POMPEY v. DAVIS

Filing 20

OPINION. Signed by Judge Brian R. Martinotti on 11/15/2023. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOSH POMPEY,
Petitioner,
v.
WARDEN BRUCE DAVIS,

Civil Action No. 23-00324 (BRM)

Respondent.

OPINION

MARTINOTTI, DISTRICT JUDGE
Before the Court is Petitioner Josh Pompey’s (“Petitioner”) petition for a writ of habeas
corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner is a state prisoner
confined at New Jersey State Prison in Trenton, New Jersey. Respondents filed a Motion to
Dismiss (“Motion”) the Petition as time barred. (ECF No. 7.) Petitioner filed a counseled response
(ECF No. 10), and Respondents replied (ECF No. 12). Having considered the submissions of the
parties without oral argument, for the reasons set forth below and for good cause shown,
Respondents’ Motion is GRANTED and the Petition is DENIED.
I.

BACKGROUND
In March 1998, Petitioner was convicted of the murder and sexual assault of his former

girlfriend, Audrey Robinson, and the murder of her aunt, Madeline Mitchell. The Superior Court
of New Jersey, Law Division summarized this matter’s lengthy factual history as follows:
A. Scene of the Murder
On September 5, 1989, the bodies of Audrey Robinson and her aunt
Madeline Mitchell were discovered in Ms. Robinson’s Hackensack
apartment. The medical examiner determined that the cause of death

for both victims was multiple stab wounds. When Audrey
Robinson’s body was discovered in her bedroom, she was wearing
only a pair of socks with a belt tied around her neck and had 30 stab
wounds to her head and neck. The fact that Ms. Robinson was
discovered without any clothing led detectives to believe that there
had been a sexual assault prior to her murder. Similarly, Ms.
Mitchell’s body was discovered in the living room and had a single
stab wound below her left eye and 12 stab wounds to her chest.
Medical examiners also discovered numerous contusions to both
victims’ faces which were consistent with being struck by closed
fists.
Detectives from the Bergen County Prosecutor’s Office and
Hackensack Police Department conducted the crime scene
investigation. The detectives found that a door leading from the
basement to the kitchen had been shattered, and also noticed a
basement window that appeared to be forcibly opened. Throughout
the entire crime scene, detectives observed bloody hand prints that
did not have any fingerprints leading them to conclude that the
suspect wore gloves at the time of the murders. In addition,
detectives found a bloody knife in Ms. Robinson’s bedroom. The
bedroom was in a state of disarray demonstrating that there had been
a struggle. As with the bloody handprints, detectives found no
fingerprints on the bloody knife.
As detectives searched Ms. Robinson’s vehicle, which was parked
in her driveway, they discovered that somebody had attempted to
hot-wire it. In addition, the interior of the victim’s vehicle contained
a large amount of blood, which led detectives to believe that the
suspect may have been injured by the knife used during the
commission of the murders. Much like the inside of the victim’s
home, detectives found bloody hand prints on the vehicle but no
fingerprints. Due to the similar nature of the hand impressions,
detectives believed that the same person who left the bloody hand
prints inside the victim’s apartment, attempted to hot-wire the
victim’s vehicle to flee the scene of the murders.
B. Investigation of Suspects
After ruling out two initial suspects, detectives went to the
[Petitioner]’s residence at 227 Central Avenue in Hackensack to
interview him on September 6, 1989. When they arrived, the
[Petitioner]’s brother advised the detectives that he was not home.
The detectives then contacted Larry Holmes, a professional boxer,
with whom the [Petitioner] trained. Mr. Holmes told detectives that
he hadn’t seen the [Petitioner] in a few days, but was able to provide

them with a phone number where he could be reached. Later that
evening, detectives returned to the [Petitioner]’s residence to speak
with his mother. The detectives asked the [Petitioner]’s mother to
have him contact the police when he arrived home.
The next day, September 1, 1989, Detective Michael Mordaga of the
Hackensack Police Department observed the [Petitioner] walking
along train tracks in Maywood. Detective Mordaga, who was offduty at the time, turned his vehicle around and made eye contact
with the [Petitioner]. Upon seeing Detective Mordaga, the
[Petitioner] turned and walked away in the opposite direction and
eventually ran through yards in an apparent attempt to evade police.
Eventually, Detective Mordaga called the Maywood Police for
backup and apprehended the [Petitioner]. While placing the
[Petitioner] under arrest, Detective Mordaga observed cuts on the
[Petitioner]’s knuckles and palms, which appeared to be knife
wounds.
C. [Petitioner]’s Statement
Once the [Petitioner] was transported to police headquarters,
detectives provided him with a Miranda rights form which the
[Petitioner] signed, indicating that he understood and voluntarily
waived his rights. Initially, the [Petitioner] maintained that he had
nothing to do with the murders and stated that he had been home all
day on September 5, 1989. However, after further questioning, the
[Petitioner] gave a detailed statement recounting the murders of
Audrey Robinson and Madeline Mitchell and the disposal of key
evidence.
Specifically, the [Petitioner] admitted that he went to the victim’s
home on September 5, 1989, and that he wore his mother’s gloves
because he did not want to leave any fingerprints. The [Petitioner]
stated that he pried open a basement window to gain access to the
victim’s home to wait until she got home so he could talk her into
rekindling their past relationship. At around 1:30 p.m. his exgirlfriend, Ms. Robinson, pulled into the driveway and entered her
first floor apartment. She left the apartment, but returned again
around 3:30 p.m., and at that time discovered the [Petitioner] in her
apartment.
The [Petitioner] told detectives that Ms. Robinson tried to get him
to leave, but he pushed her toward her bedroom. After exchanging
words with Ms. Robinson, the [Petitioner] stated that he began to
choke her and asked her to have sexual intercourse. After rejecting
his advances, the [Petitioner] claimed that Ms. Robinson eventually

got undressed due to his “persuasiveness” and he proceeded to have
intercourse with her. The [Petitioner] claimed he became angry
when he could not perform sexually due to Ms. Robinson’s
resistance. He then began to choke her again and a struggle ensued.
During the struggle, the [Petitioner] stated that Ms. Robinson pulled
the glove off of his right hand. Importantly, the [Petitioner] told
officers that he wrapped a belt around Ms. Robinson’s neck in an
attempt to make her pass out and quiet her down.
Upon hearing the struggle, the victim’s aunt, Ms. Mitchell, came
downstairs. When she saw the [Petitioner], she attempted to run
back to her upstairs apartment to call the police. The [Petitioner] ran
after her and grabbed her leg as she was running up the stairs,
dragging her back into Ms. Robinson’s living room. At that time,
the [Petitioner] punched Ms. Mitchell in the face repeatedly. After
striking Ms. Mitchell, the [Petitioner] stated that he saw Ms.
Robinson moving and ran to the kitchen to get a knife. The
[Petitioner] then proceeded to stab Ms. Robinson repeatedly in the
chest. The [Petitioner] specifically told officers that as he was
stabbing Ms. Robinson, his hand slipped off of the knife handle,
causing him to cut his hand. After stabbing Ms. Robinson numerous
times, the [Petitioner] saw Ms. Mitchell attempting to stand up in
the living room. According to the [Petitioner], he went to the kitchen
and took a smaller knife which he used to stab Ms. Mitchell.
D. Items Recovered After [Petitioner]’s Statement
During the [Petitioner]’s statement, he told detectives that after
committing the murders, he left Ms. Robinson’s apartment and
attempted to hot-wire her vehicle which was parked in the driveway.
When he was unable to start it, he fled the scene, walking along the
railroad tracks so that nobody would see him covered in blood. The
[Petitioner] stated that he took money from Ms. Robinson’s purse
before discarding it, along with the knife used to stab Ms. Mitchell,
in a dumpster. Once the [Petitioner] returned home, he removed the
bloody clothing and returned to the railroad tracks where he hid the
clothing under old tires next to the tracks. After discarding the
bloody clothes, the [Petitioner] returned home to wash the blood off
of his sneakers.
When detectives received this information, they advised other
officers to search for the discarded evidence at the locations
described with great specificity by the [Petitioner], in the vicinity of
Second Street in Hackensack. The detectives searched the dumpster
that the [Petitioner] described, and discovered a white short-sleeve
shirt which was covered in blood. The officers then proceeded to

search the area for the rest of the clothing that the [Petitioner]
claimed to have discarded under old tires. After searching the area
to no avail, the officers requested the assistance of a canine to locate
the evidence. Approximately half an hour later, the canine located a
brown plastic bag with yellow pull ties which contained a pair of
dark pants, and a maroon jacket, both of which were also covered in
blood. Notably, these items were discovered under old tires in a
wooded area near the railroad tracks, exactly as the [Petitioner] had
described to detectives during his statement. In addition, officers
discovered a left-handed knit glove which was described as having
cut marks and what appeared to be blood stains. When the glove was
discovered, it was extremely damp and seemed to have been sitting
in stagnant water.
After securing the items discovered in the dumpster and next to the
railroad tracks, the officers secured and executed a search warrant at
the [Petitioner]’s home. Upon searching the [Petitioner]’s home,
officers discovered brown plastic garbage bags with yellow pull ties,
matching the bag in which the bloody clothing was found. In
addition, officers seized a pair of sneakers from the [Petitioner]’s
home which subsequently tested positive for blood. Forensic
analysis of the items retrieved from the dumpster and railroad tracks
revealed transfer fibers, linking those articles of clothing to the
victim’s home and car.
E. [Petitioner]’s Statements for Medical Treatment
After the [Petitioner]’s arrest, he was seen by the intake nurse at the
Bergen County Jail, Margaret Neely, L.P.N. Upon examining the
[Petitioner], Ms. Neely noticed cuts on his left hand. According to
Ms. Neely’s testimony, the cuts appeared to be 24 to 48 hours old.
Ms. Neely’s report indicated that the [Petitioner] stated that he cut
his hand on a kitchen knife on September 5, 1989, the day of the
victims’ murders.
(ECF No. 7-23 at 156–61, PCR Court Op. 8/29/2017.)
On December 4, 1989, a Bergen County grand jury returned indictment number 89-1201594-1, charging the defendant with two counts of knowing or purposeful murder contrary to
N.J.S.A. 2C:11- 3(1) and (2); four counts of felony murder contrary to N.J.S.A. 2C:11-3a(3); one
count of aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(3); and one count of aggravated
assault contrary to N.J.S.A. 2C:12-lb(5)(a). (See id. at 154.) Petitioner’s initial trial, during which

the State sought the death penalty, resulted in a mistrial due to a deadlocked jury. (Id.) The State
did not seek the death penalty on retrial, and Petitioner’s retrial was scheduled before the
Honorable William C. Meehan, J.S.C. (Id.) On March 9, 1990, following the retrial, Petitioner was
found guilty on all counts of the indictment. (Id. at 154-155.) On April 3, 1998, the trial court
sentenced Petitioner to an aggregate term of two life sentences plus 21 ½ years, with a 7-year and
9-month period of parole ineligibility. (Id. at 155.)
Petitioner filed a Notice of Appeal and on May 17, 2004, the Appellate Division affirmed
Petitioner’s conviction. (ECF No. 7-12 at 63–121.) On June 22, 2005, the New Jersey Supreme
Court denied Petitioner’s petition for certification. (ECF No. 7-7 at 66.) Petitioner did not file a
petition for certiorari with the Supreme Court of the United States.
On January 4, 2006, Petitioner filed his first pro so Petition for Post-Conviction Relief
(“PCR”). (Id. at 67–72.) On May 24, 2007, the State moved for summary dismissal of Petitioner’s
pro se PCR petition. (Id. at 73.) On August 14, 2007, Petitioner filed a counseled amended PCR
petition, as well as a request for DNA testing. (ECF No. 7-9 at 23 to ECF No. 7-11 at 69.) On
September 28, 2007, the PCR judge held a hearing and denied Petitioner’s PCR petition on the
record as time-barred but granted Petitioner’s request for DNA testing. (ECF No. 7-32.) On
October 18, 2017, the PCR court filed an Order memorializing the dismissal of Petitioner’s PCR
petition. (ECF No. 7-21 at 66–68.)
On December 18, 2007, Petitioner filed a Notice of Appeal from the PCR court’s October
18, 2007 order dismissing the PCR petition as time-barred. (ECF No. 7-7 at 74.) On July 21, 2008,
Petitioner sought to stay his appeal until conclusion of the DNA testing, or in the alternative to
extend the deadline for filing his appellate brief. (Id. at 75–82.) The State did not oppose
Petitioner’s request, rather the State left the matter to the Appellate Divisions discretion. (Id. at

83.) On August 13, 2008, the New Jersey Superior Court, Appellate Division, dismissed
Petitioner’s appeal without prejudice, noting that Petitioner may file a new appeal at the
completion of the DNA testing because “in that manner, all post-conviction proceedings [could]
be considering one appeal.” (Id. at 84.)
On September 9, 2011, Petitioner filed a motion seeking (i) a new trial based on newly
discovered evidence; (ii) an evidentiary hearing; (iii) request for post-conviction discovery; or
alternatively, to include these newly discovered facts and evidence with respect to existing PCR
and/or as part of excluded record in future direct appeal. (ECF No. 7-21 at 144–79.) Petitioner
sought a new trial, arguing that news articles related to one of the detectives involved in
Petitioner’s case alleged that the detective was associated with the mob. (See id.) On February 1,
2012, the PCR court denied Petitioner’s motion for a new trial. The PCR court also found that if
the motion was treated as a second PCR petition, that petition was dismissed as time barred. (ECF
No. 7-21 at 192–200.)
On March 13, 2012, Petitioner motioned the Appellate Division to consolidate all issues
related to the 2012 denial of his second PCR petition with his first 2007 PCR petition appeal. (ECF
No. 7-7 at 85–91.) On April 9, 2012, the Appellate Division denied Petitioner’s motion to
consolidate issues and noted that there was nothing to consolidate, as Petitioner’s first PCR appeal
was dismissed in August 2008. (Id. at 92.) The DNA testing was completed in 2014. (ECF No. 722 at 114.)
On April 13, 2015, Petitioner filed a “successor” PCR petition, and a motion for a new trial
and for additional DNA testing. (Id. at 43–88.) In addition to other arguments, Petitioner argued
that new DNA evidence pertaining to the right-hand glove, shows the Petitioner is innocent and
that his confession is false. (See id.) On August 29, 2017, following oral argument, the PCR court

denied Petitioner’s third PCR petition and motion for a new trial. (ECF No. 7-23 at 154–77.)
Petitioner filed appeals from the 2007 and 2017 orders denying him PCR relief. On May 18, 2021,
the New Jersey Superior Court, Appellate Division, affirmed both the 2007 and 2017 denials of
Petitioner’s PCR petitions. (ECF No. 7-1.) On January 28, 2022, the New Jersey Supreme Court
denied Petitioner’s petition for certification. (ECF No. 7-30.)
On January 20, 2023, Petitioner filed his petition for writ of habeas corpus. (ECF No. 1.)
Petitioner raises to following claims:
1.

PETITIONER SHOULD BE GRANTED AN EVIDENTIARY HEARING
BECAUSE NEWLY DISCOVERED EVIDENCE DERIVED FROM STATE-OFTHE-ART DNA TESTING PROVES THAT THE CONFESSION WAS FALSE
AND ESTABLISHES A PRIMA FACIE CASE THAT PETITIONER’S
CONVICTION WAS OBTAINED IN VIOLATION OF DUE PROCESS;

2.

THE DISTRICT COURT SHOULD GRANT ADDITIONAL DNA TESTING TO
ALLOW PETITIONER TO ESTABLISH THIRD-PARTY GUILT;

3.

THE NEWLY DISCOVERED EVIDENCE RAISES PROOF THAT NAPUE
VIOLATIONS INCLUDING MANUFACTURED OR FALSE EVIDENCE AND
FALSE TESTIMONY OCCURRED AND THIS AFFECTED THE OUTCOME
OF THE VERDICT;

4.

NEWLY DISCOVERED EVIDENCE IMPACTS PREVIOUS RULINGS AS TO
THE SUPPRESSION OF THE BLOOD EVIDENCE, THE CONFESSION, AND
THE BARRING OF THE FALSE CONFESSION EXPERT, THE PLANTED
EVIDENCE EXPERT, THE FINGERPRINT EXPERT AND THE EDTA
EXPERTS’ TESTIMONY;

5.

THE TRIAL COURT EFFECTIVELY DENIED PETITIONER THE RIGHT TO
A DEFENSE;

6.

THE TAMPERED WINDBREAKER
REVERSAL OF THE CONVICTIONS;

7.

PROSECUTORIAL MISCONDUCT IN THE FORM OF BRADY
VIOLATIONS, FALSE TESTIMONY THAT REMAINS UNCORRECTED TO
THIS DAY, AND INTENTIONAL TAMPERING AND DESTRUCTION OF
EXCULPATORY PHYSICAL EVIDENCE DENIED PETITIONER THE RIGHT
TO DUE PROCESS AND A FAIR TRIAL; and

LABEL

EVIDENCE

REQUIRES

8.

PETITIONER ASSERTS A FREE-STANDING ACTUAL INNOCENCE CLAIM

(ECF No. 2 at 34–89.)
On February 17, 2023, Petitioner filed a brief in support of his habeas petition. (ECF No.
2.) Respondents subsequently filed the instant Motion to Dismiss, arguing that the petition is
untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (ECF No.
7.) Petitioner filed a response, and Respondents filed a reply. (ECF Nos. 10, 11, 12.)
The matter is now ripe for decision without oral argument. Fed. R. Civ. P. 78(b).
II.

STANDARD OF REVIEW
The AEDPA imposes a one-year period of limitation on a petitioner seeking to challenge

his state conviction and sentence through a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the limitation period runs from the latest
of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

28 U.S.C. § 2244(d)(1); see also Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). “[T]he statute
of limitations set out in § 2244(d)(1) should be applied on a claim-by-claim basis.” Fielder v.
Varner, 379 F.3d 113, 118 (3d Cir. 2004).
Pursuant to § 2244(d), evaluation of the timeliness of a § 2254 petition requires a
determination of, first, when the pertinent judgment became “final,” and, second, the period of
time during which an application for state post-conviction relief was “properly filed” and
“pending.” The judgment is determined to be final by the conclusion of direct review, or the
expiration of time for seeking such review, including the ninety-day period for filing a petition for
writ of certiorari in the United States Supreme Court. See Gonzalez v. Thaler, 132 S.Ct. 641, 653–
54 (2012).
The AEDPA limitations period is tolled, however, during any period a properly filed PCR
petition is pending in the state courts. 28 U.S.C. § 2244(d)(2); see also Thompson v. Adm’r New
Jersey State Prison, 701 F. App’x 118, 121 (3d Cir. 2017); Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 85 (3d Cir. 2013). The PCR petition is considered to be pending, and the
AEDPA limitations period continues to be tolled, during the time the petitioner could have
appealed a PCR decision within the state courts, even if the petitioner did not in fact file such an
appeal. Carey v. Saffold, 536 U.S. 214, 219–21 (2002); Swartz v. Meyers, 204 F.3d 417, 420–24
(3d Cir. 2000) (citing Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999)). However, “[t]he
application for state postconviction review is…not ‘pending’ after the state court's postconviction
review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the
pendency of a petition for certiorari.” Lawrence v. Florida, 549 U.S. 327, 332 (2007).
III.

DECISION
Respondents argue that the Petition is untimely. The Court agrees.

A. Timeliness
Petitioner’s conviction became final within the meaning of AEDPA on September 20,
2005, 90 days after the New Jersey Supreme Court denied certification of his direct appeal on June
22, 2005. (ECF No. 7-7 at 66); see Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80,
84 (3d Cir. 2013) (“[T]he expiration of the time for seeking direct review is the deadline for
petitioning for certiorari to the United States Supreme Court.”) Therefore, absent statutory tolling,
Petitioner’s AEDPA one-year time limitation expired on year later, on September 20, 2006.
1. Statutory Tolling
The AEDPA limitations period is tolled during the time a properly filed PCR petition is
pending in the state courts. 28 U.S.C. § 2244(d)(2); see also Thompson v. Adm’r New Jersey State
Prison, 701 F. App’x 118, 121 (3d Cir. 2017); Jenkins, 705 F.3d at 85. A properly filed application
is one that the Court accepted for filing by the appropriate court officer and the Petitioner filed the
application within the time limits prescribed by the relevant jurisdiction. Pace v. DiGuglielmo, 544
U.S. 408, 413 (2005). A properly filed PCR petition will continue to be “pending” in the state
courts following an adverse determination by the PCR court until the time in which a petitioner
has to file a timely direct appeal in the state courts has run. See Swartz, 204 F.3d could at 420-24,
423 n.6. Importantly, it is well established that a petition for state post-conviction relief that was
rejected by the state courts as untimely is not deemed “properly filed” under § 2244(d)(2). See
Pace, 544 U.S. at 414 (“When a postconviction relief petition is untimely under state law, that [is]
the end of the matter for purposes of § 2244(d)(2).”) (internal quotation marks and citation
omitted); see also Allen v. Siebert, 552 U.S. 3 (2007).
As noted above, Petitioner’s judgment of conviction became final on September 20, 2005.
The following day on September 21, 2005, Petitioner’s habeas statute of limitations began to run,

and it elapsed one year later, on September 21, 2006. See 28 U.S.C. § 2244(d)(1)(a). Petitioner
filed this habeas petition in January 2023, over sixteen years later.
The fact that Petitioner filed his first PCR petition on January 4, 2006, after the AEDPA
limitations period ran for only 104 days, does not induce statutory tolling of Petitioner’s one-year
habeas deadline because Petitioner’s first PCR was not “properly filed.” (ECF No. 7-7 at 67–72.)
See Pace, 544 U.S. at 414; see also Long v. Wilson, 393 F.3d 390, 394–95 (3d Cir. 2004) (“The
state habeas petition had no effect on tolling, because an untimely state post-conviction petition is
not properly filed for the purposes of tolling.”). Under New Jersey Court Rule 3:22-12, a petition
for PCR must be filed within five years of the date of entry of a judgment of conviction. See e.g.,
Pressler, Current N.J. Court Rules, cmt. 2 on N.J. Ct. R. 3:22-12 (2015) (“The five-year period . . .
commences when the judgment of conviction is entered and is neither stayed nor tolled by
appellate or other review proceedings.”); State v. Dillard, 506 A.2d 848, 850 (N.J. Super. Ct. App.
Div.), cert. denied, 523 A.2d 169 (1986) (finding that “there is no provision for tolling in R. 3:2212 by reason of a direct appeal”).
In Petitioner’s case, the PCR court held that his first PCR petition was untimely because
more than five years elapsed between Petitioner’s judgment of conviction on April 3, 1998, and
Petitioner’s filing of his PCR on January 4, 2006. (See ECF No. 7-32.) Therefore, since Petitioner’s
PCR was not “properly filed,” he is not entitled to statutory tolling for the pendency of his PCR
proceedings.
Petitioner argues that although the PCR court dismissed his first PCR petition as untimely,
his properly filed motion for DNA testing triggered statutory tolling. (See ECF No. 10 at 16–20.)
Petitioner argues that the PCR judge’s grant of Petitioner’s motion for post-conviction DNA

testing remained pending until the New Jersey Supreme court denied certification on January 28,
2022, within one year of the filing of the habeas petition on January 20, 2023. (Id.)
The Third Circuit Court of Appeals has not resolved the issue of whether a post-conviction
request for DNA testing in New Jersey constitutes a “properly filed application for . . . other
collateral review” under Section 2244(d)(2). However, the majority of circuits to examine this
issue have determined that post-conviction motions for discovery or DNA testing are not forms of
collateral or post-conviction review. See Woodward v. Cline, 693 F.3d 1289, 1293 (10th Cir. 2012)
(determining that a motion under Kansas statute permitting biological testing is not an application
for collateral review that tolls AEDPA’s statute of limitations); Brown v. Sec’y for Dep’t of Corr.,
530 F.3d 1335, 1338 (11th Cir. 2008) (determining that Florida rule permitting post-conviction
DNA testing did not toll AEDPA’s limitations period because it did not provide a review
mechanism); Price v. Pierce, 617 F.3d 947, 952–53 (7th Cir. 2010) (determining that Illinois
statute permitting postconviction forensic testing was not a collateral review mechanism and did
not toll AEDPA’s limitations period); Ramirez v. Yates, 571 F.3d 993, 999–1000 (9th Cir. 2009)
(determining that post-conviction discovery motions did not toll AEDPA limitations period
because they did not challenge his conviction); Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001)
(determining that post-conviction motion for discovery under New York law did not challenge
conviction and therefore did not toll AEDPA’s limitations period).
However, this Court does not need to determine whether Petitioner’s motion for DNA
testing tolled the AEDPA statute of limitations. Even assuming, arguendo, that the AEDPA
limitations period was tolled from January 4, 2006, the date of filing of Petitioner’s first PCR
petition and request for DNA testing, until January 28, 2022, the date the New Jersey Supreme
Court denied Petitioner’s petition for certification, the habeas petition is still untimely. As

explained above, the AEDPA limitations period ran for 104 days from September 21, 2005, the
date Petitioner’s habeas statute of limitations began to run, until January 4, 2006, the date he filed
his first PCR petition and motion for DNA testing. Petitioner’s habeas clock would have started to
run again on January 28, 2022, the date the New Jersey Supreme Court denied Petitioner’s petition
for certification, with 261 days (365 – 104 = 261) days remaining on his habeas limitation period.
As such, Petitioner had 261 days, or until October 17, 2022, to file a timely habeas Petition. The
instant habeas petition was not filed until January 20, 2023, over three months after Petitioner’s
AEDPA limitations period had run. Therefore, even allowing for statutory tolling for the time in
which Petitioner’s DNA results were pending, his habeas petition is still untimely.
2. Alternate Habeas Limitations Start Date
While Petitioner does not argue that his “newly discovered” DNA evidence qualifies for
an alternate start date under § 2244(d)(1), the Court will address the issue. The AEDPA gives a
state prisoner one year to file a federal habeas petition, starting from “the date on which the
judgment became final.” 28 U.S.C. § 2244(d)(1)(A). But if the petition alleges newly discovered
evidence, the filing deadline is one year from “the date on which the factual predicate of the claim
. . . could have been discovered through . . . due diligence.” § 2244(d)(1)(D).
By way of background, the New Jersey Superior Court, Appellate summarized the original
DNA testing results from Petitioner’s trial as follows:
DNA testing established that [Petitioner] could not be ruled out as a
major contributor, and the former girlfriend a minor contributor, to
blood samples taken from inside her car and from his black pants.
Additional items, found at the locations [Petitioner] identified, were
also tested. The victim could not be ruled out as the major
contributor and [Petitioner] the minor contributor, to blood found on
his windbreaker and to blood stains found on a shirt in a dumpster.
Additionally, [Petitioner] could not be ruled out as a contributor to
the blood on the mattress and the victim’s brassiere. Her boyfriend
was excluded as a contributor to any samples.

(ECF No. 7-1 at 3.)
Petitioner argues the following pieces of DNA evidence are “new” and show his confession
was coerced and exonerate him.
1)

DNA evidence from the right glove. Petitioner argues that the NJSP
DNA lab identified DNA that was from the interior of the right
brown glove [sample 57-3] and the lab called it an ‘as worn’ sample
that had no blood on it.” (ECF No. 2 at 20.) Petitioner submits that
the DNA results from inside the right glove finger matches the
victim’s, Audrey Robinson, DNA profile and excluded Petitioner.
(Id., see also ECF No. 7-19 at 146.) Petitioner also submits that
blood found on the right glove was a match to the victim’s DNA
profile, and no male DNA was found in the blood sample. (Id. at 22;
see also ECF No. 7-16 at 147.)

2)

DNA evidence from the left glove. Petitioner submits that the new
DNA results indicate no DNA was found on the left glove. (Id., see
also ECF No. 7-16 at 147.)

3)

DNA evidence from the belt. Petitioner submits that the new DNA
results indicate that DNA found on the belt that was used to strangle
the victim matched the DNA profile of the victim, but Petitioner’s
DNA was not found on the belt. (Id. at 25, see also ECF No. 7-16 at
149.)

4)

DNA evidence from the brown plastic bag. Petitioner submits that
the new DNA results from the brown plastic bag that Petitioner
confessed to carrying his bloody clothes in indicated that no blood
was found on the bag. (Id. at 26–27; see also ECF No. 7-16 at 149.)

5)

DNA evidence from hair from the crime scene. Petitioner submits
that the new DNA results from the hairs from the crime scene
exclude Petitioner. (Id. at 26; see also ECF No. 7-16 at 149.)

6)

DNA evidence from the rape kit evidence. Petitioner submits that
the new DNA results excluded Petitioner from being a contributor
from the rape kit evidence. (Id.; see also ECF No. 7-16 at 149.)

The Appellate Division also summarized Petitioner’s claims in his first 2006 PCR petition
as follows:

[Petitioner] filed his first PCR petition in January 2006, claiming
that his experts were improperly barred from testifying as
established by subsequent caselaw and news articles; the prosecutor
engaged in misconduct during opening and closing statements;
police tampered with evidence and conspired against him, as did the
judges who presided over the case; the DNA evidence had been
tampered with and was unreliable; he was wrongfully precluded
from pursuing an investigation into the victim’s boyfriend as a
“bloody” fingerprint had been found on the utensil drawer (during
the trial, the State’s fingerprint expert said that although the
boyfriend’s fingerprint was found on the utensil drawer, it had no
blood on it, and was not in a bloody area); the jury charge was
erroneous; his confession was coerced and he should have been
granted a Miranda rehearing after it was revealed that he had a
handcuff on one arm when the stenographer transcribed his
statement to police; the physical evidence against him should have
been suppressed; the jury was prejudiced and engaged in
misconduct; he was wrongfully precluded from trying on one of two
knit gloves he allegedly wore during the killing; he was wrongly
denied discovery essential to his attack on the credibility of the
investigating officers who testified against him; the serology log
books were doctored by police and prosecutors; the prosecutor
presented perjured testimony regarding photos taken of the victim’s
car; defense witness testimony regarding his reaction to “learning”
of the victim’s death was wrongfully precluded; there was judicial
bias against him; and appellate counsel failed to advise him of PCR
filing deadlines and was otherwise ineffective. [Petitioner] also
requested an evidentiary hearing and additional DNA testing.
(ECF No. 7-1 at 4–5.)
In order to determine the “factual predicate of the claim or claims presented” for purposes
of section 2244(d)(1)(D), the Court must identify Petitioner’s claims. Petitioner’s brief in support
of habeas relief is voluminous and many of his claims overlap. In addition to his request for an
evidentiary hearing and additional DNA testing, Petitioner raises several due process claims,
allegedly supported by “newly discovered evidence.” Petitioner argues that he was denied due
process and a fair trial because newly discovered DNA evidence shows Petitioner’s confession
was coerced, law enforcement manufactured false evidence, and prosecutorial misconduct in the
form of introducing false testimony and the intentional tampering and destruction of exculpatory

physical evidence. Petitioner also argues that the newly discovered DNA evidence impacts the trial
court’s rulings as to the suppression of blood evidence, Petitioner’s confession, and the preclusion
of various experts. Petitioner’s claims all boil down to his allegations that he was not the
perpetrator, law enforcement coerced his confession, and law enforcement and the prosecution
planted the evidence to match his coerced confession and/or tampered with the evidence. Petitioner
argues that the “new” DNA results prove that he is innocent, and his confession was coerced.
The Third Circuit Court of Appeals considered what section 2241(d)(1)(A)’s term “factual
predicate” means and explained “though the AEDPA does not define ‘factual predicate,’ we have
held that ‘[s]ection 2244(d)(1)(D) provides a petitioner with the later accrual date than section
2244(d)(1)(A) only if vital facts could not have been known.’” McAleese v. Brennan, 483 F.3d
206, 214 (3d. Cir. 2007) (citation omitted). The Third Circuit found that the “factual predicate” of
petitioner’s claims constitutes the “vital facts” underlying those claims. Id.
Here, Petitioner confuses the facts that make up his claims, with “new” DNA evidence that
support his claims. McAleese, 483 F.3d at 214, citing Johnson v. McBride, 381 F.3d 587, 589 (7th
Cir. 2004) (“A desire to see more information in the hope that something will turn up differs from
‘the factual predicate of [a] claim or claims’ for purposes of § 2244(d)(1)(D).”).
Any argument that the new DNA results from the left glove, the belt, the brown plastic
bag, the hairs, or the rape kit presents a new factual predicate for Petitioner’s claims fails, as it is
merely additional support for a claim already raised by Petitioner. The PCR court explained in
Petitioner’s third PCR petition that these items are not new. (ECF No. 7-23 at 175–76.) In fact, the
PCR court noted that “the defense strategy at trial was to highlight the lack of [Petitioner’s] DNA
found on the gloves, in the victim’s car and at the crime scene in general,” and defense counsel
argued in his summation that the left glove lacked Petitioner’s DNA. (Id. at 175.) Defense counsel

noted that Petitioner’s hairs were not found on the glove or the knife. (ECF No. 14-4 at 91.) The
fact that hairs tested post-conviction were not a match for Petitioner is not new evidence, rather
just additional support for an argument already made to the jury regarding the lack of Petitioner’s
hairs at the scene. Defense counsel agued to the jury at trial that there was no blood in the plastic
bag. (Id. at 122.) Therefore, the lack of Petitioner’s DNA in the plastic bag is not new evidence.
The jury was informed that DNA testing of the rape kit was not done because state laboratory had
reported the absence of any seminal fluid. (ECF No. 14-2 at 81.) Finally, the lack of DNA on the
belt is not “new evidence” that would be the factual predicate for a new claim, rather it is simply
additional support for Petitioner’s position that he is not the perpetrator and law enforcement
tampered with evidence. The absence of Petitioner’s DNA on these items is not new evidence and
does not provide a new factual predicate for a different habeas limitations start date under section
2241(d)(1)(D).
The alleged “newly discovered” DNA evidence of the victim’s DNA inside the finger of
the right glove is merely cumulative evidence that Petitioner is attempting to use to corroborate
his argument that his confession was coerced, and he is not the owner of and did not wear the
gloves. Petitioner has claimed all along that he was not the owner of the gloves and that the police
planted the gloves and coerced him to testify that he brought the gloves to the victim’s house. (See
generally, ECF No. 14-4.) The DNA testing results of the right glove from prior to trial indicated
that the blood matched the DNA profile of the victim, and Petitioner was excluded as a contributor.
(See ECF No. 14-2 at 66.) Therefore, the DNA evidence before trial already excluded Petitioner
as a contributor and found that blood on the right glove matches the DNA profile of the victim.
Additional DNA from the victim on the right glove is cumulative of the evidence before the jury

and merely supports for the claim petitioner was already making, i.e., that he was not the owner of
the gloves.
Petitioner now attempts to resurrect his time-barred habeas claims by alleging the fact that
the victim’s DNA was found on a different portion of the right glove is newly discovered evidence
which is the factual predicate for his claim. Here, since his first PCR petition filed prior to the
2007, Petitioner set out the argument that his DNA was not on the gloves, which proved they were
planted and his confession was coerced, the “newly discovered” DNA evidence of the victim
inside the glove is not a fact that Petitioner is using to support a new claim, rather is support for
previous claim. At this juncture Petitioner would be precluded from resorting to § 2244(d)(1)(D)
to reset the limitations clock.
3. Equitable Tolling
The one-year statute of limitations period under § 2244(d) is also subject to equitable
tolling.
“Equitable tolling is proper only when the ‘principles of equity would make [the] rigid
application [of a time period] unfair.’ Generally, this will occur when the petitioner has ‘in some
extraordinary way . . . been prevented from asserting his or her rights.’ Moreover, to be entitled to
equitable tolling, ‘[t]he petitioner must show that he or she ‘exercised reasonable diligence in
investigating and bringing [the] claims.’ Mere excusable neglect is not sufficient.” Brown v.
Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir. March 17, 2003) (citations omitted).
Equitable tolling may be appropriate where: “(1) the defendant has actively misled the
plaintiff; (2) if the plaintiff has ‘in some extraordinary way’ been prevented from asserting his
rights; or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.” Jones
v. Morton, 195 F.3d 153, 159 (3rd Cir.1999).

In the final analysis, federal review, on an equitable basis, of an untimely habeas petition
is limited to the “rare situation where equitable tolling is demanded by sound legal principles as
well as the interests of justice.” Id.
Petitioner argues that he is entitled to equitable tolling because the DNA test results upon
which his habeas petition is based were not previously available to him, and they show that the
prosecution used a false confession to convict Petitioner. The Court notes that Petitioner argues
“actual innocence” as one of his habeas claims. 1 To the extent Petitioner is arguing that the DNA
results show Petitioner is actually innocent and that is a basis for equitable tolling, Petitioner has
not met his burden of proof.
In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the Supreme Court held that a credible
claim of actual innocence may serve as an “equitable exception” that can overcome the bar of
AEDPA’s one-year limitations period. However, the McQuiggin Court cautioned that “tenable
actual-innocence gateway pleas are rare,” and a petitioner only meets the threshold requirement
by “persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.” Id. at 1928. An actual innocence
claim must be based on “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence [] that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). In the Third Circuit, evidence is “new” for the purposes
of the Schlup standard only if it was not available at the time of trial and could not have been

1

To the extent that Petitioner argues actual innocence as an independent basis for habeas relief,
free-standing claims of actual innocence are not reviewable in habeas actions. A claim of actual
innocence is merely a gateway-the petitioner must allege at least one separate constitutional
violation. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on
newly discovered evidence have never been held to state a ground for federal habeas relief absent
an independent constitutional violation occurring in the underlying state criminal proceeding.”).

discovered earlier through the exercise of due diligence, except in situations where that evidence
was not discovered due to the ineffective assistance of trial counsel. See Houck v. Stickman, 625
F.3d 88, 93–94 (3d Cir. 2010). In turn, when determining if a petitioner’s new evidence shows it
is “more likely than not that no reasonable juror would have convicted him,” a court must consider
“all the evidence, old and new, incriminating and exculpatory, without regard to whether it would
necessarily be admitted under rules of admissibility that would govern at trial.” House v. Bell, 547
U.S. 518, 538 (2006). Finally, a court “may consider how the timing of the submission [of actual
innocence] and the likely credibility of the affiant[] bear on the probable reliability of that
evidence.” Schlup, 513 U.S. at 332.
As explained above, Petitioner bases his claim of “actual innocence” on the absence of his
DNA on both the right and left gloves, the brown plastic bag, the belt that was used to strangle the
victim, the hairs found at the crime scene, and the rape kits. Additionally, Petitioner claims that
the victim’s DNA on the inside of the right gloves proves that he is innocent, and that law
enforcement tampered with the evidence. Petitioner’s argument fails for several reasons. First, as
noted above, the lack of Petitioner’s DNA on the gloves, the victim’s DNA on the right glove, the
lack of Petitioner’s hairs at the scene, and the lack of blood on the plastic bag were presented to
the jury at trial. The PCR court found on Petitioner’s third PCR appeal “that the DNA test results
of: (1) the gloves believed to be worn by the defendant, during the murder, (2) the brown plastic
bag that the defendant’s bloody clothing was discovered in; (3) the belt found around the victim’s
neck; and (4) swabs #81 and #82 from the victim's rape kit, all amount to cumulative,
impeachment, and contradictory evidence and would not have had a probable impact on the jury’s
verdict.” (ECF No. 7-23 at 175.) This is not “new reliable evidence” that was “not presented at
trial.” Schulp, 513 U.S. at 324.

Second, regarding the new DNA results that the victim’s DNA was found inside the right
glove, this evidence is cumulative of the evidence produced at trial. The DNA available prior to
trial showed that the victim’s DNA was found on the outside of the right glove. Additionally, as
the PCR court noted “the DNA being discovered on the inside of the right glove is the only
evidence that was not presented at the time of [Petitioner’s] trial. However, this evidence is
consistent with [Petitioner’s] statement to detectives that the victim pulled his right glove off
during the struggle, which the jury heard and considered before convicting [Petitioner].” (ECF No.
7-23 at 176.)
The PCR court explained that:
The evidence at the [Petitioner’s] trial included the [Petitioner’s]
own statement recounting the murders with specific details that were
not disclosed to anyone prior to his statement. The [Petitioner’s]
statement included (1) how he entered the victim’s apartment, (2)
the rooms in which the bodies were found, (3) the areas of the
victims’ bodies that were stabbed, (4) the use of a belt tied around
the victim’s neck, (5) the fact that he attempted to hot-wire her car
to flee the scene, (6) the route he took to avoid being seen covered
in blood, and (7) the areas along the railroad tracks where he
discarded key evidence. Virtually all of the [Petitioner’s] statements
were corroborated by the evidence collected by investigating
officers.
In addition, the following evidence was presented at trial: (1) the
[Petitioner] had cuts on his palms and knuckles that corresponded
with the cuts on the glove which was believed to be used during the
murder, (2) the [Petitioner] made a statement to the nurse at the
Bergen County Jail stating that he cut his hand on a kitchen knife on
the same date as the murder, (3) there was blood discovered on the
[Petitioner’s] sneaker after officers executed the search warrant at
his home, and (4) brown garbage bags with yellow tics that were
seized from the [Petitioner’s] home, which matched the brown bag
that his bloody clothing was found in.
(ECF No. 7-23 at 173.)

Additionally, on appeal, the Appellate Division summarized the DNA evidence from
Petitioner’s trial that did place him at the crime scene as follows:
DNA testing established that [Petitioner] could not be ruled out as a
major contributor, and the former girlfriend a minor contributor, to
blood samples taken from inside her car and from his black pants.
Additional items, found at the locations [Petitioner] identified, were
also tested. The victim could not be ruled out as the major
contributor and [Petitioner] the minor contributor, to blood found on
his windbreaker and to blood stains found on a shirt in a dumpster.
Additionally, [Petitioner] could not be ruled out as a contributor to
the blood on the mattress and the victim’s brassiere. Her boyfriend
was excluded as a contributor to any samples.
(ECF No. 7-1 at 3.)
The jury was informed that Petitioner’s DNA was not found on the gloves and plastic bag
and Petitioner’s hairs were not found at the scene. The jury was also informed that the victim’s
DNA was found on the right glove. The jury was informed that DNA testing of the rape kit was
not done because state laboratory had reported the absence of any seminal fluid. Additionally, the
jury was informed that Petitioner’s could not be ruled out as a major contributor to blood samples
inside the victim’s car and he could not be ruled out as a contributor to the blood on the mattress
and the victim’s bra. (ECF No. 7-1 at 3.) Finally, DNA testing showed the victim was a minor
contributor to blood samples from Petitioner’s black pants and a major contributor to blood
samples from Petitioner’s windbreaker and shirt. (Id.) “To qualify for [the actual innocence]
exception, the petition must present new, reliable evidence showing it is more likely than not that
no reasonable juror would have voted to convict him. Reeves v. Fayette SCI, 897 F.3d 154, 157
(3d Cir. 2018). Considering, Petitioner’s reliance on DNA results that already existed at trial, the
extensive DNA evidence at trial that placed Petitioner at the scene, and Petitioner’s detailed
confession, he cannot show that it is more likely than not that no reasonable juror would have
convicted him if they had known about the victim’s DNA being on the inside of the right glove.

Therefore, Petitioner’s actual innocence argument does not qualify him for equitable tolling.
Petitioner’s petition for habeas relief is dismissed as time-barred.
IV.

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 a state court proceeding 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).
Here, Petitioner has failed to make a substantial showing of the denial of a constitutional
right. Thus, no certificate of appealability shall issue. 2
V.

CONCLUSION
For the reasons set forth above, Respondents’ Motion is GRANTED, Petitioner’s petition

for a writ of habeas corpus (ECF No. 1) is DENIED, and Petitioner is DENIED a certificate of
appealability. 3 An appropriate order follows.
Date: November 15, 2023

/s/Brian R. Martinotti
_____
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

2

We need not order an evidentiary hearing. Congress permits evidentiary hearings for section
2254 petitions “only in a limited number of circumstances.” Campbell v. Vaughn, 209 F.3d 280,
286 (3d Cir. 2000). Petitioner must show, among other things, “the facts underlying the claim
would be sufficient to establish by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28
U.S.C. § 2254(e)(2)(B). Petitioner does not make such a showing because his petition is time
barred.
3

Petitioner’s request for additional DNA testing is denied as moot.