United States District Court, D. New Jersey
BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE.
this Court is Petitioner Tormu Prall's
(“Petitioner”) motion (ECF No. 16) pursuant to
Federal Rule of Civil Procedure 60(b), requesting this Court
vacate its February 1, 2017 Order (ECF Nos. 11-12), which
dismissed his habeas petition as time barred, and reinstate
his petition. For the reasons set forth below,
Petitioner's motion is DENIED.
filed his original habeas petition (“Petition”)
on or about October 5, 2016. (ECF No. 1.) On January 5, 2017,
Petitioner filed an amended petition (“Amended
Petition”). (ECF No. 8.) On January 10, 2017, this
Court entered an order directing Petitioner to show cause why
his Amended Petition should not be dismissed as time barred.
(ECF No. 10.) In response, Petitioner a letter brief on
January 23, 2017. (ECF No. 10.) On February 1, 2017, this
Court entered its order and opinion dismissing the Amended
Petition with prejudice and denying him a certificate of
appealability. (ECF No. 11-12.) This Court explained that
dismissal as follows in its opinion:
Because the Amended Petition is brought pursuant to §
2254, it is subject to a one-year statute of limitations. See
Figueroa, 2015 WL 1403829, at *2. In this case, the one-year
statute of limitations began to run on February 29, 2012, the
“date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review including the 90-day period for filing a
petition for writ of certiorari in the United States Supreme
Court.” Id. Therefore, because
Petitioner's original petition in this matter was not
submitted until September 29, 2016, this action was filed
outside the applicable statute of limitations.
The one-year statute of limitations, however, is subject to
statutory tolling, which automatically applies to the period
of time during which a petitioner has a properly filed PCR
petition pending in the state courts. Figueroa, 2015 WL
1403829 at *2. By Petitioner's own admission, he did not
file his PCR petition in state court until June 11, 2013,
more than three (3) months after the expiration of the
one-year limitations period. (ECF No. 8 at 4.) Therefore, as
the Court explained in the January 10, 2017 Order to Show
Cause, statutory tolling is of no benefit to Petitioner,
unless Petitioner can show that he is entitled to equitable
tolling of the statute of limitations for at least the three
(3) months between March 1, 2013 and June 11, 2013. (See ECF
No. 8 at 3); see also Long v. Wilson, 393 F.3d 390,
394-95 (3d Cir. 2004) (no statutory tolling results if a PCR
application is filed more than a year after the
litigant's judgment became final); Schlueter v.
Varner, 384 F.3d 69, 78-79 (3d Cir. 2004) (same).
Equitable tolling “is a remedy which should be invoked
‘only sparingly.'” United States v.
Bass, 268 F. App'x 196, 199 (3d Cir. 2008) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d Cir.
1998)). To receive the benefit of equitable tolling,
Petitioner must show “(1) that he faced
‘extraordinary circumstances that stood in the way of
timely filing, ' and (2) that he exercised reasonable
diligence.” United States v. Johnson, 590 F.
App'x 176, 179 (3d Cir. 2014) (quoting Pabon v.
Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). Petitioner
fails to provide a basis for equitable tolling in both the
Amended Petition and his response to the Order to Show Cause.
Instead, Petitioner argues in his response that, pursuant to
the Supreme Court's decision in Wall v. Kholi,
562 U.S. 545 (2011), his one-year limitations period was
tolled throughout the entire five-year period during which he
could have filed his PCR petition under New Jersey Court Rule
3:22-12. See N.J. Court Rules, R. 3:22-12 (requiring that all
PCR petitions be filed within five (5) years of the date of
conviction). Petitioner, however, misreads the holding of
The question before the Supreme Court in Wall was
not whether the habeas limitations period was tolled while a
petitioner was entitled to file a petition for review in
state court but did not. Instead, Wall addressed
whether or not Rhode Island's equivalent to a Rule 35
motion qualified as a form of collateral review.
Wall, 562 U.S. at 549-61. Indeed, the Supreme Court
reiterated in Wall that a petitioner is generally
required to file his “federal habeas petition . . .
within one year of the date on which the judgment became
final by the conclusion of direct review. But the 1-year
limitation period is tolled during the pendency of a properly
filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim.” Id. at 549 (internal citations and
quotations omitted). Because the statutory tolling is tied to
“the pendency of a properly filed application, ”
it only applies for the period of time between the filing of
such an application and its ultimate conclusion in the state
courts. See Holland v. Florida, 560 U.S. 631, 635-37
(2010) (calculating statutory tolling from date PRC motion is
filed in state court until date of final state court
decision). Nothing in Wall suggests, let alone
holds, the one-year limitations period is tolled throughout
the entire time during which a petitioner could file
a collateral attack on his conviction. Wall, 562
U.S. at 549-61. Instead, such tolling only applies after a
collateral review petition has been filed and while it
remains pending in the state courts. Wall,
therefore, provides no support for Petitioner's assertion
that he was entitled to tolling for the entire five-year
period in which he could have filed a PCR petition, nor the
assertion that the one-year period restarts once a PCR
petition runs its course.
As explained above, Petitioner's conviction became final
on February 29, 2012. His one-year statute of limitations had
therefore expired as of March 1, 2013, several months before
the date on which Petitioner asserts he filed his PCR
petition. (See ECF No. 10). Consequently,
Petitioner's one-year statute of limitations expired
before he filed his PCR petition in the state courts. The
filing of his PCR petition did not toll or restart the
already expired limitations period. See Long, 393
F.3d at 394-95; Schlueter, 384 F.3d at 78-79.
Petitioner has asserted no other basis for the equitable
tolling of the limitations period, and this Court perceives
no basis for such tolling, based on Petitioner's filings.
Petitioner's habeas petition is thus clearly time-barred,
and is dismissed with prejudice.
(ECF No. 11 at 2-4.)
February 10, 2017, Petitioner filed a notice of appeal and
filed with the Third Circuit a motion requesting a
certificate of appealability. (ECF No. 13.) On March 30,
2017, the Third Circuit dismissed Petitioner's appeal and
denied him a certificate of appealability as
“[r]easonable jurists would not debate the correctness
of the District Court's procedural ruling dismissing
[Petitioner's] federal habeas petition as untimely . . .
and [Petitioner] has not established any basis for equitable
tolling of the one-year limitations period.” (ECF No.
15.) On April 26, 2017, Petitioner filed with this Court his
current motion to vacate the order dismissing his petition.
(ECF No. 16).
support of vacating the February 1, 2017 Order, Petitioner
argues only that his petition should not be time barred
because he filed an earlier habeas petition under Docket
Number 11-6355 (the “2011 Petition”). While
Petitioner has never previously raised this argument, either
in his response to the Court's Order to Show Cause or
before the Third Circuit on appeal, he maintains he omitted
it “due to mistake, inadvertence, and excusable
neglect.” (ECF No. 16 at 3.)
60(b) allows a party to seek relief from a final judgment,
and request reopening of his case, under a limited set of
circumstances including fraud, mistake, and newly discovered
evidence, ” Gonzalez v. Crosby, 545 U.S. 524,
529 (2005), as well as “inadvertence, surprise, or
excusable neglect, ” Fed.R.Civ.P. 60(b)(1). “The
remedy provided by Rule 60(b) is extraordinary, and special
circumstances must justify granting relief under it.”
Jones v. Citigroup, Inc., Civil No. 14-6547, 2015 WL
3385938, at *3 (D.N.J. May 26, 2015) (quoting Moolenaar
v. Gov't of the Virgin Islands, 822 F.3d 1342, 1346
(3d Cir. 1987). A Rule 60(b) motion “may not be used as
a substitute for appeal, and . . . legal error, without more
cannot justify granting a Rule 60(b) motion.”
Holland v. Holt, 409 F. App'x ...