United States District Court, D. New Jersey
ARDIS, Petitioner Pro Se
G. TYNER, Atlantic County Prosecutor By: JOHN J.
SANTOLIQUIDO, Assistant Prosecutor Atlantic County
Prosecutor's Office Attorney for Respondents
B. SIMANDLE U.S. DISTRICT JUDGE.
a continuation of Respondents' motion to dismiss the
petition for writ of habeas corpus as time-barred. Motion to
Dismiss, Docket Entry 6. The Court reserved its decision and
administratively terminated the motion on March 6, 2018 after
directing the parties to submit supplemental briefing. March
6, 2018 Opinion and Order, Docket Entries 11 & 12. Pro se
Petitioner Marc Ardis opposes the motion and requests
equitable tolling. Opposition, Docket Entry 9; Motion for
Equitable Tolling, Docket Entry 14. The matter is being
decided on the papers pursuant to Federal Rule of Civil
principal issues to be decided are: (1) whether
Petitioner's post-conviction relief petition was
“pending” in the state court between September
29, 1997 and July 22, 2002, and if not, (2) whether
Petitioner is entitled to equitable tolling of that time. For
the reasons stated below, the Court finds that the
post-conviction relief petition was not “pending”
in the state court during the relevant time and that
Petitioner is not entitled to equitable tolling.
Respondent's motion to dismiss is therefore granted.
jury trial following a waiver from juvenile court,
Petitioner received a sixty-eight year
sentence for first-degree aggravated sexual assault, N.J.
Stat. Ann. § 2C:14-2(a); third-degree aggravated
criminal sexual conduct, N.J. Stat. Ann. § 2C:14-3(a);
second-degree burglary, N.J. Stat. Ann. § 2C:18-2;
second-degree sexual assault, N.J. Stat. Ann. §
2C:14-2(c); third-degree terroristic threats, N.J. Stat. Ann.
§ 2C:12-3(a); and first-degree kidnapping, N.J. Stat.
Ann. § 2C:13-1(b). Respondent's Exhibit
The judgment of conviction was entered on June 1, 1993.
Id. Petitioner appealed to the Superior Court of New
Jersey, Appellate Division (“Appellate
Appellate Division affirmed his convictions but remanded to
the trial court for resentencing. State v. Ardis,
No. A-508-93 ( N.J.Super.Ct.App.Div. Jul. 18, 1995) (per
curiam) (slip op. at 7); Respondent's Exhibit 2. The
appellate court instructed the trial court to make the
sentences concurrent instead of consecutive. “Defendant
will still be subject to a fifty-year parole-ineligibility
term, and not be eligible for parole until he is sixty-six
years old.” Id. The New Jersey Supreme Court
denied certification on November 8, 1995. State v.
Martin, 670 A.2d 1062 (N.J. 1995); Respondent's
Exhibit 3. The trial court resentenced Petitioner on October
16, 1996. Respondent's Exhibit 4.
filed a petition for post-conviction relief
(“PCR”) in the state courts on April 11, 1997.
Respondent's Exhibit 5. The PCR court denied the petition
without an evidentiary hearing on September 29, 1997.
Respondent's Exhibit 6. Petitioner appealed on July 22,
2002, Respondent's Exhibit 7, and the Appellate Division
granted leave to appeal nunc pro tunc on August 22, 2002.
See State v. Ardis, No. A-6161-01 (
N.J.Super.Ct.App.Div. Jan. 9, 2004) (per curiam) (slip op. at
3 n.2); Respondent's Exhibit 8. The Appellate Division
reversed the denial of PCR and remanded for further
petition was again denied without an evidentiary hearing on
December 21, 2005. Respondent's Exhibit 9. The Appellate
Division affirmed. State v. Ardis, No. A-4602-05,
2007 WL 3342104, at *2 ( N.J.Super.Ct.App.Div. Nov. 13,
2007); Respondent's Exhibit 10. The New Jersey Supreme
Court denied certification on February 21, 2008. State v.
Ardis, 944 A.2d 31 (N.J. 2008); Respondent's Exhibit
August 11, 2008, Petitioner submitted a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 to this
Court, accompanied by a motion for a stay and abeyance
pending a return to the state courts. Ardis v.
Ricci, No. 08-4301 (D.N.J. filed Aug. 22, 2008) (Docket
Entry 1). This Court granted his in forma pauperis
application and issued a Mason Notice and Order
on October 9, 2008. No. 08-4301, Docket Entries 2 & 3.
Petitioner wrote back to the Court inquiring as to the status
of the motion for a stay, and the Court ordered Respondents
to respond to the stay motion. No. 08-4301, Docket Entries 4
& 5. Respondents filed a letter opposing the stay on
March 11, 2009. No. 08-4301, Docket Entry 8. The Court
granted Petitioner's motion for a stay on May 19, 2010.
No. 08-4301, Docket Entry 15.
April 28, 2017, Petitioner submitted an amended § 2254
petition. It was assigned to the Honorable Renée Marie
Bumb, U.S.D.J., and reassigned to the undersigned on June 8,
2017. The Court ordered Respondent to answer or file an
appropriate motion on July 13, 2017. Order to Answer, Docket
filed a motion to dismiss, arguing that the § 2254
petition is untimely under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) as Petitioner
did not comply with this Court's order staying the habeas
proceedings, which required Petitioner to return to the state
courts within 30 days. Petitioner opposes the motion, arguing
his PCR attorneys were ineffective in preparing and
presenting his PCR petitions, causing significant delays in
the state court proceedings. See Opposition.
reviewing the motion, the Court concluded that the petition
may have been untimely even before the original § 2254
petition was filed on August 11, 2008 due to the length of
time between the denial of Petitioner's PCR petition,
September 29, 1997, and his filing of a notice of appeal,
July 22, 2002. March 6, 2018 Opinion and Order. It directed
the parties to submit supplemental briefing on whether the
PCR petition remained “pending” under state law
during that time and gave Petitioner an additional
opportunity to argue for the application of equitable
tolling. See Respondent's Supplemental Brief,
Docket Entry 13; Motion for Equitable Tolling, Docket Entry
STANDARD OF REVIEW: STATUTE OF LIMITATIONS FOR FILING