ROSS v. JOHNSON et al

Filing 18

MEMORANDUM filed. Signed by Judge Peter G. Sheridan on 07/01/2019. (jmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARTY ROSS,
Petitioner

:

Civ. No. 17-3135 (PGS)

v.

THE ATTORNEY GENERAL
OF THE STATE OF NEW JERSEY, et al.,

MEMORANDUM

Respondents.

PETER G. SHERIDAN, U.S.D.J.
This matter comes before the Court on a mandate from the United States Court of
Appeals for the Third Circuit that remanded Marty Ross’ petition for writ of habeas corpus for
consideration of whether equitable tolling should apply. (ECF No. 15). See also Ross v.
Administrator New Jersey State Prison, No. 17-3671 (3d Cir. Sept. 11,2018). Petitioner
submitted arguments in favor of the application of equitable tolling on November 26, 2018. (ECF
No. 17). Having reviewed Petitioner’s arguments in support of equitable tolling, the Court will
dismiss the petition with prejudice as untimely and deny a certificate of appealability.
I.
Petitioner was convicted of first-degree kidnapping, N.J.S.A. 2C:13—1(b); two counts of
fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39—5(d); two counts of third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39—4(d); third-degree terroristic
threats, N.J.S.A. 2C:12—3(b); third-degree criminal restraint, N.J.S.A. 2C:13—2(a); two counts of
first-degree aggravated sexual assault, N.J.S.A. 2C: 14—2(a)(3)—(4); second-degree sexual assault,

N.J.S.A. 2C: 1 4—2(c)(1); third-degree possession of cocaine, N.J.S.A. 2C:35—1 0(a)( 1); thirddegree possession of cocaine with intent to distribute, N.J.S.A. 2C:35—5(b)(3); and third-degree
distribution of cocaine, N.J.S.A. 2C:35—5(b)(3). The New Jersey Superior Court, Appellate
Division affirmed Petitioner’s convictions except for the first-degree kidnapping charge and
remanded for resentencing on second-degree kidnapping. (ECF No. 1 at 2). Petitioner was
resentenced on December 23, 2009. (Id.). The Appellate Division affirmed the new sentence on
its excessive sentencing calendar, and the New Jersey Supreme Court denied certification on
January 30, 2012. (Id.). See also Slate v. Ross, 36 A.3d 1063 (N.J. 2012).
Petitioner asserts that he filed three separate applications for post-conviction relief
(“PCR”) in the state court. The first PCR application was filed while his direct appeal was still
pending, and Petitioner voluntarily withdrew that application. (ECF No. 1 at 3). It was officially
dismissed by the PCR court on November 29, 2010. (Id.). The second application was filed on
March 21, 2012, and according to him, it was dismissed for his failure to “amend his petition.”
(Id.). According to Petitioner, the third application was filed on May 29, 2013, denied by the trial
court on July 11, 2014, and affirmed by the appellate court on March 14, 2017. (Id. at 4-5).’
Petitioner filed this petition under 28 U.S.C.

§

2254 on May 4, 2017. On July 24, 2017,

the Court dismissed the petition as time-barred. (ECF No. 4). Petitioner filed a motion for
reconsideration, which the Court denied on August 3, 2017. (ECF Nos. 5, 9). Petitioner
appealed. (ECFNo. 11).
On September 11, 2018, the Third Circuit issued a mandate remanding this matter back to
the Court in order to give Petitioner an opportunity to put forth arguments in favor of equitable

A Westlaw search indicates the Appellate Division affirmed the dismissal of the third petition
on December 15, 2016. State v. Ross, No. A-3992-14, 2016 WL 7241468 (N.J. Super. Ct. App.
Div. Dec. 15, 2016). The New Jersey Supreme Court denied certification on March 14, 2017.
State v. Ross, 164 A.3d 389 (N.J. 2017).
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tolling. (ECF No. 15). The Court reopened the case and directed Petitioner to file his arguments.
(ECF No. 16). Petitioner has now done so, (ECF No. 17), and the matter is now ripe for
disposition.
II.
Petitioner brings this petition as a pro se litigant. The Court has an obligation to liberally
construe pro se pleadings and to hold them to less stringent standards than more formal pleadings
drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Attorney Gen. of the
US., 655 F.3d 333, 339 (3d Cir. 2011), as amended (Sept. 19, 2011) (citing Estelle v. Gamble,
429 U.S. 97, 106 (1976)). A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Attorney Gen., 878 F.2d 714, 721—22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970).
Nevertheless, a federal district court must dismiss a habeas corpus petition if it appears
from the face of the petition that the petitioner is not entitled to relief. 28 U.S.C.

§

2254 Rule 4;

see also McFarlandv. Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773 F.2d 37,45 (3d Cir.
1985), cert. denied, 490 U.S. 1025 (1989).
III.
Petitioner’s habeas petition is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). AEDPA imposes a one-year period of limitation on a petitioner
seeking to challenge his state conviction and sentence through a petition for writ of habeas
corpus pursuant to 28 U.S.C.

§

2254. See 28 U.S.C.

§ 2244(d)(1).

Under

§

2244(d)(1), the

limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
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(B) the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(D) 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)(l).

“[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”
is excluded from the one-year statute of limitations. 28 U.S.C.

2244(d)(2).

§

In its prior opinion, the Court noted that “construing the Petition most favorable to
Petitioner, his AEDPA one-year limitations period began to run when his second PCR
application was dismissed on November 15, 2012.” (ECF No. 3 at 3 (footnote omitted)). It
concluded that statutory tolling under

§ 2244 was not warranted for the PCR petition filed on

May 29, 2013 because the state courts dismissed that petition as untimely. (Id. at 3-4 (citing Pace
v. DiGuglielmo, 544 U.S. 408, 414 (2005))). Pursuant to the Third Circuit’s mandate, the Court
now considers whether Petitioner has shown equitable tolling is warranted in his case.
“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
circumstance stood in his way.” Pace, 544 U.S. at 418. In analyzing whether the circumstances
faced by Petitioner were extraordinary, “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.” Ross v.

4

Varano, 712 F.3d 784, 802-03 (3d Cir. 2013) (quoting Pabon v. Mahanoy, 654 F.3d 385, 400 (3d
Cir. 2011)) (emphasis in original).
Petitioner argues that the Court should apply equitable tolling because “any error in the
[PCR] filing process was due to assigned counsel not following the trial court directive to amend
the petition.” (ECF No. 17 at 4). He states that his first PCR petition was voluntarily withdrawn
due to New Jersey court rules not permitting direct appeals and PCR petitions to be pending at
the same time. (Id. at 4, 11). The second PCR petition was dismissed and “[t]he trial court
advised petitioner that the petition was deficient, and was ordered to correct the deficiencies.”
(Id. at 4). “The petition had to be re-filed because assigned counsel failed to timely correct the
deficiencies. Petitioner should be granted equitable tolling since the trial court allowed the
deficiencies to be corrected and accepted the petition as timely filed.” (Id. at 5).
Petitioner has not demonstrated that he is entitled to equitable tolling for the period
between November 15, 2012 and May 4, 2017. Attorney misconduct can form the basis for
equitable tolling in “egregious” and “extraordinary” circumstances, but the Supreme Court has
held that “‘a garden variety claim of excusable neglect,’ such as a simple ‘miscalculation’ that
leads a lawyer to miss a filing deadline, does not warrant equitable tolling.” Holland v. Fla., 560
U.S. 631, 651—52 (2010) (quoting Irwin v. Dep’l of Veterans Affairs, 498 U.S. 89, 96(1990);
Lawrence v. Fla., 549 U.S. 327, 336 (2007)). Petitioner provided the Court with several letters
from his PCR counsel, but nothing in those letters reflect neglect or misconduct. Rather, they
indicate counsel was attentive to Petitioner’s case and communicated with him on a regular
basis. (ECF No. 17 at 15-20). There is no support for Petitioner’s contention that his PCR
counsel ignored court orders. Even if there were attorney error, which again is not supported by
the materials provided, it would be of the “garden variety neglect” sort that the Supreme Court

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has specifically stated does not warrant equitable tolling. Moreover, contrary to Petitioner’s
argument, the state court did not accept the May 2013 PCR petition as timely filed as it was
dismissed as untimely. See State v. Ross, No. A-3992-14, 2016 WL 7241468, at *2 (N.J. Super.
Ct. App. Div. Dec. 15, 2016). The Court therefore denies equitable tolling and will dismiss the
petition as untimely.
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). The Supreme Court held in Slack v. McDaniel that “[wjhen the district

court denies a habeas petition on procedural grounds without reaching the prisoner’s underl
ying
constitutional claim, a Certificate of Appealability 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 whethe
r the
district court was correct in its procedural ruling.” 529 U.S. 473, 484 (2000). This Court
denies a
certificate of appealability because jurists of reason would not find it debatable that
dismissal of
the petition as untimely is correct.
Iv.
For the reasons stated above, the habeas petition is dismissed as untimely. A certific
ate of
appealability shall not issue.
An appropriate order follows.

DATED:

I

,2019
PETER G. SHERIDAN
United States District Judge

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