United States District Court, D. New Jersey
FRANCIS R. GANNONE, JR., Petitioner,
STEPHEN D'ILIO, et al. Respondents.
MEMORANDUM AND ORDER
MICHAEL A. SHIPP, United States District Judge
matter has come before the Court on the Petition for Writ of
Habeas Corpus of Petitioner Francis R. Gannone, Jr., for
relief under 28 U.S.C. § 2254. The Court has considered
the Petition, the records of proceedings in this matter, and
the Answer-Petitioner did not file a reply. Upon careful
review, it appears that:
Petition is time-barred by the one-year statute of
limitations period under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"). See
28 U.S.C. § 2244(d)(1).
Respondents, in their Answer, did not address this timeliness
Nevertheless, "district courts are permitted, but not
obliged, to consider, sua sponte, the timeliness of
a state prisoner's habeas petition." Day v.
McDonough, 547 U.S. 198, 209 (2006). The district court
may raise sua sponte the AEDPA statute of
limitations defense even after an answer has been filed.
Day, 547 U.S. at 209; Long v. Wilson, 393
F.3d 390, 404 (3d Cir. 2004). "[B]efore acting on its
own initiative, a court must accord the parties fair notice
and an opportunity to present their positions. Further, the
court must assure itself that the petitioner is not
significantly prejudiced by the delayed focus on the
limitation issue, and determine whether the interests of
justice would be better served by addressing the merits or by
dismissing the petition as time barred." Day,
547 U.S. at 210 (internal quotations omitted). “[A]fter
the Rule 4 period has ended, courts may continue to raise the
AEDPA statute of limitations issue sua sponte, but
only after providing . . . notice, an opportunity to respond,
and an analysis of prejudice." United States v.
Bendolph, 409 F.3d 155, 158 (3d Cir. 2005). "[T]he
AEDPA statute of limitations is an important issue, the
raising of which may not necessarily be left completely to
the state." Long, 393 F.3d at 402. "[T]he
statute of limitation implicates the interests of both the
federal and state courts, as well as the interests of
society, and therefore it is not inappropriate for the court,
on its own motion, to invoke the doctrine." Id.
(quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir.
Based on the Court's review of the Petition and Answer,
it appears that the Petition is statutorily time-barred.
Title 28, Section 2244 of the U.S. Code requires 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). In most cases, and in this
particular case, the one-year period begins on "the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review." 28 U.S.C. § 2244(d)(1)(A). Based on the
statutory language, the Supreme Court has held that even when
a defendant does not file a petition for certiorari with the
United States Supreme Court on direct review, the one-year
limitations period starts to run when the time for seeking
such review expires. Gonzalez v. Thaler, 565 U.S.
134, 149 (2012); Clay v. United States, 537 U.S.
522, 532 (2003); Swartz v. Meyers, 204 F.3d 417, 419
(3d Cir. 2000); Gibbs v. Goodwin, No. 09-1046, 2009
WL 1307449, at *2 (D.N. J. May 1, 2009) (holding that the
period of direct review "include[s] the 90-day period
for filing a petition for writ of certiorari in the United
States Supreme Court").
"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, "
however, "shall not be counted toward any period of
limitation under this subsection." 28 U.S.C. §
2244(d)(2). In other words, while a valid state
post-conviction review is pending, the one-year limitation is
tolled. This tolling does not include any petition for writ
of certiorari in the United States Supreme Court for review
of a denial of post-conviction relief. Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80, 85 n.5
(3d Cir. 2013) (citing Lawrence v. Florida. 549 U.S.
327, 332(2007)). Overall, the "limitation period
'does not set forth an inflexible rule requiring
dismissal whenever its clock has run.'" Id.
at 84-85 (quoting Holland v. Florida, 560 U.S. 631,
645 (2010)). Rather, the limitations period is subject to
both statutory and equitable tolling. Id. at 85.
if the statutory time bar has passed, Petitioner may overcome
that limitation if he can show a basis for equitable tolling.
Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001);
Gibbs, 2009 WL 1307449, at *3. "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
circumstances stood in his way." Ross v.
Varano, 712 F.3d 784, 798 (3d Cir. 2013) (citations
omitted). "Extraordinary circumstances permitting
equitable tolling have been found where: (1) the petitioner
has been actively misled; (2) the petitioner has been
prevented from asserting his rights in some extraordinary
way; (3) the petitioner timely asserted his rights in the
wrong forum, or (4) the court has misled a party regarding
the steps that the party needs to take to preserve a
claim." Gibbs, 2009 WL 1307449, at *3 (internal
"The diligence required for equitable tolling purposes
is reasonable diligence." Ross, 712 F.3d at
799. "This obligation does not pertain solely to the
filing of the federal habeas petition, rather it is an
obligation that exists during the period appellant is
exhausting state court remedies as well." Id.
"The fact that a petitioner is proceeding pro se does
not insulate him from the 'reasonable diligence'
inquiry and his lack of legal knowledge or legal training
does not alone justify equitable tolling." Id.
Here, Petitioner's judgment of conviction became final 90
days after the New Jersey Supreme Court denied his petition
for certification on June 4, 2004, (Order, June 4, 2004, ECF
No. 16-7), or September 2, 2004. Petitioner did not file his
application for post-conviction relief ("PCR")
until May 9, 2005. (Pet. for PCR, ECF No. 16-8 at 3.) As
such, 249 days ran from his AEDPA one-year limitations
PCR application was denied by the trial court on September
18, 2007. (Order Denying PCR, Sept. 18, 2007, ECF No. 16-16
at 34.) State rules required an appeal to be filed within 45
days after the denial order, or before November 2, 2007.
See N.J. Ct. R. 2:4-1 (a), Lombardi v.
Masso, 207 N.J. 517, 540-41 (2011). Petitioner, however,
did not file a notice of appeal until December 3, 2008.
(Pet'r's Br. for First PCR Appeal 7, ECF No. 16-14.)
Thus, another 397 days ran from his AEDPA one-year
limitations period. See Swartz v. Meyers, 204 F.3d
417, 423 n.6 (3d Cir. 2000) ("We . . . agree that the
time during which [the petitioner's] nunc pro tunc
request for allowance of appeal was pending does not toll the
statute of limitation.").
appellate court on appeal remanded the matter to the trial
court for further proceedings, and the trial court again
denied PCR on August 24, 2011. (Pet'r's Br. for
Second PCR Appeal 8, ECF No. 16-23.) Petitioner had until
October 8, 2011 to appeal that denial, but a notice of appeal
was not filed until February 21, 2012, causing another 136
days to lapse from the AEDPA statute of limitations period.
Finally, the New Jersey Supreme Court denied Petitioner's
petition for certification on the PCR denial on June 5, 2014.
(Order, June 5, 2014, ECF No. 16-30.) The instant Petition
was not filed until September 23, 2014, (Pet. 16, ECF No. 1),
causing yet another 110 days to run from the statute of
limitations. In sum, a total of at least 892 days ran from
Petitioner's one-year limitations period, making the
Petition grossly untimely. Indeed, the various delays
certainly appear to show that Petitioner did not exercise due
diligence during his state PCR proceedings, a significant
factor in why a judgment of conviction that became final in
2004 did not reach this Court on federal habeas until 2014,
some ten years later.
Because the Court is raising sua sponte the issue of
timeliness, the Court will give Petitioner a chance to argue
for equitable tolling. Particularly, Petitioner may submit to
this Court any arguments, supported by evidence, as to why
the delays detailed above should be excused and equitably
tolled. Petitioner ...