PAGLIAROLI v. JOHNSON et al

Filing 17

OPINION filed. Signed by Judge Zahid N. Quraishi on 07/29/2021. (jdb)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KENNETH PAGLIAROLI,

Civil Action No. 18-9585 (ZNQ)

Petitioner,
v.
STEVEN S. JOHNSON,

OPINION

Respondent.
Petitioner Kenneth Pagliaroli, a prisoner currently confined at New Jersey State Prison in
Trenton, New Jersey, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his state court convictions. (ECF No. 6.) Rule 4 of the Rules Governing
Section 2254 Cases requires this Court to review the petition and determine whether it plainly
appears from the petition that the petitioner is not entitled to relief. The Court has reviewed the
parties’ submissions regarding the timeliness of the petition, and the Court will dismiss the petition
with prejudice as time barred.
I. FACTUAL BACKGROUND
On March 10, 2006, a jury found Petitioner guilty of aggravated manslaughter, conspiracy
to commit aggravated manslaughter, armed robbery, conspiracy to commit armed robbery, and
possession of a weapon for an unlawful purpose. (See ECF No. 12-1.) The New Jersey Superior
Court entered its judgment of conviction on June 16, 2006. (See id.)
Petitioner filed a notice of appeal 48 days later on August 3, 2006. (See ECF No. 12-2.)
The New Jersey Superior Court, Appellate Division affirmed Petitioner’s convictions in an
unpublished decision on April 8, 2009. See State v. Pagliaroli, No. A-6153-05T4, 2009 WL
928485, at *21 (N.J. Super. Ct. App. Div. Apr. 8, 2009). The New Jersey Supreme Court denied

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Petitioner’s petition for certification on June 10, 2009. See State v. Pagliaroli, 976 A.2d 383 (N.J.
2009). Petitioner did not seek a writ of certiorari from the United States Supreme Court.
Instead, on February 22, 2010, Petitioner filed a petition for post-conviction relief (“PCR”).
(See ECF No. 12-6.) The PCR court denied Petitioner’s petition in a written decision on April 19,
2011. (See ECF No. 12-7.)
Petitioner proceeded to file a notice of appeal on January 5, 2012. (See ECF No. 12-8.)
The Appellate Division affirmed in part, denied in part, and remanded his PCR. State v. Pagliaroli,
No. A-2167-11T3, 2014 WL 3743136, at *6 (N.J. Super. Ct. App. Div. July 31, 2014). After an
evidentiary hearing on remand, the PCR court denied relief in an oral decision on May 15, 2015.
(See ECF No. 12-10, at 5).
Petitioner filed a notice of appeal of the PCR court’s May 15, 2015 decision 62 days later
on July 15, 2015. (See ECF No. 12-10.) The Appellate Division affirmed on July 18, 2017. State
v. Pagliaroli, No. A-5054-14T1, 2017 WL 3027504, at *7 (N.J. Super. Ct. App. Div. July 18,
2017). Petitioner filed a petition for certification, 1 which the New Jersey Supreme Court denied
on January 12, 2018. State v. Pagliaroli, 178 A.3d 38, 39 (N.J. 2018).
In a letter dated April 19, 2018, Jodi Ferguson, Assistant Deputy Public Defendant,
informed Petitioner that the New Jersey Supreme Court had denied his petition for certification.
(See ECF No. 12-13.) Petitioner received the letter and a copy of the New Jersey Supreme Court’s
decision on April 25, 2018. (See ECF No. 12-15.)
On May 21, 2018, Petitioner filed a habeas petition 129 days after the New Jersey Supreme
Court denied certification. (See ECF No. 1.) Petitioner amended his petition on July 3, 2018. (See
ECF No. 6.) The Court undertook a preliminary review of the amended petition pursuant to Rule

1

The record is unclear as to when Petitioner filed the petition for certification.
2

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4 of the Rules Governing Section 2254 Cases and believed it to be time barred subject to equitable
tolling arguments. (ECF No. 7.) The Court, therefore, provided the parties with notice of the
Court’s concerns and an opportunity to address the issue. (ECF Nos. 7, 9.) The parties have
briefed the timeliness issue, and it is ripe for review.
II. LEGAL STANDARDS
Rule 4 of the Rules Governing Section 2254 Cases requires courts to examine petitions for
a writ of habeas corpus. See Rules Governing Section 2254 Cases in the United States District
Courts, Rule 4. According to the Rule, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Id. “[D]istrict courts are permitted, but not
obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas petition,” but, “before
acting on its own initiative, a court must accord the parties fair notice and an opportunity to present
their positions.” Day v. McDonough, 547 U.S. 198, 209–10 (2006).
III. ANALYSIS
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year
limitations period for a state prisoner to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The
one-year period typically begins to run, as it does here, 2 when the underlying judgment “bec[omes]

2

Section 2244(d)(1) provides that the limitation period shall run 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;
(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
3

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final by the conclusion of direct review or the expiration of the time for seeking such review.” Id.
§ 2244(d)(1)(A). Where a habeas petitioner has previously pursued direct appeal to a state’s
highest court but has not sought certiorari from the United States Supreme Court, the limitations
period begins to run upon the expiration of the ninety-day period to petition the Supreme Court for
certiorari. See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013); see
also Sup. Ct. R. 13.1.
Here, Petitioner completed his direct appeals on June 10, 2009, when the New Jersey
Supreme Court denied Petitioner’s petition for certification. See Pagliaroli, 976 A.2d at 383.
Thus, his judgment became final, and the one-year limitations period began to run, on October 8,
2009 3 when the ninety-day period for seeking certiorari from the United States Supreme Court
expired. See Jenkins, 705 F.3d at 84; see also Sup. Ct. R. 13.1.4 Absent statutory tolling or other
equitable considerations, therefore, his habeas petition was due one year later, by October 8, 2009.
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)(1). Here, Petitioner makes no allegation that “an impediment” existed under
state law which violated the Constitution and which prevented him from filing this action under
subsection (B) of the Act. Further, Petitioner makes no allegation that the case involves a new
right recognized by the Supreme Court under subsection (C) or that the factual predicate for the
claims was only recently discovered under subsection (D). Accordingly, only subsection (A) is
applicable in this case.
3

The Court notes that in its September 6, 2009 opinion, it incorrectly stated that Petitioner’s
judgment became final on October 12, 2009.
One may argue that the judgment became final earlier because it appears that Petitioner’s notice
of appeal was untimely by three days. Pursuant to New Jersey law, Petitioner had forty-five days
to appeal the judgment of conviction. See N.J. Ct. R. 2:4-1(a). There is a slight modification of
the Rule in certain cases where a trial court order grants a PCR petition “under the limited
circumstances where defendant has demonstrated ineffective assistance of counsel in trial

4

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A. Statutory Tolling
By statute, the time during which a properly filed 5 PCR petition is pending does not count
toward the one-year AEDPA limitations period. 28 U.S.C. § 2244(d)(2). A PCR petition is
pending during the time the petitioner could have appealed a PCR decision within the state courts,
even if the petitioner did not file such an appeal. Carey v. Saffold, 536 U.S. 214, 219–21 (2002).
If the petitioner files an untimely appeal the state appellate court nonetheless addresses on its
merits, tolling resumes upon the untimely appeal’s filling, but the period between the deadline for
a timely appeal and the actual filing of the untimely appeal counts toward the one-year period. See
Evans v. Chavis, 546 U.S. 189, 191, 197, 200–01 (2006).

counsel’s failure to file a direct appeal . . . upon defendant’s timely request,” see N.J. Ct. R. 2:41(a)(2), but the Court is unaware of any such order. Thus, Petitioner had until Monday, July 31,
2006 to file his notice of appeal but did not do so until August 3, 2006. (ECF No. 12-2.)
Arguably, then, “the date on which the judgment became final by . . . the expiration of the
time for seeking [direct] review” occurred on July 31, 2006. The period for filing Petitioner’s
habeas petition, therefore, may have expired as early as July 31, 2007.
The United States Supreme Court considered a similar issue in Jimenez v. Quarterman,
555 U.S. 113 (2009). In Jimenez, the Court held that “where a state court grants a criminal
defendant the right to file an out-of-time direct appeal during state collateral review, but before the
defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of §
2244(d)(1)(A)” until “the conclusion of the out-of-time direct appeal, or the expiration of the time
for seeking review of that appeal.” Id. at 121.
The instant case has an additional wrinkle, however, because it does not appear that a PCR
court granted Petitioner the right to file the untimely direct appeal – instead, it seems as though the
Appellate Division never raised the issue of timeliness on direct appeal. Regardless of whether
Jimenez’s holding applies to these facts, this Court need not decide the issue at this time because,
as discussed below, the Petition is untimely for other reasons.
5

A properly filed application is one that was accepted for filing by the appropriate court officer
and was filed within the time limits prescribed by the relevant jurisdiction. Pace v. DiGuglielmo,
544 U.S. 408, 413 (2005). In New Jersey, petitioners have five years from the date the trial court
enters a judgment of conviction to file a PCR petition. See N.J. Ct. R. 3:22-12(a).
5

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In the instant case, the limitations period began to run on October 8, 2009, the date
Petitioner’s judgment of conviction became final. It continued to run for 137 days until Petitioner
properly filed 6 his PCR petition on February 22, 2010. See 28 U.S.C. § 2244(d)(2).
After the PCR court denied Petitioner’s petition on April 19, 2011, (see ECF No. 12-7),
Petitioner had 45 days, i.e., until Friday, June 3, 2011, to appeal the denial of his PCR petition.
See N.J. Ct. R. 2:4-1(a). When he failed to do so, the limitations period began to run for another
216 days until January 5, 2012, the date he ultimately submitted his notice of appeal. See Evans,
546 U.S. at 191, 197, 200–01. 7 At this point, Petitioner had twelve days remaining to file his
habeas petition.
The Appellate Division remanded Petitioner’s PCR petition for a limited hearing on July
31, 2014. Pagliaroli, 2014 WL 3743136, at *6. After an evidentiary hearing on remand, the PCR
court again denied relief in an oral decision on May 15, 2015. (See ECF No. 12-10, at 5). Petitioner
had 45 days, i.e., until June 29, 2015, to appeal this latest decision, see N.J. Ct. R. 2:4-1(a), but he
failed, yet again, to do so in a timely fashion. (See ECF No. 12-10.) The limitations period,
therefore, began to run for an additional 17 days until he filed his notice of appeal on July 16,
2015. (Id.) By this time, Petitioner had exceeded the one-year period to file his habeas petition
by 5 days.

6

Petitioner filed his PCR petition within five years from the entry of the June 16, 2006 judgment
of conviction. See N.J. Ct. R. 3:22-12(a). The Clerk accepted the petition for filing. (See ECF
No. 1.)

7

Respondent’s limited answer on timeliness does not consider the periods between the deadlines
for timely appeals and Petitioner’s actual filings of the untimely appeals. These periods count
toward the one-year AEDPA limitations period. See Evans, 546 U.S. at 191, 197, 200–01.
6

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On July 18, 2017, the Appellate Division affirmed the PCR court’s May 15, 2015 decision.
Pagliaroli, 2017 WL 3027504, at *7. The New Jersey Supreme Court again denied Petitioner’s
petition for certification on January 12, 2018. Pagliaroli, 178 A.3d at 39. 8
Petitioner did not seek certiorari from the United States Supreme Court regarding his PCR
petitioner. Unlike direct appeal, the ninety-day period for which he could have done so does not
toll the limitations period. See Stokes v. District Attorney of Cnty. of Phila, 247 F.3d 539, 542 (3d
Cir. 2001). The limitations period, therefore, began to run for an additional 129 days until
Petitioner filed his initial habeas petition on May 21, 2018. Accordingly, Petitioner’s habeas
petition is 134 days late and, therefore, time barred unless equitable considerations apply.
B. Equitable Tolling
The one-year AEDPA limitations period is also subject to equitable tolling in appropriate
cases. Holland v. Florida, 560 U.S. 631, 649–50 (2010). 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.” Id. at 649.
a. Reasonable Diligence
The diligence required for equitable tolling is reasonable diligence, not maximum, extreme,
or exceptional diligence. Id. at 653. “This obligation does not pertain solely to the filing of the
federal habeas petition, rather it is an obligation that exists during the period appellant is exhausting
state court remedies as well.” LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (citation
omitted); see also Alicia v. Karestes, 389 F. App’x 118, 122 (3d Cir. 2010) (holding the “obligation
8

Petitioner had twenty days to file a notice of petition for certification from the New Jersey
Supreme Court. N.J. Ct. R. 2:12-3(a). The record is unclear regarding whether Petitioner did so
in a timely fashion. If he did not, the period between the deadline for a timely appeal (here, August
7, 2017) and the actual filing of the untimely appeal would count toward the one-year period and
further demonstrate that the petition is untimely. See Evans, 546 U.S. at 191, 197, 200–01.
7

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to act diligently pertains to both the federal habeas claim and the period in which the petitioner
exhausts state court remedies”). Courts should examine reasonable diligence under a subjective
test and consider it in light of the particular circumstances of the case. See Ross v. Varano, 712
F.3d 784, 799 (3d Cir. 2013); Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (“Due diligence
does not require the maximum feasible diligence, but it does require diligence in the
circumstances.”) (internal quotation marks omitted) (citations omitted).
Petitioner argues that equitable tolling is appropriate in this matter because his counsel did
not inform him that the New Jersey Supreme Court denied his PCR petition for certification until
April 19, 2018. (See ECF No. 8.) Moreover, Petitioner did not receive a copy of the New Jersey
Supreme Court’s decision until April 25, 2018. (Id.) Petitioner asserts that “soon after, [P]etitioner
had a paralegal write his petition.” (See id.)
In essence, Petitioner asserts that he was diligent in pursuing his rights after he received
notification that the New Jersey Supreme Court denied certification. Petitioner, however, fails to
demonstrate that he was diligent during the entire period that he pursued his state and federal rights.
See LaCava, 398 F.3d at 277.
With respect to the period in which he pursued his state rights, the record is replete with
instances of Petitioner failing to timely appeal the denial of his PCR petition. For example,
Petitioner failed to timely appeal the PCR court’s April 19, 2011 and June 29, 2015 decisions
denying his PCR petition.
With respect to his federal rights, Petitioner “needed to file his habeas petition” within a
year of when his judgment of conviction became final “and request a stay and abey of his habeas
petition while he litigated” his planned PCR claims. Bennett v. Clark, No. 16-3687, 2017 WL
6758399, at *5 (E.D. Pa. Feb. 1, 2017) (citing Darden v. Sobina, 477 F. App’x 912, 918 (3d Cir.

8

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2012) (finding that petitioner failed to diligently pursue his federal rights by failing to file a
protective federal petition while pursuing state collateral relief)), report and recommendation
adopted, 2017 WL 6731622 (E.D. Pa. Dec. 29, 2017); see also Wallace v. Mahanoy, 2 F.4th 133,
150 (3d Cir. 2021) (holding that after the denial of his state PCR petition, petitioner should have
been aware “that federal relief could be necessary,” and thus, he was not reasonably diligent
because he “waited another full year” to file his § 2254 petition).
In the present case, Petitioner could have, but failed, to file a protective § 2254 petition. In
particular, after becoming aware of the dismissal of his PCR petition on April 19, 2011, Petitioner
should have considered whether “federal relief could be necessary.” Wallace, 2 F.4th at 150. At
that point, Petitioner still had 228 days to file a protective § 2254 petition. In addition, Petitioner
had numerous other opportunities to file a protective petition. For these reasons, Petitioner was
insufficiently diligent in pursuing his state and federal rights. See id.
b. Extraordinary Circumstances
A court also must determine whether extraordinary circumstances exist to warrant
equitable tolling. Generally, a petitioner’s attorney’s excusable neglect does not present an
extraordinary circumstance meriting equitable tolling.

Holland, 560 U.S. at 651 (citations

omitted); see also Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003). Rather, a petitioner can
trigger equitable tolling only when “the principles of equity would make the rigid application of a
limitation period unfair, such as when a state prisoner faces extraordinary circumstances that
prevent him from filing a timely habeas petition and the prisoner has exercised reasonable
diligence in attempting to investigate and bring his claims.” LaCava, 398 F.3d at 275–276; see
also Holland, 560 U.S. at 648–49.

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Here, Petitioner argues that his counsel negligently failed to inform him that the New Jersey
Supreme Court denied his petition for certification until April 19, 2018. (See ECF No. 8.) Such
facts, however, fail to demonstrate an extraordinary circumstance. Garden variety claims of
attorney negligence do not generally present an extraordinary circumstance meriting equitable
tolling. Holland, 560 U.S. at 651. Moreover, Petitioner does not otherwise demonstrate that
extraordinary circumstances prevented him from filing a timely habeas petition. LaCava, 398 F.3d
at 275–76. As nothing in Petitioner’s submission demonstrates that “there was an obstacle beyond
Petitioner’s control that necessarily prevented him from filing a timely petition, there is no basis
for equitable tolling.” Phillips v. D’Illio, No. 15-2884, 2016 WL 54673, at *4 (D.N.J. Jan. 4, 2016)
(emphasis added).
Finally, even if the Court did toll the statute of limitations period for the time between the
New Jersey Supreme Court’s decision denying certification and the time that Petitioner filed the
habeas petition, the petition would still be untimely by at least 5 days because the one-year
limitations period expired before the New Jersey Supreme Court issued its decision. Accordingly,
this matter does not warrant equitable tolling and the statute of limitations bars Petitioner’s habeas
petition. 9
9

Courts have consistently declined to excuse petitions that are even a few days tardy. See, e.g.,
Garrick v. DiGuglielomo, 162 F. App’x 122, 122–25 (3d Cir. 2005) (affirming dismissal of habeas
petition as untimely by 6 days where the petitioner failed to establish the application of equitable
tolling); Wilson v. Tice, No. 18-2310, 2019 WL 1645226, at *4 (E.D. Pa. Jan. 7, 2019)
(recommending dismissal of habeas petition that was 5 days late); Reyes-Burgado v. Overmyer,
No. 18-0115, 2018 WL 6610351, at *4 n.8 (E.D. Pa. Oct. 30, 2018) (recommending dismissal as
untimely because “[t]he fact that the petition was filed only three days late does not alter [the]
recommendation”); Villatoro v. Ferguson, No. 15-6119, 2016 WL 2983775, at *3 n.4 (E.D. Pa.
Mar. 28, 2016) (“[T]he fact that the instant petition was filed one day late, as opposed to one month
or one year late, does not alter the recommendation that the petition is time-barred.”); Brown v.
United States, No. 10-2784, 2011 WL 2148181, at *3 (D.N.J. May 31, 2011) (“Foreclosing
litigants from bringing their claim because they missed the filing deadline by one day may seem
harsh, but courts have to draw lines somewhere.”) (internal citation omitted); see also Lookingbill
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IV.

CERTIFICATE OF APPEALABILITY
A petitioner may not appeal from a final order in a habeas proceeding where that

petitioner’s detention arises out of a state court proceeding unless he has “made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). “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 that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
“When the district court dismisses the petition on procedural grounds without reaching the
prisoner’s underlying 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
whether the district court erred in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). “Where a plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the district court erred . . . or
that the petition should be allowed to proceed further.” Id.
For the reasons expressed above, Petitioner’s habeas petition is clearly time barred, and
Petitioner has failed to show that he is entitled to equitable tolling. As such, jurists of reason could
not debate that this Court was correct in dismissing the petition as time barred, and Petitioner’s
habeas petition does not warrant encouragement to proceed further. Therefore, this Court denies
Petitioner a certificate of appealability.

v. Cockrell, 293 F.3d 256, 264–65 (5th Cir. 2002) (“AEDPA relies on precise filing deadlines to
trigger specific accrual and tolling provisions. . . . We consistently have denied tolling even where
the petition was only a few days late.”).
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V.

CONCLUSION
For the foregoing reasons, the Court will deny the Petition with prejudice and will not issue

a certificate of appealability. An appropriate Order follows.
_________________________
Zahid N. Quraishi
United States District Judge

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