ROSS v. JOHNSON et al
MEMORANDUM OPINION filed. Signed by Judge Peter G. Sheridan on 11/7/2017. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-3135 (PGS)
STEVEN JOHNSON,et al.,
SHERIDAN, District Judge:
Petitioner Marty Ross, confined at New Jersey State Prison in Trenton, New Jersey, has
filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, challenging a conviction
and sentence imposed by the State of New Jersey for drug, sexual assault, and related crimes.
Upon screening, the Court dismissed the Petition as untimely. ECF No. 4. Presently before the
Court is Petitioner’s motion for reconsideration. ECF No. 5. For reasons stated below, the motion
The Court’s timeliness ruling hinged entirely on the finding that Petitioner was not entitled
to statutory tolling during the pendency of his third state post-conviction relief (‘PCR”)
application, because the state court found that it was untimely filed. Without statutory tolling for
the third PCR application, the Petition was untimely, because the period between the conclusion
of the second PCR application, on November 15, 2012, and the filing of the instant Petition, on
Petitioner filed an appeal of the Court’s dismissal after his motion for reconsideration. ECF No.
6. The Court has jurisdiction to entertain the motion for reconsideration if it denies the motion.
See Fed. R. Civ. P. 62.1(a).
May 4, 2017, exceeded the one-year limitations period under federal law. Citing to Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005), the Court found that “[b]ecause the state court rejected
petitioner’s [third] PCRA petition as untimely, it was not ‘properly filed,’ and he is not entitled to
statutory tolling[.]” ECF No. 3 at 3.
In his motion for reconsideration, it is difficult to discern what argument Petitioner makes
to challenge the Court’s ruling. It appears Petitioner simply makes random claims and cites to
random case law in the hopes that one of them will stick. Petitioner first claims that he was indeed
entitled to statutory tolling, and “[i]f the Court is in doubt or has additional concerns it is
respectfully requested that an evidentiary hearing be held.” ECF No. 5 at 2. Petitioner, however,
cites to no authority for his claim, and it is unclear how an evidentiary hearing would be helpful to
the issue of timeliness.
Petitioner then claims that his second PCR application was filed on March 20, 2012, “and
was appealed to the highest State Court.” Id. at 3. This completely contradicts his own assertions
in the Petition, whereby he stated that his second PCR application “was dismissed by the Court
due to defendant’s failure to ‘amend [hisj petition.” ECF No. 1 at 3. As the Court found,
Petitioner’s assertions in the Petition were corroborated by the state appellate court. See ECF No.
3 at 2. As such, Petitioner seems to be making up facts in his motion for reconsideration.
Petitioner goes on to state that equitable tolling may be appropriate in this matter, but
provides not a single factual allegation to show why equitable tolling is warranted. To the extent
Petitioner asserts that equitable tolling is warranted because he was ignorant of the law, that is not
To the extent that Petitioner argues his third PCR application was a continuation of his second
PCR application and therefore should be considered as one application, that argument does not
save Petitioner because under that rationale, it was Petitioner’s second PCR application that was
found to be untimely by the state court, so Petitioner’s federal limitations period would have started
running even earlier.
a valid ground for equitable tolling. See Phillips v. Nogan, No. 14-4933, 2015 WL 2090247, at
*4 (D.N.J. May 4, 2015); Ayers v. Phelps, 723 F. Supp. 2d 718, 722 (D. Del. 2010) (‘[L]ack of
legal knowledge or miscalculation regarding the
filing period” does not excuse an untimely
filing); Covert v. Tennis, No. 06-421, 2008 WL 4861449, at *5 (M.D. Pa. Nov. 7, 2008)
(“[I]gnorance of the law, even for an incarcerated
se petitioner, generally does not excuse
prompt filing.”). Petitioner also asserts that he “has exercised reasonable diligence in attempting
to file and pursue his conviction [sic], and in so doing has complied with the timelines.” ECF No.
5 at 5. As the Court found previously, this is contradicted by the record, because his third PCR
application was found to be untimely by the state court. ECF No. 3 at 3-4. Accordingly, Petitioner
raises no valid argument for the Court to reconsider its dismissal of the Petition, and the motion
for reconsideration is denied.
Peter G. Sheridan, U.S.D.J.
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