and a half after the AEDPA
limitations period had already expired, statutory tolling can
therefore provide Petitioner no benefit absent sufficient basis for
equitably tolling the limitations period between June 2011 and
February 2013.
(ECF No. 2 at 1-2, internal paragraph numbers omitted).
Based on this history, this Court ordered Petitioner to show cause why his petition should
not be dismissed with prejudice as time barred. (ECF No. 2). Petitioner responded to that Order
on December 8, 2016. (ECF No. 3). In his petition, Petitioner “concedes that, because the
Appellate Division’s Order [affirming his conviction] is dated June 8, 2010, any challenge to that

states in his petition that he sought review by a higher court, but provides only the
date for the denial of certification on PCR to support that assertion. (Id. at 3). The citation he
provides likewise refers to the denial of certification on his PCR petition. (Id. at 4).” (ECF No. 2
at 2 n. 1).
1

“Petitioner

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Order would sur[e]ly be time barred.” (Id. at 3). Petitioner contends, however, that he is not
challenging his conviction or the direct review thereof, but is instead challenging the denial of his
PCR Petition. (Id. at 1-3). Although Petitioner was ordered also to explain whether he is “in
custody” according to his underlying conviction in so much as he may still be subject to some
amount of supervised release, Petitioner failed to address that question in responding to the Order.
(Id.). Because it is not clear from the face of the petition that Petitioner is not still in custody based
on some amount of unexpired supervised release, however, this Court will assume for the purposes
of this Opinion that Petitioner is still “in custody.”

II. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court. See Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews, --- U.S. ---, ---,132 S. Ct. 2148,
2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are required to give great deference to the
determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 772-73
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, --- U.S. ---, ---, 125 S. Ct. 1372, 1376 (2015). “When
reviewing state criminal convictions on collateral review, federal judges are required to afford state
courts due respect by overturning their decisions only when there could be no reasonable dispute
that they were wrong.”

Id.

Where a petitioner challenges an allegedly erroneous factual

determination of the state courts, “a determination of a factual issue made by a State court shall be
presumed to be correct [and the] applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

B. Analysis
As this Court explained in its Order to show cause and recounted above, and as Petitioner
himself concedes, any habeas challenge as to Petitioner’s criminal conviction is well and truly time
barred absent some basis for equitable tolling. (ECF No. 2; ECF No. 3 at 3). Equitable tolling,
however, “is a remedy which should be invoked ‘only sparingly.’” United States v. Bass, 268 F.
App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir.
1998)). To receive the benefit of equitable tolling, a petitioner must show “(1) that he faced
‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that he exercised

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reasonable diligence.” United States v. Johnson, 590 F. App’x 176, 179 (3d Cir. 2014) (quoting
Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)).
In his response to the order to show cause, Petitioner presents no basis for the equitable
tolling of the statute of limitations, and instead admits that his petition is time barred to the extent
it challenges his underlying conviction. Petitioner contends, however, that he is seeking to
challenge only the denial of his PCR petition, and his habeas petition is timely to the extent that it
challenges only that petition’s denial. The flaw in Petitioner’s argument, however, is that habeas
corpus is not available to challenge any and all adverse state court decisions. Habeas jurisdiction
instead only applies to challenges in which a Petitioner asserts that he is in custody in violation of
the laws and constitution of the United States. 28 U.S.C. § 2254(a). Habeas corpus thus may only
be used to challenge state court judgments which place a petitioner in custody, and not those
judgments which merely deny a petitioner relief from pre-existing custody. Id.; see also 28 U.S.C.
§ 2244. It is for that reason that, absent circumstances not present in this case, the one year
limitations period runs not from the denial of a post-conviction relief petition, but instead from
“the date on which the judgment [resulting in the challenged custody] 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) (emphasis added). A PCR petition is a form of collateral review, and thus does not
set the date from which the limitations period runs, notwithstanding the fact that the challenge
presented in a habeas petition raises issues first addressed in a PCR petition or other collateral
attack. Id. (limitations period runs from the conclusion of direct review, not collateral review).
Petitioner’s argument is therefore without merit and provides no basis for tolling of the statute of
limitations period. As Petitioner has otherwise failed to provide any basis for the tolling of the
statute of limitations and this Court perceives no such basis, Petitioner’s habeas petition must be

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dismissed with prejudice as time barred because, as Petitioner concedes, any habeas challenge to
his conviction is “sur[e]ly . . . time barred.” 2 (ECF No. 3 at 3).

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
“When 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 ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because
jurists of reason could not disagree with this Court’s conclusion that Petitioner’s habeas petition
is well and truly time barred, nor with this Court’s conclusions that Petitioner is not entitled to
equitable tolling, Petitioner’s habeas petition is inadequate to deserve encouragement to proceed
further. As a result, this Court will deny Petitioner a certificate of appealability.

That Petitioner filed a collateral attack on that conviction via a PCR petition more than a year
after the one year limitations period had expired does not change this fact. See, e.g., Figueroa,
2015 WL 1403829, at *2.
2

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IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is
DISMISSED WITH PREJUDICE as time barred and Petitioner is DENIED a certificate of
appealability. An appropriate order follows.

___/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J.

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