PEEPLES v. CITTA et al
Filing
7
OPINION filed. Signed by Judge Joel A. Pisano on 4/16/2012. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EARL PEEPLES,
Plaintiff,
v.
HONORABLE
JAMES N. CITTA et al.,
Defendant.
EARL D. PEEPLES,
Petitioner,
v.
PAUL K. LAGANA et al.,
Respondents.
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Civil Action
No. 11-6238 (JAP)
Civil Action
No. 12-2203 (JAP)
OPINION
APPLIES TO BOTH ACTIONS
Pisano, District Judge:
These two matters come before the Court upon Earl Peeples’
(“Peeples”) commencement of two proceedings in this District: a
civil rights action in Peeples v. Citta (“Peeples-I”), Civil Action
No. 11-6238 (JAP), and a habeas action in Peeples v. Lagana
(“Peeples-II”), Civil Action No. 12-2203 (JAP).
For the reasons detailed below, the Court will grant Peeples
in forma pauperis status for the purposes of both actions and will
dismiss both pleadings.
Both dismissals will be with prejudice.
I.
BACKGROUND
The facts underlying Peeples’ claims asserted in both above-
captioned actions were summarized by the Superior Court of New
Jersey, Appellate Division, as follows:
On October 7, 2002, [Peeples] pled guilty to . . . first
degree attempted murder . . . pursuant to a negotiated
agreement with the State. In response to the [trial]
court's questions, [Peeples] testified under oath that,
on December 17, 2001, he stabbed the mother of his child
“numerous times” with a kitchen knife, purposely
attempting to cause her death. In return for [Peeples’]
plea, the State agreed to dismiss the remaining counts .
. . and recommend to the [trial] court that [Peeples] be
sentenced to a term of imprisonment [of] fifteen years,
subject to an eighty-five percent period of parole
ineligibility and five-year parole supervision under the
No Early Release Act (“NERA”) . . . . On November 22,
2002, the [trial court] sentenced [Peeples] consistent
with the plea agreement to a term of fifteen years, with
the mandatory period of parole ineligibility and parole
supervision provided for in NERA.
. . .
[Peeples]
appealed the sentence imposed by the trial court [arguing
that his sentence was unduly] excessive . . . . By order
dated May 24, 2004, [the Appellate Division] affirmed
[Peeples’] sentence. On July 13, 2007, [Peeples] filed
[a post-conviction relief (“PCR”)] petition alleging
[(1)] ineffective assistance of trial and appellate
counsel
[that
resulted
in,
allegedly,
excessive
sentence];
(2)
the
trial
court
[allegedly]
impermissibl[e] . . . finding [of] certain aggravating
factors
[that
resulted
in,
allegedly,
excessive
sentence]; and (3) the trial judge[‘s] . . . comments
[uttered] during the sentencing hearing [which, Peeples
maintained, verified the trial court’s bias against him
and undue intent to impose an excessive sentence.
Peeples’] PCR petition came for adjudication before Judge
James J. Den Uyl on August 29, 2008. Judge Den Uyl was
not the judge who presided [over Peeples’] plea hearing
and
ultimately
sentenced
him.
[During
the
PCR
proceedings, Peeples’] PCR counsel argued [with regard to
Peeples’ third claim] that the following comments made by
the judge who sentenced [Peeples] showed bias based on
[Peeples’] and the victim's race. [(Peeples] is African
American and the victim [is] Caucasian[)]:
2
You're a dangerous individual [Mr. Peeples]. You
look up domestic violence in the dictionary, your
picture should be next to it. The only difference
between you and O.J. Simpson is he had more money
and he got off for some reason in a land of fruits
and nuts.
And the only difference between the
victim here and Nicole Brown Simpson is that she
got lucky and somebody was able to get her some
medical assistance before she bled to death on her
living room floor.
. . . [The Appellate Division] reject[ed Peeples’]
arguments
and
affirm[ed
denial
of
PCR
relief]
substantially for the reasons expressed by Judge Den Uyl.
. . . . [The Appellate Division commented that it] was
an egregious crime committed by [Peeples] against the
mother of his child, made even more alarming when
considered against [Peeples’] history of domestic
violence.
Although the trial court's remarks at the
sentencing hearing were clearly inappropriate, the record
support[ed] the ultimate sentence imposed . . . .
State v. Peeples, 2011 N.J. Super. Unpub. LEXIS 1587, at *1-6 (N.J.
Super. Ct. App. Div. June 20, 2011) (footnotes incorporated in the
main text, original brackets removed); certif. denied 208 N.J. 601
(Dec. 6, 2011).
II.
PROCEEDINGS AT BAR
A.
On
Procedural History
October
24,
2011,
the
Clerk
received
Peeples’
complaint; that submission gave rise to Peeples-I.
Docket Entry No. 1.
civil
See Peeples-I,
The complaint arrived unaccompanied by the
applicable filing fee or by Peeples’ application to proceed in that
civil rights matter in forma pauperis.
See id.
this
pauperis
Court
denied
Peeples
in
forma
Correspondingly,
status
without
prejudice and directed him to submit either his filing fee of
3
$350.00 or his duly executed in forma pauperis application.
Docket Entry No. 3.
See
To assist Peeples in that endeavor, the Court
directed the Clerk to serve Peeples with a blank in forma pauperis
application form.1
See id. at 3.
The Clerk duly complied.
However, on January 13, 2012, the Clerk’s mailing to Peeples
was returned as undeliverable.
See Docket Entry No. 4.
Almost
three months later, on April 2, 2012, the Clerk received a letter
from Peeples; that letter included Peeples’ in forma pauperis
application and requested reopening of Peeples-I. See Docket Entry
No. 5.
One week later, on April 9, 2012, the Clerk received Peeples’
habeas petition, executed pursuant to Section 2254, see Peeples-II,
Docket Entry No. 1; that petition – much like Peeples’ complaint in
Peeples-I, arrived unaccompanied by the applicable filing fee of
$5.00 or by Peeples’ application to proceed in that habeas matter
in forma pauperis.
See id.
In light of Peeples’ submission of his in forma pauperis
application in Peeples-I, the Court finds it warranted to grant
Peeples in forma pauperis status for the purposes of both actions,
1
Pursuant to the Court’s order, Peeples-I was
administratively terminated, subject to reopening in the event
Peeples submitted his in forma pauperis application within thirty
days from the date of entry of the Court’s order; Peeples was
expressly advised that administrative termination was not a
dismissal on merits, and that Peeples-I would be reopened upon
timely receipt of his in forma pauperis application. See
Peeples-I, Docket Entry No. 3, at 3.
4
that is, Peeples-I and Peeples-II, and will direct the Clerk to
assess the applicable filing fee against Peeples in connection with
Peeples-I and to file his civil complaint in that action.2
B.
Peeples’ Allegations
1.
Peeples-I
In his Peeples-I pleading, Peeples: (a) stated, at length,
numerous “paraphrasings” of the model canons of judicial ethics
recommended by the American Bar Association, compare Peeples-I,
Docket Entry No. 1, at 1-2, to <>;3 (b) named, as the sole Defendant in that action, Honorable
James N. Citta (“Judge Citta”), who was Peeples’ trial judge,4 see
2
Peeples’ habeas petition, submitted in Peeples-II, was
automatically deemed filed upon receipt due to the unique
safeguards embedded in the very nature of habeas proceedings.
The Court’s grant of in forma pauperis status to Peeples in
connection with his habeas Peeples-II action disposes of the
issue of a filing fee without yielding any assessment against
him.
3
The Court notes, in passing, that model canons of
judicial ethics do not apply to the New Jersey judiciary; rather,
the New Jersey judiciary is governed by the Code of Judicial
Conduct of the American Bar Association, as amended by the New
Jersey Supreme Court: these amended set of rules replaced the
model canons. See <>. However, this distinction is of no
substantive import for the purposes of the Court’s analysis at
hand.
4
Judge Citta was serving as a judge in the Superior
Court of New Jersey, being assigned to the Criminal Division in
the Ocean Vicinage. See <>.
5
Peeples-I, Docket Entry No. 1, at 4; (c) alleged that Judge Citta
violated the ethics canons by: (1) telling the mother of Peeples’
victim that Judge Citta would accept the mother’s statement into
evidence; and by (2) uttering the comment quoted by the Appellate
Division (i.e., Judge Citta's observations that Peeples' picture
should be utilized as an illustration to the topic of domestic
violence and that there were similarities between the trial of
Peeples and O.J. Simpson, and between injuries suffered by Peeples’
victim
and
Nicole
Brown),
see
compensatory and punitive damages.
id.
at
5-6;
and
(d)
sought
See id. at 8-9.
Peeples' complaint also asserted that Judge Citta "retaliated"
against Peeples by being, allegedly, prejudiced against Peeples and
by making the above-mentioned comments.
See id. at 7-8. In
connection with this allegation, Peeples opined that Judge Citta’s
comments must have been made with “malicious intention,” rendering
Peeples’ sentence “retaliatory,” and so Judge Citta should not be
entitled to absolute immunity.
2.
Id. at 6-7.
Peeples-II
In his Peeples-II pleading, Peeples restated, once again, his
“paraphrasings” of the model canons of judicial ethics recommended
by the American Bar Association and, in addition, verified the
timeline of events provided by the Appellate Division in Peeples,
2011 N.J. Super. Unpub. LEXIS 1587, and by the Supreme Court of New
6
Jersey in State v. Peeples, 208 N.J. 601.
Specifically, Peeples'
§ 2254 petition in Peeples-II verified that:
(a)
he took a guilty plea as to the sole charge underlying his
conviction;
(b)
he challenged his sentence on direct appeal;
(c)
his sentence was affirmed by the Appellate Division on May 25,
2004;5
(d)
he did not seek certification from the Supreme Court of New
Jersey as to this affirmance of his sentence;
(e)
he filed his PCR application on July 13, 2007;6 and
(f)
the New Jersey Supreme Court denied him certification as to
his PCR application on December 6, 2011.
5
Peeples’ assertions differ from the statements made by
the Appellate Division in the sense that Peeples maintains that
the Appellate Division affirmed his sentence on May 25, 2004,
while the Appellate Division designated that date as May 24,
2004. For the purposes of this Opinion only, and without making
a factual finding, this Court will read the discrepancy in
Peeples’ favor.
6
The habeas petition at bar (filed in Peeples-II) raises
the same three grounds that Peeples raised during his PCR
proceedings, i.e., the three challenges to his sentence. (Indeed,
having taken a guilty plea, Peeples could not challenge in his
Peeples-II habeas action anything but the validity of his plea or
his sentence.) Thus, in his instant Peeples-II habeas action,
Peeples’ first claim asserts that ineffective assistance of his
trial and appellate counsel contributed to Judge Citta’s undue
selection of his sentence; his second claim alleges that Judge
Citta made a wrongful finding as to certain aggravating factors
(and that, too, contributed to Judge Citta’s undue selection of
his sentence); and his last claim maintains that Judge Citta was
biased against Peeples in imposing his sentence (and that also
contributed to Judge Citta’s undue selection of Peeples’
sentence). See, generally, Peeples-II, Docket Entry No. 1.
7
See Peeples-II, Docket Entry No. 1 (Peeples' § 2254 petition,
executed on March 29, 2012, i.e., almost four months after the New
Jersey Supreme Court denied him certification as to his PCR).
III. DISCUSSION
A.
The Allegations in Peeples-I Fail to State a Claim
1.
The
Standard of Review
Prison
Litigation
Reform
Act
(“PLRA”),
Pub.
L.
No.
104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires the Court to review a complaint in a civil action in which
a prisoner seeks redress against a governmental employee or entity.
See 28 U.S.C. § 1915A(a).
The PLRA requires the Court to sua
sponte dismiss any claim if the Court determines that it is
frivolous, malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from a defendant who is immune
from such relief.
See 28 U.S.C. § 1915A(b).
Ashcroft v. Iqbal, 556 U.S. 662 (2009), hammered the “final
nail-in-the-coffin” for the “no set of facts” standard set forth in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957),7 which was previously
applied to determine if a federal complaint stated a claim. Fowler
v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009).
To survive
dismissal under Iqbal, “a complaint must contain sufficient factual
7
The Conley Court held that a district court was permitted
to dismiss a complaint for failure to state a claim only if “it
appear[ed] beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.”
Conley, 355 U.S. at 45-46.
8
matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference
alleged.’”
that
the
defendant
is
liable
for
the
misconduct
Iqbal, 129 S. Ct. at 1949 (citation omitted).
The
plausibility standard “asks for more than a sheer possibility that
a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with
a
defendant's
liability,
it
stops
short
of
the
line
between
possibility and plausibility of entitlement to relief,” and will be
dismissed.
Id. (citations and internal quotation marks omitted).
The Court of Appeals instructed that, to determine the sufficiency
of a complaint under the pleading regime established by Iqbal,
a court must take three steps: First, the court must
tak[e] note of the elements a plaintiff must plead to
state a claim.
Second, the court should identify
allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Finally,
where
there
are
well-pleaded
factual
allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief.
Santiago v. Warminster Township, 629 F. 3d 121, 130 (3d Cir. 2010)
(citations and quotation marks omitted); see also Fowler, 578 F.3d
at 210-211 (“a complaint must do more than allege the plaintiff's
entitlement
to
relief.
A
complaint
entitlement with its facts”).
9
has
to
‘show’
such
an
2.
Section 1983 Action
Section 1983 of Title 42 of the United States Code authorizes
a person such as Peeples to seek redress for a violation of his
federal civil rights by a person who was acting under color of
state law.
Specifically, Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
. . . subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
To recover under 42 U.S.C. § 1983, a plaintiff must show two
elements: (1) a person deprived him or caused him to be deprived of
a right secured by the Constitution or laws of the United States,
and (2) the deprivation was done under color of state law.
See
West v. Atkins, 487 U.S. 42, 48 (1988); Adickes v. S.H. Kress &
Co., 398 U.S. 144, 152 (1970).
3.
Judicial Immunity
The doctrine of judicial immunity provides that “judges are
immune from suit under section 1983 for monetary damages arising
from their judicial acts.”
Gallas v. Supreme Court of Pa., 211
F.3d 760, 768 (3d Cir. 2000); see also Mireles v. Waco, 502 U.S. 9
(1991) (per curiam).
To determine whether the judicial immunity
doctrine applies, the Court must establish: (a) whether the judge's
actions were “judicial” in nature; and (b) whether the judge acted
10
in the “clear absence of all jurisdiction over the subject matter.”
Gallas, 211 F.3d at 768-69 (quoting Stump v. Sparkman, 435 U.S.
349, 356 n.6 (1978)).
An act is judicial in nature if “it is a
function normally performed by a judge” and if the parties “dealt
with the judge in his judicial capacity.”
Stump, 435 U.S. at 362.
Here, the complaint in Peeples-I alleges that Judge Citta
expressed his opinion about the admissibility of the victim’s
mother’s
propensity
testimony
to
crime
and,
in
during
addition,
his
commented
sentencing
by
on
Peeples’
observing
that
Peeples' picture should be utilized as an illustration on the topic
of domestic violence, and that there were similarities between the
trial of Peeples and O.J. Simpson and between injuries suffered by
Peeples’ victim and Nicole Brown.
particular
language
might
be
While Judge Citta’s choice of
considered
inappropriate
or
disagreeable, there is no doubt that Judge Citta’s acts of uttering
those comments qualify as acts “normally performed by a judge,” and
the parties in each instance interacted with Judge Citta “in his
judicial capacity.” Additionally, because Judge Citta was properly
called to preside over Peeples’ criminal trial, including his plea
hearing and his sentencing hearing, there could be no basis for a
presumption that Judge Citta acted “in the clear absence of all
jurisdiction.”
Citta’s acts
Gallas, 211 F.3d at 769.
complained
about
by
doctrine of judicial immunity.
11
Therefore, all of Judge
Peeples are
covered
by
the
While
Peeples
inapplicable
believes
to
that
opines
Judge
Judge
that
Citta's
Citta
absolute
judicial
acted
with
immunity
acts
must
(because
“malicious
be
Peeples
intention”),
Peeples’ position is unavailing.8 “[A litigant’s] allegations of
bad faith [and] malice” cannot overcome [judicial] immunity.”
Abulkhair v. Rosenberg, 2012 U.S. App. LEXIS 494 (3d Cir. Jan. 10,
2012) (quoting Mireles, 502 U.S. at 11).
Simply put, “an act does
not become less judicial by virtue of an allegation of malice or
corruption
of
motive,”
“controversial.”
or
that
such
action
is
“unfair”
or
Gallas, 211 F.3d at 769; accord Stump, 435 U.S.
at 363 (“[d]isagreement with the action taken by the judge . . .
does not justify depriving the judge of his immunity”).
Thus,
Peeples' claims against Judge Citta are wholly without merit.
B.
Peeples-I Does Not Warrant Leave to Amend
Ordinarily, a plaintiff may be granted “leave [to amend,] . .
. when justice so requires.”
See Foman v. Davis, 371 U.S. 178, 182
8
Peeples’ “retaliation” claim also lacks merit. First, a
claim of retaliation is not “special,” in the sense that it has
no unique power to overcome absolute judicial immunity. Second,
retaliation claims are analyzed under a three-part test:
plaintiff must prove that, first, he engaged in a
constitutionally-protected activity; second, the government
responded with a retaliation, and third the plaintiff shows that
the particular protected activity caused the particular
retaliation. See Eichenlaub v. Twp. of Indiana, 385 F.3d 274,
282 (3d Cir. 2004). Here, Peeples asserts no protected activity
of any kind and shows no causal connection; he merely alleges
that Judge Citta “retaliated” against him because Judge Citta was
biased. However, Judge Citta’s bias, assuming arguendo that bias
was present, does not set forth an element or state a claim for
unconstitutional retaliation under § 1983.
12
(1962); Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993).
Indeed, “[t]he Federal Rules reject the approach that pleading is
a game of skill in which one misstep by counsel may be decisive to
the outcome and accept the principle that the purpose of pleading
is to facilitate a proper decision on the merits.”
at 182-83.
Foman, 371 U.S.
However, “[a]llowing leave to amend where ‘there is a
stark absence of any suggestion by the plaintiffs that they [might]
developed any facts since the action was commenced, which would, if
true, cure the defects in the pleadings . . . , would frustrate
Congress’s objective in enacting this statute of ‘provid[ing] a
filter at the earliest stage (the pleading stage) to screen out
lawsuits that have no factual basis.”’
Cal. Pub. Emples’. Ret.
Sys. v. Chubb Corp., 394 F.3d 126, 164 (3d Cir. 2004) (citation
omitted).
In Peeples-I, Peeples’ claims indicate, in no ambiguous
terms, that he seeks to sue Judge Citta for the acts undertaken and
statements uttered by Judge Citta in his judicial capacity.
Peeples cannot change that by re-pleading. Therefore, granting him
leave to amend his complaint in Peeples-I would necessarily be
futile.
Correspondingly, no leave to amend will issue, and the
complaint in Peeples-I will be dismissed with prejudice.
C.
Peeples-II Does Not Warrant Habeas Relief
1.
The Petition is Untimely and Lacks Merit
On April 24, 1996, Congress enacted the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), which provides that “[a] 1-
13
year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of
a State court.”
28 U.S.C. § 2244(d)(1).
The limitations period
runs from “the date on which the judgment 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 state-court
criminal judgment becomes “final” within the meaning of §2244(d)(1)
by the conclusion of direct review or by the expiration of time for
seeking such review, including the 90-day period for filing a
petition for writ of certiorari in the United States Supreme Court.
See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Morris v.
Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999); U.S. Sup. Ct. R. 13.
Here, the Appellate Division affirmed Peeples' sentence on May
25, 2004.
Since Peeples did not seek certification from the
Supreme Court of New Jersey as to his direct appeal, his judgment
of conviction became final, and his AEDPA period of limitations
began to run, when his time to file such petition for certification
expired, see Kapral v. United States, 166 F.3d 565, 577 (3d Cir.
1999), i.e., forty-five days after the Appellate Division entered
its decision.
See
N.J.
Rules
2:4-1(a)
(“Appeals
from
final
judgments of courts . . . shall be taken within 45 days of their
entry”).
Therefore, Peeples' 1-year AEDPA period began to run on
July 9, 2004, and expired on July 8, 2005.
14
The statute of limitations under § 2244(d) is subject to
statutory tolling for “[t]he time during which a properly filed
application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending,” 28
U.S.C. § 2244(d)(2), provided that the application to the state
court seeking collateral review was filed during the period of
limitations.
In contrast, an inmate’s filing of his/her PCR
application cannot be relevant to the statutory tolling analysis if
the inmate files such PCR application after his/her period of
limitations expires.
See Long v. Wilson, 393 F.3d 390, 394-95 (3d
Cir. 2004); Schlueter v. Varner, 384 F.3d 69, 78-79 (3d Cir. 2004).
Here, Peeples filed his PCR application on July 13, 2007, that
is, more than two years after his AEDPA period of limitations
expired.
Therefore, his PCR filing could not trigger statutory
tolling and had no impact on his AEDPA period. Accordingly, his
petition currently pending before this Court in Peeples-II (being
filed sometime between March 29, 2012, and April 9, 2012)9 has been
time-barred for almost seven years.
9
According to the “prison mailbox rule,” Peeples’ petition
was deemed filed on the date when he actually submitted his
petition to his prison authorities for mailing to this Court.
See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir. 2003)
(relying on Houston v. Lack, 487 U.S. 266(1988)). It is selfevident that this act could not have occurred prior to March 29,
2012 (the date of Peeples’ execution of his petition) or after
April 9, 2012 (the date of the Clerk’s receipt of this petition).
15
Moreover, considerations of equitable tolling are inapplicable
to the pleading filed in Peeples-II.
While, in addition to being
subject to statutory tolling, the AEDPA statute of limitations is
also subject to equitable tolling, see Holland v. Florida, 130 S.
Ct. 2549 (2010), Miller v. N.J. State Dep’t of Corr., 145 F.3d 616,
618 (3d Cir. 1998), “a litigant seeking equitable tolling bears the
burden of establishing two elements: (a) that he has been pursuing
his rights diligently, and (b) that some extraordinary circumstance
stood in his way.”10
Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814
(2005); see also Holland, 130 S. Ct. 2549.
The Court of Appeals instructed that equitable tolling could
be appropriate only when “the principles of equity would make the
rigid application of a limitation period unfair, such as when a
state prisoner faces extraordinary circumstances that prevent him
from filing a timely habeas petition and the prisoner has exercised
10
Recently, the Supreme Court entered two decisions related
to the issues of missed deadlines and procedural default, see
Maples v. Thomas, 132 S. Ct. 912 (2012) (where procedural default
was found, there could be “cause” to excuse a missed notice of
appeal deadline in state court if the litigant shows that his
attorneys abandoned him and he had no reason to suspect that he
lacked counsel able and willing to represent him during the time
permitted for an appeal), and Martinez v. Ryan, 2012 U.S. LEXIS
2317 (U.S. Mar. 20, 2012) (where, under state law, claims of
ineffective assistance of trial counsel must be raised in a
collateral proceeding, a procedural default might not bar a
federal habeas court from hearing ineffective assistance claims
if, during the initial PCR proceeding, there was no counsel at
all or that counsel was ineffective). However, neither Martinez
nor Maples provide bases for granting Peeples equitable tolling:
nothing in Peeples-II suggests, even remotely, that Peeples
experienced the circumstances described in those cases.
16
reasonable diligence in attempting to investigate and bring his
claims.”
LaCava v. Kyler, 398 F.3d 271, 275-276 (3d Cir. 2005);
see also Holland, 130 S. Ct. 2549 (same).
is not sufficient.
Mere excusable neglect
See id.; see also Merritt v. Blaine, 326 F.3d
157, 168 (3d Cir. 2003); Jones v. Morton, 195 F.3d 153, 159 (3d
Cir. 1999). Extraordinary circumstances have been found where: (a)
the
respondent
has
actively
misled
the
plaintiff,
(b)
the
petitioner has in some extraordinary way been prevented from
asserting his rights, (c) the petitioner has timely asserted his
rights mistakenly in the wrong forum, see Jones, 195 F.3d at 159,
or (d) the court itself has misled a party regarding the steps that
the party needs to take to preserve a claim.
See Brinson v.
Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).
Moreover, even where extraordinary circumstances do exist,
“[i]f the person seeking equitable tolling has not exercised
reasonable diligence in attempting to file after the extraordinary
circumstances
began,
the
link
of
causation
between
the
extraordinary circumstances and the failure to file is broken, and
the extraordinary circumstances therefore did not prevent timely
filing.”
Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003)
(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Here, in order to qualify for equitable tolling, Peeples has
to show the presence of extraordinary circumstances during the
seven years when his § 2254 petition has been time-barred.
17
No such
extraordinary circumstances are present here: Peeples' filings in
Peeples-I
and
Peeples-II
indicate
that
he
did,
indeed,
file
numerous submissions during his state PCR proceedings and, in
addition, he also filed an ethics grievance against Judge Citta –
all while his § 2254 petition was getting progressively more stale.
Furthermore, having his application for certification as to his PCR
denied by the Supreme Court of New Jersey on December 6, 2011 (that
is, having his § 2254 petition time-barred, by then, for about six
and a half years), Peeples still took almost four months to file
his § 2254 petition, which is now at bar in Peeples-II.
Therefore,
it is evident that Peeples could have filed his federal habeas
petition timely had he acted diligently, or -- at the very least -he could have timely sought stay and abeyance in order to preserve
his right to Section 2254 review.11
He did not, and under such
circumstances, he is not entitled to equitable tolling. Therefore,
his Peeples-II petition is subject to dismissal as untimely.12
11
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court approved a stay-and-abeyance procedure, under which a
district court may stay a timely habeas petition and hold it in
abeyance while the petitioner returns to state court to exhaust
his previously unexhausted claims. See id. at 275. The decision
in Rhines was issued on March 30, 2005, that is, more than two
months prior to expiration of Peeples' AEDPA period. Therefore,
Peeples could have easily preserved his right to federal habeas
review and then pursued his PCR challenges in state courts.
12
Moreover, even if this Court were to hypothesize that
Peeples' § 2254 petition could, somehow, qualify for equitable
tolling, his challenges would fail substantively. As noted
supra, Peeples pled guilty to the offense underlying his
conviction; his challenges are limited solely to his sentence.
18
A
2.
Certificate of Appealability Will Not Issue
The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding unless
a judge issues a certificate of appealability (“COA”) on the ground
that “the applicant has made a substantial showing of the denial of
a constitutional right.”
28 U.S.C. § 2253(c)(2).
challenge to a state court's discretion at sentencing is not
reviewable in a federal habeas proceeding unless it violates a
separate federal constitutional limitation. See Pringle v. Court
of Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984); see also 28
U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991).
“The Eighth Amendment, which forbids cruel and unusual
punishments, contains a 'narrow proportionality principle' that
'applies to noncapital sentences.'” Ewing v. California, 538
U.S. 11, 20 (2003) (citations omitted). The Supreme Court has
identified three factors that may be relevant to a determination
of whether a sentence is so disproportionate to the crime
committed that it violates the Eighth Amendment: “(i) the gravity
of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction;
and (iii) the sentences imposed for commission of the same crime
in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292 (1983).
Additionally, Justice Kennedy has explained that Solem does not
mandate comparative analysis within and between jurisdictions,
see Harmelin v. Michigan, 501 U.S. 957, 1004-05 (1990) (Kennedy,
J., concurring in part and in judgment), and he has identified
four principles of proportionality review (“the primacy of the
legislature, the variety of legitimate penological schemes, the
nature of our federal system, and the requirement that
proportionality review be guided by objective factors”) that
“inform the final one: The Eighth Amendment does not require
strict proportionality between crime and sentence.
[I]t forbids
only extreme sentences that are 'grossly disproportionate' to the
crime.” Id. at 1001 (citation omitted). Peeples' challenges to
his sentence would not be reviewable in this Court, since he has
presented no cogent argument why his sentence is unconstitutional
or “grossly disproportionate” to the crime he committed. Thus,
even if Peeples' § 2254 petition had been deemed timely, it would
be subject to dismissal on the merits.
19
In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United
States Supreme Court held: “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.”
Id.
Here, jurists of reason would not find it debatable whether
dismissal of Peeples' § 2254 petition as untimely is correct.
The
Court, therefore, will decline to issue Peeples a certificate of
appealability, pursuant to 28 U.S.C. § 2253(c).13
IV.
CONCLUSION
13
Alternatively, a certificate of appealability is not
warranted on the merits. Since the Court has observed that
Peeples' claims would not warrant habeas relief even if his §
2254 petition had been deemed timely, a different analysis
applies to that observation. As with claims dismissed on
procedural grounds, a certificate of appealability may issue
"only if the applicant has made a substantial showing of the
denial of a constitutional right," 28 U.S.C. § 2253(c)(2), but
"[a] petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district court's
resolution of his constitutional claims." Miller-El v.
Cockrell., 537 U.S. 322, 327 (2003). Here, as the Court's
substantive analysis illustrated, see supra, note 12, Peeples
failed to make a showing of the denial of a constitutional right,
and the Court is persuaded that jurists of reason would not
disagree with this conclusion.
20
For the foregoing reasons, the Court will: (a) grant Peeples'
motion to reopen Peeples-I; (b) grant Peeples in forma pauperis
status
for
the
purposes
of
both
Peeples-I
and
Peeples-II
(correspondingly, the Court will direct assessment of the filing
fee against Peeples in connection with Peeples-I); (c) direct the
Clerk to file Peeples' complaint in Peeples-I; (d) dismiss Peeples'
civil rights claims in Peeples-I, with prejudice; (e) dismiss
Peeples' habeas claims in Peeples-II, with prejudice, as untimely,
and, alternatively, on the merits; and (f) deny Peeples certificate
of appealability in connection with Peeples-II.
An appropriate Order accompanies this Opinion.
/s/ JOEL A. PISANO
JOEL A. PISANO
United States District Judge
Dated: April 16, 2012
21
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