United States District Court, D. New Jersey
November 4, 2005.
KERLO BARTHELUS, Petitioner,
W. STANLEY NUNN, et al., Respondents.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Kerlo Barthelus 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, Essex County. Respondents filed an
Answer seeking dismissal of the Petition on several grounds,
including the statute of limitations, 28 U.S.C. § 2244(d). For
the reasons expressed below, the Court dismisses the Petition as
untimely, see 28 U.S.C. § 2244(d)(1)(A) & (d)(2), and denies a
certificate of appealability, see 28 U.S.C. § 2253(c)(2). I. BACKGROUND
Petitioner challenges a judgment of conviction entered in the
Superior Court of New Jersey, Essex County, on January 9, 1998,
after a jury found him guilty of second degree conspiracy to
kidnap and/or murder, and first degree kidnaping. The Law
Division merged the counts, and sentenced Petitioner to a 25-year
term, with a 10-year period of parole ineligibility. Petitioner
appealed. In an opinion filed December 17, 1999, the Superior
Court of New Jersey, Appellate Division, affirmed. State v.
Barthelus, No. A-3863-97T4 slip op. (App.Div. Dec. 17, 1999).
On March 28, 2000, the Supreme Court of New Jersey denied
certification. State v. Barthelus, 163 N.J. 397 (March 28,
On an unspecified date, Petitioner filed a state petition for
post conviction relief in the Superior Court of New Jersey, Law
Division. The petition presented no grounds.*fn1 The Law
Division dismissed the petition at Petitioner's request by order
dated January 7, 2003.*fn2 On August 19, 2003, Petitioner executed the § 2254 Petition
which is now before this Court. The Clerk received it on August
27, 2003. 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 six grounds, none of which raises a right
newly recognized by the United States Supreme Court. The grounds
are set forth below verbatim:
Ground One: LIMITATION OF THE CROSS-EXAMINATION
INFRINGED UPON RIGHTS OF PETITIONER'S CONFRONTATION
DEPRIVED FAIR TRIAL AND VIOLATED RIGHTS PROVIDED
UNDER DUE PROCESS, AND BOTH CONSTITUTIONS UNITED
STATES & N.J.
Ground Two: THE JURY INSTRUCTION VIOLATED
PETITIONER'S RIGHT IN A TRIAL ONE THAT WAS NOT FAIR
AND WAS MISLEAD, THE COURT INSTRUCTED THE JURY ON
ACCOMPLICE LIABILITY AND CONSPIRACY, AND FAILED TO
GIVE STANDARD CHARGE FOR MULTIPLE DEFENDANTS.
Ground Three: THE USE OF PROSECUTION CAL[C]ULATED
METHODS TO PRODUCE CONVICTION DEPRIVED THE PETITIONER
OF A FAIR TRIAL AND VIOLATED THE DUE PROCESS CLAUSE.
Ground Four: THE VERDICTS ARE UNCONSTITUTIONAL
FINDING GUILTY OF FIRST DEGREE KIDNAPING AND NOT
GUILTY OF ATTEMPTED MURDER, AGGRAVATED ASSAULT, AND
[Ground Five:] THE VERDICTS RETURNED WERE AGAINST THE
WEIGHT OF THE EVIDENCE. [Ground Six:] FINALLY THE SENTENCE IS UNLAWFUL, AND
UNCONSTITUTIONAL ALL FOR THE [A]FOREMENTIONED
(Pet. ¶ 12.A.-12.D.)
Respondents filed an Answer, accompanied by the state court
record, arguing, inter alia, that the Petition should be
dismissed as time-barred.
A. Statute of Limitations
On April 24, 1996, Congress enacted the 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 v. Blaine, 326 F.3d 157
, 161 (3d Cir. 2003); 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 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).
An application is "filed" when "it is delivered to, and accepted
by, the appropriate court officer for placement into the official
record." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations
And an application is "properly filed" when its
delivery and acceptance are in compliance with the
applicable laws and rules governing filings. These
usually prescribe, for example, the form of the
document, the time limits upon its delivery, the
court and office in which it must be lodged, and the
requisite filing fee. . . . In some jurisdictions the
filing requirements also include, for example,
preconditions imposed on particular abusive filers,
or on all filers generally. . . . But in common
usage, the question whether an application has been
"properly filed" is quite separate from the question
whether the claims contained in the application are
meritorious and free of procedural bar.
Artuz, 531 U.S. at 8-9 (citations omitted).
A post conviction petition that is untimely under state law is
not "properly filed" within the meaning of § 2244(d)(2). Pace v.
DeGuglielmo, 125 S.Ct. 1807, 1812 (2005) ("We fail to see how
timeliness is any less a `filing' requirement than the mechanical
rules that are enforceable by clerks, if such rules exist").
Jurisdictional matters and fee payments, both of which often
necessitate judicial scrutiny, are also conditions to filing.
Id. In determining whether a filing is "properly filed," courts
are guided by the common usage and common understanding of the
phrase. Pace, 125 S.Ct. at 1811. 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 March 28, 2000. State v. Barthelus, 163 N.J. 397 (2000)
(table). The statute of limitations therefore began to run on
June 26, 2000, 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); Kapral v. United States, 166 F.3d 565,
575 (3d Cir. 1999); 28 U.S.C. § 2244(d)(1)(A). The limitations
period expired 365 days later on June 26, 2001, absent statutory
or equitable tolling.
Petitioner filed a post conviction relief application in the
Law Division at an unspecified time, which the Law dismissed at
Petitioner's request by order dated January 7, 2003. (Pet. ¶ 11;
Answer ¶ 11.) However, Petitioner indicates on the face of the
Petition that his state post conviction filing raised no grounds.
(Pet. ¶ 11.a.3.) Under New Jersey Court Rules,
A petition for post-conviction relief is cognizable
if based upon any of the following grounds:
(a) Substantial denial in the conviction proceedings
of defendant's rights under the Constitution of the
United States or the Constitution or laws of the
State of New Jersey;
(b) Lack of jurisdiction of the court to impose the
judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise
not in accordance with the sentence authorized by
(d) Any ground heretofore available as a basis for
collateral attack upon a conviction by habeas corpus
or any other commonlaw or statutory remedy.
N.J. Ct. R. 3:22-2. A post conviction relief application which contains no grounds
for relief is not "in compliance with the applicable laws and
rules governing filings," Artuz, 531 U.S. at 8, and is
therefore not "properly filed" within the meaning of §
2244(d)(2). Id.; Pace, 125 S.Ct. at 1811-13. Thus, the
statute of limitations was not statutorily tolled when Petitioner
filed his post conviction papers in the Law Division.
The AEDPA statute of limitations is also subject to equitable
tolling. Miller, 145 F.3d at 618. "Generally, 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."
Pace, 125 S.Ct. at 1814. The Third Circuit instructs that
equitable tolling is appropriate 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). Mere excusable neglect is not
sufficient. Id.; Merritt, 326 F.3d at 168; Miller,
145 F.3d at 618-19; Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
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 Cir. 2000)).
Petitioner does not argue that the limitations period should be
equitably tolled. This Court has reviewed the submissions of the
parties and has found no extraordinary circumstance that might
warrant equitable tolling of the limitations period. Under these
circumstances, the statute of limitations expired on June 26,
2001. Because Petitioner filed his § 2254 Petition on August 19,
2003, and because he was not entitled to statutory or equitable
tolling for any of that period, his Petition is barred by the
statute of limitations. This 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. This 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.
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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