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Pagliaroli v. Johnson

United States District Court, D. New Jersey

September 6, 2018

KENNETH PAGLIAROLI, Petitioner,
v.
STEVEN S. JOHNSON, Respondent.

          MEMORANDUM ORDER

          HON. BRIAN R. MARTINOTTI, UNITED STATES DISTRICT JUDGE

         THIS 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.)

         After a 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.

         On 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.)

         The 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 review;
. . .
(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 subsection.

28 U.S.C. § 2244(d); see also Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).

         Pursuant 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).

         The 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.”).[1]

         Here, 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.[2]

         In 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.

         The 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 ...


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