The opinion of the court was delivered by: STANLEY CHESLER, District Judge
John Kyles filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254(a) challenging a conviction in the
Superior Court of New Jersey, Monmouth County, on April 4, 1996.
Respondents filed an Answer seeking dismissal of the Petition on
several grounds, including statute of limitations,
28 U.S.C. § 2244(d). For the reasons expressed below, the Court dismisses the
Petition as untimely and denies a certificate of appealability. I. BACKGROUND
Petitioner challenges a judgment of conviction entered in the
Superior Court of New Jersey, Monmouth County, on April 4, 1996,
after a jury found him guilty of third-degree aggravated assault
with a deadly weapon, second-degree aggravated assault,
first-degree attempted murder, third-degree possession of a
weapon for an unlawful purpose, fourth-degree unlawful possession
of a weapon, and fourth-degree possession of a weapon by a person
prohibited from having a weapon. The Law Division granted the
state's motion for an extended term and sentenced Petitioner to a
50-year base term with a 17-year period of parole ineligibility
on the attempted murder conviction, and concurrent terms of five
years and 18 months on the possession of a weapon for an unlawful
purpose and the possession of a weapon by a person prohibited
from having a weapon charges. The court merged the remaining
On June 30, 1997, the Appellate Division affirmed the sentence,
but directed the trial court to merge the conviction for
possession of a weapon for an unlawful purpose with the attempted
murder conviction. An amended judgment of conviction was entered
on July 3, 1997. The New Jersey Supreme Court denied Petitioner's
petition for certification on October 7, 1997. New Jersey v.
Kyles, 152 N.J. 8 (1997) (table). Petitioner did not file a
petition for certiorari in the United States Supreme Court.
On August 15, 1999, Petitioner filed a state petition for
post-conviction relief in the Law Division. On January 31, 2000,
the Law Division of the Superior Court of New Jersey denied
relief. The Superior Court, Appellate Division, affirmed the
order denying post-conviction relief in an opinion filed November
5, 2001. The Supreme Court of New Jersey denied certification on
February 14, 2002. On January 13, 2003, Petitioner executed the § 2254 Petition
which is now before this Court. The Clerk received it on January
21, 2003, with an application to proceed in forma pauperis.
The Court notified Petitioner of the consequences of filing such
a Petition under the Antiterrorism and Effective Death Penalty
Act ("AEDPA") and gave him an opportunity to withdraw the
Petition and file one all-inclusive Petition, pursuant to Mason
v. Meyers, 208 F.3d 414 (3d Cir. 2000). The Petition asserts
four grounds, none of which raises a right newly recognized by
the United States Supreme Court. Respondents filed an Answer,
with relevant portions of the state court record, arguing that
the Petition should be dismissed as time-barred and on the
A. Statute of Limitations
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 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 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).
In this case, the applicable limitations provision is §
2244(d)(1)(A). The Supreme Court of New Jersey denied
Petitioner's petition for certification on direct review by order
filed October 7, 1997. The statute of limitations therefore began
to run on January 5, 1998, the date on which the judgment became
final by the expiration of the time for filing a petition for
certiorari in the United States Supreme Court. See Long v.
Wilson, 393 F.3d 390 394 (3d Cir. 2004) (judgment becomes final
after time for seeking discretionary review expires when
discretionary review is not sought); Kapral v. United States,
166 F.3d 565, 575 (3d Cir. 1999) (if defendant does not file
certiorari petition in United States Supreme Court, judgment of
conviction becomes final when time for seeking certiorari review
expires); 28 U.S.C. § 2244(d)(1)(A). Absent statutory or
equitable tolling, the limitations period would have expired one
year later on January 5, 1999. See Merritt v. Blaine,
326 F.3d 157, 161 (3d Cir. 2003); Nara v. Frank, 264 F.3d 310, 315
(3d Cir. 2001); Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
The statute of limitations under § 2244(d) is subject to two
tolling exceptions: statutory tolling and equitable tolling.
Merritt, 326 F.3d at 161; Miller v. N.J. State Dep't of
Corr., 145 F.3d 616, 617-18 (3d Cir. 1998). Section 2244(d)(2)
requires statutory tolling under certain circumstances: "The 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 shall not be counted
toward any period of limitation under this subsection."
28 U.S.C. § 2244(d)(2). Because Petitioner did not file his first state
petition for post conviction relief until August 15, 1999, after the limitations period had expired, the limitations
period was not statutorily tolled. See Long,
393 F.3d at 394-95 (state post conviction review petition had no effect on
tolling because the limitations period had already run when it
The AEDPA statute of limitations is also subject to equitable
tolling. Miller, 145 F.3d at 618. The one-year limitations
period is subject to equitable tolling "only in the rare
situation where equitable tolling is demanded by sound legal
principles as well as the interests of justice." Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999). Equitable tolling is
only when the principle of equity would make the
rigid application of a limitation period unfair.
Generally, this will occur when the petitioner has in
some extraordinary way been prevented from asserting
his or her rights. The petitioner must show that he
or she exercised reasonable diligence in
investigating and bringing [the] claims. Mere
excusable neglect is not sufficient.
Miller, 145 F.3d at 618-19 (internal citations and alterations
omitted); see also Merritt, 326 F.3d at 168.
Extraordinary circumstances have been found where (1) the
defendant has actively misled the plaintiff, (2) the plaintiff
has in some extraordinary way been prevented from asserting his
rights, (3) the plaintiff has timely asserted his rights
mistakenly in the wrong forum, see Jones, 195 F.3d at 159, or
(4) the court 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). Even where
extraordinary circumstances exist, however, "[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 ...