United States District Court, D. New Jersey
November 2, 2005.
REMY SAINVALLIER, Petitioner,
TERRANCE MOORE, et al, Respondents.
The opinion of the court was delivered by: FAITH HOCHBERG, District Judge
Petitioner Remy Sainvallier, a prisoner currently confined at
East Jersey State Prison, has submitted a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are
Terrance Moore and the Attorney General of New Jersey.
Following a jury trial in 1985 in the Superior Court of New
Jersey, Law Division, Union County, a jury found Petitioner
guilty of murder and other offenses. On April 16, 1985, the court
sentenced Petitioner to a thirty-year term of imprisonment without eligibility for parole, to be served consecutively to a
previously imposed sentence. On April 14, 1988, the Superior
Court of New Jersey, Appellate Division, affirmed the conviction.
The Supreme Court of New Jersey denied certification on June 23,
1988. (Answer, Exs. 8, 11.)
Petitioner filed a petition for post-conviction relief in the
trial court on May 4, 1992. (Answer, Exs. 12, 13, 14.) On July
20, 1992, the trial court entered an Order denying the PCR
petition because it was time-barred under N.J. Ct.R.
3:22-12.*fn1 (Answer, Exs. 14, 15.) On appeal, by Opinion
filed February 24, 1994, the Appellate Division reversed and
remanded for a hearing to determine the applicability of the
statutory bar. (Answer, Ex. 20.)
On remand, the trial court appointed counsel to represent
Petitioner and conducted a hearing on July 2, 1996, to determine
whether the PCR petition was time-barred.*fn2 On July 9,
1996, the trial court found the PCR petition to be time-barred
because Petitioner had failed to establish the "excusable
neglect" necessary to permit consideration of his petition outside the
five-year limit of Rule 3:22-12. (Answer, Ex. 51.) In reaching
this result, the trial court found that there had been no error
in the jury charge. (Answer, Ex. 51 at 7-8.)
Petitioner filed his notice of appeal on or about November 20,
1996. (Answer, Ex. 23.) On November 24, 1997, the Appellate
Division dismissed Petitioner's appeal for failure to submit a
brief timely. (Answer, Ex. 24.) Petitioner asserts here that he
did not receive notice of the dismissal and, in support of that
assertion, has provided letters from his counsel dated July 31,
1998, and June 6, 1999, stating that counsel was working on the
brief for the Appellate Division. (Traverse, Exs. P.Tr.9 and 10.)
More than three years after the dismissal, on December 11, 2000,
Petitioner moved pro se to reinstate his appeal. On January
29, 2001, the Appellate Division granted Petitioner's motion,
vacated the prior dismissal order, and established a new
scheduling order. (Answer, Ex. 26.)
In his pro se brief before the Appellate Division,
Petitioner challenged the trial court's finding of untimeliness
and raised all the claims raised here, either by arguing them
directly or by incorporating by reference the post-conviction
brief submitted to the Law Division. (Answer, Ex. 27.) On
September 24, 2001, following briefing, the Appellate Division
affirmed the trial court's denial of post-conviction relief. We conclude that defendant's arguments are without
sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We only note that
defendant's petition was filed more than two years
after expiration of the five-year period for filing a
petition for post-conviction relief allowed under
Rule 3:22-12, and that the only reasons defendant
offered for this delay were that he was not initially
provided with a copy of the trial transcript
containing the jury instructions and that, until he
began working in the prison law library, he did not
have the legal knowledge required to perceive the
alleged error in that instruction upon which he now
relies. The trial court correctly concluded that
these reasons were insufficient to justify
defendant's long delay in filing the petition.
Moreover, we note that this court held in State v.
Cupe, 289 N.J. Super. 1 (App.Div.), certif.
denied, 144 N.J. 589 (1996), that the sequential
jury instruction as to murder and passion/provocation
manslaughter that the Supreme Court found to be
improper in State v. Coyle, 119 N.J. 194 (1990)
does not provide a basis for post-conviction relief
with respect to a conviction that predated Coyle.
We further note that in State v. Heslop,
135 N.J. 318, 325 (1994), the Court affirmed a conviction on
direct appeal even though, as in this case, the trial
court had failed "to point out specifically that the
State bears the burden of proof with respect to a
specific aspect of an element of purposeful and
knowing murder, namely the absence of passion and
(Answer, Ex. 29.) In his Petition for Certification, Petitioner
relied upon all the arguments made in the Law Division.*fn3
(Answer, Ex. 30.) On January 24, 2002, the Supreme Court of New
Jersey denied certification. (Answer, Ex. 32.)
On January 15, 2003, this Court received this Petition, which
is dated December 19, 2002. Petitioner asserts as grounds for relief (1) a defective jury instruction on
passion/provocation manslaughter, (2) ineffective assistance of
trial counsel, and (3) ineffective assistance of appellate
counsel. Respondents have answered, asserting that the Petition
is untimely because the PCR application was not "pending" during
the period between its 1997 dismissal and its 2001 reinstatement
by the Appellate Division. Thus, they argue, the state PCR
application did not toll the federal limitations period, which
expired while no state PCR petition was "pending," nor has
Petitioner established grounds for equitable tolling. In
addition, Respondents assert that Petitioner's claims are
unexhausted, procedurally defaulted, and/or meritless. Petitioner
has filed a Traverse in support of the Petition. Accordingly,
this matter is now ready for determination.
As amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody
in violation of the Constitution or laws or treaties
of the United States. The limitation period for a § 2254 habeas petition is set forth
in 28 U.S.C. § 2244(d), which provides in pertinent part:
(1) A 1-year period of limitations shall apply to an
application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
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; . . .
(2) 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 section.
Thus, evaluation of the timeliness of a § 2254 petition requires
a determination of, first, when the pertinent judgment became
"final," and, second, the period of time during which an
application for state post-conviction relief was "properly filed"
A. Statutory Tolling of Limitations Period
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. Where, as here, a conviction became final prior to April 24,
1996, the effective date of § 2244(d), a state prisoner has a
one-year grace period after that effective date to file a § 2254
petition, unless the limitations period is tolled. Burns v.
Morton, 134 F.3d 109, 111 (3d Cir. 1998). Thus, Petitioner must
establish a basis for tolling in order for this Petition to be
An application for state post-conviction relief is considered
"pending" within the meaning of § 2244(d)(2), and the limitations
period is statutorily tolled, from the time it is "properly
filed," during the period between a lower state court's decision
and the filing of a notice of appeal to a higher court, Carey v.
Saffold, 122 S.Ct. 2134 (2002), and through the time in which an
appeal could be filed, even if the appeal is never filed, Swartz
v. Meyers, 204 F.3d at 420-24. However, "the time during which a
state prisoner may file a petition for writ of certiorari in the
United States Supreme Court from the denial of his state
post-conviction petition does not toll the one year statute of
limitations under 28 U.S.C. § 2244(d)(2)." Stokes v. District
Attorney of the County of Philadelphia, 247 F.3d 539, 542 (3d
Cir.), cert. denied, 122 S.Ct. 364 (2001).
Here, Petitioner's state court appeal of the denial of his
petition for post-conviction relief ceased to be "pending" at the
time it was dismissed for failure to file a brief until, at the earliest, the date he filed his application for reinstatement.
Cf., e.g., Moore v. Crosby, 321 F.3d 1377 (11th Cir. 2003)
(leave to file an out-of-time appeal does not "revive" the time
during which no state collateral petition was pending before the
state court) and cases cited therein; Fernandez v. Sternes,
227 F.3d 977 (7th Cir. 2000) (where state court grants leave to
pursue late appeal, the proper period of time to exclude from §
2244(d) limitations period is "all time between the filing of the
request to excuse the default and the state court's decision on
the merits (if it elects to excuse the default)").
Moreover, the state petition for post-conviction relief was
never "properly filed," so as to toll the limitations period at
all. The Supreme Court of the United States recently has
addressed the question whether a state application for
post-conviction relief is "properly filed" if it is ultimately
determined to have been untimely. "In common understanding, a
petition filed after a time limit, and which does not fit within
any exceptions to that limit, is no more `properly filed' than a
petition filed after a time limit that permits no exception."
Pace v. DiGuglielmo, 125 S.Ct. 1807, 1811-12 (2005).
Thus, here, although Petitioner pursued a state PCR
application, as an untimely application under state law it was
not "properly filed," and it can not serve to statutorily toll
the § 2254 limitations period at all. This is so even though the Appellate Division also addressed the merits. See Carey v.
Saffold, 536 U.S. 214, 226 (2002) ("If the California Supreme
Court had clearly ruled that Saffold's 4 1/2-month delay was
`unreasonable,' that would be the end of the matter, regardless
of whether it also addressed the merits of the claim, or whether
its timeliness ruling was `entangled' with the merits."); Brooks
v. Walls, 301 F.3d 839, 841 (7th Cir. 2002) ("both aspects of a
dual-ground decision (substance and procedure) must be
B. Equitable Tolling of Limitations Period
Petitioner contends, in the alternative, that the limitations
period should be equitably tolled, based upon his counsel's
misrepresentations to him that he was preparing a brief for
filing in the Appellate Division.
The limitations period of § 2244(d) is subject to equitable
tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert.
denied, 122 S.Ct. 323 (2001); Jones v. Morton, 195 F.3d 153,
159 (3d Cir. 1999); Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Equitable tolling
only when the principles 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 (citations omitted). Here, counsel's misrepresentations to Petitioner with respect
to the status of the state PCR appeal do not provide a basis for
equitable tolling of the federal limitations period, for
Petitioner's counsel did nothing to mislead Petitioner with
respect to the need to file a timely § 2254 Petition. Here, as
evidenced by their assertion in the 1992 state PCR petition, the
claims Petitioner desired to raise in this Petition were known to
him at the time the federal limitations period began to run in
1996. Petitioner's counsel made no representations to Petitioner
about the federal limitations period or whether the state PCR
petition would toll that limitations period. To the contrary, in
1996, Petitioner already was engaged in litigation as to the
timeliness of his state PCR petition and by the time the PCR
appeal was dismissed in November 1997 the federal limitations
period had already expired. In addition, in 1998, Petitioner's
state PCR counsel advised Petitioner, "Also, since I am not
sanguine about the honesty of the state appellate court process,
please look at the provisions of the federal habeas corpus act,
and in particular, the amendments passed as part of ADEPA [sic],
at 28 U.S.C. § 2244(d)(1) and (d)(2)," the provisions
specifically relating to the limitations period for a § 2254
petition. (Traverse, Ex. P.Tr.9.) Thus, as of 1998, Petitioner
was on notice from his own state PCR counsel that he should be
concerned about the federal § 2254 limitations period. Any
confusion Petitioner may have had about the federal limitations period, and the effect on that limitations period of the state
PCR petition which was untimely and non-tolling from its
inception, did not derive from his state PCR counsel and is not a
basis for equitable tolling of the federal limitations period.
See, e.g., Pace, 125 S.Ct. at 1813-14 (a prisoner unsure
about whether his state action for post-conviction relief is
timely, and, thus, "properly filed," should file a protective
petition in federal court and ask the federal court to stay the
federal habeas proceeding until state remedies are exhausted);
Schlueter v. Varner, 384 F.3d 69 (3d Cir. 2004); Parisi v.
Carroll, 2004 WL 2323007 (D.Del. Oct. 6, 2004). It cannot be
said that Petitioner was diligent about pursuing this federal
habeas Petition. Despite the advice of his counsel in July of
1998, Petitioner did not pursue this habeas Petition until
January of 2003, more than four years later. Petitioner gambled
on the tolling effect of the state PCR petition. Petitioner is
not entitled to equitable tolling.
C. Procedural Default
Even if the Court were to find a basis to toll the one-year
statute of limitations, Respondents correctly argue that
Petitioner's claims are procedurally defaulted.
A procedural default occurs when a prisoner's federal
claim is barred from consideration in the state
courts by an "independent and adequate" state
procedural rule. See, e.g., Doctor v. Walters,
96 F.3d 675, 683 (3d Cir. 1996)]. Federal courts may
not consider the merits of a procedurally defaulted
claim unless the applicant establishes "cause" to excuse the default and actual
"prejudice" as a result of the alleged violation of
the federal law or unless the applicant demonstrates
that failure to consider the claim will result in a
fundamental "miscarriage of justice." Coleman v.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991).
Carpenter v. Vaughn, 296 F.3d 138
, 146 (3d Cir. 2002).
On habeas review of state prisoner claims, a federal court
"will presume that there is no independent and adequate state
ground for a state court decision when the decision `fairly
appears to rest primarily on federal law, or to be interwoven
with the federal law, and when the adequacy and independence of
any possible state law ground is not clear from the face of the
opinion.'" Coleman, 501 U.S. at 734-35 (quoting Michigan v.
Long, 463 U.S. 1032, 1040-41 (1983)).*fn4 Only a "firmly
established and regularly followed state practice" is adequate to
prevent subsequent habeas review in federal court. James v.
Kentucky, 466 U.S. 341, 348-351 (1984). See also Lee v.
Kemna, 534 U.S. 362, 376 (2002) ("Ordinarily, violation of
"firmly established and regularly followed" state rules . . .
will be adequate to foreclose review of a federal claim."
(citations omitted)). Generally speaking, "[a] state court's
refusal to address a prisoner's federal claims because he has not
met a state procedural requirement is both independent and
adequate." Cabrera v. Barbo, 175 F.3d 307, 312 (3d Cir. 1999) (citations
The "cause" standard requires a petitioner to show that some
objective factor external to the defense impeded his efforts to
comply with the state procedural rule. See Coleman,
501 U.S. at 752 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). In
the absence of a Sixth Amendment violation, the petitioner bears
the risk in federal habeas for all attorney errors made in the
course of the representation. Coleman, 501 U.S. at 754. Neither
a pro se prisoner's ignorance of the procedural rule nor
inadvertence satisfies the cause standard. Murray at 485-87.
Failure of the state court to "bend the rules" for a pro se
litigant is not cause. Caswell v. Ryan, 953 F.2d 853, 862 (3d
To establish "prejudice," a petitioner must prove "`not merely
that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimension.'" Murray v. Carrier, 477 U.S. 478,
494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170
(1982)). In the context of an ineffective assistance claim, the
Court of Appeals for the Third Circuit has held that prejudice
occurs where "there is a reasonable probability that, but for
counsel's deficient performance, the result of the proceeding
would have been different." Sistrunk v. Vaughn, 96 F.3d 666,
670 (3d Cir. 1996). In the alternative, in order to establish that failure to
review an otherwise procedurally defaulted claim will result in a
"miscarriage of justice," a petitioner must show that "a
constitutional violation has probably resulted in the conviction
of one who is actually innocent." Carrier, 477 U.S. at 496.
"Thus, to establish a miscarriage of justice, the petitioner must
prove that it is more likely than not that no reasonable juror
would have convicted him." Werts, 228 F.3d at 193 (citing
Schlup v. Delo, 513 U.S. 298, 326 (1995)).
Here, the State court determined that Petitioner's petition for
post-conviction relief was time-barred under N.J.Ct.R. 3:22-12
and that Petitioner had failed to demonstrate excusable neglect
to overcome the bar. Petitioner does not contend that this
procedural rule is anything but a "firmly established and
regularly followed state practice," and State case law suggests
that the rule is firmly established and regularly followed.
See, e.g., State v. Dugan, 289 N.J. Super. 15 (App.Div.),
certif. denied, 145 N.J. 373 (1996); State v. Dillard,
208 N.J. Super. 722 (App.Div.), certif. denied, 105 N.J. 527
(1986). Thus, the State courts denied relief on an independent
and adequate state ground, precluding review here of Petitioner's
claims unless he can meet the "cause" and "prejudice" standard or
demonstrate that failure to consider the claim will result in a
miscarriage of justice. Just as Petitioner failed to establish "excusable neglect" in
state court, he has failed to establish any cause that would have
prevented him filing a timely federal habeas petition. As noted
above, Petitioner was aware of the claims at the time the
limitations period began to run in 1996, and he chose to pursue
those claims in an untimely state petition prior to filing a
habeas petition. Nor has Petitioner established that failure to
consider his claims will result in a miscarriage of justice.
Petitioner has failed to establish grounds that would permit this
Court to overlook his procedural default in state court and to
address the merits of his claims.
III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
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). "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 the issues presented are adequate
to deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). "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." Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Petitioner has failed to establish that jurists of reason would
find it debatable whether this Court is correct in its procedural
ruling. No certificate of appealability shall issue.
For the reasons set forth above, the Petition must be
dismissed. An appropriate order follows.
© 1992-2005 VersusLaw Inc.