Wise v. Rozum et al

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 42 38 37 . Signed by Honorable Malachy E Mannion on 10/28/13. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.NOT
FOR PUBLICATION
United States District Court,
D. New Jersey.
Earl PEEPLES, Plaintiff,
v.
Honorable James N. CITTA et al., Defendant.
Earl D. Peeples, Petitioner,
v.
Paul K. Lagana et al., Respondents.
Civil Action Nos. 11–6238 (JAP), 12–2203(JAP).
April 16, 2012.
Earl Peeples, Newark, NJ, pro se.
OPINION
PISANO, District Judge.
*1 These two matters come before the Court upon
Earl Peeples' (“Peeples”) commencement of two
proceedings in this District: a civil rights action in Peeples
v. Citta (“Peeples–I” ), Civil Action No. 11–6238(JAP),
and a habeas action in Peeples v. Lagana (“Peeples–II”
), Civil Action No. 12–2203(JAP).
For the reasons detailed below, the Court will grant
Peeples in forma pauperis status for the purposes of both
actions and will dismiss both pleadings. Both dismissals
will be with prejudice.
I. BACKGROUND
The facts underlying Peeples' claims asserted in both
above-captioned actions were summarized by the Superior
Court of New Jersey, Appellate Division, as follows:
On October 7, 2002, [Peeples] pled guilty to ... first
degree attempted murder ... pursuant to a negotiated
agreement with the State. In response to the [trial]
court's questions, [Peeples] testified under oath that, on
December 17, 2001, he stabbed the mother of his child
“numerous times” with a kitchen knife, purposely

attempting to cause her death. In return for [Peeples']
plea, the State agreed to dismiss the remaining counts ...
and recommend to the [trial] court that [Peeples] be
sentenced to a term of imprisonment [of] fifteen years,
subject to an eighty-five percent period of parole
ineligibility and five-year parole supervision under the
No Early Release Act (“NERA”).... On November 22,
2002, the [trial court] sentenced [Peeples] consistent
with the plea agreement to a term of fifteen years, with
the mandatory period of parole ineligibility and parole
supervision provided for in NERA.... [Peeples]
appealed the sentence imposed by the trial court
[arguing that his sentence was unduly] excessive .... By
order dated May 24, 2004, [the Appellate Division]
affirmed [Peeples'] sentence. On July 13, 2007,
[Peeples] filed [a post-conviction relief (“PCR”) ]
petition alleging [ (1) ] ineffective assistance of trial and
appellate counsel [that resulted in, allegedly, excessive
sentence]; (2) the trial court [allegedly] impermissibl[e]
... finding [of] certain aggravating factors [that resulted
in, allegedly, excessive sentence]; and (3) the trial
judge['s] ... comments [uttered] during the sentencing
hearing [which, Peeples maintained, verified the trial
court's bias against him and undue intent to impose an
excessive sentence. Peeples'] PCR petition came for
adjudication before Judge James J. Den Uyl on August
29, 2008. Judge Den Uyl was not the judge who
presided [over Peeples'] plea hearing and ultimately
sentenced him. [During the PCR proceedings, Peeples']
PCR counsel argued [with regard to Peeples' third
claim] that the following comments made by the judge
who sentenced [Peeples] showed bias based on
[Peeples'] and the victim's race. [ (Peeples] is African
American and the victim [is] Caucasian[) ]:
You're a dangerous individual [Mr. Peeples]. You
look up domestic violence in the dictionary, your
picture should be next to it. The only difference
between you and O.J. Simpson is he had more money
and he got off for some reason in a land of fruits and
nuts. And the only difference between the victim here
and Nicole Brown Simpson is that she got lucky and
somebody was able to get her some medical

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assistance before she bled to death on her living room
floor.

application. See Peeples–I, Docket Entry No. 3,
at 3.

*2 ... [The Appellate Division] reject[ed Peeples']
arguments and affirm [ed denial of PCR relief]
substantially for the reasons expressed by Judge Den
Uyl..... [The Appellate Division commented that it] was
an egregious crime committed by [Peeples] against the
mother of his child, made even more alarming when
considered against [Peeples'] history of domestic
violence. Although the trial court's remarks at the
sentencing hearing were clearly inappropriate, the
record support[ed] the ultimate sentence imposed ....

However, on January 13, 2012, the Clerk's mailing to
Peeples was returned as undeliverable. See Docket Entry
No. 4. Almost three months later, on April 2, 2012, the
Clerk received a letter from Peeples; that letter included
Peeples' in forma pauperis application and requested
reopening of Peeples–I. See Docket Entry No. 5.

State v. Peeples, 2011 N.J.Super. Unpub. LEXIS
1587, at *1–6, 2011 WL 2437132 (N.J.Super. Ct.App.
Div. June 20, 2011) (footnotes incorporated in the main
text, original brackets removed); certif. denied 208 N.J.
601 (Dec. 6, 2011).
II. PROCEEDINGS AT BAR
A. Procedural History
On October 24, 2011, the Clerk received Peeples'
civil complaint; that submission gave rise to Peeples–I.
See Peeples–I, Docket Entry No. 1. The complaint arrived
unaccompanied by the applicable filing fee or by Peeples'
application to proceed in that civil rights matter in forma
pauperis. See id. Correspondingly, this Court denied
Peeples in forma pauperis status without prejudice and
directed him to submit either his filing fee of $350.00 or
his duly executed in forma pauperis application. See
Docket Entry No. 3. To assist Peeples in that endeavor,
the Court directed the Clerk to serve Peeples with a blank
in forma pauperis application form.FN1 See id. at 3. The
Clerk duly complied.

One week later, on April 9, 2012, the Clerk received
Peeples' habeas petition, executed pursuant to Section
2254, see Peeples–II, Docket Entry No. 1; that
petition—much like Peeples' complaint in Peeples–I,
arrived unaccompanied by the applicable filing fee of
$5.00 or by Peeples' application to proceed in that habeas
matter in forma pauperis. See id.
In light of Peeples' submission of his in forma
pauperis application in Peeples–I, the Court finds it
warranted to grant Peeples in forma pauperis status for the
purposes of both actions, that is, Peeples–I and
Peeples–II, and will direct the Clerk to assess the
applicable filing fee against Peeples in connection with
Peeples–I and to file his civil complaint in that action.FN2
FN2. Peeples' habeas petition, submitted in
Peeples–II, was automatically deemed filed upon
receipt due to the unique safeguards embedded in
the very nature of habeas proceedings. The
Court's grant of in forma pauperis status to
Peeples in connection with his habeas Peeples–II
action disposes of the issue of a filing fee without
yielding any assessment against him.
B. Peeples' Allegations
1. Peeples–I

FN1. Pursuant to the Court's order, Peeples–I
was administratively terminated, subject to
reopening in the event Peeples submitted his in
forma pauperis application within thirty days
from the date of entry of the Court's order;
Peeples was expressly advised that
administrative termination was not a dismissal on
merits, and that Peeples–I would be reopened
upon timely receipt of his in forma pauperis

In his Peeples–I pleading, Peeples: (a) stated, at
length, numerous “paraphrasings” of the model canons of
judicial ethics recommended by the American Bar
Association, compare Peeples–I, Docket Entry No. 1, at
1 – 2 , to <<http ://www.americanbar.org
/content/dam/aba/migrated/judicialethics/
Canon1Final.authcheckdam.pdf>>; FN3 (b) named, as the
sole Defendant in that action, Honorable James N. Citta

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(“Judge Citta”), who was Peeples' trial judge,FN4 see
Peeples–I, Docket Entry No. 1, at 4; (c) alleged that Judge
Citta violated the ethics canons by: (1) telling the mother
of Peeples' victim that Judge Citta would accept the
mother's statement into evidence; and by (2) uttering the
comment quoted by the Appellate Division (i.e., Judge
Citta's observations that Peeples' picture should be utilized
as an illustration to the topic of domestic violence and that
there were similarities between the trial of Peeples and
O.J. Simpson, and between injuries suffered by Peeples'
victim and Nicole Brown), see id. at 5–6; and (d) sought
compensatory and punitive damages. See id. at 8–9.

again, his “paraphrasings” of the model canons of judicial
ethics recommended by the American Bar Association
and, in addition, verified the timeline of events provided
by the Appellate Division in Peeples, 2011 N.J.Super.
Unpub. LEXIS 1587, 2011 WL 2437132, and by the
Supreme Court of New Jersey in State v. Peeples, 208 N.J.
601. Specifically, Peeples' § 2254 petition in Peeples–II
verified that:
(a) he took a guilty plea as to the sole charge underlying
his conviction;

FN3. The Court notes, in passing, that model
canons of judicial ethics do not apply to the New
Jersey judiciary; rather, the New Jersey judiciary
is governed by the Code of Judicial Conduct of
the American Bar Association, as amended by
the New Jersey Supreme Court: these amended
set of rules replaced the model canons. See
< < h t t p : / / w w w . j u d i c i
ary.state.nj.us/rules/appendices/app1_jud.htm>>.
However, this distinction is of no substantive
import for the purposes of the Court's analysis at
hand.

(c) his sentence was affirmed by the Appellate Division
on May 25, 2004; FN5

FN4. Judge Citta was serving as a judge in the
Superior Court of New Jersey, being assigned to
the Criminal Division in the Ocean Vicinage. See
<
<
h
t
t
p
:
/
/
pdfserver.amlaw.com/nj/cittacomplaint040109.
pdf>>.

(d) he did not seek certification from the Supreme Court
of New Jersey as to this affirmance of his sentence;

*3 Peeples' complaint also asserted that Judge Citta
“retaliated” against Peeples by being, allegedly,
prejudiced against Peeples and by making the
above-mentioned comments. See id. at 7–8. In connection
with this allegation, Peeples opined that Judge Citta's
comments must have been made with “malicious
intention,” rendering Peeples' sentence “retaliatory,” and
so Judge Citta should not be entitled to absolute immunity.
Id. at 6–7.
2. Peeples–II
In his Peeples–II pleading, Peeples restated, once

(b) he challenged his sentence on direct appeal;

FN5. Peeples' assertions differ from the
statements made by the Appellate Division in the
sense that Peeples maintains that the Appellate
Division affirmed his sentence on May 25, 2004,
while the Appellate Division designated that date
as May 24, 2004. For the purposes of this
Opinion only, and without making a factual
finding, this Court will read the discrepancy in
Peeples' favor.

(e) he filed his PCR application on July 13, 2007;
and

FN6

FN6. The habeas petition at bar (filed in
Peeples–II ) raises the same three grounds that
Peeples raised during his PCR proceedings, i.e.,
the three challenges to his sentence. (Indeed,
having taken a guilty plea, Peeples could not
challenge in his Peeples–II habeas action
anything but the validity of his plea or his
sentence.) Thus, in his instant Peeples–II habeas
action, Peeples' first claim asserts that ineffective
assistance of his trial and appellate counsel
contributed to Judge Citta's undue selection of
his sentence; his second claim alleges that Judge
Citta made a wrongful finding as to certain
aggravating factors (and that, too, contributed to

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Judge Citta's undue selection of his sentence);
and his last claim maintains that Judge Citta was
biased against Peeples in imposing his sentence
(and that also contributed to Judge Citta's undue
selection of Peeples' sentence). See, generally,
Peeples–II, Docket Entry No. 1.
(f) the New Jersey Supreme Court denied him
certification as to his PCR application on December 6,
2011. See Peeples–II, Docket Entry No. 1 (Peeples' §
2254 petition, executed on March 29, 2012, i.e., almost
four months after the New Jersey Supreme Court denied
him certification as to his PCR).
III. DISCUSSION
A. The Allegations in Peeples–I Fail to State a Claim
1. Standard of Review
The Prison Litigation Reform Act (“PLRA”), Pub.L.
No. 104–134, §§ 801–810, 110 Stat. 1321–66 to 1321–77
(April 26, 1996), requires the Court to review a complaint
in a civil action in which a prisoner seeks redress against
a governmental employee or entity. See 28 U.S.C. §
1915A(a). The PLRA requires the Court to sua sponte
dismiss any claim if the Court determines that it is
frivolous, malicious, fails to state a claim on which relief
may be granted, or seeks monetary relief from a defendant
who is immune from such relief. See 28 U.S.C. §
1915A(b).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) , hammered the “final
nail-in-the-coffin” for the “no set of facts” standard set
forth in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957),FN7 which was previously applied
to determine if a federal complaint stated a claim. Fowler
v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009). To
survive dismissal under Iqbal, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
for relief that is plausible on its face.’
FN7. The Conley Court held that a district court
was permitted to dismiss a complaint for failure
to state a claim only if “it appear[ed] beyond
doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him
to relief.” Conley, 355 U.S. at 45–46.
A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.' ” Iqbal, 129 S.Ct. at 1949 (citation
omitted). The plausibility standard “asks for more than a
sheer possibility that a defendant has acted unlawfully.
*4 Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short of the
line between possibility and plausibility of entitlement to
relief,” and will be dismissed. Id. (citations and internal
quotation marks omitted). The Court of Appeals instructed
that, to determine the sufficiency of a complaint under the
pleading regime established by Iqbal,
a court must take three steps: First, the court must tak[e]
note of the elements a plaintiff must plead to state a
claim. Second, the court should identify allegations that,
because they are no more than conclusions, are not
entitled to the assumption of truth. Finally, where there
are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.
Santiago v. Warminster Township, 629 F.3d 121,
130 (3d Cir.2010) (citations and quotation marks omitted);
see also Fowler, 578 F.3d at 210–211 (“a complaint must
do more than allege the plaintiff's entitlement to relief. A
complaint has to ‘show’ such an entitlement with its
facts”).
2. Section 1983 Action
Section 1983 of Title 42 of the United States Code
authorizes a person such as Peeples to seek redress for a
violation of his federal civil rights by a person who was
acting under color of state law. Specifically, Section 1983
provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory ... subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,

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privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress.
42 U.S.C. § 1983.
To recover under 42 U.S.C. § 1983, a plaintiff must
show two elements: (1) a person deprived him or caused
him to be deprived of a right secured by the Constitution
or laws of the United States, and (2) the deprivation was
done under color of state law. See West v. Atkins, 487 U.S.
42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Adickes v.
S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26
L.Ed.2d 142 (1970).
3. Judicial Immunity
The doctrine of judicial immunity provides that
“judges are immune from suit under section 1983 for
monetary damages arising from their judicial acts.”
Gallas v. Supreme Court of Pa., 211 F.3d 760, 768 (3d
Cir.2000); see also Mireles v. Waco, 502 U.S. 9, 112 S.Ct.
286, 116 L.Ed.2d 9 (1991) (per curiam ). To determine
whether the judicial immunity doctrine applies, the Court
must establish: (a) whether the judge's actions were
“judicial” in nature; and (b) whether the judge acted in the
“clear absence of all jurisdiction over the subject matter.”
Gallas, 211 F.3d at 768–69 (quoting Stump v. Sparkman,
435 U.S. 349, 356 n. 6, 98 S.Ct. 1099, 55 L.Ed.2d 331
(1978)). An act is judicial in nature if “it is a function
normally performed by a judge” and if the parties “dealt
with the judge in his judicial capacity.” Stump, 435 U.S.
at 362.
*5 Here, the complaint in Peeples–I alleges that Judge
Citta expressed his opinion about the admissibility of the
victim's mother's testimony and, in addition, commented
on Peeples' propensity to crime during his sentencing by
observing that Peeples' picture should be utilized as an
illustration on the topic of domestic violence, and that
there were similarities between the trial of Peeples and
O.J. Simpson and between injuries suffered by Peeples'
victim and Nicole Brown. While Judge Citta's choice of
particular language might be considered inappropriate or
disagreeable, there is no doubt that Judge Citta's acts of
uttering those comments qualify as acts “normally

performed by a judge,” and the parties in each instance
interacted with Judge Citta “in his judicial capacity.”
Additionally, because Judge Citta was properly called to
preside over Peeples' criminal trial, including his plea
hearing and his sentencing hearing, there could be no basis
for a presumption that Judge Citta acted “in the clear
absence of all jurisdiction.” Gallas, 211 F.3d at 769.
Therefore, all of Judge Citta's acts complained about by
Peeples are covered by the doctrine of judicial immunity.
While Peeples opines that absolute immunity must be
inapplicable to Judge Citta's judicial acts (because Peeples
believes that Judge Citta acted with “malicious intention”),
Peeples' position is unavailing.FN8 “[A litigant's]
allegations of bad faith [and] malice” cannot overcome
[judicial] immunity.” Abulkhair v. Rosenberg, 2012
U.S.App. LEXIS 494, 2012 WL 70649 (3d Cir. Jan. 10,
2012) (quoting Mireles, 502 U.S. at 11). Simply put, “an
act does not become less judicial by virtue of an allegation
of malice or corruption of motive,” or that such action is
“unfair” or “controversial.” Gallas, 211 F.3d at 769;
accord Stump, 435 U.S. at 363 (“[d]isagreement with the
action taken by the judge ... does not justify depriving the
judge of his immunity”). Thus, Peeples' claims against
Judge Citta are wholly without merit.
FN8. Peeples' “retaliation” claim also lacks
merit. First, a claim of retaliation is not
“special,” in the sense that it has no unique
power to overcome absolute judicial immunity.
Second, retaliation claims are analyzed under a
three-part test: plaintiff must prove that, first, he
engaged in a constitutionally-protected activity;
second, the government responded with a
retaliation, and third the plaintiff shows that the
particular protected activity caused the particular
retaliation. See Eichenlaub v. Twp. of Indiana,
385 F.3d 274, 282 (3d Cir.2004). Here, Peeples
asserts no protected activity of any kind and
shows no causal connection; he merely alleges
that Judge Citta “retaliated” against him because
Judge Citta was biased. However, Judge Citta's
bias, assuming arguendo that bias was present,
does not set forth an element or state a claim for
unconstitutional retaliation under § 1983.

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B. Peeples–I Does Not Warrant Leave to Amend
Ordinarily, a plaintiff may be granted “leave [to
amend,] ... when justice so requires.” See Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962);
Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.1993).
Indeed, “[t]he Federal Rules reject the approach that
pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a
proper decision on the merits.” Foman, 371 U.S. at
182–83. However, “[a]llowing leave to amend where
‘there is a stark absence of any suggestion by the plaintiffs
that they [might] developed any facts since the action was
commenced, which would, if true, cure the defects in the
pleadings ..., would frustrate Congress's objective in
enacting this statute of ‘provid[ing] a filter at the earliest
stage (the pleading stage) to screen out lawsuits that have
no factual basis.’' ‘ Cal. Pub. Emples'. Ret. Sys. v. Chubb
Corp., 394 F.3d 126, 164 (3d Cir.2004) (citation omitted).
In Peeples–I, Peeples' claims indicate, in no ambiguous
terms, that he seeks to sue Judge Citta for the acts
undertaken and statements uttered by Judge Citta in his
judicial capacity. Peeples cannot change that by
re-pleading. Therefore, granting him leave to amend his
complaint in Peeples–I would necessarily be futile.
Correspondingly, no leave to amend will issue, and the
complaint in Peeples–I will be dismissed with prejudice.
C. Peeples–II Does Not Warrant Habeas Relief
1. The Petition is Untimely and Lacks Merit
*6 On April 24, 1996, Congress enacted the
Anti–Terrorism and Effective Death Penalty Act
(“AEDPA”), which provides that “[a] 1–year period of
limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of
a State court.” 28 U.S.C. § 2244(d)(1). The limitations
period runs from “the date on which the judgment became
final by the conclusion of direct review or the expiration
of the time for seeking such review.” 28 U.S.C. §
2244(d)(1). A state-court criminal judgment becomes
“final” within the meaning of § 2244(d) (1) by the
conclusion of direct review or by the expiration of time for
seeking such review, including the 90–day period for
filing a petition for writ of certiorari in the United States
Supreme Court. See Swartz v. Meyers, 204 F.3d 417, 419

(3d Cir.2000); Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d
Cir.1999); U.S. Sup.Ct. R. 13.
Here, the Appellate Division affirmed Peeples'
sentence on May 25, 2004. Since Peeples did not seek
certification from the Supreme Court of New Jersey as to
his direct appeal, his judgment of conviction became final,
and his AEDPA period of limitations began to run, when
his time to file such petition for certification expired, see
Kapral v. United States, 166 F.3d 565, 577 (3d Cir.1999),
i.e., forty-five days after the Appellate Division entered its
decision. See N.J. Rules 2:4–1(a) (“Appeals from final
judgments of courts ... shall be taken within 45 days of
their entry”). Therefore, Peeples' 1–year AEDPA period
began to run on July 9, 2004, and expired on July 8, 2005.
The statute of limitations under § 2244(d) is subject
to statutory tolling for “[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,” 28 U.S.C. § 2244(d)(2), provided that
the application to the state court seeking collateral review
was filed during the period of limitations. In contrast, an
inmate's filing of his/her PCR application cannot be
relevant to the statutory tolling analysis if the inmate files
such PCR application after his/her period of limitations
expires. See Long v. Wilson, 393 F.3d 390, 394–95 (3d
Cir.2004); Schlueter v. Varner, 384 F.3d 69, 78–79 (3d
Cir.2004).
Here, Peeples filed his PCR application on July 13, 2007,
that is, more than two years after his AEDPA period of
limitations expired. Therefore, his PCR filing could not
trigger statutory tolling and had no impact on his AEDPA
period. Accordingly, his petition currently pending before
this Court in Peeples–II (being filed sometime between
March 29, 2012, and April 9, 2012) FN9 has been
time-barred for almost seven years.
FN9. According to the “prison mailbox rule,”
Peeples' petition was deemed filed on the date
when he actually submitted his petition to his
prison authorities for mailing to this Court. See
Longenette v. Krusing, 322 F.3d 758, 761 (3d
Cir.2003) (relying on Houston v. Lack, 487 U.S.
266, 108 S.Ct. 2379, 101 L.Ed.2d 245(1988)). It

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is self-evident that this act could not have
occurred prior to March 29, 2012 (the date of
Peeples' execution of his petition) or after April
9, 2012 (the date of the Clerk's receipt of this
petition).
Moreover, considerations of equitable tolling are
inapplicable to the pleading filed in Peeples–II. While, in
addition to being subject to statutory tolling, the AEDPA
statute of limitations is also subject to equitable tolling,
see Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549,
177 L.Ed.2d 130 (2010), Miller v. N.J. State Dep't of
Corr., 145 F.3d 616, 618 (3d Cir.1998), “a litigant seeking
equitable tolling bears the burden of establishing two
elements: (a) that he has been pursuing his rights
diligently, and (b) that some extraordinary circumstance
stood in his way.” FN10 Pace v. DiGuglielmo, 544 U.S. 408,
125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005); see also
Holland, ––– U.S. ––––, 130 S.Ct. 2549, 177 L.Ed.2d
130.
FN10. Recently, the Supreme Court entered two
decisions related to the issues of missed
deadlines and procedural default, see Maples v.
Thomas, ––– U.S. ––––, 132 S.Ct. 912, 181
L.Ed.2d 807 (2012) (where procedural default
was found, there could be “cause” to excuse a
missed notice of appeal deadline in state court if
the litigant shows that his attorneys abandoned
him and he had no reason to suspect that he
lacked counsel able and willing to represent him
during the time permitted for an appeal), and
Martinez v. Ryan, 2012 U.S. LEXIS 2317, –––
U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272
(2012), 2012 WL 912950 (where, under state
law, claims of ineffective assistance of trial
counsel must be raised in a collateral proceeding,
a procedural default might not bar a federal
habeas court from hearing ineffective assistance
claims if, during the initial PCR proceeding,
there was no counsel at all or that counsel was
ineffective). However, neither Martinez nor
Maples provide bases for granting Peeples
equitable tolling: nothing in Peeples–II suggests,
even remotely, that Peeples experienced the
circumstances described in those cases.

*7 The Court of Appeals instructed that equitable
tolling could be appropriate 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 v. Kyler, 398 F.3d 271, 275–276 (3d
Cir.2005); see also Holland, ––– U.S. ––––, 130 S.Ct.
2549, 177 L.Ed.2d 130 (same). Mere excusable neglect is
not sufficient. See id.; see also Merritt v. Blaine, 326 F.3d
157, 168 (3d Cir.2003); Jones v. Morton, 195 F.3d 153,
159 (3d Cir.1999). Extraordinary circumstances have been
found where: (a) the respondent has actively misled the
plaintiff, (b) the petitioner has in some extraordinary way
been prevented from asserting his rights, (c) the petitioner
has timely asserted his rights mistakenly in the wrong
forum, see Jones, 195 F.3d at 159, or (d) the court itself
has misled a party regarding the steps that the party needs
to take to preserve a claim. See Brinson v. Vaughn, 398
F.3d 225, 230 (3d Cir.2005).
Moreover, even where extraordinary circumstances
do exist, “[i]f the person seeking equitable tolling has not
exercised reasonable diligence in attempting to file after
the extraordinary circumstances began, the link of
causation between the extraordinary circumstances and the
failure to file is broken, and the extraordinary
circumstances therefore did not prevent timely filing.”
Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.2003)
(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d
Cir.2000)).
Here, in order to qualify for equitable tolling, Peeples
has to show the presence of extraordinary circumstances
during the seven years when his § 2254 petition has been
time-barred. No such extraordinary circumstances are
present here: Peeples' filings in Peeples–I and Peeples–II
indicate that he did, indeed, file numerous submissions
during his state PCR proceedings and, in addition, he also
filed an ethics grievance against Judge Citta—all while his
§ 2254 petition was getting progressively more stale.
Furthermore, having his application for certification as to
his PCR denied by the Supreme Court of New Jersey on
December 6, 2011 (that is, having his § 2254 petition

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Not Reported in F.Supp.2d, 2012 WL 1344819 (D.N.J.)
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time-barred, by then, for about six and a half years),
Peeples still took almost four months to file his § 2254
petition, which is now at bar in Peeples–II. Therefore, it is
evident that Peeples could have filed his federal habeas
petition timely had he acted diligently, or-at the very
least-he could have timely sought stay and abeyance in
order to preserve his right to Section 2254 review.FN11 He
did not, and under such circumstances, he is not entitled to
equitable tolling. Therefore, his Peeples–II petition is
subject to dismissal as untimely. FN12
FN11. In Rhines v. Weber, 544 U.S. 269, 125
S.Ct. 1528, 161 L.Ed.2d 440 (2005), the
Supreme Court approved a stay-and-abeyance
procedure, under which a district court may stay
a timely habeas petition and hold it in abeyance
while the petitioner returns to state court to
exhaust his previously unexhausted claims. See
id. at 275. The decision in Rhines was issued on
March 30, 2005, that is, more than two months
prior to expiration of Peeples' AEDPA period.
Therefore, Peeples could have easily preserved
his right to federal habeas review and then
pursued his PCR challenges in state courts.
FN12. Moreover, even if this Court were to
hypothesize that Peeples' § 2254 petition could,
somehow, qualify for equitable tolling, his
challenges would fail substantively. As noted
supra, Peeples pled guilty to the offense
underlying his conviction; his challenges are
limited solely to his sentence. A challenge to a
state court's discretion at sentencing is not
reviewable in a federal habeas proceeding unless
it violates a separate federal constitutional
limitation. See Pringle v. Court of Common
Pleas, 744 F.2d 297, 300 (3d Cir.1984); see also
28 U.S.C. § 2254(a); Estelle v. McGuire, 502
U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991). “The Eighth Amendment, which forbids
cruel and unusual punishments, contains a
‘narrow proportionality principle’ that ‘applies to
noncapital sentences.’ ” Ewing v. California, 538
U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108
(2003) (citations omitted). The Supreme Court
has identified three factors that may be relevant

to a determination of whether a sentence is so
disproportionate to the crime committed that it
violates the Eighth Amendment: “(i) the gravity
of the offense and the harshness of the penalty;
(ii) the sentences imposed on other criminals in
the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in
other jurisdictions.” Solem v. Helm, 463 U.S.
277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637
(1983). Additionally, Justice Kennedy has
explained that Solem does not mandate
comparative analysis within and between
jurisdictions, see Harmelin v. Michigan, 501
U.S. 957, 1004–05, 111 S.Ct. 2680, 115 L.Ed.2d
836 (1990) (Kennedy, J., concurring in part and
in judgment), and he has identified four
principles of proportionality review (“the
primacy of the legislature, the variety of
legitimate penological schemes, the nature of our
federal system, and the requirement that
proportionality review be guided by objective
factors”) that “inform the final one: The Eighth
Amendment does not require strict
proportionality between crime and sentence. [I]t
forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.” Id. at 1001
(citation omitted). Peeples' challenges to his
sentence would not be reviewable in this Court,
since he has presented no cogent argument why
his sentence is unconstitutional or “grossly
disproportionate” to the crime he committed.
Thus, even if Peeples' § 2254 petition had been
deemed timely, it would be subject to dismissal
on the merits.
2. Certificate of Appealability Will Not Issue
*8 The 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 (“COA”) 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).
In Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct.
1595, 146 L.Ed.2d 542 (2000), the United States Supreme
Court held: “When the district court denies a habeas

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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.” Id.
Here, jurists of reason would not find it debatable whether
dismissal of Peeples' § 2254 petition as untimely is
correct. The Court, therefore, will decline to issue Peeples
a certificate of appealability, pursuant to 28 U.S.C. §
2253(c).FN13

and, alternatively, on the merits; and (f) deny Peeples
certificate of appealability in connection with Peeples–II.
An appropriate Order accompanies this Opinion.
D.N.J.,2012.
Peeples v. Citta
Not Reported in F.Supp.2d, 2012 WL 1344819 (D.N.J.)
END OF DOCUMENT

FN13. Alternatively, a certificate of appealability
is not warranted on the merits. Since the Court
has observed that Peeples' claims would not
warrant habeas relief even if his § 2254 petition
had been deemed timely, a different analysis
applies to that observation. As with claims
dismissed on procedural grounds, a certificate of
appealability may issue “only if the applicant has
made a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), but
“[a] petitioner satisfies this standard by
demonstrating that jurists of reason could
disagree with the district court's resolution of his
constitutional claims.” Miller–El v. Cockrell.,
537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d
931 (2003). Here, as the Court's substantive
analysis illustrated, see supra, note 12, Peeples
failed to make a showing of the denial of a
constitutional right, and the Court is persuaded
that jurists of reason would not disagree with this
conclusion.
IV. CONCLUSION
For the foregoing reasons, the Court will: (a) grant
Peeples' motion to reopen Peeples–I; (b) grant Peeples in
forma pauperis status for the purposes of both Peeples–I
and Peeples–II (correspondingly, the Court will direct
assessment of the filing fee against Peeples in connection
with Peeples–I ); (c) direct the Clerk to file Peeples'
complaint in Peeples–I; (d) dismiss Peeples' civil rights
claims in Peeples–I, with prejudice; (e) dismiss Peeples'
habeas claims in Peeples–II, with prejudice, as untimely,
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