PHILLIPS v. NOGAN et al

Filing 8

OPINION filed. Signed by Judge Michael A. Shipp on 5/4/2015. (kas, )

*NOT FOR PUBLICATION*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

DAVID J. PHILLIPS,
Civil Action No. 14-4933 (MAS)
Petitioner,

OPINION

v.
PATRICK A. NOGAN, et al.,
Respondents.

SHIPP, District Judge:
Petitioner David J. Phillips ("Petitioner"), confined at East Jersey State Prison in Rahway,
New Jersey, files the instant Petition for a Writ of Habeas Corpus ("Petition") pursuant to 28
U.S.C. § 2254, challenging a sentence imposed by the State of New Jersey for aggravated sexual
assault and endangering the welfare of a child. For reasons stated below, the Court denies the
Petition.

I.

FACTUAL BACKGROUND

The Court recites only those facts relevant to this Opinion. Petitioner was convicted and
sentenced by the State of New Jersey for aggravated sexual assault, sexual assault, endangering
the welfare of a child, and criminal sexual contact on February 3, 2006, after a jury trial. (ECF
No. 1at2-3.) An appeal was filed challenging the conviction and sentence, and they were affirmed
on July 9, 2007. Id at 3. Certification was denied by the New Jersey Supreme Court on October
4, 2007. Id
Thereafter, on October 26, 2007, Petitioner filed for post-conviction relief ("PCR"). Id at
4. Petitioner's request for PCR was denied on August 20, 2008. Id An appeal from the PCR

denial was filed out-of-time on June 10, 2009, id. at 5, which Petitioner claims was due to the
failure of his counsel. The denial of PCR was affirmed on April 2, 2013, and the New Jersey
Supreme Court denied certification on October 18, 2013. Id. at 5-6. On August 4, 2014, Petitioner
filed the instant Petition.

II.

DISCUSSION

A. Statutory Tolling
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)(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 AEDP A 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); Gibbs v. Goodwin, No. 09-1046, 2009
WL 1307449, at *2 (D.N.J. May 1, 2009) (citing Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2000); Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999)) (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

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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,
"AEDPA's limitation period 'does not set forth an inflexible rule requiring dismissal whenever its
clock has run."' Id. at 84-85 (quoting Hollandv. Florida, 560 U.S. 631, 645 (2010)). Rather, the
limitations period is subject to both statutory and equitable tolling. Id. at 85. If a denial of postconviction relief is appealable in state court but an appeal was not filed, statutory tolling includes
"the time during which an appeal could be filed even ifthe appeal is not eventually filed." Swartz,
204 F.3d at 424 (3d Cir. 2000). However, if an out-of-time appeal is filed, even if the appeal is
accepted as properly filed by the state appeals court, statutory tolling does not include the period
between the expiration of timely appeal and when the appeal was actually filed. Id. at 423 n.6
("We ... agree that the time during which Swartz's nunc pro tune request for allowance of appeal
was pending does not toll the statute of limitation").
Here, Respondents argue that the Petition is time-barred by AEDPA's statute oflimitations.
The Court agrees. Petitioner's conviction and sentence was final, for the purposes of AEDPA's
statute oflimitations, 90 days after the New Jersey Supreme Court denied certification on his direct
appeal, which was January 2, 2008. Petitioner filed for PCR on October 26, 2007, before his
AEDP A one-year period began, so his entire one-year period was tolled during the pendency of
his PCR review. His PCR application was denied on August 20, 2008, and no timely appeal was
filed. This means that his statutory tolling under AEDPA ended at the expiration of his time to
appeal the trial court's PCR decision, which was 45 days after the denial - October 4, 2008. See
N.J. Court Rules, R. 2:4-4(a); Lombardi v. Masso, 207 N.J. 517, 540-41 (2011).

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As such, his one-year limitations period began to run on October 4, 2008, until when he
finally filed his notice of appeal on June 10, 2009, for a period of 249 days. Assuming that the
appeal was accepted by the state court as properly filed, the one-year limitations period was tolled
again, until the New Jersey Supreme Court denied certification on October 18, 2013. See Gibbs

v. Bartkowski, No. 13-2242, 2015 WL 1881061 (3d Cir. Apr. 17, 2015). At that point, Petitioner
had 116 days, or until February 11, 2014, to file a timely habeas petition with this Court. The
Petition was not filed until August 4, 2014. As such, the Petition is statutorily time-barred.

B. Equitable Tolling
Even if the statutory time bar has passed, Petitioner may overcome that limitation if he can
show a basis for equitable tolling. Gibbs, 2009 WL 1307449 at *3; Fahy v. Horn, 240 F.3d 239,
244 (3d Cir. 2001). "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).
"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

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'reasonable diligence' inquiry and his lack of legal knowledge or legal training does not alone
justify equitable tolling." Id. at 800.
Here, Petitioner argues that he is entitled to equitable tolling because he had instructed his
attorney to file a timely notice of appeal, but his attorney failed to timely file. The record shows
that Petitioner was represented by a private attorney for his initial PCR review. (ECF No. 7 at 27.)
For reasons not explained, on September 30, 2008, Petitioner decided to reach out to the Office of
the Public Defender ("OPD") to represent him on appeal, mere days before his 45-day period to
timely appeal would expire. Id. As to be expected, it took several months for the OPD to have
Petitioner qualified for its services. Id. As such, the OPD cannot be blamed for the delay in filing
the appeal; that delay was caused by Petitioner's decision to change counsel.
Of course, the Court is not suggesting that Petitioner did not have a right to change counsel
or seek assistance from the OPD. However, Petitioner does not have a constitutional right to
representation during his PCR process.

Coleman v. Thompson, 501 U.S. 722, 752 (1991).

Therefore, while Petitioner was attempting to secure representation for his appeal, Petitioner had
an independent obligation to ensure that his rights were timely and properly asserted; Petitioner's
lack of representation was not an excuse not to file a timely appeal and toll his AEDP A statute of
limitations. See Robins v. Bimbo Foods Bakeries Distribution, Inc., No. 12-5392, 2013 WL
5803783, at *8 (E.D. Pa. Oct. 28, 2013) ("An inability to find an attorney does not constitute an
extraordinary circumstance excusing Plaintiffs failure to timely assert his rights"); Horne v.

Tennis, No. 09-1562, 2010 WL 5621416, at *3 (E.D. Pa. May 28, 2010) ("[W]e do not agree that
the failure of the Federal Defender's Office to respond to petitioner's requests for assistance is an
'extraordinary circumstance' in contemplation of equitable tolling").

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Furthermore, Petitioner's lack of counsel did not prevent him from filing a pro se notice of
appeal. Indeed, the record shows that Petitioner did attempt to do so. (ECF No. 7 at 23.) On
November 12, 2008, the Clerk of the Superior Court of New Jersey, Appellate Division, rejected
the filing for failure to submit the proper filing fee and other form deficiencies. Id. The letter
further stated that "[p]lease note that as of the above date nothing has been filed on your behalf."

Id. The letter went on to state that Petitioner had ten days to cure the deficiencies, and the appeal
will be deemed filed as of the original received date. Id. Consequently, even months after his
PCR application was initially denied, the state court still gave Petitioner a chance to perfect his
appeal and would have considered the appeal as timely. Yet, no further record indicates that
Petitioner attempted to cure the deficiencies.
Finally, Petitioner also appears to argue simultaneously that it was his original PCR
counsel's error for not having filed an appeal on his behalf. When a petitioner is represented by
counsel, factors to consider in the diligence inquiry for equitable tolling purposes include: (1)
whether the petitioner hired an attorney to file the petition; (2) whether the petitioner contacted the
attorney prior to the filing deadline; and (3) whether the petitioner consistently called the attorney
to monitor the status of his case. Fogg v. Carroll, 465 F. Supp. 2d 336, 345 (D. Del. 2006) (citing

Schlueter v. Varner, 384 F .3d 69, 83 (3d Cir. 2004)).
Here, with regard to whether Petitioner hired an attorney for his appeal, as stated above, it
is unclear whether Petitioner's original PCR counsel had even agreed to represent Petitioner on
appeal; the record appears to indicate otherwise, in light of the fact that Petitioner reached out to
the OPD mere days before his appeal was due, and Petitioner's unsuccessful attempt to file his
own Notice of Appeal. With regard to whether Petitioner contacted the attorney prior to the filing
deadline, Petitioner asserts that he signed a notice of right to appeal form in the presence of the

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PCR counsel, and thus he "had a reasonable expectation to believe that [counsel], a licensed lawyer
in the State of New Jersey ... would complete the transmittal form ... so it would 'trigger' the
timely filing of a notice of appeal on behalf of the Petitioner." (ECF No. 7 at 3-4.) Nowhere did
Petitioner assert that he expressly informed the PCR counsel of his explicit wishes to appeal.
Lastly but most importantly, the record is devoid of evidence that Petitioner subsequently
exercised due diligence and monitored the status of his case with the PCR counsel. Instead, as
stated above, Petitioner seemed to have concluded that his private PCR counsel did not agree to
represent him on appeal, and all of the correspondences submitted by Petitioner to support
equitable tolling were correspondences with the OPD, which at that time had not even agreed to
represent Petitioner. As such, Petitioner cannot blame the untimely filing of his appeal on the
failure of PCR counsel, because by reaching out to the OPD before the deadline to appeal, it
appears Petitioner did not even consider his PCR counsel to still represent him in connection with
the appeal. 1
The Court further notes that despite the lateness of Petitioner's appeal on PCR, at the
conclusion of that appeal, Petitioner still had 116 days to file his federal habeas petition after
exhausting state remedies. Petitioner offers no explanation as to why he could not have filed his
Petition within that time period. See Lewis v. Phelps, 672 F. Supp. 2d 669, 674 (D. Del. 2009);

Even if assuming that the PCR counsel agreed to represent Petitioner on appeal and
simply failed to file a timely appeal, hence compelling Petitioner to seek new counsel, that
reason is insufficient to grant equitable tolling. See Fahy, 240 F .3d at 244 ("In 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"); Lawrence v. Florida, 549
U.S. 327, 336-37 (2007) ("Lawrence argues that his counsel's mistake ... entitles him to
equitable tolling. If credited, this argument would essentially equitably toll limitations periods
for every person whose attorney missed a deadline. Attorney miscalculation is simply not
sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners
have no constitutional right to counsel").
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Ayers v. Phelps, 723 F. Supp. 2d 718, 722 (D. Del. 2010) ("[A] petitioner's lackoflegal knowledge
or miscalculation regarding the one-year filing period does not constitute an extraordinary
circumstance triggering equitable tolling"); Covert v. Tennis, No. 06-421, 2008 WL 4861449, at
*5 (M.D. Pa. Nov. 7, 2008) ("[I]gnorance of the law, even for an incarcerated prose petitioner,
generally does not excuse prompt filing"). Accordingly, the Court finds that equitable tolling is
not warranted, and the Petition is time-barred by AEDPA.

C. Certificate of Appealability
Finally, the Court denies a certificate of appealability. 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 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). InSlackv. 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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III.

CONCLUSION

For the reasons set forth above, the Petition is DISMISSED as time-barred.

Dated:

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