United States District Court, D. New Jersey
BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE
MATTER is opened to the Court by Petitioner Kenneth
Pagliaroli (“Petitioner”) upon the submission of
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 challenging his 2006 state court conviction for
conspiracy, N.J.S.A. 2C:5-2; armed robbery, N.J.S.A. 2C:2-6
and 2C:15-1; aggravated manslaughter, N.J.S.A. 2C:11-4a, as a
lesser-included offense of murder, N.J.S.A. 2C:11-3a(1) and
2C:11-3a(2); and possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4a. (ECF No. 6.)
jury convicted him, the Appellate Division affirmed his
conviction and sentence, State v. Pagliaroli, No.
A-6153-05T4, 2009 WL 928485 ( N.J.Super. Ct. App.Div. Apr. 8,
2009), and the New Jersey Supreme Court denied certification,
State v. Pagliaroli, 976 A.2d 383 (N.J. 2009).
Petitioner did not file a petition for certiorari with the
United States Supreme Court.
February 22, 2010, Petitioner filed a petition for
post-conviction relief (“PCR”). (Am. Pet. ¶
11(a)(1).) The PCR court denied his petition on April 19,
2011 (Am. Pet. ¶ 11(a)(8)), and he filed an appeal on
January 5, 2012 (Am. Pet. ¶ 11(b)(3)). On July 31, 2014,
the Appellate Division partially affirmed, partially reversed
and remanded his PCR petition. State v. Pagliaroli,
No. A-2167-11T3, 2014 WL 3743136, at *6 ( N.J.Super. Ct.
App.Div. July 31, 2014). After an evidentiary hearing on
remand, the PCR court again denied relief and the Appellate
Division affirmed. State v. Pagliaroli, No.
A-5054-14T1, 2017 WL 3027504 ( N.J.Super. Ct. App.Div. July
18, 2017). The New Jersey Supreme Court denied certification
on January 12, 2018. State v. Pagliaroli, 178 A.3d
38, 39 (N.J. 2018). On May 7, 2018, Petitioner filed the
instant habeas Petition. (ECF No. 1.)
governing statute of limitations under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) is found at
28 U.S.C. § 2244(d), which states in relevant part:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to a judgment of a State court. The
limitation period shall run from the latest of-(A) the date
on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
. . .
(2) 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 shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d); see also Jones v. Morton,
195 F.3d 153, 157 (3d Cir. 1999).
to § 2244(d), evaluation of the timeliness of a §
2254 petition requires a determination of, first, when the
pertinent judgment became “final, ” and, second,
the period of time during which an application for state
post-conviction relief was “properly filed” and
“pending.” The judgment is determined to be final
by the conclusion of direct review, or the expiration of time
for seeking such review, including the ninety-day period for
filing a petition for writ of certiorari in the United States
Supreme Court. See Gonzalez v. Thaler, 132 S.Ct.
641, 653-54 (2012).
AEDPA limitations period is tolled, however, during any
period a properly filed PCR petition is pending in the state
courts. 28 U.S.C. § 2244(d)(2); see also Thompson v.
Adm'r New Jersey State Prison, 701 Fed.Appx. 118,
121 (3d Cir. 2017); Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 85 (3d Cir. 2013). The PCR
petition is considered to be pending, and the AEDPA
limitations period continues to be tolled, during the time
the petitioner could have appealed a PCR decision within the
state courts, even if the petitioner did not in fact file
such an appeal. Carey v. Saffold, 536 U.S. 214,
219-21 (2002); Swartz v. Meyers, 204 F.3d 417,
420-24 (3d Cir. 2000) (citing Kapral v. United
States, 166 F.3d 565, 577 (3d Cir. 1999)). If the
petitioner files an untimely appeal the state appellate court
nonetheless addresses on its merits, AEDPA tolling resumes
upon the untimely appeal's filing, but the period between
the deadline for a timely appeal and the actual filing of the
untimely appeal is not tolled. See Evans v. Chavis,
546 U.S. 189, 191, 197, 200-01 (2006) (citing
Saffold, 536 U.S. at 219-21); Douglas v.
Horn, 359 F.3d 257, 263 (3d Cir. 2004) (rejecting notion
that by “filing a nunc pro tunc petition for leave to
appeal a petitioner could obtain further tolling after the
time for even discretionary review of a judgment has
expired”); Thompson, 701 Fed.Appx. at 121-22
(“[A]n application is pending during the period between
(1) a lower court's adverse determination, and (2) the
prisoner's filing of a notice of appeal, provided that
the filing of the notice of appeal is timely under state
law”) (internal quotation marks omitted); Swartz v.
Meyers, 204 F.3d 417, 424, n.6 (3d Cir. 2000) (“We
. . . agree that the time during which Swartz's nunc pro
tunc request for allowance of appeal was pending does not
toll the statute of limitation.”).
Petitioner's judgment became final on October 12, 2009,
when the ninety-day period for filing a petition for writ of
certiorari with the United States Supreme Court expired. His
one-year statute of limitations period then began to run and
was tolled 132 days later when he filed his PCR petition on
February 22, 2010. The PCR court denied his petition on April
19, 2011. He then had 45 days to file his notice of appeal.
See N.J. Ct. R. 2:4-1(a). When he failed to do so,
the statute of limitations period once again began to run on
June 6, 2011. On January 5, 2012, after an additional 213
days of his one-year limitations period ran, he filed his
notice of appeal with the Appellate Division, which tolled
the limitations period. When the New Jersey Supreme Court
denied his petition for certification on January 12, 2018,
his limitations period began running again, and continued
until it expired 20 days later on February 2, 2018. As a
result, the habeas Petition he filed in May 2018 was
approximately three months late.
Holland v. Florida, the Supreme Court held that
AEDPA's one-year limitations period is subject to
equitable tolling in appropriate cases, on a case-by-case
basis. 560 U.S. 631, 649-50 (2010); Ross v. Varano,
712 F.3d 784, 798 (3d Cir. 2013). 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 circumstance
stood in his way.” Holland, 560 U.S. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)); see also Jenkins, 705 F.3d at 89.
diligence required for equitable tolling is reasonable
diligence, not maximum, extreme, or exceptional diligence.
Holland, 560 U.S. at 653. “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.” LaCava v. Kyler, 398 F.3d 271, 277 (3d
Cir. 2005) (citation omitted); see also Alicia v.
Karestes, 389 Fed.Appx. 118, 122 (3d Cir. 2010) (holding
the “obligation to act diligently pertains to both the
federal habeas claim and the period in which the petitioner
exhausts state court remedies”). Reasonable diligence
is examined under a subjective test, and it must be
considered in light of the particular circumstances of the
case. See Ross, 712 F.3d at 799; Schlueter ...