NICOLOUDAKIS v. BOCCHINI
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 3/7/2016. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 13-2009 (MAS)
. JOE BOCCHINI, et al.
This matter having come before the Court on the Petition for Writ of Habeas Corpus
("Petition") of Petitioner Franklin Nicoloudakis ("Petitioner"), for relief under 28 U.S.C. § 2254.
1. On July 15, 2015, the Court issued a show-cause order, directing Petitioner to show cause
as t? why the Petition should not be denied as time-barred, or in the alternative, dismissed as
unexhausted. (See Order, July 15, 2015, ECF No. 40.)
2. On August 14, 2015, Petitioner responded to the Court's Prior Order by submitting a sixtythree page letter ("Letter"), much of which did not address the timeliness or the exhaustion issue.
(See Letter, Aug. 14, 2015, ECF No. 45.)
3. In the Opinion accompanying the show-cause order, the Court found that the Petition
appeared to be untimely because Petitioner's state judgment became final for federal habeas
purposes on September 5, 2010, and the Petition was not filed until March 29, 2013, well past the
one-year statute of limitations for§ 2254 petitions. (Op. 5, July 15, 2015, ECF No. 39) ("Prior
Op."). Nevertheless, the Court noted that Petitioner alleged he had filed a state application for
post-conviction relief ("PCR"), but provided no details of such application. (Id.) Because the
filing of that state PCR application may implicate statutory tolling, the Court directed Petitioner to
. p~gy!~:e: proof of that application, the status of that application, and any other tolling argument he
might wish.to present. (Id at 6.)
4. In the Letter, Petitioner finally admits that the state PCR application was filed on April 1,
2013-or, in other words, two days after Petitioner filed the instant Petition. (Letter 22.) It is now
to this Court that Petitioner is not entitled to any statutory tolling, since Petitioner had not
sought any post-conviction relief in state court whatsoever prior to the filing of the instant Petition.
Accordingly, the Petition is statutorily untimely.
· · 5. Petitioner also presents no valid arguments for equitable tolling. After reviewing the
Letter, the Court construes it as raising two equitable tolling arguments. First, Petitioner argues
that he was "confused" about when his statutes of limitations, both for the federal habeas and for
the state PCR application, would run, and that "[i]gnorance of facts can be a form of shielding one
from the truth." (Letter 27.) However, "a petitioner's lack of legal knowledge or miscalculation
reg~ding the ond-year filing period does not constitute an extraordinary circumstance triggering
equitable'.toiling." Phillips v. Nogan, No. 14-4933 (MAS), 2015 WL 2090247, at *4 (D.N.J. May
4, 2015) (quoting Ayers v. Phelps, 723 F. Supp. 2d 718, 722 (D. Del. 2010)). "[I]gnorance of the
la~; even for
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an incarcerated pro se petitioner, generally does not excuse prompt filing."
(quoting Covert v. Tennis, No. 06-421, 2008 WL 4861449, at *5 (M.D. Pa. Nov. 7, 2008)). "The
fact that a petitioner is proceeding pro se does not insulate him from the 'reasonable diligence'
inquiry and his lackoflegal knowledge or legal training does not alone justify equitable tolling."
Ross v. Varano, 712 F.3d 784, 800 (3d Cir. 2013). Therefore, the Court rejects Petitioner's
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: "confusion" argument for equitable tolling.
6. Petitioner's second argument for equitable tolling appears to be that he was intimidated
into not filing a timely federal habeas or state PCR application, because the State "over the years
: ha[s] instilled fear and intimidation," and "caused paralysis in [Petitioner from] aggressively
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pursuing [his] right to review for collateral relief until near the end of my probationary period."
(Letter 28.) The Court finds Petitioner's argument meritless. Nowhere in the Letter does Petitioner
allege, or submit evidence proving, that the State had intimidated Petitioner into not filing for state
()r,f~deraf collateral review. As "evidence" of his fear, Petitioner details the numerous interactions
he has had with his probation officers and the state courts, regarding to his probationary sentence,
and notes that he'.was always on the verge of being placed in jail. (Letter 28-32.) If that were to
constitute good ' cause to pursue untimely post-conviction remedies, then every convict on
pr?pation could· simply avoid filing for post-conviction relief until they have served their
sentences. _Petitioner cites no authority for such an overreaching proposition.
7. Furtherm6re,'Petitioner's allegations themselves contradict his assertion of fear. The same
interactions Petitioner allegedly had with state officials show that Petitioner has fearlessly
. chaffenged the State by filing emergent pro se motions (Letter 29), and by hiring an attorney to
challeng~, ~- ;state: bo~ order that prevented him from attending certain court proceedings (Letter
30). The Court is riot sure how Petitioner's fear would have prevented him from seeking post6onV_iction remedies, when it did not prevent him from initiating other legal proceedings against
including ones that are directly related to his sentence.
Instead, the Court finds
Petiti~ner' claim bf fear dubious. Thus, the Court rejects Petitioner's "fear" argument for
8. Finally, Petitioner argues that, citing to McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), his
· unt,imeliness should be excused because of the "actual innocence" exception. In McQuiggin,
Supreme cburt r~cognized that "actual innocence, if proved, serves as a gateway through which a
petitioner may pass [despite] expiration of the statute of limitations." Id at 1928. However, "a
qoes n,()t. i;neet the threshold requirement unless he persuades the district court that, in
light of ~ew evidence, no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt." Id (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). "Th[is] standard is
: d~.} .'
a habeas petitiotj :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
'. deb~table: ·whether the petition states a valid claim of the denial of a constitutional right and that
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junsts; of,reason :would find it debatable whether the district court was correct in its procedural
ruling." Here, the Court denies a certificate of appealability pursuant to 28 U.S.C. § 2253(c)
because jurists of reason would not find it debatable that dismissal of the Petition is correct.
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