HARRIS v. ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 18

OPINION. Signed by Judge John Michael Vazquez on 4/1/2019. (JB, ) (Main Document 18 replaced on 4/1/2019) (JB, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FAYYAADH HARRIS,

HON. JOHN MICHAEL VAZQUEZ

Petitioner,
Civil Action
No. 17-259 (JMV)

v.
PATRICK NOGAN, et al.,

OPINION
Respondents.

VAZQUEZ, District Judge:
I.

INTRODUCTION
Presently before the Court is Petitioner Fayyaadh Harris’s pro se motion seeking relief,

pursuant to Federal Rule of Civil Procedure 60(b), from the Court’s November 28, 2017 Order
dismissing his § 2254 habeas petition as untimely. (DE 12.) For the reasons stated herein, Mr.
Harris’s Rule 60(b) motion is denied.
II.

BACKGROUND
On January 4, 2017, Harris filed his § 2254 petition (the “Petition”) in this Court. (DE 1;

see also DE 11 at 7.) On May 3, 2017, Respondents filed a motion to dismiss the Petition as
untimely, i.e., because it was filed by Harris “after the running of the one-year statute of limitations
imposed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), 28 U.S.C. §
2241 et seq.” (DE 7-1 at ¶ 29.) The Court, agreeing with Respondents, dismissed the Petition
with prejudice on November 28, 2017. (DE 12.)
In so doing, the Court noted that that the New Jersey Supreme Court denied Harris’s
petition for certification on direct appeal on September 11, 2007. (DE 11 at 2.) Accordingly, there
was no dispute that Harris’s state court conviction became “final” under AEDPA ninety days later,

on December 10, 2007. (Id. at 6.) In addition, the New Jersey Supreme Court denied certification
on Harris’s post-conviction relief (“PCR”) appeal on April 1, 2016. (Id. at 2-3.) In addition,
between September 11, 2007 and April 1, 2016, there were a total of 219 days in which AEDPA’s
one-year clock ran. 1 (Id. at 6-7.) The Court calculated those days as follows:
There is no dispute that [AEDPA’s one-year] statute of limitations
began to run on December 10, 2007, when Harris’ direct review
became final. The statute of limitations ran for two days before
Harris timely filed a PCR petition. The PCR Court denied the
petition on January 27, 2009. Harris had 45 days to file a notice of
appeal, and he missed the March 14, 2009 deadline. See N.J. R.A.R.
2:4-1(a). Therefore, the first PCR proceeding was no longer
pending on March 14, 2009, and the statute of limitations began to
run again. Thompson [v. Adm’r New Jersey State Prison, 701 F.
App’x 118, 2017 WL 2712966, at *3 (3d. Cir. 2017)].
Harris filed a late-notice of appeal on July 22, 2009, after 131 days
of the limitations period had run. The late-filed notice of appeal was
accepted by the state court as within time, and therefore tolled the
statute of limitations on July 22, 2009. Thompson, 2017 WL
2712966, at *5 (state court’s acceptance of a motion as within time
is important indication of whether it was properly-filed.) Following
remand, the PCR court denied Harris relief on January 10, 2014.
Harris had forty-five days to appeal, until February 24, 2014, but he
did not file a timely notice of appeal. Thus, the statute of limitations
began to run again on February 25, 2014. Harris filed notice of
appeal on March 21, 2014, which was once again accepted by the
state court as within time. Therefore, the notice of appeal was
properly filed and tolled the statute of limitations on March 21,
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AEDPA’s one-year “filing period is tolled . . . ‘during [the time in] which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending.’” Engel v. Hendricks, 153 F. App’x 111, 112 (3d Cir. 2005)
(quoting 28 U.S.C. § 2244(d)(2)) (emphasis in original). Under AEDPA, “[a] ‘properly filed’
application is one that was accepted for filing by the appropriate court officer and was filed within
the time limits prescribed by the relevant jurisdiction.” Id. (citing Pace v. DiGuglielmo, 544 U.S.
408 (2005)) (emphasis in original); see also Fernandez v. Sternes, 227 F.3d 977, 979 (7th Cir.
2000) (the proper period of exclusion under § 2244(d) is “all time between the filing of the request
to excuse the default and the state court’s decision on the merits (if it elects to excuse the default)”);
accord Thompson v. Adm’r New Jersey State Prison, 701 F. App’x 118, 124, 2017 WL 2712966
(3d. Cir. 2017). In this case, the Court concluded that Harris’s PCR application was not “properly
filed” under AEDPA’s statutory tolling provision, 28 U.S.C. § 2244(d)(2), for 219 days between
September 11, 2007 and April 1, 2016. (DE 11 at 6-7.)
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2014. In the meantime, another 25 days of the limitations period
had run.
The Appellate Division then affirmed the PCR Court on June 15,
2015. Harris had 10 days to file a motion for reconsideration
pursuant to New Jersey Court Rule 2:11-6(a), unless extended by
the court. He did not file his motion for reconsideration until July
28, 2015. The state court, however, treated the motion for
reconsideration as within time, thereby tolling the limitation period
starting on July 28, 2015. As a result, the statute of limitations ran
from June 25, 2017 through July 28, 2015, totaling 33 days. The
motion for reconsideration was denied on September 2, 2015.
Harris then had 45 days, to October 19, 2017, to file a petition for
certification in the New Jersey Supreme Court. See N.J. R.A.R. 2:41(a). The petition, filed on November 16, 2015, was filed 28 days
late. The New Jersey Supreme Court accepted Harris’s petition for
certification as within time, thereby tolling the statute of limitations
again on November 16, 2015. The New Jersey Supreme Court
denied relief on April 1, 2016, restarting the limitations period.
(Id.)
Thus, as of April 1, 2016, Harris had “approximately 136 days to timely file the [Petition].”
(Id. at 9.) This Court found that because Harris did not file his Petition until January 4, 2017, i.e.,
278 days after the New Jersey Supreme Court denied certification on his PCR appeal, his Petition
was filed 142 days past AEDPA’s one-year filing deadline. (Id.)
The Court also found that equitable tolling could not save Harris’s otherwise untimely
Petition from prejudicial dismissal. (Id. at 8-10.) In so doing, the Court expressly considered –
and rejected – Harris’s contention that “the doctrine of equitable tolling should toll the statute of
limitations for the period in which the [Office of the Public Defender] filed late appeals on his
behalf, which were then accepted by the New Jersey courts as within time.” (Id. at 8.) The Court
summarized the underlying facts which Harris alleged in support of that claim as follows:
Harris was declared indigent and was represented by the Office of
the Public Defender (“OPD”) in his PCR proceedings. [(DE 10 at
4.)] The state has a procedure where a petitioner and his PCR

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attorney sign a Notice of Appeal Form prior to the PCR judge ruling
on the petition. (Id.) A petitioner is then notified on the record by
his PCR Court of his right to appeal, and is asked whether he/she
has signed the Notice of Appeal Form. (Id.) The Notice of Appeal
Form must be forwarded to the Post Conviction Unit and filed with
the Appellate Division, which on average takes the OPD three to six
months. (Id.) An indigent petitioner is dependent on the OPD to
file the Notice of Appeal. (Id.) OPD attorneys regularly file
affidavits with late Notices of Appeal, explaining their lack of
resources and overwhelming case load to excuse the untimeliness.
(Id.) Thus, Harris concludes equitable tolling is warranted because
there is nothing an indigent petitioner can do when the OPD controls
when the Notice of Appeal is filed.
(DE 11 at 4-5.)
The Court agreed that insomuch as Harris’s OPD-related claims were in fact true, “the
overwhelming caseload and lack of resources of the New Jersey OPD, recognized by the PCR
Courts when they accept late filings on this basis, [would represent] an extraordinary circumstance
that [could] prevent a prisoner from timely filing a PCR petition [such that equitable tolling might
be appropriate].” (Id. at 9.)
That said, the Court further concluded that “[e]ven assuming [that the OPD’s failure to
timely-file PCR applications on his behalf constituted an ‘extraordinary circumstance’ for
purposes of equitable tolling under AEDPA], Harris still had approximately 136 days to timely
file the current petition and he [did not present] any information or explanation as to why he could
not file within that time period.” (Id.) The Court was therefore unable to “find that Harris was
diligent in pursuing his [federal habeas] rights.” (Id.) It was this consideration that was fatal to
Harris’s equitable tolling argument. (See id. at 8 (noting that “a petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” (quoting Ross v. Varano,
712 F.3d 784, 798 (3d Cir. 2013)) (internal quotations and additional citations omitted).) The

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Court accordingly “dismissed [Harris’s Petition] with prejudice as barred by [AEDPA’s] statute
of limitations” and declined to issue Harris a certificate of appealability. (DE 12.)
On April 20, 2018, the Third Circuit affirmed this Court’s prejudicial dismissal of Harris’s
Petition via the entry of an order denying Harris’s request for a certificate of appealability. (DE
15.)

In so affirming, the Third Circuit expressly noted that “Harris [did] not arguably

demonstrate[] any basis for equitable tolling because he [did not show] reasonable diligence in
pursuing his claims or that any extraordinary circumstance ‘stood in his way and prevented timely
filing’ after April 1, 2016.” (Id. (citing Holland v. Florida, 560 U.S. 631, 649 (2010).) Thereafter,
on or about November 19, 2018, Mr. Harris filed the current Rule 60(b) motion. (DE 16.)
III.

ANALYSIS
Mr. Harris, by way of the present Rule 60(b) motion, seeks relief from the final judgment

entered by this Court on November 28, 2017. 2 (Id.) Mr. Harris specifically moves under Rule
60(b)(3), which allows the Court to relieve a party from a final judgment for “fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party”;
and under Rule 60’s catchall provision, (b)(6), i.e., for “any other reason that justifies relief.” (See
id.; see also Fed. R. Civ. P. 60(b).)
Regardless of the specific Rule 60(b) provisions that Mr. Harris relies on, his “motion
carries a heavy burden, as Rule 60(b) motions are viewed as ‘extraordinary relief which should be
granted only where extraordinary justifying circumstances are present.’” Kiburz v. Sec’y, U.S.
Dep’t of the Navy, 446 F. App’x 434, 436 (3d Cir. 2011) (quoting Bohus v. Beloff, 950 F.2d 919,
929 (3d Cir. 1991); accord Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002)

2

Respondents have not filed opposition to the Rule 60(b) motion. The fact that Harris’s motion
is unopposed, does not, in and of itself, entitle Harris to relief.
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(noting that Rule 60(b)(6) provides “extraordinary relief and may only be invoked upon a showing
of exceptional circumstances.”); see also Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983)
(a party seeking relief under Rule 60(b)(3) must show not only that “the adverse party engaged in
fraud or other misconduct, [but also] that his conduct prevented the moving party from fully and
fairly presenting his case.”). Critically, “a motion under Rule 60(b) is not a second opportunity
for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that
previously failed.” Kustom Signals, Inc. v. Applied Concepts, Inc., 247 F. Supp. 2d 1233, 1235
(D. Kan. 2003); accord Balter v. United States, 410 F. App’x 428, 430 (3d Cir. 2010) (finding
district court did not abuse its discretion in denying relief under Rule 60(b) where motion “simply
rehashed arguments” made in previous motions).
In Harris’s present motion, he simply restates the same arguments regarding the OPD’s
failure to timely-file his PCR applications that he already raised in his November 28, 2017
opposition to Respondents’ motion to dismiss his Petition as time-barred. (See DE 16-1 at 7
(“Petitioner clearly has a case of excusable neglect because he can prove that he made [a] timely
request to appeal the rulings of his PCR proceedings and because of the appeal process time was
deducted because of the slow process employed by the OPD which is beyond Petitioner’s control
and thus making his petition timely.”); id. at 13 (“It is inconceivable that Petitioner should pay the
exacting price of delay due to the structure of the OPD’s filing procedures.”); id. at 14 (indigent
petitioners in the State of New Jersey should not be the ultimate factor that determines whether or
Petitioner’s petition is timely. Petitioner was time barred as a consequence of the OPD’s
overwhelming case load.”); id. at 15 (“The calculations presented by [Respondents do] not factor
in the true nature of the delays stemming from the occupational hazards of the OPD. The District
Court was persuaded by a misrepresentation of the facts.”); id. at 6-7 (“Petitioner has been

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represented by the Public Defender’s Office through out all of his entire state court appeals. It is
an unfair practice administrated by the State to hold the Petitioner responsible for the
‘overwhelming’ case load of the OPD.”); id. at 7 (“Petitioner should not pay the price of injustice
because the process of receiving assistance when you can not afford to hire an attorney takes a
longer time.”).)
The Court already gave careful consideration to the foregoing arguments when it dismissed
Harris’s Petition as time-barred. To reiterate, the Court ultimately found that “the overwhelming
caseload and lack of resources of the New Jersey OPD . . . [could represent] an extraordinary
circumstance that [could] prevent a prisoner from timely filing a PCR petition [such that equitable
tolling might be appropriate].” (DE 11 at 9.) This consideration, in and of itself, however, did not
support equitable tolling in Mr. Harris’s federal habeas matter because as of April 1, 2016 – i.e.,
when the New Jersey Supreme Court denied Harris’s petition for certification of his PCR appeal
– because “Harris still had approximately 136 days to timely file the [Petition] and he [did not
present] any information or explanation as to why he could not file within that time period.” (Id.)
The Third Circuit likewise expressly found that equitable tolling was inappropriate because
“[Harris failed to demonstrate] reasonable diligence in pursuing his claims or that any
extraordinary circumstance ‘stood in his way and prevented timely filing’ after April 1, 2016.”3
(DE 15 (quoting Holland, 560 U.S. 649) (emphasis added).)
Ultimately, Mr. Harris cannot obtain relief under Rule 60(b) based on his rehashing of the
same arguments that this Court – and the Third Circuit – already concluded were insufficient to
support equitable tolling under AEDPA. See Wood v. Pierce, Civ. A. No. 11-1115-GMS, 2017
3

Mr. Harris’s Rule 60(b) motion, which seeks relief based exclusively on the lack of diligence
of the OPD prior to April 1, 2016, fails to in any way speak to his own actions undertaken after
that date.
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WL 7388491, at *1-2 (D. De. 2017) (denying Rule 60(b) relief to movant who argued “that the
[district] court erroneously denied his [§ 2254] petition as time-barred because it should have
acknowledged that his second [state court application collaterally attacking his conviction] tolled
[AEDPA’s] limitations period” where: (1) the Third Circuit previously affirmed dismissal of his
petition as untimely, and (2) his Rule 60(b) motion “merely assert[ed] his disagreement with the
court’s decision to deny his petition, and expand[ed] upon an argument the court already
considered and rejected”); Ceo v. Klem, Civ. Action No. 07-3177, 2007 WL 2458029, at *1-2
(E.D. Pa. 2007) (denying Rule 60(b) relief where court previously dismissed movant’s § 2254
petition as time-barred, the Third Circuit affirmed that dismissal, and “[t]he facts surrounding the
procedural history of the case, and necessary for the calculation of the statute of limitations, as
presented in Petitioner’s [Rule 60(b)] motion [did] not differ materially from those [relied on by
the district court in dismissing his petition as untimely].”). Mr. Harris’s Rule 60(b) motion is
accordingly denied.
IV.

CONCLUSION
For the reasons stated above, Mr. Harris’s Rule 60(b) motion is denied. An appropriate

Order accompanies this Opinion.

4/1/19
Date

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge

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