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Hester v. State of New Jersey
United States District Court, D. New Jersey
September 29, 2017
MELVIN HESTER, Petitioner,
STATE OF NEW JERSEY, et al., Respondents
C. CECCHI, UNITED STATES DISTRICT JUDGE.
matter has come before the Court on the Petition for Writ of
Habeas Corpus of Petitioner Melvin Hester, for relief under
28 U.S.C. § 2254. The Court previously conducted its
screening on the Petition and issued a show-cause order,
directing Petitioner to respond as to why the Petition should
not be dismissed as time-barred. (ECF No. 8.) Presently
before the Court is Petitioner's response to that order.
(ECF No. 9.) It appearing:
1. As the Court found in its previous order, Petitioner was
sentenced in state court on June 29, 2005. (ECF No. Sat 1.)
He did not appeal his conviction and sentence. (Jd.)
Thereafter, he filed an application for post-conviction
relief ("PCR") on March 26, 2007. (Id.)
Because of this almost two-year gap between his sentence and
the filing of his PCR application, the Court held that the
Petition appears untimely absent any argument for equitable
tolling. (Id. at 4.)
2. "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 v. Goodwin, No. 09-1046, 2009 WL
1307449, at *3 (D.N.J. May 1, 2009) (internal citations
3. "The diligence required for equitable tolling
purposes is reasonable diligence." Ross, 111
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.
4. "[F]or a petitioner to obtain relief there must be a
causal connection, or nexus, between the extraordinary
circumstances he faced and the petitioner's failure to
file a timely federal petition." Ross, 712 F.3d
at 803. "To secure equitable tolling, it is not enough
for a party to show that he experienced extraordinary
circumstances. He must further demonstrate that those
circumstances caused him to miss the original filing
deadline." Id. at 803 n.29 (quoting Harper
v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011)). "The
word 'prevent' requires the petitioner to demonstrate
a causal relationship between the extraordinary circumstances
on which the claim for equitable tolling rests and the
lateness of his filing, a demonstration that cannot be made
if the petitioner, acting with reasonable diligence, could
have filed on time notwithstanding the extraordinary
circumstances." Id. (quoting Valverde v.
Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
5. In his response. Petitioner raises two arguments for
equitable tolling. First, he argues that equitable tolling is
warranted because his trial counsel failed to file a direct
appeal of his conviction and sentence. Had the appeal been
filed, he would not have been required to file a PCR
application as early as August of 2006. (See ECF No.
8 at 3.) However, he also concedes in his response that he
learned about the PCR process in November of 2005, more than
a year before he actually filed his PCR application. (ECF No.
9 at 6.) As such, even if the Court is inclined to give him
some kind of equitable tolling for his counsel's failure
to file a direct appeal, that extraordinary circumstance
ended in November of 2005, when Petitioner learned of his
right to file a PCR application and challenge his trial
counsel's ineffective assistance. Because the PCR application
was filed more than a year after this alleged extraordinary
circumstance ended, the Petition is still untimely.
6. Petitioner's second argument for equitable tolling
appears to be a general assertion that he was denied access
to the prison law library during his entire period of
incarceration. However, he does not explain why this lack of
access to the prison law library prevented him from
filing his PCR application promptly. Petitioner attaches
voluminous grievance forms to his response as proof of the
denial to the law library, but the Court has carefully
reviewed them all, and none of the grievance forms explains
his lateness in, filing the PCR application-all grievance
forms attached were filed in 2015 and 2016, which are
completely irrelevant to his argument that he was denied
library access more than ten years ago. Indeed, despite the
alleged denial of access, Petitioner again concedes that he
was able to become a paralegal in 2007 while in prison.
(Id. at 20.) The Court fails to see how the denial
of access was so great as to prevent him from filing
a PCR application, yet allowed him to become a paralegal
during the same time period, hi sum, there is no support that
any alleged denial of library access caused him to file his
PCR application more than a year after his judgment became
final, so the Court rejects his argument for equitable
tolling on this ground.
7. Having rejected all of his arguments for equitable
tolling, the Court now finds that the Petition is
time-barred, and dismisses the Petition.
8. Finally, the Court denies a certificate of appealability.
Federal law provides that an appeal may not be taken to the
court of appeals fi-om 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). hi Slackv.
McDaniel, 529 U.S. 473, 484 (2000), the United States
Supreme Court held that "[w]hen 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." Here, 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 is correct.
Petitioner, in fact, did raise
an ineffective assistance of counsel claim in his PCR
proceeding regarding the failure of his counsel to file a
direct appeal. State v. Hester, Indictment No.
04-05-0518, 2013 WL 5853367, at *4 ( N.J.Super.Ct.App.Div.
Nov. 1, 2013). State court rejected ...
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