United States District Court, D. New Jersey
L.LINARES Chief Judge, United States District Court.
or about November 15, 2017, pro se Petitioner, Julio
Mulero, filed his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his state court
conviction. (ECF No. 1).
Following Petitioner's payment of the applicable filing
fee, this Court entered an order screening Petitioner's
petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases and directing Petitioner to show cause within
thirty days why his petition should not be dismissed as time
barred. (ECF No. 6).
Despite the passage of more than two months, Petitioner has
failed to respond to that order. (ECF Docket Sheet).
this Court explained in the order to show cause,
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 tried and convicted of various
robbery related charges in the Superior Court of New Jersey
at some point prior to October 2008. See State v.
Mulero, 2008 WL 4703109 (N.J. App. Div. Oct. 28, 2008).
Petitioner appealed, and on October 28, 2008, the Appellate
Division affirmed his conviction, but remanded for
resentencing. Id. Petitioner filed a petition for
certification with the New Jersey Supreme Court, but that
petition was denied on January 20, 2009. See State v.
Mulero, 197 N.J. 476 (2009). While that petition was
pending, Petitioner was resentenced on remand on January 7,
2009. (ECF No. 1 at 1). Petitioner once again appealed, and
the Appellate Division affirmed his reduced sentence of 30
years on August 24, 2010. (ECF No. 1 at 3). Petitioner does
not appear to have filed a second petition for certification
following the affirmance of his resentencing. As such,
Petitioner's conviction became final twenty days after
the Appellate Division's affirmance of his sentence on
September 13, 2010, when the time for filing a petition for
certification with the New Jersey Supreme Court expired.
Ross, 712 F.3d at 798; see also N.J. Court
R. 2:12-3 (requiring that an appellant seeking review of a
final decision of the Appellate Division file notice of
petition for certification within twenty days). Thus absent
some form of tolling, Petitioner's one year habeas
limitations period would have expired one year later, on
September 13, 2011.
The Antiterrorism and Effective Death Penalty Act 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)).
Unfortunately for Petitioner, however, he did not file his
PCR petition until October 9, 2012, more than a year after
his limitations period had expired. Statutory tolling is thus
of no benefit to Petitioner as his limitations period had run
more than a year before such tolling could apply to his case,
and Petitioner's habeas petition is therefore untimely
absent some basis for equitably tolling his limitations
period for at least twenty-two months [, including both the
thirteen months of tolling required to prevent the entire one
year limitations period from expiring during the more than
two years between his conviction becoming final and his
filing of his first PCR petition and an additional nine
months which passed between the denial of certification on
PCR and the filing of this petition]. 
Equitable tolling "is a remedy which should be invoked
'only sparingly.'" United States v.
Bass, 268 Fed.Appx. 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
Fed.Appx. 176, 179 (3d Cir. 2014) (quoting Pabon v.
Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)).
In his petition, Petitioner fails to set forth any basis for
the equitable tolling of his limitations period, and this
Court perceives no basis for tolling from the petition.
Petitioner's habeas petition thus appears to be time
barred by at least twenty-two months.
this Court perceives no basis for the equitable tolling of
Petitioner's limitations period, and as Petitioner has
utterly failed to present any such basis insomuch as he has
failed to respond to the Court's order to show cause, it
is clear that Petitioner's current habeas petition is
well and truly time barred. Petitioner's petition shall
therefore be dismissed with prejudice.
Pursuant to 28 U.S.C. §2253(c), a petitioner may not
appeal from a final order in a habeas proceeding where that
petitioner's detention arises out of his state court
conviction unless he has "made a substantial showing of
the denial of a constitutional right." "A
petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further."
Miller-El v. Cockrell,537 U.S. 322, 327 (2003)
(citing Slack v. McDaniel,529 U.S. 473, 484
(2000)). "When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a
[certificate of appealability] 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." Slack, 529
U.S. at 484. Because Petitioner's habeas petition ...