United States District Court, D. New Jersey
October 19, 2005.
LEONARDO GARCIA, Petitioner,
TERRANCE MOORE, et al., Respondents.
The opinion of the court was delivered by: JOHN LIFLAND, Senior District Judge
Leonardo Garcia filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254(a) challenging a conviction for
murder in the Superior Court of New Jersey, Hudson County.
Respondents filed an Answer seeking dismissal of the Petition on
several grounds, including the statute of limitations,
28 U.S.C. § 2244(d). Petitioner filed a Traverse to the Answer. 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, Hudson County, on July 7, 1986,
after a jury found him guilty of murder, aggravated assault, and
unlawful possession of a handgun. The Law Division sentenced
Petitioner to concurrent prison terms of 30 to 50 years for the
murder, nine months for the aggravated assault, and four years
for the handgun charge. Petitioner appealed, and on June 21,
1988, the Superior Court of New Jersey, Appellate Division,
affirmed the conviction, but modified the concurrent prison term
imposed for the aggravated assault to 18 months without parole.
The New Jersey Supreme Court denied Petitioner's petition for
certification on September 28, 1988.
Petitioner filed a state petition for post-conviction relief in
November 1988. The Law Division of the Superior Court of New
Jersey denied relief on April 3, 1989. In an opinion filed
February 22, 1991, the Superior Court, Appellate Division,
affirmed the order denying post conviction relief on the ground
that Petitioner raised or could have raised his arguments in the
direct appeal. The Supreme Court of New Jersey denied his
petition for certification on June 28, 1991.
On May 6, 1993, Petitioner filed a motion to correct an illegal
sentence, which the Law Division denied on the same date. The
Appellate Division denied Petitioner's appeal on October 20,
1994, and the Supreme Court of New Jersey denied certification on
March 29, 1995.
On December 2, 1995, Petitioner executed his first Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("First
Petition"). See Garcia v. Morton, Civil No. 96-78 (JWB)
(D.N.J. filed Jan. 12, 1996). The Clerk received it on January
12, 1996. Respondents filed an Answer. On July 29, 1996, Hon. John W. Bissell dismissed the
Petition without prejudice as a mixed petition because it
contained exhausted and unexhausted claims. Id.
On November 14, 1997, Petitioner executed a notice of motion
for post conviction relief, which was filed in the Superior Court
of New Jersey, Law Division, Hudson County. The Law Division
denied relief on February 10, 1999, without conducting an
evidentiary hearing. Petitioner appealed and the Appellate
Division affirmed the order denying post conviction relief on
February 16, 2001. The Supreme Court of New Jersey denied
certification on November 5, 2001.
On June 11, 2002, Petitioner executed his second § 2254
Petition, which is now before this Court. The Clerk received it
on June 18, 2002. 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. The
grounds are set forth below verbatim:
Ground One: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
CONTRARY TO THE SIXTH AMENDMENT OF THE UNITED STATES
Ground Two: THE TRIAL COURT ERRED IN ADMITTING
DEFENDANT'S STATEMENT INTO EVIDENCE PURSUANT TO RULE
8(3) HEARING BECAUSE THE DEFENDANT DID NOT
VOLUNTARILY AND KNOWINGLY WAIVE HIS MIRANDA RIGHTS.
Ground Three: DEFENDANT WAS DENIED DUE PROCESS
GUARANTEED UNDER THE CONSTITUTION BECAUSE HIS
ADMISSION WAS INVOLUNTARILY MADE. Ground Four: THE DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
(Pet. ¶ 12.A.-12.D.)
Respondents filed an Answer, arguing, inter alia, that the
Petition should be dismissed as time-barred. Petitioner filed a
Traverse opposing dismissal of the Petition.
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). 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 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).
The AEDPA statute of limitations is 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
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
In this case, the applicable limitations provision is §
2244(d)(1)(A). Because Petitioner's conviction became final prior
to the effective date of the AEDPA on April 24, 1996, his
one-year limitations period began on April 24, 1996. 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. 1998). The limitations period was not
statutorily tolled at any time between April 24, 1996, and April
23, 1997, because no application for state post-conviction or
other collateral review with respect to the pertinent judgment or
claim was pending during this period.*fn1
The Court is mindful that Petitioner's first unexhausted § 2254
petition was pending before this Court between April 24, 1996,
and July 29, 1996, when it was dismissed without prejudice as a
mixed petition. Absent tolling, the limitations period expired on
April 23, 1997, over six months before Petitioner executed his
second state post conviction relief petition on November 14,
This Court holds that the limitations period was not tolled
during the three-month period Petitioner's first petition was
pending before this Court. Statutory tolling is unavailable
because the United States Supreme Court held in 2001 that the limitations
period is not statutorily tolled while an unexhausted § 2254
petition is pending before a federal court. See Duncan v.
Walker, 533 U.S. 167 (2001); Jones v. Morton, 195 F.3d 153 (3d
Cir. 1999); see also Rhines v. Weber, 125 S.Ct. 1528, 1533
(2005) ("the filing of a petition for habeas corpus in federal
court does not toll the statute of limitations").
Equitable tolling is foreclosed by the Third Circuit's ruling
in Jones v. Morton, 195 F.3d at 159-60, that, absent
extraordinary circumstances, the limitations period is not
equitably tolled while a mixed petition is pending before a
district court. Jones filed his second § 2254 petition in this
Court on March 28, 1995. Id. at 155. The Court dismissed it on
July 15, 1996, on the ground that it did not raise a federal
claim and, alternatively, for failure to exhaust state court
remedies. Id. Jones applied for a certificate of appealability
which the Third Circuit denied on January 13, 1997, for failure
to exhaust state court remedies. Id. at 156. Jones filed the §
2254 petition at issue on November 3, 1997. Id. The Court
dismissed that petition on April 9, 1998, on several grounds,
including statute of limitations. Id. The Third Circuit granted
a certificate of appealability as to whether the District Court
properly dismissed the petition as time-barred and whether Jones
was entitled to tolling of the limitations period. Id. at 156.
The Third Circuit noted that Jones' prior unexhausted petition
was pending before this Court from the date of AEDPA's enactment
on April 24, 1996, until February 14, 1997, and that, if Jones
were afforded tolling during the pendency of that petition, his
present petition would be timely. Id. at 158. After rejecting
Jones' statutory tolling argument, the circuit court considered
Jones' contention that, in light of his repeated attempts to be
heard in federal court, it would not be equitable to bar the
current petition as untimely. Id. at 160. Noting that, "[t]raditionally, a statute of limitations is not
tolled by the filing of a complaint that is subsequently
dismissed without prejudice," id. at 160, the Court held that
Jones' "misunderstanding of the exhaustion requirement is
insufficient to excuse his failure to comply with the statute of
limitations" and that he had established "no basis for an
equitable tolling of the time during which his second habeas
petition was pending in federal court." Id. The Court also
rejected Jones' argument that the filing date of the current
petition should relate back to the filing date of the second
unexhausted petition because, once the prior petitions were
dismissed, there was nothing for the third petition to relate
back to. Id. The Third Circuit held that, "if a petition is
dismissed for failure to exhaust state remedies, a subsequent
petition filed after exhaustion is completed cannot be considered
an amendment to the prior petition, but must be considered a new
action." Id. at 160-61.
The Third Circuit's decision in Jones v. Morton,
195 F.3d at 159-160, precludes this Court from finding that Petitioner's
mistaken filing of his first unexhausted § 2254 petition is an
extraordinary circumstance warranting equitable tolling during
the three-month period from April 24, 1996, through July 29,
1996, that the petition was pending in this Court. Id. As
Petitioner provides no other extraordinary circumstance that
might warrant equitable tolling of the limitations period, the
statute of limitations expired on April 23, 1997. Petitioner's
second state post-conviction relief petition could not
statutorily toll the limitations period because it was not filed
in the New Jersey courts until November 14, 1997, after the
limitations period had expired. See Schlueter v. Varner,
384 F.3d 69, 78 (3d Cir. 2004) (where AEDPA's one-year period of
limitation expired before petitioner filed his state PCR
petition, that state PCR petition would not toll limitations
period). The Supreme Court's recent decisions in Pliler v. Ford,
124 S.Ct. 2441 (2004), and Rhines v. Weber, 125 S.Ct. 1528 (2005),
are instructive. In Pliler, the petitioner filed his first §
2254 petition before the statute of limitations expired. After
the limitations period expired, the district court determined
that the petition was mixed, that is, contained exhausted and
unexhausted claims. The district court dismissed the petition
without prejudice as unexhausted and the petitioner returned to
state court, which summarily dismissed. The petitioner refiled
his § 2254 petition in federal court and the district court
dismissed the petition with prejudice as untimely under the
one-year statute of limitations. The Ninth Circuit granted a
certificate of appealability and held that the petition was
timely because the filing date related back to the original
petition. The Ninth Circuit held that if a pro se petitioner
files a mixed petition, the district court errs by dismissing the
petition without prejudice, without advising the petitioner of
the option for a stay and without advising the petitioner that
his federal claims would be time-barred, absent equitable
tolling, if he opted to dismiss the petition without prejudice
and return to state court to exhaust his claims.
The Supreme Court reversed the Ninth Circuit, holding that
federal district judges are not required to warn pro se
petitioners about the time-bar or to advise them of the option of
a stay before dismissing a mixed petition without prejudice.
Pliler, 124 S.Ct. at 2446. The Court expressly rejected the
petitioner's argument that the advisements are necessary to
ensure that pro se petitioners make informed decisions and do not
unknowingly forfeit their exhausted claims.
Respondent reads Rose as mandating that a prisoner
be given the choice of returning to state court to
exhaust his claims or amending or resubmitting the
habeas petition to present only exhausted claims to
the district court. But Rose requires only that a
district court must dismiss . . . mixed petitions,
leaving the prisoner with the choice described above. In other words, Rose
requires dismissal of mixed petitions, which, as a
practical matter, means that the prisoner must follow
one of the two paths outlined in Rose if he wants
to proceed with his federal habeas petition. But
nothing in Rose requires that both of these options
be equally attractive, much less suggests that
district judges give specific advisements as to the
availability and wisdom of these options.
Pliler, 124 S.Ct. at 2447 (citations and internal quotation
In Rhines v. Weber, 125 S.Ct. 1528 (2005), the Supreme Court
vacated a judgment of the Eighth Circuit holding that a district
court has no authority to stay a mixed petition to allow the
petitioner to present his unexhausted claims to the state court
and then to return to federal court. Noting that "the filing of a
petition for habeas corpus in federal court does not toll the
statute of limitations," id. at 1533, the Court observed that
If a petitioner files a timely but mixed petition in
federal district court, and the district court
dismisses it under Lundy after the limitations
period has expired, this will likely mean the
termination of any federal review. For example, if
the District Court in this case had dismissed the
petition because it contained unexhausted claims,
AEDPA's 1-year statute of limitations would have
barred Rhines from returning to federal court after
exhausting the previously unexhausted claims in state
Id. at 1533.
The Rhines Court held that a district court has the authority
to issue stays only where a stay would be compatible with AEDPA's
purposes, Id. at 1534. The Court determined that "it likely
would be an abuse of discretion for a district court to deny a
stay and to dismiss a mixed petition if the petitioner had good
cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district
court should stay, rather than dismiss, the mixed petition."
Id. at 1535.
In light of Pliler, Rhines, and Jones v. Morton, this
Court holds that the instant § 2254 Petition is barred by the
one-year statute of limitations which expired on April 23, 1997.
Petitioner is not entitled to equitable tolling of the
limitations period that would render his Petition timely.
Accordingly, the Court dismisses the Petition as untimely.
28 U.S.C. § 2244(d)(1).
B. Certificate of Appealability
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 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 (2000), the United States Supreme
Court held: "When the district court denies a habeas 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.
In light of Pliler and Rhines, the Court denies a
certificate of appealability pursuant to 28 U.S.C. § 2253(c)
because jurists of reason would not find it debatable that
dismissal of the Petition as untimely is correct. III. CONCLUSION
Based on the foregoing, the Court dismisses the Petition for a
Writ of Habeas Corpus as untimely, and denies a certificate of
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