GOTTLIEB v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
26
OPINION filed. Signed by Judge Freda L. Wolfson on 1/30/2018. (km)
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*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
AVRAM L. GOTTLIEB,
:
:
Petitioner,
:
Civ. No. 16-4213 (FLW)
:
v.
:
:
OPINION
STEVEN JOHNSON et al.,
:
:
Respondents.
:
_________________________________________ :
FREDA L. WOLFSON, U.S.D.J.:
I.
INTRODUCTION
Petitioner, Avram L. Gottlieb (“Gottlieb”), is a state prisoner incarcerated at New Jersey
State Prison, in Trenton, New Jersey. He is proceeding pro se with this habeas petition filed
under 28 U.S.C. § 2254. Presently before the Court is a motion filed by Respondents, Steven
Johnson and the Attorney General of the State of New Jersey (collectively, “Respondents”), to
dismiss the petition as untimely. (ECF No. 15.) Also before the Court are two motions by
Gottlieb to hold oral argument on the dismissal motion, (ECF Nos. 17 & 20), as well as a motion
to stay this matter for further proceedings in the state court. (ECF No. 22). For the following
reasons, Gottlieb’s motions to hold oral argument are denied, Respondents’ dismissal motion is
granted, Gottlieb’s motion to stay the proceeding is denied as moot, and the petition is dismissed
as untimely.
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II.
BACKGROUND
1. Gottlieb’s Conviction
In June 1995, Petitioner, Avram L. Gottlieb, 1 was indicted in New Jersey Superior Court,
Law Division, Somerset County, for charges of first-degree felony murder, under New Jersey
Statutes Annotated § (“N.J.S.A.”) 2C:11-3a(3), second-degree possession of a handgun for an
unlawful purpose, under N.J.S.A. 2C:39-4a, second-degree conspiracy to commit robbery, under
N.J.S.A. 2C:5-2 and 2C:15-1, first-degree robbery, under N.J.S.A. 2C:15-1, third-degree
possession of a weapon without a permit, under N.J.S.A. 2C:39-5b, and third-degree theft, under
N.J.S.A. 2C:20-3. On November 7, 1997, a jury acquitted Gottlieb of felony murder and of
robbery as to Jeffrey Wolf, one of the two purported victims, but convicted him of the remaining
counts. The New Jersey Superior Court, Appellate Division has described the underlying events
as follows:
The convictions arose from an apparent robbery of a
jewelry store . . . on March 14, 1995. According to the testimony
of defendant, it was a sham burglary arranged by the owner of the
store, Jeffrey Wolf, to collect insurance. Presumably the jury had a
reasonable doubt whether this was so because it convicted
defendant of robbing Mr. Wolf's wife but did not convict him of
robbing Mr. Wolf.
Whatever the initial motivation, in February 1995
defendant recruited three others, Kennon, Williams and Guhse, to
assist in the robbery. He planned the event and furnished the
others with the necessary equipment, including loaded handguns
for each. At his direction a motor vehicle was stolen for use during
the robbery.
1
Gottlieb indicates that he was convicted under the name “Avram David Gottlieb.” (Pet., ECF
No. 1, at 1.)
2
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At the time of the robbery, defendant remained in the car,
acting, in popular vernacular, as the wheelman. 2 The other three
entered the store. When the nature of their presence became
apparent, Jeffrey Wolf reached for a pistol and in an ensuing
struggle with Kennon, fired a number of shots, some of which hit
Kennon and one of which killed Wolf's wife Brenda.
Evidence of the preparations for the crime and defendant's
part as the primary planner was provided not only by defendant's
own admissions and testimony at trial but also by the testimony of
Kennon. Additional corroborative evidence was presented in the
form of fingerprints found on items used in the robbery, later
recovered by the police from a nearby self-storage facility.
State v. Gottlieb, 2015 WL 2457951, at *2–3 (N.J. Super. Ct. App. Div. May 28, 2015)
(omission in original) (quoting State v. Gottlieb, No. A-3391-97 (N.J. Super. Ct. App. Div. Feb.
15, 2000) (ECF No. 15-5), certification denied 165 N.J. 486 (2000)). The Honorable Leonard N.
Arnold, J.S.C., sentenced Gottlieb to life imprisonment with twenty-five years of parole
ineligibility, as well as one five-year term to run concurrently, and one five-year term to run
consecutively.
The Superior Court, Appellate Division, affirmed Gottlieb's convictions and sentences
on February 15, 2000. (Br. in Supp., Ex. 1, ECF No. 15-5.) The Supreme Court of New Jersey
denied Gottlieb’s petition for certification on July 7, 2000. State v. Gottlieb, 165 N.J. 486
(2000).
2. Efforts to Obtain State Post-Conviction Relief
On July 7, 2000, Gottlieb, then incarcerated in a federal prison in Indiana for an unrelated
conviction, sent a letter to the state court, in which he requested appointment of counsel to
pursue post-conviction relief (“PCR”). (Br. in Supp., Ex. 6, ECF No. 15-10.) The Office of the
Public Defender assigned Gottlieb’s case to an attorney on July 24, 2000, then reassigned it to a
2
The Court notes that Gottlieb vehemently asserts that he ever drove the car. Whether he did or
did not is irrelevant for the purposes of this opinion.
3
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second attorney on August 10, 2000, and then reassigned it again to attorney Jack Gerber on
November 14, 2000. (Br. in Supp., Ex. 7, ECF No. 15-11, Ex. 8, ECF No. 15-12, & Ex. 9, ECF
No. 15-13.)
Gerber sent a letter to Gottlieb the following day, in which he noted the assignment. (Br.
in Supp., Ex. 10, ECF No. 15-14, at ECF pp. 5–6.) Gerber explained various rules regarding
PCR petitions and attached two forms for commencing PCR proceedings. (Id.) Gerber indicated
that he had filled out the forms “except for Paragraph 8 of Form 2 in which [Gottlieb] should set
out the requirements of Rule 3:22-8,” which, as of 2000, required a petition to “set forth with
specificity the facts upon which the claim for relief is based, the legal grounds of complaint
asserted, and the particular relief sought.” See N.J. Ct. R. (“R.”) 3:22-8 (2000). Gerber asked
Gottlieb to send him the completed form and noted that, once he did, “we will move the case on
from there.” (ECF No. 15-14 at ECF pp. 5–6.)
Gottlieb sent Gerber an angry response on November 23, 2000, noting that he did not
want to write his brief pro se and that he “requested counsel so as to investigate the facts and law
of a complex case which resulted in my life being taken for a crime I did not commit.” (ECF No.
15-14 at ECF pp. 7–8.) Gottlieb concluded his letter by stating that he expected Gerber to
immediately withdraw from representing him. (Id.)
Gerber responded a few days later, stating that he considered Gottlieb’s response “an
express statement that you will not comply with the requirements of Rule 3:22-8 that requires the
defendant to set out with particularity the facts upon which you claim relief, the legal basis for
such relief, and the particular relief that you seek from the petition.” (ECF No. 15-14 at ECF p.
9.) Gerber further stated that he interpreted a telephone conversation they apparently had as his
“requisite personal contact” with Gottlieb and noted that he told Gottlieb “the necessity of
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advising me of what you are complaining about so that I can assist you in properly preparing and
presenting your claims to the court.” (Id.) Gerber opined that no additional conversation would
prove productive, and he informed Gottlieb that he would “proceed with the preparation and
presentation of the case without any expectation of any further cooperation.” (Id.) As Gottlieb
had supposedly “explicitly stated that [he] ha[d] nothing to contribute to the case,” Gerber wrote
that he would not seek a writ to have Gottlieb produced for any argument, though he did write
that Gottlieb will “receive a copy of whatever I submit to the Court and can submit any pro se
documents that you belief would be helpful to your case.” (Id.) Gerber concluded by noting that
he would not withdraw from the case. (Id.)
Thereafter, Gottlieb apparently sent a letter to the Office of the Public Defender
requesting assignment of a different counsel, which that office declined. (See Br. in Supp., Ex.
12, ECF No. 15-16, at ECF p. 11.) Gottlieb then sent a letter dated December 15, 2000 to the
Superior Court, Somerset County, requesting other counsel (“the December 15, 2000 Letter”).
(Br. in Supp., Ex. 10, ECF No. 15-14, at ECF pp. 1–2.) He included the letters he had exchanged
with Gerber, and asserted that Gerber’s stance was inappropriate. (Id.) Gottlieb claimed his
innocence and asserted that he could prove it with adequate counsel. (Id.) He also alleged that
his sentence was improper under the Supreme Court’s holding in Apprendi v. New Jersey, 530
U.S. 466 (2000) (holding that any fact increasing sentence beyond general statutory maximum
must be found beyond reasonable doubt by jury). (Id.) He insisted, in the letter, that he was
“still entitled to a real defense; not an offer to photocopy a pro-se brief.” (Id.) In an addendum
to his letter, Gottlieb rejected Gerber’s statement that he had refused to comply with Rule 3:22-8.
(ECF No. 15-14 at ECF pp. 3–4.) He noted that he had filed a bar complaint against Gerber and
again requested that the court assign him new counsel. (Id.)
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Gottlieb then filed a motion to substitute counsel, dated December 20, 2000, advancing
the same arguments as the December 15, 2000 Letter. (Br. in Supp., Ex. 12, ECF No. 15-16.)
The State took no position on this motion. (Br. in Supp., Ex. 13, ECF No. 15-17.) When the
motion had not yet been decided, Gottlieb filed a “Motion to resolve Petition for Substitution of
Counsel,” dated February 8, 2001. (Br. in Supp., Ex. 14, ECF No. 15-18.) He noted the urgency
of advancing his PCR proceeding “[d]ue to the statutory filing deadlines imposed by New Jersey
law and federal statute should this case not be resolved at the state level.” (Id.) Gottlieb
submitted a follow-up letter to the clerk of the Superior Court dated February 15, 2001. (Br. in
Supp., Ex. 15, ECF No. 15-19.) Gottlieb then sent another letter to the court dated March 27,
2001, in which he disputed any allegations that he was unwilling to cooperate with Gerber and
sought to ensure that the proceeding would move forward, as he believed that he would remain
incarcerated in Indiana beyond the deadline for filing a PCR petition. (Br. in Supp., Ex. 16, ECF
No. 15-20.) He noted that he had spoken to “law clerks” in the Indiana prison, “but they are not
versed in N.J. state law; nor do we have any access to N.J. STATUTES, procedures, or legal
references.” (Id.) He again concluded by urging the court to provide him some attorney other
than Gerber. (Id.)
The Honorable Victor Ashrafi denied Gottlieb’s motion on April 19, 2001, “determining
that [Gottlieb] and Mr. Gerber need to make further efforts to work cooperatively toward the
filing of the petition, and no good cause appearing for substitution of counsel under R.3:226(d).” (Br. in Supp., Ex. 17, ECF No. 15-21.) The Court directed Gerber to review State v.
Velez, 329 N.J. Super. 128 (App. Div. 2000) (laying out standards for effective representation by
assigned PCR counsel), but also reminded Gottlieb that he enjoyed no constitutional right to
counsel in PCR proceedings. (Id.) Judge Ashrafi emphasized that New Jersey Court Rule 3:22-
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6, which governs assignment of PCR counsel, “contemplates assignment of an attorney for an
indigent defendant after a petition is filed by the defendant himself.” (Id.) He noted that an
appointed attorney must subsequently provide effective representation, and he construed
Gerber’s communications as “efforts to obtain movant Gottlieb’s cooperation in fulfilling the
procedural requirements of the Rule.” (Id.) He stressed that “Gottlieb must make [a] good faith
effort to cooperate with his assigned counsel in the preparation of his petition.” (Id.)
Gerber wrote Judge Ashrafi a letter dated July 25, 2001 (copying Gottlieb), which,
essentially, stated that he was committed in advancing the case, until Gottlieb provided
arguments he wanted to advance or at least returned to New Jersey. (Br. in Supp., Ex. 18, ECF
No. 15-22.) In that regard, Gerber explained that, while he had reviewed Gottlieb’s case file, he
could find no meritorious arguments to advance in a PCR proceeding. (Id.) Counsel also noted
that Gottlieb had refused his request to fill out the petition form and that he was “not aware of
any holding or dicta in any case involving petitions for post-conviction relief that requires an
attorney to fabricate claims just so the defendant can advance a petition for post-conviction
relief.” (Id.) Gerber emphasized his experience working on PCR cases, and stated that he had
“uniformly declined to provide the defendant with any legal analysis of the merits of any claim
raised by a defendant in his petition as my view is that that posture is contrary to the last
sentence of R. 3:22-6d.” (Id.) Gerber explained, “In the present case I find no issues that
arguably come within the scope of R. 3:22-2 while on the other hand I have attempted to fulfill
my responsibilities to the defendant under R. 3:22-6d. Unfortunately the defendant has not been
productive in satisfying that avenue for relief . . . .” (Id.) He concluded by asserting that he was
“unable to advance the petition” and requested, on Gottlieb’s behalf, “that the matter be put on
an inactive calendar until the expiration of the period of limitations after which the defendant, if
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he could then satisfy the requirements of R. 3:22-8, could file another petition and set forth the
reasons in support of excusable neglect.” (Id.) Gerber sent a follow-up letter shortly thereafter,
primarily providing Judge Ashrafi an additional case for reference, in which he stated that he was
“fully prepared and comfortable consistent with R. 3:22-6(d), with advancing any claim[s] that
Mr. Gottlieb can reasonably articulate in support of his petition for post-conviction relief,
notwithstanding that everything in the law and even science may facially be to the contrary, if
only he were but to do so.” (Br. in Supp., Ex. 19, ECF No. 15-23 (brackets in original).)
Gottlieb ultimately filed a pro se PCR petition in December 2002, 3 only days before his
time to do so expired. (Br. in Supp., Ex. 3, ECF No. 15-7.) His petition asserted various
grounds for relief: ineffective assistance of trial counsel; that the trial judge improperly divided
the joint robbery charge against the Wolfs into two separate charges at the conclusion of the trial;
that the trial judge failed to give instructions on joint possession; prosecutorial misconduct; and
that his sentencing violated Apprendi. (Id.) After receiving this petition, the Office of the Public
Defender assigned Gottlieb new PCR counsel. (Br. in Supp., Ex. 20, ECF No. 24.)
The Superior Court, Somerset County, denied Gottlieb’s PCR petition without an
evidentiary hearing on March 19, 2009. See Gottlieb, 2015 WL 2457951 at *3. After Gottlieb
filed a reconsideration motion, a different judge granted Gottlieb an evidentiary hearing, but
ultimately denied reconsideration on August 16, 2011. See id. The Superior Court, Appellate
Division, affirmed this order on May 28, 2015. Id. The Supreme Court of New Jersey again
denied certification on June 3, 2016. State v. Gottlieb, 226 N.J. 211 (2016).
3
There is some ambiguity over whether Gottlieb submitted his PCR petition on the 16th or 20th
of December 2002. The question need not be resolved in this opinion.
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3. The Habeas Petition
Gottlieb filed a pro se petition for a writ of habeas corpus with this Court on July 12,
2016, which asserts twelve grounds as bases for habeas relief. (Pet., ECF No. 1, at 7–93.) These
include various arguments for ineffective assistance of trial and appellate counsel, including
failure to adequately communicate with Gottlieb, failure to challenge various aspects of the
prosecution’s investigation and grand jury proceedings, failure to sufficiently investigate and
prepare for proceedings, failure to present key witness and expert testimony, failure to object to
unduly prejudicial evidence and testimony, failure to request mid-trial voir dire, failure to
request proper limiting instructions and jury charges, failure by the Office of the Public Defender
to appoint him new counsel when his appointed attorney was subject to investigation for
wrongdoing, and overall abandonment of the defense. (Id. at 7–47.)
Gottlieb also contends that his conviction and sentence resulted from “egregious
prosecutorial misconduct,” including use of investigators with personal and business
relationships with the Wolfs in violation of New Jersey law, improper vouching for cooperating
witnesses and the Wolfs, presentation of false and distorted evidence, subornation of perjury
from Jeffrey Wolf, Kennon, and other witnesses, the improper introduction of Gottlieb’s other
criminal sentences and alleged crimes, the false characterization of Gottlieb to the PCR court as a
“convicted murderer,” and concealment of exculpatory witnesses. (Id. at 47–59.)
Gottlieb further alleges that his conviction and sentence are the product of judicial
misconduct. (Id. at 59–74.) He argues, among other things, that the trial judge deliberately
violated his constitutional rights by forcing Gottlieb to proceed to trial before his counsel was
fully prepared, using prejudicial language, failing to permit mid-trial voir dire despite extensive
media coverage, improperly admitting evidence of other crimes and criminal sentences, failing to
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give proper limiting instructions regarding the prison garb of cooperating witnesses, vouching,
and guilty pleas of other defendants, and applying repealed law in denying a motion for
judgment notwithstanding the verdict. (Id.)
Of significance, Gottlieb urges that trial court’s late amendment of his indictment,
dividing the charge of robbing Jeffrey Wolf and Brenda Wolf together to separate charges of
robbery of each Wolf, renders conviction for the robbery of Brenda Wolf unconstitutional under
the Fifth and Fourteenth Amendments. (Id. at 75–78.) He claims that, even if such a split of the
charge was permissible, the trial court should have given jury instructions regarding joint
constructive possession, as Brenda Wolf could not have been a victim of robbery if she did not
own what was stolen. (Id.) Gottlieb also claims that his conviction for theft of moveable
property is unconstitutional given a deliberate misrepresentation by the prosecution to the grand
jury that indicted him on that charge. (Id. at 78–81.) Gottlieb argues that cumulative error
produced an unconstitutional conviction, that his sentence is insufficiently definite, and that his
sentence was improperly enhanced in violation the Fifth, Eighth, and Fourteenth Amendments.
(Id. at 84–93.)
While acknowledging the untimeliness of his petition, Gottlieb asserts that it should be
considered anyway as he was a victim of criminal acts by the State. (Id. at 95.) He contends that
equitable tolling should be applied as his assigned attorneys failed to assist in promptly filing a
PCR petition or providing Gottlieb the materials he needed to do so himself. (Id. at 95–96.)
Gottlieb also asserts that he was barred from making pro se submissions while he had counsel.
(Id. at 96.) Finally, he contends that his claims show actual innocence, thus justifying a
relaxation of any time bar. (Id.)
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III.
THE PRESENT MOTIONS
1. Respondents’ Motion to Dismiss
After an extension of time to answer, the Somerset County Prosecutor's Office, on behalf
of Respondents, filed a motion to dismiss the petition as untimely. (ECF No. 15.) Respondents
argue that Gottlieb’s one-year period to file a habeas proceeding under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1), expired on October 5, 2001—
one year after the end of Gottlieb’s time to seek certiorari from the Supreme Court of the United
States on direct appeal of his conviction. (Br. in Supp., ECF No. 15, at 4.) While the filing of a
state PCR petition may toll the AEDPA limitations period, Respondents contend that no tolling
may apply, as Gottlieb did not file his PCR petition until fourteen months after the AEDPA
period ended. (Id. at 4–5.) Respondents argue that Gottlieb has not made any showing of actual
innocence or newly discovered, relevant facts. (Id. at 36–38.)
In his opposition papers, Gottlieb argues that his AEDPA limitations period should be
tolled beginning December 15, 2000, as his letter of that date substantially complied with New
Jersey's filing requirements for PCR petitions.4 (Br. in Opp'n, ECF No. 16, at 2–4.) Gottlieb
asserts that his difficulties with Gerber warrant equitable tolling of his AEDPA limitations
period. (Id. at 5–12.) He also contends that new evidence of his actual innocence should permit
his petition to proceed, even if untimely. (Id. at 13–41.) Finally, Gottlieb briefly argues that his
petition should be heard as it is based on newly discovered evidence and as a matter of
fundamental fairness. (Id. at 42–46.)
In reply, Respondents urge that the December 15, 2000 Letter did not constitute a
properly filed PCR petition, and thus could not have commenced tolling of the AEDPA
4
For the sake of clarity given the intricate issues involved, detailed recitations of the parties’
arguments are included in the Court’s analyses of each issue, infra, rather than in this section.
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limitations period. (Reply Br. in Supp., ECF No. 18, at 1–10.) They argue that, regardless of
Gottlieb’s disagreements with Gerber, there is no basis for equitable tolling, as Gottlieb could
still have filed a PCR petition in time to toll the AEDPA period. (Id. at 10–14.) Respondents
assert that Mr. Gottlieb’s claims of actual innocence are roundly contradicted by the extensive
evidence of his guilt, and they contend that the alleged discrepancies surrounding Brenda Wolf’s
killing provide very little support for Mr. Gottlieb’s theory of events. (Id. at 14–47.) No ground
exists, Respondents contend, to consider Gottlieb’s petition on the basis of newly discovered
evidence or fundamental fairness. (Id. at 47–52.)
4. Gottlieb’s Motions for Oral Argument
Shortly after Respondents filed their dismissal motion, Gottlieb filed a motion seeking
oral argument on that motion. (ECF No. 17.) He maintains that this case is extremely complex
and that it would be “impossible for [him] to explain in writing alone, the interplay between what
the new evidence proves, and its effects on a rational juror.” (Id.)
A few weeks later, Gottlieb filed another motion to renew his request for oral argument
given the arguments advanced by Respondents in their reply brief on the dismissal motion. (ECF
No. 20.) In support of this motion, Gottlieb primarily reiterates the arguments laid out in his
opposition to the dismissal motion. (See id.)
Respondents filed no opposition to Gottlieb’s motions seeking oral argument.
5. Gottlieb’s Motion to Stay the Proceeding
Gottlieb also filed a motion characterized as motion for a stay and abeyance. (ECF No.
22.) He urges that, contrary to Respondents' suggestion, state courts “have never squarely
addressed the constitutional questions presented herein.” (Id. at 1.) He therefore requests a stay
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and abeyance to allow him “to try one last time to compel the State (courts) to answer for their
unconstitutional actions.” (Id. at 2.) Gottlieb contends that the trial court, in denying his motion
for judgment notwithstanding the verdict after the jury convicted Gottlieb of robbery of Brenda
Wolf, but not Jeffrey Wolf, relied on a 1978 case that was, in turn, premised on a criminal statute
that was repealed and replaced in 1979. (Id. at 2–4.) Despite his efforts, the state courts have
not granted any relief on this basis. (Id. at 4.)
Gottlieb also argues that his sentencing violated Apprendi, as the trial court, in increasing
the sentence beyond the typical maximum, relied on facts not found by the jury. (Id. at 5.)
Gottlieb contends that Apprendi applies retroactively, as his case was still on direct appeal when
the Supreme Court issued the Apprendi decision. (Id. at 5–6.) Gottlieb again argues that the
state court has ignored his requests to raise this issue. (Id. at 6.) Accordingly, Gottlieb requests
a stay so that he may move for the state courts to explain their decisions. (Id. at 6.)
Respondents oppose Gottlieb's motion for a stay, but contend that the issue is moot given
the untimeliness of his petition. (ECF No. 23, at 1–3.)
IV.
THE MOTIONS FOR ORAL ARGUMENT
Under Local Civil Rule 78.1, “[a]ll motions and other applications will be decided on the
papers submitted unless . . . a party requests oral argument and the request is granted by the
Judge.” L. Civ. R. 78.1(b). Gottlieb’s arguments are more than adequately set out in his brief in
opposition to the dismissal motion. (See ECF No. 16.) Accordingly, the Court exercises its
discretion to deny his motions for oral argument. See United States ex rel. Hughes v. Rundle,
419 F.2d 116, 118 (3d Cir. 1969).
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V.
TIMELINESS UNDER AEDPA
AEDPA creates a one-year limitations period for habeas petitions by state prisoners,
which typically begins to run when the underlying judgment “bec[omes] 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); see also Thompson v. Adm’r N.J. State Prison, 701 F. App’x 118, 121 (3d Cir.
2017); Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). Where, as here, a habeas petitioner
previously pursued direct appeal to a state high court, the limitations period begins to run upon
the expiration of time to petition for certiorari from the Supreme Court of the United States. See
Thompson, 701 F. App’x at 121; Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84
(3d Cir. 2013). The AEDPA limitations period is tolled, however, during any period that a
properly filed PCR petition is pending in state court. 28 U.S.C. § 2244(d)(2); see also
Thompson, 701 F. App’x at 121; Jenkins, 705 F.3d at 85. As the AEDPA limitations period is
not jurisdictional, it may also be equitably tolled in appropriate circumstances. See Holland v.
Florida, 560 U.S. 631, 645–49 (2010). A new AEDPA limitations period will also begin to run
when new factual evidence that forms the basis for a habeas claim becomes discoverable to the
petitioner. See 28 U.S.C. § 2244(d)(1)(D); see also McQuiggin v. Perkins, 569 U.S. 383, 388–89
(2013).
VI.
ANALYSIS OF THE DISMISSAL MOTION
In this case, the AEDPA limitations period began running on October 5, 2000, or ninety
days after the Supreme Court of New Jersey denied Gottlieb’s petition for certification, when the
time to seek certiorari from the Supreme Court of the United States expired. Sup. Ct. R. 13(1).
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Consequently, it appears that the period to file a timely habeas petition had expired by October 6,
2001—well before Gottlieb filed his PCR petition in December 2002.
Gottlieb raises several distinct arguments in an effort to avoid this time-bar: (1) that the
December 15, 2000 Letter should be construed as a properly filed PCR petition, thus triggering
statutory tolling under AEDPA; (2) that Gerber’s conduct justifies equitably tolling the AEDPA
limitations period; (3) that evidence sufficiently demonstrates his actual innocence to justify
disregarding the standard one-year limitations period, under McQuiggin; (4) that newly
discovered facts underlying his arguments triggered a new AEDPA limitations period under 28
U.S.C. § 2244(d)(1)(D); and (5) that principles of fundamental fairness require that the Court
address the merits of his petition. (See ECF No. 16.) The Court addresses each of these
arguments in turn.
1. The December 15, 2000 Letter as a Properly Filed PCR Petition
As noted above, the AEDPA limitations period for a habeas petition will be tolled while a
properly filed PCR application is pending before the state courts. 28 U.S.C. § 2244(d)(2). Such
an application is considered properly filed “when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000); see
also Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005); Satterfield v. Johnson, 434 F.3d 185, 191–
92 (3d Cir. 2006). Thus, while the merit or procedural aspects of the claims in such an
application are not considered, the propriety of a filing may be assessed by its compliance with
rules governing, “for example, the form of the document, the time limits upon its delivery, the
court and office in which it must be lodged, and the requisite filing fee.” Artuz, 531 U.S. at 3–4;
see also Satterfield, 434 F.3d at 191–92.
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Gottlieb argues, for the first time in his papers opposing this motion, that his AEDPA
limitations period should be tolled beginning December 15, 2000, as his letter of that date
substantially complied with New Jersey's filing requirements for PCR petitions. (ECF No. 16 at
2–4.) He contends that the December 15, 2000 Letter essentially constituted a PCR petition, as
he sent it to the Court, he identified his indictment number, he raised challenges to the
conviction, and he requested counsel. (Id.) Acknowledging that a New Jersey PCR petitioner
generally files a petition pro se before appointment of PCR counsel, he posits that, as a state
court appointed him PCR counsel upon receipt of the December 15, 2000 Letter, it must have
either considered it a PCR petition or have been acting in breach of protocol. (Id. at 6–7.)
Respondents urge that the December 15, 2000 Letter did not constitute a properly filed
PCR application and thus, could not have commenced tolling of the AEDPA limitations period.
(ECF No. 18 at 1–10.) Respondents argue that Gottlieb never before made this allegation and
that, contrary to his representation, his letter in fact complains about the fact that his counsel has
not yet filed a PCR petition. (Id. at 1.) Respondents also contend that this argument is directly
contradicted by Gottlieb’s prior representations to this Court that he filed his PCR petition in
December 2002, and by his statements made between December 2000 and December 2002,
which indicate that he was not aware that any petition have been filed before December 2002.
(Id. at 1–5.) Respondents stress that the December 15, 2000 Letter was not in the proper form to
be considered a PCR petition, as it completely disregards the requirements of New Jersey Court
Rule 3:22-8—failing to be verified, to recount any facts with specificity, or to seek particular
relief. (Id. at 5–10.)
The December 15, 2000 Letter, titled as a “LETTER MEMORANDUM” and bearing the
subject line “Appointment of Post-Conviction Relief counsel in N.J. v. Gottlieb,” is two pages
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long, with a two-page addendum, and primarily focuses on requesting that the court to appoint
Gottlieb new counsel in place of Gerber. (See ECF No. 15-14 at ECF pp. 1–2.) It recounts
Gottlieb’s appointment of various counsel and his disagreements with Gerber. (Id.) While it
makes passing references to Gottlieb’s claims that he is innocent of “the principal charges” and
that his sentence violated Apprendi, it focuses on counsel-related issues. (Id.) The Addendum,
designated as being “in further support of my request for your help in securing new counsel,”
reiterates Gottlieb’s complaints regarding Gerber and his desire to properly advance his case.
(Id. at ECF pp. 3–4.)
Indeed, I find that this letter could no way be construed as a properly filed PCR
application. The iteration of New Jersey Court Rule 3:22-8 applicable in December 2000 (like
the current version) established requirements for PCR petitions, including that such a petition
“shall be verified by defendant and shall set forth with specificity the facts upon which the claim
for relief is based, the legal grounds of complaint asserted, and the particular relief sought.” R.
3:22-8 (2000). The December 15, 2000 Letter is not verified by Gottlieb, and, while it mentions
two potential legal grounds (actual innocence and improper sentencing), it includes no
underlying facts, much less facts with specificity. (See ECF No. 15-14.) Furthermore, it does
not seek any particular relief aside from appointment of new counsel. (Id.) Rule 3:22-8 also
required that PCR petitions include a variety of particular information regarding the underlying
trial, appellate process, and other efforts to obtain relief. 5 R. 3:22-8 (2000). The December 15,
5
The rule specifically mandated that a petition include:
(a) the date, docket number, and content of the indictment or accusation upon
which the conviction was based and the county where filed; (b) the date and
content of the sentence or judgment complained of and the name of the presiding
judge; (c) any appellate proceedings brought from the conviction, attaching a
copy of opinions therein; (d) any previous post-conviction proceedings relating to
the same conviction, giving date and nature of claim and date and nature of
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2000 Letter includes virtually none of this information besides the underlying indictment number
and county of conviction. (See ECF No. 15-14). As the December 15, 2000 Letter did not
remotely comply with the state court rules regarding form of a PCR petition, this document
cannot be considered a properly filed application for the purposes of AEDPA. See Artuz, 531
U.S. at 3–4.
Furthermore, the Court notes that neither the state court nor Gottlieb himself at any time
before this motion practice suggested that the December 15, 2000 Letter might constitute a PCR
application. In a subsequent motion seeking to replace Gerber with alternative counsel, Gottlieb
referred to his December 15, 2000 Letter as simply a “letter memorandum and subsequent
addendums.” (ECF No. 15-16 at ECF p. 4). Gottlieb also expressed worries about potential time
bars for seeking relief in letters he sent the state courts during the spring of 2001, thus indicating
that he did not consider any prior filing to be a PCR application. (See ECF Nos. 15-18 & 15-20).
Judge Ashrafi, in denying the motion for new counsel, referred to Gottlieb’s “anticipated first
post-conviction relief petition” (emphasis added) and urged Gottlieb and Gerber to “make further
efforts to work cooperatively toward the filing of the petition.” (ECF No. 15-21.) Lastly,
Gottlieb finally filed a proper PCR petition in December 2002, and it is this date that he
identifies as the commencement of his PCR proceedings in the habeas petition presently before
this Court. (See ECF No. 1 ¶ 11.) Accordingly, the Court considers Gottlieb’s December 2002
disposition, and concerning any appeal therefrom, together with copies of
opinions therein, trial and appellate; (e) whether petitioner was represented by
counsel in any of the proceedings aforementioned, naming the counsel in each
such proceeding, and stating whether counsel was in each instance retained or
assigned; (f) whether and where defendant is presently confined.
R. 3:22-8 (2000).
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petition to be the only properly filed PCR application in this matter and denies his request to find
AEDPA statutory tolling beginning December 15, 2000.
2. Equitable Tolling of the AEDPA Limitations Period
Gottlieb next argues that Gerber’s failure to aid in filing a PCR petition justifies equitably
tolling the AEDPA limitations period. The Supreme Court established, in Holland v. Florida,
560 U.S. 631, that the AEDPA limitations period may be equitably tolled and, further, that
attorney malfeasance may warrant such equitable tolling. Id. at 645–54. Equitable tolling will
be granted only if a petitioner can demonstrate “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely
filing.” Id. at 649 (quoting Pace, 544 U.S. at 418); see also Ross, 712 F.3d at 798; Jenkins, 705
F.3d at 89. The Holland Court emphasized that such determinations, as equitable in nature,
should be fact specific and rendered on a case-by-case basis. See Holland, 560 U.S. at 649-50;
see also Ross, 712 F.3d at 799.
The Holland Court rejected a holding by the Court of Appeals for the Eleventh Circuit
that found attorney misbehavior could constitute an extraordinary circumstance for the purpose
of equitable tolling only if it involved allegations of “‘bad faith, dishonesty, divided loyalty,
mental impairment or so forth.’” Holland, 560 U.S. at 644, 651–52 (quoting Holland v. Florida,
539 F.3d 1334, 1339 (11th Cir. 2008)). Nonetheless, it reaffirmed that equitable tolling would be
appropriate only in the face of extraordinary circumstances and, thus, that “garden variety”
attorney negligence does not provide sufficient justification. Id. at 651–52; see also Jenkins, 705
F.3d at 89 n.16. Applying these findings, the Holland Court found the potential for a showing of
extraordinary circumstances because Holland’s attorney failed to timely file a petition “despite
Holland’s many letters that repeatedly emphasized the importance of his doing so,” failed to
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research the proper filing date although Holland had identified the applicable rules for him,
failed to promptly inform Holland that the Florida Supreme Court had ruled in his case despite
Holland’s requests for that information, and “failed to communicate with his client over a period
of years, despite various pleas from Holland that [counsel] respond to his letters.” 6 Holland, 560
U.S. at 652.
Addressing the diligence prong, the Holland Court found that a showing for equitable
tolling requires only reasonable diligence, “not maximum feasible diligence.” Holland, 560 U.S.
at 653; see also Ross, 712 F.3d at 799. The Third Circuit has noted that a petitioner must
exercise diligence throughout the process of exhausting state court remedies, not only in filing a
habeas petition. Ross, 712 F.3d at 799. Although the diligence test is applied subjectively, it is
still applied to litigants proceeding pro se—a petitioner’s “lack of legal knowledge or legal
training does not alone justify equitable tolling.” Id. at 799–800.
Additionally, the Third Circuit has required that litigants seeking equitable tolling show
that an attorney’s extraordinary misconduct caused the default in timeliness. Id. at 803. In other
words, the extraordinary circumstances “must somehow have affected the petitioner’s ability to
file a timely habeas petition.” See Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), abrogated
on other grounds by Carey v. Saffold, 536 U.S. 214 (2002).
In this case, Gottlieb argues that Gerber’s conduct warrants equitable tolling of his
AEDPA limitations period. (ECF No. 16 at 5–12.) He contends that Gerber almost immediately
destroyed the attorney-client relationship by writing Gottlieb that he had conducted a short
6
The Holland Court declined to conclude that the conduct by Holland’s attorney established
extraordinary circumstances for the purposes of equitable tolling, as the District Court had not
ruled on this issue. Holland, 560 U.S. at 653–54. The District Court apparently later found
tolling to be appropriate and addressed Holland’s petition on its merits. See Holland v. Tucker,
854 F. Supp. 2d 1229 (S.D. Fla. 2012).
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review of the case file, while Gottlieb contends that a “short review” of the 30,000-page case file
would be impossible, and by directing Gottlieb to send his communications directly to the courts.
(Id. at 6–8.) Gottlieb asserts that, contrary to Gerber's suggestion, he had already identified PCR
issues to raise, particularly the alleged Apprendi violation. (Id. at 9–10.) Accordingly, he
concludes that Gerber was not working in his best interests, but was instead an obstacle to his
PCR filing. (Id. at 10–11). Gottlieb additionally alleges that he faced extraordinary
circumstances in that the state courts require that a PCR petition state the underlying facts with
specificity, yet he was deprived access to the legal records and the New Jersey legal materials he
needed to do this. (Id. at 11–12.) Gottlieb contends that his unique circumstances amount to an
extraordinary circumstance for the purpose of equitable tolling. (Id. at 12.)
Respondents, meanwhile, argue that extraordinary circumstances generally exist only
when an attorney has essentially abandoned a client. (ECF No. 15 at 5–9.) They contend that
Gottlieb and Gerber’s correspondence during the AEDPA limitations period shows that Gerber
was willing to work with him in submitting a timely PCR petition, but that Gottlieb failed to take
the action needed to advance the proceeding. (Id. at 10–34.) Respondents assert that Gottlieb’s
difficulties accessing trial transcripts and New Jersey legal materials from his Indiana prison do
not rise to the level of an extraordinary circumstance. (Id. at 34–36.) Even if Gottlieb could
demonstrate extraordinary circumstances, Respondents assert that he still could not show that he
acted with the reasonable diligence required for equitable tolling. (Id. at 9–34.) They argue that
Gerber’s July 25, 2001 letter gave Gottlieb explicit notice that Gerber did not understand
Gottlieb to have directed him to file a PCR petition, thus concluding that Gottlieb “could have
easily filed at least a basic pro se petition before the October 5, 2001 deadline, and the fact that
he waited until over 14 additional months had passed beyond that deadline before filing a pro se
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petition in mid-December 2002 does not demonstrate reasonable diligence.” (Id. at 35; ECF No.
18 at 10–14.)
Gottlieb contends that his diligence is amply demonstrated by his rapid efforts to retain
PCR counsel following denial of certification upon direct appeal by the Supreme Court of New
Jersey. (ECF No. 16 at 6.) Gottlieb asserts that it was Gerber’s failure to provide him discovery
and transcripts that prevented him from drafting his own PCR petition. (Id. at 10.)
Respondents, in turn, allege that Gottlieb’s arguments that incarceration in Indiana and
lack of access to legal materials prevented him from filing a pro se PCR petition are refuted by
the fact that he was still incarcerated there when he finally did file his petition in December
2002. (ECF No. 18 at 12–13.)
A review of cases from within this Circuit suggests that equitable tolling on the basis of
attorney malfeasance is rarely granted and is appropriate only in response to particularly
egregious circumstances. In Ross v. Varano, 712 F.3d 784, the Third Circuit affirmed the
application of equitable tolling based on the petitioner’s “attorney missing deadlines for filing
documents with the state courts, the attorney’s failure to communicate with Ross, and the
attorney’s misleading statements when he did communicate with Ross,” as well as “Ross’s
mental health issues, limited education, and limited cognitive ability.” Id. at 788. More
particularly, the Court noted that Ross’s attorney, during a course of over seven years, would not
respond to his letters for months at a time, id. at 789–90, assured Ross that his appeal was
progressing, but then withdrew the appeal in order to file a PCR petition, id. at 790–91, did not
tell Ross the appeal was withdrawn and never in fact filed a PCR petition, id. at 791, falsely
suggested to Ross that the state courts had lost his case file, id., and assured Ross that he would
file a nunc pro tunc appeal within a few weeks, but never did, id. at 791–92. The Court observed
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that “‘the proper inquiry is not how unusual the circumstance alleged to warrant tolling is among
the universe of prisoners, . . . but rather how severe an obstacle it is for the prisoner endeavoring
to comply with AEDPA’s limitations period.’” Id. at 802–03 (omission in original) (quoting
Pabon v. Mahanoy, 654 F.3d 385, 400 (3d Cir. 2011)). It found equitable tolling appropriate in
the totality of the circumstances, namely, the attorney’s “misleading statements on matters that
should have been within [his] knowledge, the Common Pleas Court’s no doubt unintentionally
misleading statement implying that [the attorney] was prosecuting Ross’s appeal, [the attorney’s]
unresponsiveness and neglect of the case, and Ross’s limited abilities.” Id. at 803.
Although not addressing the AEDPA limitations period, the Third Circuit’s opinion in
Seitzinger v. Reading Hospital and Medical Center, 165 F.3d 236 (3d Cir. 1999), presents one of
the few other cases in which the Third Circuit has approved of equitable tolling on the basis of
attorney malfeasance. See id. The Seitzinger Court reversed a denial of equitable tolling where
Seitzinger’s attorney told her he had filed a complaint when he had not, ignored Seitzinger’s
calls, and finally told Seitzinger to check with the court regarding her case because he was giving
up his law practice (he had in fact been suspended from the practice of law). Id. at 238, 241.
The Court concluded that the attorney’s “misbehavior went well beyond the garden variety,
because [the attorney] affirmatively lied to his client,” particularly about whether he had filed a
complaint. 7 Id. at 241.
7
One of the few other Third Circuit cases to effectively approve of a grant of equitable tolling is
Ragan v. Horn, 411 F. App’x 491 (3d Cir. 2011). There, the Third Circuit overturned the
District Court’s revocation of a prior grant of equitable tolling (due to its perception that plaintiff
had failed to exercise due diligence in meeting a new, court-imposed deadline). Id. Ragan’s
attorney had established a pattern of regular communication and prompt notification of case
developments with Ragan and his family, but then, inexplicably, failed to file a habeas petition
though he said he would. See Ragan v. Horn, 538 F. Supp. 2d 906, 909–10 (E.D. Pa. 2008). The
District Court stressed the “culture of reliance” that Ragan’s attorney created with his initial
responsiveness and that he subsequently “covertly changed the rules in the middle of the game.”
Id. at 913–14. Notably, the grant of equitable tolling seems to have been partially based upon a
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By contrast, there are a number of relevant decisions denying equitable tolling based on
attorney malfeasance. Equitable tolling has been denied in cases where the client should have
discovered that his attorney had not filed a complaint when the attorney had represented that
he/she would, and before the limitations period had run, Schlueter v. Varner, 384 F.3d 69, 76 (3d
Cir. 2004), where the attorney was “forthright” with his client about his intent not to file an
appeal, Brown v. Shannon, 322 F.3d 768, 773–74 (3d Cir. 2003), where the attorney failed to
inform his client he was no longer representing her, but she discovered the attorney had not filed
an appeal with three months remaining in which to file a timely habeas petition, Cristin v. Wolfe,
168 F. App’x 508, 512 (3d Cir. 2006), where the attorney’s alleged statement to the client that all
appeal rights were waived resulted in a failure to seek collateral relief, Markus v. United States,
Civ. A. No. 15-7545 (JLL), 2015 WL 8490959, at *4 (D.N.J. Dec. 10, 2015), and where the
attorney told his client the wrong deadline for filing a habeas petition, Garcia v. Bartkowski, Civ.
A. No. 11-3689 (DRD), 2015 WL 857737, at *8–9 (D.N.J. Feb. 27, 2015). Courts have also
refused to apply equitable tolling when a plaintiff fails to exercise reasonable diligence,
particularly when the plaintiff did not adequately inform himself regarding the proceedings. See,
e.g., Ohler v. Lamas, 542 F. App’x 205, 207 (3d Cir. 2013) (petitioner “waited nearly two years
with little or no communication from counsel before contacting the Court” (internal quotation
marks omitted)); United States v. Bass, 268 F. App’x 196, 200 (3d Cir. 2008) (noting that
petitioner’s “attempts to determine the status of his case were sporadic at best”); Martin v.
D’Ilio, Civ. A. No. 15-7158 (JBS), 2017 WL 1003246, at *4 (D.N.J. Mar. 15, 2017) (petitioner
waited seven years to contact court despite attorney’s failure to respond to communications).
more lenient standard applied to habeas petitioners facing capital punishment. See id. at 914–15;
see also McClain v. Warren, Civ. A. No. 11-7093 (SDW), 2014 WL 2805112, at *5 (D.N.J. June
20, 2014).
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Here, the Court does not find equitable tolling justified. While Gerber refused to aid
Gottlieb in drafting the certain substantive portions of a PCR petition, the Court cannot conclude
that attorney’s conduct in that regard constituted an extraordinary circumstance—that is, a severe
obstacle to the filing of a PCR petition by Gottlieb, within the AEDPA limitations period. See
Ross, 712 F.3d at 802–03. Indeed, counsel was generally prompt and forthright in his
communications with Gottlieb. See Brown, 322 F.3d at 773–74. There is no indication that
Gerber affirmatively misled Gottlieb or failed to inform him of crucial information. See
Holland, 560 U.S. at 652; Ross, 712 F.3d at 803. Nor did Gerber make any misrepresentations to
the court regarding the attorney-client relationship. In fact, Gerber apprised the court regarding
the breakdown of his relationship with Gottlieb.
Furthermore, even if the facts Gottlieb alleges did constitute extraordinary circumstances,
he fails to show that they caused his failure to file a PCR petition in time to toll the AEDPA
limitations period. Gottlieb contends that his incarceration in Indiana, where he had no access to
his own trial records or New Jersey legal materials, prevented him from drafting a pro se PCR
petition. That alleged causal nexus is call into question, however, by the fact that Gottlieb was
still confined in Indiana when he eventually filed his PCR petition in December 2002. Similarly,
Gottlieb does not establish how Gerber’s refusal to draft a PCR petition on his behalf thwarted
him from timely filing a pro se petition. By no later than early August of 2001, Gottlieb should
have understood that Gerber did not plan on drafting a petition for him. (See ECF No. 15-22.)
Although Gottlieb then had, for AEDPA-tolling purposes, approximately two months to draft
and file a basic PCR petition, and despite demonstrating an awareness that the timing of his
filing of a PCR petition also implicated his federal habeas deadline, (see ECF No. 15-18),
Gottlieb did not in fact submit his pro se PCR petition until almost a year and a half later. While
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Gottlieb contends that his prompt and repeated efforts to obtain substituted counsel demonstrated
diligence, his diligence was lacking when he failed to submit a petition.
More importantly, even if the Court found that Gerber’s conduct warranted equitable
tolling, it still appears that Gottlieb’s habeas petition would be untimely under AEDPA. Gerber
submitted a letter, dated September 5, 2001, to Judge Ashrafi, copying Gottlieb, that again made
clear that he would not be drafting a PCR petition. Gottlieb was on notice then that Gerber
would not file a petition on his behalf. After that time, no party has given any indication of
subsequent communication between Gottlieb and Gerber. Furthermore, there is no indication
that Gottlieb received relevant documents or that any other material circumstance changed
between September 2001 and December 2002. Thus, even if the one-year AEDPA limitations
period was tolled until September 5, 2001 (and there does not seem to be any argument for
extending it up to, much less beyond, that date), it still would have expired before Gottlieb filed
his petition in December 2002. See Johnson v. Hastings, Civ. No. 13-305 (KM), 2014 WL
5159969, at *4–5 (D.N.J. Oct. 10, 2014) (“Johnson and his family were allegedly unable to
contact [his attorney] for 11 months . . . , however, even if this 11 month period is equitably
tolled, the habeas petition remains untimely.”).
Accordingly, an application of equitable tolling is not warranted in this case, and
Gottlieb’s petition is untimely under the general AEDPA limitations period.
3. Actual Innocence
The Supreme Court established in McQuiggin v. Perkins, 569 U.S. 383, that a habeas
petitioner may use a convincing showing of actual innocence as a gateway to advance a habeas
claim that would otherwise be untimely under AEDPA, regardless of whether the petitioner
exercised reasonable diligence under Holland. See id. at 386–87, 391–401. An actual-innocence
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argument falls under the narrow equitable exception to AEDPA permitting courts to address a
potential fundamental miscarriage of justice. See Satterfield v. Dist. Att'y Phila., 872 F.3d 152,
162 (3d Cir. 2017); Coleman v. Superintendent Greene SCI, 845 F.3d 73, 76 (3d Cir. 2017). The
standard for an actual innocence showing is demanding, and a petitioner must “present[]
'evidence of innocence so strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional error.'”
McQuiggin, 569 U.S. at 401 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
Accordingly, a petitioner “must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327. In
this way, it is not a question of whether the Court itself would find that the petitioner is actually
innocent, but a prediction of whether a reasonable juror would not have been able to find the
petitioner guilty. Id. at 329; Bruce v. Warden Lewisburg USP, 868 F.3d 170, 184 (3d Cir. 2017).
Making such a showing requires that the petitioner present new evidence, not available prior to
the conviction, that is reliable, “‘whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence.’” Hubbard v. Pinchak, 378 F.3d 333, 339–40
(3d Cir. 2004) (quoting Schlup, 513 U.S. at 324). Actual innocence presents an exceedingly high
bar, and most such claims are rejected. See Schlup, 513 U.S. at 324; Hubbard, 378 F.3d at 341.
Gottlieb asserts that numerous pieces of evidence demonstrate his actual innocence.
(ECF No. 16 at 13–41.) Overall, he contends that this evidence is new, reliable, and that, given
its presentation, no reasonable juror would have convicted him. (Id. at 40–41.) He urges that he
was unaware of the bulk of this evidence prior to 2004, when he returned to New Jersey. (Id. at
40.) He further alleges that most of the evidence is documentary, and that it conclusively
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demonstrates that Brenda Wolf actively participated in an insurance-fraud scheme to stage the
robbery. (Id. at 41.)
Gottlieb’s primary argument is that the evidence demonstrates that Brenda Wolf was not
shot while Jeffrey Wolf and Gottlieb’s alleged co-conspirator Kennon struggled over the gun, but
instead that Jeffrey Wolf shot Kennon and then, several minutes later, intentionally shot Brenda
Wolf. (See id. at 16–41.) Gottlieb contends that this circumstance would prove that Brenda
Wolf was complicit in a plot of insurance fraud, because after Jeffrey Wolf shot Kennon she was
helping to stage the robbery instead of calling the police. (Id.) Proof that Brenda Wolf was
complicit in a scheme of insurance fraud with Gottlieb and his associates would, Gottlieb asserts,
negate the requisite intent element for his conviction for the robbery of Brenda Wolf. (Id.)
Gottlieb asserts that the evidence supports this theory, and the Court reviews each of the
evidence, in turn.
a. Circumstances of Kennon’s Shooting
Gottlieb contends that, after he returned to New Jersey in 2004, he learned that Kennon
gave false testimony at his (Gottlieb’s) trial. (Id. at 15–17.) Gottlieb submits a certification from
Kennon, in which Kennon states that he did not receive his own medical reports until after his
trial was complete (though prior to Gottlieb’s trial), and that the content of those reports changed
his perception of the shooting. (Br. in Opp’n, ECF No. 16-1, Ex. 21, at 2 (ECF p. 127).)
Specifically Kennon claims that, while in pretrial statements he stated that he was shot three
times and the first shot was in the front of the shoulder, his medical records revealed that he had
been shot five times and first in the rear of the shoulder. (Id.) Kennon states that at Gottlieb’s
trial, he initially testified as he believed to be consistent with the medical records, but then his
attorney, in conjunction with the State, pressured him, at threat of abandoning his plea
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agreement, into returning to the courtroom and testifying that he was shot only three times. (Id.
at 2–4 (ECF pp. 127–29).) Kennon further states that he initially testified that he had not
struggled with Jeffrey Wolf, but then, when he retook the stand, testified that he had, “even
though I no longer believed it to be the truth.” (Id. at 4 (ECF p. 129).) Kennon recounts that,
once Gottlieb was transferred to New Jersey in 2004, he worked out a deal with Gottlieb
whereby Kennon would give Gottlieb trial materials he had, and, in return, Gottlieb would give
Kennon any expert reports he obtained. (Id. at 4–5 (ECF pp. 129–30).)
Respondents urge that post-trial recantations by Kennon, who is now affirmatively aiding
Mr. Gottlieb, are inherently unreliable. (ECF No. 18 at 18–19.)
The Court agrees with Respondents that Kennon’s new certification cannot be interpreted
as reliable evidence or as a “trustworthy eyewitness account.” See Schlup, 513 U.S. at 324.
First, Kennon clearly has an interest in exculpating Gottlieb, as he indicates that they have
agreed to work together to help with each other’s efforts to overturn their convictions.
Furthermore, accepting Kennon’s new certification as true would mean accepting a statement
that he previously perjured himself in order to minimize his own punishment. The circumstances
make clear that Kennon either lied during Gottlieb’s trial or is lying now, but either conclusion
reveals his statements as inherently untrustworthy.
b. Diagnostic and Expert Evidence Concerning the Number and Range of Bullets Fired
During the Crime
Gottlieb further argues that Kennon’s testimony at Gottlieb’s trial that he was shot “three
or four times” and at close range is refuted by FBI diagnostics and medical records, which
indicate that Kennon was shot five times and not at close range. (ECF No. 16 at 15–17.) In
support of this, Gottlieb includes a report from the FBI Laboratory dated January 29, 1996
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(apparently created for Kennon’s trial), which notes that an “absence of specific gunpowder
residue patters around [holes in Kennon’s jacket] precludes the possibility of making any
muzzle-to-garment determinations.” (ECF No. 16-1, Ex. 3, at 7 (ECF p. 18).)
Regarding the number of shots fired, Gottlieb includes a report from a radiologist, Dr.
Berg, dated February 5, 2010 (apparently produced for Kennon’s PCR proceeding), who opines
that x-rays and CT scans taken of Kennon on March 14, 1995, indicate that fragments of four
bullets were in Kennon’s body at that time and that subsequent medical records show Kennon
was shot five times. (ECF No. 16-1, Ex. 4 (ECF pp. 21–22).) Gottlieb also includes copies of
two x-rays of Kennon. (ECF No. 16-1, Ex. 5 (ECF pp. 25–29).) The accompanying medical
authorizations indicate that these x-rays are from Kennon’s treatment between March 14 and 16,
1995. (Id.)
Gottlieb contends that Dr. Berg’s report, in conjunction with a report and testimony of
Corporal Joseph Kucich (who appears to be the State’s ballistics expert) from Kennon’s trial,
indicate that at least seven bullets were fired, although Jeffrey Wolf’s gun was only a six-shot
revolver. (ECF No. 16 at 18–20.) The report of Corporal Kucich, dated March 16, 1995,
indicates that one bullet was recovered from Brenda Wolf and “additional” bullets were
recovered from Kennon. (See ECF No. 16-1, Ex. 6 (ECF pp. 30–34). An excerpted transcript
from Kennon’s trial reflects that Corporal Kucich testified that, given the number of fragments
he had received for analysis, he would “speculat[e]” that he had pieces of five bullets. (ECF No.
16-1, Ex. 7, at 56 (ECF p. 41).) Gottlieb also included testimony from the Kennon trial by an
investigating officer who stated that the hospital did not immediately remove all bullets from
Kennon and that he believed that x-rays indicated that two bullets remained in Kennon. (Id. at
78 (ECF p. 42).)
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Gottlieb additionally introduces a report dated January 25, 2011 by Dr. James E. Hamby,
a firearm and toolmark expert, who, “at Mr. Gottlieb’s request,” provided a video recording of
various tests involving a gun similar to the gun fired during the crime, in order “to depict the
effects.” (See ECF No. 16-1, Ex. 14 (ECF pp. 83–85).) Dr. Hamby’s report states, “I reviewed a
variety of transcripts and laboratory reports and would opine that it would be necessary to
physically review the shooting evidence to make any specific determinations concerning the
number of bullets fired from the evidence revolver.” (Id.) Dr. Hamby offers to conduct such a
review if the evidence is sent to him. (Id.)
Respondents assert that arguments regarding gunpowder residue on Kennon’s shirt were
raised at trial and, in any case, that the FBI report does not establish that Kennon was not shot at
close range. (ECF No. 18 at 16–18; see also Reply Br. in Supp., Ex. 28, Trial Transcript State v.
Gottlieb, Oct. 23, 1997, ECF No. 19-5, at 31–33 (ECF pp. 10–11). They also urge that Kennon
presented the same arguments and evidence regarding the number of bullets fired during both
direct and PCR proceedings with no success, because such evidence was not directly relevant
and because it was impossible to determine the actual number of bullets fired. (ECF No. 18 at
21–25.) Respondents note that these arguments were similarly unsuccessful when presented
during Mr. Gottlieb’s PCR proceeding. (Id. at 25–26.) These rejections, Respondents note, were
under the prejudice prong required to establish ineffective assistance of counsel, whereas a
showing of actual innocence presents a more difficult burden. (Id. at 26–27.) Respondents urge
that the PCR court rejected the Hamby report as inadmissible, as Dr. Hamby did not indicate any
degree of scientific certainty, and, in any case, that the certification could not show that Brenda
Wolf was complicit with the robbery. (Id. at 37–38.)
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First, the trial transcript makes clear not only that evidence regarding residue on
Kennon’s shirt was available during Gottlieb’s trial, but that it was in fact raised at trial, and does
not constitute new evidence that would lead any reasonable juror to acquit. While Dr. Berg’s
report concerning the number of times Kennon was shot was not available during Gottlieb’s trial,
all the factual evidence to produce that report was, and it is not clear that anything in support of
this argument may be classified as evidence that was not available at trial. See Hubbard, 378
F.3d at 339–40. In any event, most of this evidence is highly speculative: Dr. Berg states that
Kennon’s wounds “suggest that a total of five bullets entered [Kennon’s] body” (emphasis
added), (ECF No. 16-1, Ex. 4); Corporal Kucich, “[n]aturally speculating,” said he had
examined five bullets, (ECF No. 16-1, Ex. 7 at 56); Dr. Hamby, quite understandably, stated that
he could not make any specific determinations without actually examining the evidence, (ECF
No. 16-1, Ex. 14).
Even if this evidence could be considered reliable, it in no way seems to clearly establish
that more than six shots were fired. The x-rays and scans of Kennon that Dr. Berg relied upon
were taken on March 14, 1995—the day of the crime—whereas Corporal Kucich’s report from
two days later indicates that he examined the bullets that were recovered from Kennon. That fact
alone seems to suggest that simply adding together the number of bullets referenced in Dr.
Berg’s report and Corporal Kucich’s report and testimony cannot reveal any conclusive total. In
any case, even if pieces of two bullets remain in Kennon’s body and pieces of five bullets exist
outside Kennon’s body, this does not mean that the fragments are mutually exclusive. If, for
example, half of a single bullet permanently lodged in Kennon’s body and the other half passed
through (or were removed), then Dr. Berg’s report may reflect one half and Corporal Kucich’s
the other, but this does not convert one bullet to two. All in all, this evidence is insufficient to
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reach any conclusion regarding the number of bullets fired, much less to show that a reasonable
juror could not conclude that six or fewer bullets were fired.
c. Missing Testimony from Other Witnesses
Gottlieb further alleges that the prosecution concealed witnesses Mary Rogers and
Michael Horgan, as well as Corporal Kucich, thus preventing them from testifying at his trial.
(ECF No. 16 at 30–35.) He introduces excerpts of their testimony from Kennon’s trial. Rogers,
a registered nurse who happened to be in the hair salon next door to the jewelry store at the time
of the crime, testified that she heard two or three shots and shortly thereafter another four or five
shots. (ECF No. 16-1, Ex. 15, at 28–29 (ECF pp. 89–90).) She recounted that, when she went to
try to help Brenda Wolf, she told Jeffrey Wolf to call 911, as no ambulance or police had yet
arrived. (Id. at 33 (ECF p. 91).) Gottlieb contends that Rogers’s testimony both shows that more
than six shots were fired and suggests that Jeffrey Wolf waited to call 911 until he knew Brenda
Wolf was dead. (ECF No. 16 at 30–32.)
Gottlieb also introduces a statement by Michael Horgan, dated April 24, 1995, who
recounted that, around the time of the crime, he saw a man with a gun speaking with another man
in a green coat in the parking lot outside the store, and that the second man then left. (ECF No.
16-1, Ex. 16 (ECF pp. 94–97).) Gottlieb urges that this testimony refutes Jeffrey Wolf’s
testimony that immediately after the shooting he ran to Brenda, triggered the alarm, and called
911. (ECF No. 16 at 34–45.) Corporal Kucich’s testimony during Kennon’s trial has already
been described herein.
Respondents argue that Rogers’s testimony was available at the time of Gottlieb’s trial,
given that she testified during Kennon’s trial, and that, regardless, it does little to support his
actual-innocence theory. (ECF No. 18 at 38–41.) They assert that Gottlieb’s theory that Jeffrey
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Wolf delayed calling 911 is refuted by the records that show that his 911 call was among six or
seven others, all of which were made within a period of 57 seconds. (Id. at 41.) Respondents
contend that Horgan’s statement contributes little to any assessment of the underlying events.
(Id. at 41–44.)
As with much of the other evidence Gottlieb seeks to rely upon in proving his innocence,
there is no showing that this testimony was unavailable to Gottlieb at the time of his trial. Even
if it could be considered new evidence, however, Rogers’s testimony is just as consistent with six
shots being fired as with eight, and any indication that Jeffrey Wolf may have failed to promptly
call 911 does not conclusively establish his complicity in the crime, much less Brenda Wolf’s.
While Horgan’s testimony could potentially have cast some doubt on Jeffrey Wolf’s version of
events, it is insufficient to prove Gottlieb’s actual innocence on this motion.
d. Evidence Regarding the State of the Wolfs’ Marriage and Business
Gottlieb further argues that Brenda Wolf's family believes that Jeffrey Wolf intentionally
killed her, but that prosecutors ignored their communications regarding this fact. (ECF No. 16 at
20–22.) He introduces the certification of Brenda Wolf’s sister, Laura Trueman, dated February
1, 2011, who states that she and her parents suspected since early in the investigation that Jeffrey
Wolf had been involved in the crime. (ECF No. 16-1, Ex. 8 (ECF pp. 44–47).) Trueman
contends that Jeffrey Wolf typically video-recorded what happened in the store, but that on the
day of the crime there was no tape in the recorder. (Id.) Trueman also states that Brenda Wolf
controlled the store’s finances and that she would not have left $30,000 in the store safe except
for a specific purpose. (Id.) She alleges that Brenda and Jeffrey Wolf had a strained marriage,
and accuses her other sister, Cynthia Sandow, of lying at trial by characterizing the marriage as a
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good one. (Id.) Finally, she recounts that Jeffrey Wolf was an “expert marksman” and owned
many guns. (Id.)
Gottlieb also alleges that Sandow subsequently admitted to perjury during his and
Kennon’s trials, and that she admitted that she and her husband had participated with the Wolfs
in a scheme to traffic stolen property. (ECF No. 16 at 22–23.) In support, Gottlieb introduces
letters to Kennon from his attorney, which recount unsuccessful efforts by Trueman to get the
full facts from Sandow. (ECF No. 16-1, Ex. 9 (ECF pp. 49–52).) Kennon’s attorney primarily
indicated that Sandow had admitted that she and her husband engaged in selling stolen jewelry to
Jeffrey Wolf. (See id.) Gottlieb speculates that the Somerset County Prosecutor's Office, when
it discovered Sandow was contemplating releasing further information, intimidated her into
remaining quiet. (Id.)
Gottlieb further alleges that the Wolfs were engaged in tax fraud from 1992 to 1995, and
maintained improper business records, thus suggesting their propensity for crime. (ECF No. 16
at 24–26, 28–29.) In support of this, he submits their business income tax returns for 1992
through 1995. (ECF No. 16-1, Ex. 10 (ECF pp. 54–57).) Gottlieb also includes a certification
from accountant David H. Glusman, dated February 2, 2011, who opines “that the accounting
records as produced at the trial do not constitute a full set of accounting records for a jewelry
store” and that not all transactions are accounted for. (ECF No. 16-1, Ex. 12 (ECF pp. 60–63).)
Gottlieb contends that this evidence supports his argument that the Wolfs asked him to
participate in their insurance fraud scheme because he had previously sold them stolen goods.
(ECF No. 16 at 26.)
Respondents urge that the additional evidence supplied by Trueman may not be treated as
reliable, as she has been actively working on Kennon’s behalf. (ECF No. 18 at 27–29.) In any
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case, Respondents contend that Trueman’s alleged claims would, at most, serve to potentially
impeach tangential testimony given by Jeffrey Wolf, and do not support a showing of actual
innocence. (Id. at 29–32.) Respondents further argue that other hearsay evidence related to
Kennon’s PCR proceeding, the Wolf’s tax returns, and Glusman’s opinion that the Wolfs’
financial information was incomplete do not constitute reliable evidence or demonstrate anything
related to Mr. Gottlieb’s alleged innocence. (Id. at 32–35.)
Once again, this highly speculative evidence falls far short of making a showing of actual
innocence. Even a conclusive showing that the Wolfs had been involved in buying and selling
stolen goods or that they had an unhappy marriage would not preclude a reasonable juror from
finding that Gottlieb had robbed Brenda Wolf. If this sort of testimony had been presented at
Gottlieb’s trial (and there is little indication that the facts underlying these opinions, other than
Sandow’s supposed confession to perjury, were unavailable at that time), it may well have
worked in Gottlieb’s favor, but it is doubtful that any reasonable juror would have had to find
Gottlieb innocent based on this evidence.
e. Existence of Insurance Policies Covering Brenda Wolf’s Death
Gottlieb contends that, contrary to the testimony at his trial, records show that the Wolfs
had several insurance policies with death benefits, and that Jeffrey Wolf subsequently filed suit
to obtain these benefits. (ECF No. 16 at 26–28.) Gottlieb introduces documents regarding an
insurance policy covering the Wolfs’ business (Jeffrey Scott Jewelers), which indicates coverage
for loss of income and personal injury, among many other provisions, as well as a complaint that
Jeffrey Wolf filed against the insurer in October 1997 seeking coverage for defense and
indemnity in a wrongful-death civil suit that Brenda Wolf’s family commenced. (ECF No. 16-1,
Ex. 13 (ECF pp. 65–81).)
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Respondents properly note that this is not the same as a life insurance policy and that
Jeffrey Wolf’s suit against the insurer did not seek benefits accruing from Brenda Wolf’s death.
(ECF No. 18 at 35–36.) I find that this evidence does nothing to prove his actual innocence.
f. Tampering with Brenda Wolf’s Fingerprints
Gottlieb also alleges the existence of a scheme to conceal the fact that Brenda Wolf's
fingerprints or palm-prints may have been on items strewn about the crime scene, which he
contends would have shown that she was complicit in the robbery. (ECF No. 16 at 36–39.)
Respondents urge that fingerprint testimony was all put before the jury, who still
convicted Gottlieb. (ECF No. 18 at 44–46.)
Not only was this evidence clearly available during and presented at Gottlieb’s trial, but it
is entirely unclear what significant role it would play in the trial when it is unremarkable that
Brenda Wolf’s fingerprints were on items in the store where she worked on a daily basis.
Indeed, Gottlieb does little to make that connection. Therefore, I find that this evidence provides
no support for Gottlieb’s actual-innocence.
g. Cumulative Evidence
Even if each item of evidence that Gottlieb has introduced were found to be both new and
reliable, the cumulative impact would still not satisfy the burden set forth by the Supreme Court
in McQuiggin and Schlup. Accepting Gottlieb’s theories to conclude that Jeffrey Wolf in fact
did reload his gun and intentionally kill Brenda Wolf, that the Wolfs had an unhappy marriage,
or that they used the store to fence stolen jewelry, these conclusions are simply too attenuated to
show that Gottlieb did not in fact rob Brenda Wolf. They could support (though hardly render
irrefutable) a conclusion that Jeffrey Wolf intentionally killed Brenda Wolf. But Gottlieb was
acquitted of the felony-murder charge. These arguments, even if accepted at face value, fall far
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short of demonstrating that no reasonable juror could find that Gottlieb had intent to rob Brenda
Wolf. Accordingly, Gottlieb’s attempt to use the actual-innocence gateway to avoid the effect of
his petition’s untimeliness must fail.
4. Newly Discovered Evidence
Gottlieb urges that he did not have the discovery necessary to raise various grounds for
relief until significantly after the normal AEDPA limitations period, thus justifying a relaxation
of the applicable time bar. (ECF No. 16 at 43–44.) Specifically, Gottlieb argues that he did not
have complete access to discovery during his trial and that Gerber failed to send Gottlieb any
materials while Gottlieb was incarcerated in Indiana. (Id.) Essentially he contends that the
materials he obtained from Kennon in 2004 and materials he received from a subsequent PCR
attorney between 2005 and 2011 should be treated as newly discovered evidence. (Id.)
Respondents argue that this evidence could have been discovered with due diligence and
that the PCR court already found that Gottlieb had access to all documents from all coconspirator trials since they occurred. (ECF No. 18 at 47–51.)
A newly discovered factual basis for a habeas petition may restart the AEDPA limitations
period from “the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); see also
McQuiggin, 569 U.S. at 388–89. Gottlieb’s conclusory assertion that, while his counsel had
access to full discovery during his trial and subsequent proceedings, he personally did not is
insufficient to make such a showing. Gottlieb’s counsel, acting as his agent, had access to these
materials, and thus, they were discoverable.
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5. Fundamental Fairness
Finally, Gottlieb asserts that the fact the SCPO did not assert the time-bar against
Kennon's habeas proceeding indicates part of the conspiracy to cover up the insurance-fraud
scheme by the Wolfs. (ECF No. 16 at 45–46.) Gottlieb essentially contends that Respondents’
efforts to thwart his attempts to challenge his conviction mean that “[f]undamental fairness
demands that Petitioner be given the right to advance his claims.” (ECF No. 16 at 45–46.)
Gottlieb’s argument is entirely conclusory and the Court is unaware of any precedent for
granting relief on such grounds. Accordingly, this argument is rejected.
As Gottlieb’s petition is untimely under AEDPA and he has failed to establish statutory
tolling, equitable tolling, or an actual-innocence exception to the time-bar, it will be dismissed
with prejudice as untimely.
VII.
THE STAY MOTION
The Court sees no basis to stay this proceeding for further pursuit of relief from the state
courts. See Rhines v. Weber, 544 U.S. 269, 275–78 (2005). In any case, as the petition is now
dismissed, Gottlieb’s motion to stay the proceeding has been rendered moot.
VIII. CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c), a litigant may not appeal a final order in a § 2254 habeas
proceeding unless the judge or a circuit justice issues a certificate of appealability (“COA”).
That section further directs courts to issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies
this standard by demonstrating that jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could conclude the issues presented are
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adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327
(2003).
“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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, reasonable jurists would not find the Court’s procedural ruling debatable. Accordingly, no
certificate of appealability shall issue.
IX.
CONCLUSION
For the foregoing reasons, Respondents’ motion to dismiss the petition as untimely (ECF
No. 15) will be granted and the petition in this matter will be dismissed with prejudice. No
certificate of appealability shall issue. Petitioner’s motions for oral argument on the dismissal
motion (ECF Nos. 17 & 20) are denied. Petitioner’s motion to stay the case (ECF No. 22) is
denied as moot. An appropriate order accompanies this opinion.
DATED: January 30, 2018
/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
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