DIGIROLAMO v. STATE OF NEW JERSEY et al

Filing 7

OPINION filed. Signed by Judge Freda L. Wolfson on 6/16/2015. (kas, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROSARIO DIGIROLAMO,

Civil Action No. 14-3431 (FLW)

Petitioner,
v.

OPINION

STATE OF NEW JERSEY, et al.,
Respondents.

WOLFSON, United States District Judge:
I.

INTRODUCTION
Petitioner Rosario DiGirolamo (“Petitioner”), confined at New Jersey State Prison,

Trenton, New Jersey, filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (“Petition”), challenging his conviction by the State of New Jersey for aggravated
manslaughter, N.J.S.A. 2C:11-4. At this time, the Court must screen the Petition in accordance
with Rule 4 of the Rules Governing Section 2254 Cases, to determine if the Petition should be
dismissed because Petitioner is not entitled to relief. For reasons stated below, the Court
dismisses the Petition as untimely.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court recounts only the facts relevant to this Opinion. Petitioner pled guilty to

aggravated manslaughter, N.J.S.A. 2C:11-4, and was sentenced to a prison term of twenty-five
years, subject to the No Early Release Act (“NERA”). (ECF No. 5 at 3.) Petitioner lists the date
of his conviction and sentencing as February 9, 2011. (Id.) Plaintiff appealed, and on March 8,
2012, the New Jersey Appellate Division affirmed his conviction and sentence in an unpublished
opinion. See State v. DiGirolamo, 2012 WL 738591, at *10 (N.J. Super. App. Div. Mar. 8,
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2012). (ECF No. 5 at 4.) Petitioner filed a petition for certification with the New Jersey Supreme
Court, which was denied on September 25, 2012, State v. DiGirolamo, 212 N.J. 199 (September
25, 2012), but did not subsequently file a petition for certiorari with the Supreme Court of the
United States. 1 Petitioner also did not file a petition for post-conviction relief (“PCR”) in New
Jersey State Court.
Proceeding pro-se, Petitioner executed his Petition on May 20, 2014, and it was docketed
on May 27, 2014. On July 21, 2014, the Court administratively terminated Petitioner’s case
because he submitted his petition on the wrong form and did not name the warden of New Jersey
State Prison as a respondent. 2 (ECF No. 2.) On August 28, 2014, Petitioner submitted an
amended Petition. (ECF No. 3.) The Court again administratively terminated Petitioner’s case
because he failed to name the warden as a respondent. (ECF No. 4.) On October 23, 2014,
Petitioner submitted another amended Petition using the appropriate form and naming Stephen
D’Ilio as a Respondent. (No. 5.) On March, 10, 2015, the case was transferred to the
undersigned. (ECF No. 6.)
III.

ANALYSIS
Title 28, Section 2244 of the U.S. Code requires that “[a] 1-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). A state-court criminal judgment becomes

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Although the inverse is true, Petitioner’s Petition indicates that he did not file a petition for
certification with the New Jersey Supreme Court but did file a petition for certiorari with the
Supreme Court of the United States. (See ECF No. 5 at 4-5.)
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In administratively terminating Petitioner’s case, the Court explained to Petitioner that
“administrative termination is not a ‘dismissal’ for purposes of the statute of limitations, and that
if the case is reopened, it is not subject to the statute of limitations time bar if it was originally
filed timely.” (ECF No. 2 (citing Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 275
(2013) (distinguishing administrative terminations from dismissals).)
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“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 Supreme Court of the United States. 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;
see also 28 U.S.C. § 2244(d)(1)(A) (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”). Based on the statutory language, the Supreme Court has held that even
when a defendant does not file a petition for certiorari with the United States Supreme Court on
direct review, the AEDPA 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); Morris, 187 F.3d at 337 n. 1 (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”).
Where applicable, the one-year limitation period is tolled during the time that a valid
state post-conviction review is pending. See 28 U.S.C. § 2244(d)(2) (“The 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 of limitation
under this subsection.”). An application for state post-conviction relief is considered “pending”
within the meaning of § 2244(d)(2), and the limitations period is statutorily tolled, from the time
it is “properly filed,” during the period between a lower state court's decision and the filing of a
notice of appeal to a higher court, Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d
260 (2002), and through the time in which an appeal could be filed, even if the appeal is never
filed. Swartz v. Meyers, 204 F.3d at 420-24. 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.

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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)).
A Petitioner that is not entitled to statutory tolling may be able to overcome the time bar
if he can show a basis for equitable tolling. The Supreme Court has stated that, “[g]enerally, a
litigant seeking equitable tolling [of the AEDPA statute of limitations] bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125
S.Ct. 1807, 161 L.Ed.2d 669 (2005); see also Jenkins, 705 F.3d at 89. “There are no bright lines
in determining whether equitable tolling is warranted in a given case.” See Pabon v. Mahanoy,
654 F.3d 385, 399 (3d Cir. 2011). The Third Circuit has explained that “equitable tolling is
appropriate when principles of equity would make rigid application of a limitation period unfair,
but that a court should be sparing in its use of the doctrine.” Ross v. Varano, 712 F.3d 784 (3d
Cir. 2013) (citing Pabon, 654 F.3d at 399; Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)).
With respect to the diligence that is necessary for equitable tolling, the Third Circuit has
stated that:
The diligence required for equitable tolling purposes is reasonable
diligence, not maximum, extreme, or exceptional diligence.
Holland, 130 S.Ct. at 2565. “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.” LaCava v. Kyler, 398 F.3d 271, 277 (3d
Cir. 2005) . . . . 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. See Brown v. Shannon, 322 F.3d 768, 774 (3d
Cir. 2003).
Ross, 712 F.3d 784. Extraordinary circumstances may be found where: (1) the petitioner has
been actively misled; (2) the petitioner has in some extraordinary way been prevented from

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asserting his rights; or (3) where the petitioner has timely asserted his rights in the wrong forum.
See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing Jones v. Morton, 195 F.3d 153, 159
(3d Cir. 1999)). However, “[i]n non-capital cases, attorney error, miscalculation, inadequate
research, or other mistakes have not been found to rise to the ‘extraordinary’ circumstances
required for equitable tolling.” Id. (citations omitted).
Here, Petitioner’s conviction and sentence was imposed on February 9, 2011. His
conviction and sentence were affirmed by the New Jersey Appellate Division on March 8, 2012.
The New Jersey Supreme Court denied his Petition for certification on September 25, 2012, and
he did not file a petition for certiorari with the Supreme Court of the United States; nor did he
file a petition for post-conviction relief. Assuming for purposes of the Opinion that Petitioner
timely filed both his notice of appeal with the New Jersey Appellate Division and his petition for
certification with the New Jersey Supreme Court and giving Petitioner the benefit of the 90-day
period for a petition for writ of certiorari to the Supreme Court of the United States, Petitioner’s
conviction and sentence became final for the purposes of AEDPA on December 24, 2012. This
means that the AEDPA statute of limitations period expired, without statutory tolling, on
December 24, 2013, one year after his conviction and sentence became final. Petitioner is not
entitled to statutory tolling because he did not file a petition for post-conviction relief. Thus,
because Petitioner did not file his Petition for habeas relief until May 20, 2014, nearly five
months after the AEDPA statute of limitations period expired, the instant Petition is untimely.
Because Petitioner alleges no grounds for equitable tolling, the Court finds that the Petition is
time-barred by AEDPA.

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IV.

CONCLUSION
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court dismisses the

Petition as untimely under AEDPA. An appropriate Order follows. If Petitioner has valid
reasons why equitable tolling should be applied, Petitioner may file a motion to reopen stating
those reasons within 30 days from the date of entry of the accompanying Order.

s/Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.

Date: June 16, 2015

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