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Kwesi Hudson v. State of New Jersey

May 1, 2012


The opinion of the court was delivered by: Renee Marie Bumb United States District Judge


This matter comes before the Court upon Petitioner's motion for reconsideration, see Docket Entry No. 5, and it appearing that:

On November 30, 2011, the Clerk received Petitioner's application for a writ of habeas corpus, executed pursuant to 28 U.S.C. § 2254 ("Petition"). See Docket Entry No. 1. On December 22, 2011, the Court dismissed the Petition as untimely. See Docket Entry No. 3 (dismissing the Petition and declining to issue a certificate of appealability). However, the Court expressly stated:

Although the Petition at hand appears time-barred, this Court is mindful of Petitioner's pro se litigant status and cannot rule out the possibility that Petitioner: (a) has valid grounds to seek equitable tolling; but (b) somehow omitted to address this vital issue in his instant application . . . . In the event Petitioner has a basis to hold a bona fide belief that his Petition is timely, the Court strongly encourages Petitioner to seek reconsideration of the instant Order. To that effect, the Court notes that Petitioner's motion for reconsideration need not be a formal submission, and a mere written statement of pertinent facts would suffice (although Petitioner's discussion of these facts must be detailed and shall address the entirety of the period at issue, i.e., from August 18, 2005, to November 22, 2011).

Docket Entry No. 2, at 10-11, n.2.

In accordance with the guidance provided to him, Petitioner moved for reconsideration of this Court's order dismissing his Petition as untimely. See Docket Entry No. 5. Petitioner's motion stated, in relevant part:

Overall perhaps a great deal of the problem

[P]petitioner has had with meeting procedural timeframes is that he was constantly transferred from one state prison to another between the years of 2004 through 2011. Because [P]petitioner was never stationary for any significant period of time, his legal correspondence was often returned to sender or misplaced. Likewise [P]petitioner did not have the benefit of counsel at critical stages of the appellate process, including the commencement of habeas corpus action. Moreover

[P]petitioner was misguided by appellate counsel into believing that "PCR" was a necessary exhaustion before pursuing a petition for habeas corpus relief. In effect [P]petitioner was directed into a procedural default under the "AEDPA", by the misguidance of appellate counsel. As a Pro Se litigant [P]petitioner was wholly unfamiliar with the requirements under the "AEDPA". Petitioner has always pursued the appeal of his conviction in a timely manner, to the best of his ability.

Docket Entry No. 5, at 3-4.

On the basis of the foregoing, Petitioner requests a grant of equitable tolling.*fn1 See id. at 4.

For the reasons below, Petitioner's position is without merit.

Petitioner is correct that, in a certain scenario, the conduct of a litigant's attorney might provide a valid basis for equitable tolling. Such circumstance, however, might result only from the acts qualifying as attorney's actual or constructive abandonment of his/her client, and that abandonment must either occur in, or directly affect, the very action with regard to which equitable tolling is being sought. See Nara v. Frank, 264 F.3d 310 (3d Cir. 2001) (ordering evidentiary hearing as to equitable tolling where petitioner facing the death penalty was effectively abandoned by his lawyer), overruled on other grounds, Carey v. Saffold, 536 U.S. 214 (2002); see also Holland, 130 S. Ct. at 2565 (where attorney "failed to communicate with his client over a period of years, despite various pleas from [client, and] the failures seriously prejudiced a client who thereby lost what was likely his single opportunity for federal habeas review of the lawfulness of . . . his death sentence," such gross misconduct might have constituted extraordinary circumstances); accord Seitzinger v. Reading Hosp. and Med. Ctr., 165 F. 3d 236, 237 (3d Cir. 1999) (equitable tolling was appropriate in Title VII case where "a diligent client persistently questioned the lawyer as to whether he had filed the complaint in time, and he affirmatively misrepresented to her that he had"). Moreover, an attorney's neglect/abandonment may qualify as an "extraordinary circumstance" warranting equitable tolling only if such neglect/abandonment is shown to be "egregious." See Holland, 130 S. Ct. at 2563 ("[A]t least sometimes, professional misconduct . . . could . . . amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling"); compare Johnson v. Hendricks, 314 F.3d 159, 160 (3d Cir. 2002) (an attorney's mistake in determining the petition's due date did not constitute extraordinary circumstances); Smith v. Gillis, 2004 WL 573957, at *3 (E.D. Pa. Mar. 4, 2004) (an attorney's failure to timely notify petitioner of the state court's decision affirming the dismissal of his petition was not an extraordinary circumstance).

In Holland, supra, the Supreme Court found that the conduct of a federal habeas petitioner's attorney could "be an 'extraordinary' instance [if the] petitioner's attorney's conduct constituted far more than 'garden variety' [error] or 'excusable neglect.'" Id. at 2564. It might occur where the attorney: failed to file [the petitioner's] federal petition on time despite [the petitioner's] many letters that repeatedly emphasized the importance of his doing so. [The attorney] apparently did not do the research necessary to find out the proper filing date, despite [the petitioner's] letters that went so far as to identify the applicable legal rules. [The attorney also] failed to inform [the petitioner] in a timely manner about the crucial fact that the Florida Supreme Court had decided his case, again despite [the ...

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