WILLIAMS v. WARREN et al

Filing 28

OPINION filed. Signed by Judge Michael A. Shipp on 8/16/2016. (eaj)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BARRY WILLIAMS,
Civil Action No. 13-5845 (MAS)
Petitioner,

OPINION

v.

CHARLES WARREN, et al.,
Respondents.

SHIPP, District Judge
Petitioner Barry Williams, confined at the East Jersey State Prison in Rahway, New Jersey,
files the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a
sentence imposed by the State of New Jersey for armed robbery and related crimes. Respondents
have filed a Response, (ECF No. 8), and Petitioner has filed a Traverse, (ECF No. 16). The Court
has considered the parties' submissions, as well as the relevant records of this case. For the reasons
stated below, the Court denies the Petition as time-barred.

I.

FACTUAL BACKGROUND

Petitioner was convicted, in a jury trial, of armed robbery and related crimes in the Superior
Court of New Jersey. (Pet. 2, ECF No. 1.) He was sentenced to an imprisonment term of twentyfive years to life on December 19, 1996. Id. at 1. He appealed the conviction and sentence, and
the state appellate court affirmed on October 19, 1998. Id. at 2. Certification was denied by the
New Jersey Supreme Court on January 26, 1999. Id. at 3. Petitioner then filed for post-conviction
relief ("PCR"). On July 27, 2000, the PCR trial court denied PCR. Id. at 4. Petitioner appealed,

and the PCR appeals court affirmed the denial on January 24, 2002. Id. at 5. Certification was
denied by the New Jersey Supreme Court on May 20, 2002. Id.
Petitioner then filed/our more PCR applications, all of which were ultimately denied: (1)
his second PCR application was filed on September 19, 2002, and was denied on October 15, 2002,

State v. Williams, No. PCR 09-06C, slip op. at 2 (N.J. Super. Ct. Law Div. Mar. 18, 2010), ECF
No. 8-72; (2) his third PCR application was filed on March 28, 2006, and was denied on April 24,
2006, id.; (3) his fourth PCR application was filed on October 3, 2008, and was denied on
November 18, 2008, id.; and (4) his fifth PCR application was filed on October 1, 2009, and was
denied on March 18, 2010, id. at 2-3. There is no record that Petitioner appealed his second, third,
and fourth denials, but he did appeal his fifth denial, which culminated in the New Jersey Supreme
Court denying certification on January 16, 2013. (ECF No. 8-82.) The instant Petition, dated
September 24, 2013, id. at 21, was filed on September 30, 2013.

II.

DISCUSSION

Respondents contend that the Petition is untimely. The Court agrees. Title 28, Section
2244 of the U.S. Code requires that "[a] I-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)(l). In most cases, and in this particular case, the one-year period begins on "the
date on which the judgment became final by the conclusion of direct review or the expiration of
the time for seeking such review." 28 U.S.C. § 2244(d)(l)(A). Based on the statutory language,
the Supreme Court held that even when a defendant does not file a petition for certiorari with the
United States Supreme Court on direct review, the one-year limitations period starts to run when
the time for seeking such review expires. Gonzalez v. Thaler, 132 S. Ct. 641, 653 (2012); Clay v.

U.S., 537 U.S. 522, 532 (2003); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Gibbs v.

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Goodwin, No. 09-1046, 2009 WL 1307449, at *2 (D.N.J. May 1, 2009) (holding that the period of
direct review "include[s] the 90-day period for filing a petition for writ of certiorari in the United
States Supreme Court").
However, "[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 shall not be
counted toward any period oflimitation under this subsection." 28 U.S.C. § 2244(d)(2). In other
words, while a valid state post-conviction review is pending, the one-year limitation is tolled. This
tolling does not include any petition for writ of certiorari in the United States Supreme Court for
review of a denial of post-conviction relief. Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 85 n.5 (3d Cir. 2013) (citing Lawrence v. Florida, 549 U.S. 327, 332 (2007)). Overall,
the "limitation period 'does not set forth an inflexible rule requiring dismissal whenever its clock
has run."' Id. at 84-85 (quoting Holland v. Florida, 560 U.S. 631, 645 (2010)). Rather, the
limitations period is subject to both statutory and equitable tolling. Id. at 85.
So, even if the statutory time bar has passed, Petitioner may overcome that limitation if he
can show a basis for equitable tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001); Gibbs,
2009 WL 1307449 at *3. "Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way." Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013)
(citations omitted). "Extraordinary circumstances permitting equitable tolling have been found
where: (1) the petitioner has been actively misled; (2) the petitioner has been prevented from
asserting his rights in some extraordinary way; (3) the petitioner timely asserted his rights in the
wrong forum, or (4) the court has misled a party regarding the steps that the party needs to take to
preserve a claim." Gibbs, 2009 WL 1307449, at *3 (internal citations omitted).

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"The diligence required for equitable tolling purposes is reasonable diligence." Ross, 712
F.3d at 799. "This obligation does not pertain solely to the filing of the federal habeas petition,
rather it is an obligation that exists during the period appellant is exhausting state court remedies
as well." Id. "The fact that a petitioner is proceeding pro se does not insulate him from the
'reasonable diligence' inquiry and his lack of legal knowledge or legal training does not alone
justify equitable tolling." Id. at 800.
Here, there is no question that the Petition is statutorily untimely. Even if the Court finds
that statutory tolling is warranted during the pendency of all five of Petitioner's PCR applications,
Petitioner's one-year limitations period expired long ago, due to the extended periods of time that
elapsed between PCR applications. For example, the second PCR application was denied on
October 12, 2002, and the third application was not filed until March 28, 2006, almost three-andone-half years later. The third application was denied on April 24, 2006, and the fourth application
was not filed until October 3, 2008, more than two years later. Either one of these two delays
would have caused the one-year limitations period for his federal habeas petition to run, regardless
of any other delay. As such, the Court finds the Petition statutorily time-barred.
In the Traverse, Petitioner raises two arguments for equitable tolling. First, he argues that
he should be granted equitable tolling because he "diligently" pursued his state court remedies.
That argument is obviously without merit-as the above calculations show, Petitioner certainly
was not diligent when he allowed gaps of three-and-one-half years and two years to occur between
PCR applications. Filing five PCR applications in nine years does not equate to diligence. 1

The Court is unsure why there was a need to file five PCR applications. In fact, while for
the purposes of this Opinion the Court assumes statutory tolling during the pendency of all five
applications, it appears Petitioner would not be entitled to statutory tolling for at least one of the
applications. See Williams, No. PCR 09-06C, slip op. at 2 (finding the fifth application untimely);
Pace v. DiGug/ielmo, 544 U.S. 408, 417 (2005) (finding that rejection of a PCR application as
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Second, Petitioner "offers the conduct of his attorneys as the extraordinary circumstance
that prevented petitioner from filing a timely federal petition." (Traverse 54, ECF No. 16.)
However, Petitioner provides no explanation for that statement. Indeed, a review of the record
shows that Petitioner had not been represented by an attorney since at least the conclusion of his
first PCR application, on May 20, 2002. The Court cannot deduce how the conduct of his attorneys
eleven years prior to the filing of the instant Petition constituted an extraordinary circumstance
that prevented a timely filing of the instant Petition. "[F]or a petitioner to obtain relief there must
be a causal connection, or nexus, between the extraordinary circumstances he faced and the
petitioner's failure to file a timely federal petition." Ross v. Varano, 712 F.3d 784, 803 (3d Cir.
2013). "To secure equitable tolling, it is not enough for a party to show that he experienced
extraordinary circumstances. He must further demonstrate that those circumstances caused him to
miss the original filing deadline." Id. at 803 n.29 (quoting Harper v. Ercole, 648 F.3d 132, 137
(2d Cir. 2011)). "The word 'prevent' requires the petitioner to demonstrate a causal relationship
between the extraordinary circumstances on which the claim for equitable tolling rests and the
lateness of his filing, a demonstration that cannot be made ifthe petitioner, acting with reasonable
diligence, could have filed on time notwithstanding the extraordinary circumstances." Id. (quoting
Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). Accordingly, the Court finds that equitable

tolling is not warranted.
Petitioner also makes a cryptic statement in the Petition, that he "believe[s] the Habeas
Corpus Court ha[s] a duty to ask the attorney to provide an explanation that is reasonable[, s]ince
trial attorney, appellate attorney, and post conviction relief attorney apparently did absolutely

untimely by the state court renders the PCR application not "properly filed," thus ineligible for
statutory tolling during the pendency of that application). This would, of course, further exacerbate
the untimeliness problem.
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nothing at all to aid [him]." (Pet. 20.) The Court construes this statement as arguing that the oneyear limitations period should not apply at all to ineffective assistance of counsel claims. This, of
course, is contrary to established case law; courts routinely dismiss habeas claims based on
ineffective assistance of counsel as time-barred. See, e.g., Day v. McDonough, 547 U.S. 198, 203
(2006); Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005); Darden v. Sobina, 477 F. App'x 912, 915
(3d Cir. 2012); Garcia v. Bartkowski, No. 11-3689, 2015 WL 857737, at *8-9 (D.N.J. Feb. 27,
2015); Clark v. Ricci, No. 08-3347, 2013 WL 5817655, at *4 (D.N.J. Oct. 29, 2013). Having
found that the Petition is statutorily untimely, and that Petitioner is not entitled to equitable tolling,
the Court denies the Petition as time-barred.

III.

CERTIFICATE OF APPEALABILITY

Finally, the Court denies a certificate of appealability ("COA").

The habeas statute

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 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). In

Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme Court held that "[w]hen
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."
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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IV.

CONCLUSION

For the reasons set forth above, the Petition is DENIED as time-barred, and a certificate of
appealability is DENIED.

Dated:

MfCilael

1/i {i> fr(,

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