United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge
or about August 12, 2017, Petitioner, William Manigo, filed
his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his state court aggravated
manslaughter conviction. (ECF No. 1).
October 6, 2017, after Petitioner paid the appropriate filing
fee, this Court entered an Order screening Plaintiff's
habeas petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in which the Court found that the petition
appeared to be time barred. (ECF No. 3). As such, this Court
ordered Petitioner to show cause within thirty days why his
petition should not be dismissed as time barred.
Petitioner has not filed a response to that Order, despite
the passage of well over three months. (ECF Docket
this Court previously explained,
this Court is required to preliminarily review his petition
under Rule 4 of the Rules Governing Section 2254 Cases and
determine whether it “plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief.” Under this Rule, this Court is
“authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
Petitions for a writ of habeas corpus brought pursuant to 28
U.S.C. § 2254 are subject to a one year statute of
limitations. See See Ross v. Varano, 712 F.3d 784,
798 (3d Cir. 2013); see also Jenkins v. Superintendent of
Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013). In
most cases, including this one, that one year statute of
limitations begins to run 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 including the
90-day period for filing a petition for writ of certiorari in
the United States Supreme Court. Ross, 712 F.3d at
798; Jenkins, 705 F.3d 84; see also 28
U.S.C. § 2244(d)(1)(A).
In this matter, Petitioner was convicted after a jury trial
and was sentenced on October 17, 2008. (ECF No. 1 at 2).
Petitioner appealed, and the Superior Court of New Jersey -
Appellate Division affirmed his conviction by way of an
opinion issued on August 1, 2011. See State v.
Manigo, 2011 WL 3241488 (N.J. App. Div. Aug. 1, 2011).
Petitioner thereafter filed a petition for certification,
which was denied by the New Jersey Supreme Court on January
13, 2012. State v. Manigo, 209 N.J. 97 (2012). As
Petitioner did not file a petition for certiorari, his
conviction became final ninety days later on April 12, 2012,
and Petitioner's one year statute of limitations began to
run as of that date. Absent some form of tolling, then,
Petitioner's one year limitations period would have run
by April 12, 2013.
The AEDPA statute of limitations is subject to statutory
tolling which automatically applies to the period of time
during which a petitioner has a properly filed petition for
post-conviction relief (PCR) pending in the state courts.
Jenkins, 705 F.3d at 85 (quoting 28 U.S.C. §
2244(d)(2)). According to Petitioner he filed his PCR
petition on December 11, 2012. (ECF No. 1 at 4). The state
PCR trial court denied that petition in 2013, and Petitioner
appealed. The Appellate Division affirmed the denial of
Petitioner's PCR petition on February 25, 2016. State
v. Manigo, 2016 WL 731871 (N.J. App. Div. Feb. 25,
2016). Petitioner thereafter sought certification, which was
denied by the Supreme Court on November 3, 2016. See
State v. Manigo, 228 N.J. 246 (2016).
Based on this procedural history, Petitioner's one year
limitations period began to run on April 12, 2012. Two
hundred and forty three days of that one year period expired
before Petitioner filed his PCR petition on December 11,
2012. Petitioner's one year limitations period was
thereafter tolled while his PCR remained pending. That
tolling, however, expired once the New Jersey Supreme Court
denied certification on November 3, 2016. Petitioner's
one year limitations period resumed running as of that date,
and the remaining one hundred and twenty two days of
Petitioner's limitations period had thus run by March 5,
2017. Petitioner's current habeas petition therefore
appears to be time barred by approximately five months absent
some basis for equitable tolling.
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, a
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)).
(ECF No. 3 at 1-3, paragraph numbers omitted).
Petitioner provided no basis for the equitable tolling of the
limitations period in his original petition, and, despite the
passage of over three months since the Court entered its
Order directing Petitioner to show cause why his petition
should not be dismissed, Petitioner has failed to respond or
otherwise provide this Court with any basis for finding that
his petition is entitled to equitable tolling. As
Petitioner's habeas petition is time barred by five
months, as Petitioner has failed to show any basis for the
equitable tolling of the one year limitations period, and as
this Court ...