United States District Court, D. New Jersey
L. LINARES CHIEF JUDGE, UNITED STATES DISTRICT COURT.
or about December 23, 2018, Petitioner, Lawrence Brown, filed
a petition for a writ of habeas corpus challenging his 2013
state court robbery convictions. (ECF No. 1 at 1, 15).
January 25, 2019, this Court screened Petitioner's habeas
petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases and entered an order which directed Petitioner to
show cause why his petition should not be dismissed as time
barred. (ECF No. 3).
February 26, 2019, Petitioner filed a response to that order.
(ECF No. 4).
Petitions for a writ of habeas corpus brought pursuant to 28
U.S.C. § 2254 are subject to a one-year statute of
limitations, which in cases such as this one begins to run
when the petitioner's conviction becomes final upon
either the conclusion of direct review or the expiration of
the time for seeking such review, up to and including the
90-day period for the filing of a certiorari petition to the
United States Supreme Court. See Ross v. Varano, 712
F.3d 784, 798 (3d Cir. 2013); Jenkins v. Superintendent
of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013);
see also 28 U.S.C. § 2244(d)(1)(A). According
to the petition and Petitioner's response to the
Court's Order to Show Cause, Petitioner pled guilty to
the robbery charges in October 2012, and was ultimately
sentenced on April 26, 2013. (Document 2 attached to ECF No.
1 at 2; ECF No. 1 at 1; ECF No. 4 at 1). Petitioner did not
file a direct appeal, and his conviction therefore became
final forty-five days later on June 10, 2013. See
N.J. Court Rule 2:4-1 (direct appeals of final judgments
"shall be filed within 45 days of their entry")-
Petitioner's one-year limitations period would therefore
have begun to run on that date, and would have expired one
year later on June 10, 2014, absent some basis for tolling.
Ross, 712 F.3d at 798.
While the one-year limitations period is subject to statutory
tolling, that tolling only applies during the period where a
"properly filed" petition for post-conviction
relief is pending in the state courts. Jenkins, 705
F.3d at 85. According to Petitioner, he did not file his
postconviction relief petition until March 11, 2015. (ECF No.
1 at 3; ECF No. 4 at 2). Because Petitioner did not file his
post-conviction relief petition until nine months after his
one-year limitations period had expired, statutory tolling
would be of no benefit to Petitioner absent some basis for
equitable tolling. Additionally, the Court notes that
Petitioner's PCR petition was denied on June 29, 2016.
See State v. Brown, No. A-0671-16T1, 2017 WL
6421036, at *1 (N.J. App.Div. Dec. 18, 2017). Petitioner
appealed, and the Appellate Division affirmed the denial of
his PCR petition on December 18, 2017. Id. The New
Jersey Supreme Court thereafter denied Petitioner's
petition for certification on May 21, 2018. See State v.
Brown, 235 N.J. 396 (2018). Petitioner did not file his
petition until December 23, 2018, just over seven months
later. (See ECF No. 1 at 16). Thus, even granting
Petitioner the benefit of statutory tolling while his PCR
petition remained pending, his habeas petition is time barred
by just over sixteen months absent some basis for equitable
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 has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way." Ross, 712 F.3d
at 798-99 (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)); see also United States v. Johnson,
590 Fed.Appx. 176, 179 (3d Cir. 2014) (citing Pabon v.
Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). The
diligence prong of this test requires "reasonable
diligence, not maximum, extreme, or exceptional
diligence." Ross, 712 F.3d at 799. This
diligence must be demonstrated not only as to the filing of
the petitioner's habeas petition, but also throughout the
period during which the petitioner is seeking to exhaust
state remedies. Id. Neither lack of counsel, lack of
legal knowledge or ability, nor a lack of information as to
when the limitations period expires are sufficient to excuse
a petitioner's failure to pursue his rights with
reasonable diligence. Id. at 799-800.
his response to the Court's Order to Show Cause,
Petitioner argues that this Court should excuse his late
filing because he was transferred several times during his
federal incarceration - from Brooklyn, New York, to
Minersville, Pennsylvania, in or around March 2013, then from
Minersville to Oklahoma later in 2013 after he spent nine
months in what Petitioner refers to as "detention"
without further explanation, and then to Pine Knot, Kentucky
in December 2014. (ECF No. 4 at 2). Petitioner then states
that he was transferred back to state custody in New Jersey
after the filing of his PCR petition. (Id.).
According to Petitioner, it sometimes took weeks or
"even months" for his personal property to arrive
during some of these transfers. Although Petitioner does not
elaborate further, he appears to be suggesting that these
delays in the delivery of his property delayed him in filing
his collateral attacks on his conviction. (Id.).
Petitioner does not explain how or why his property was
necessary for the filing of his PCR petition or his habeas
petition, nor does he in any way explain what actions he took
to diligently pursue his rights throughout the period between
his sentencing in 2013 and his filing of this petition in
Court finds the fact that Petitioner had been transferred is
insufficient to amount to an "extraordinary
circumstance" warranting equitable tolling. Prison
transfers are part and parcel of the serving of a prison
sentence, and Petitioner's failure to explain how the
late delivery of his personal belongings prevented him from
pursuing his rights in the state court or before this Court
likewise prevents that from amounting to an exceptional
had Petitioner shown an exceptional circumstance, he would
still not be entitled to equitable tolling as he has utterly
failed to detail any steps that he took during his
incarceration which would show that he was acting with
reasonable diligence. Because Petitioner has not presented
any facts which would support a finding of reasonable
diligence throughout the limitations period, he cannot show
that he is entitled to any equitable tolling, let alone the
sixteen months of equitable tolling he would require to
render his current habeas petition timely. Ross, 712
F.3d at 799-800; see also Brown v. Shannon, 322 F.3d
768, 774 (3d Cir. 2003). As Petitioner is not entitled to
equitable tolling, his habeas petition is clearly time barred
by over sixteen months, and his petition must be dismissed as
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 a state court
judgment 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).
"When the district court dismisses the 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 erred in its procedural
ruling." Slock v. McDaniel, 529 U.S. 473, 484
(2000). "Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred ... or that the petition should be
allowed to proceed further." Id. For the
reasons expressed above, Petitioner's habeas petition is
clearly time barred and Petitioner has failed to show that he
is entitled to equitable tolling. As such, jurists of reason
could not debate this Court's dismissal of
Petitioner's habeas petition as time barred, and
Petitioner's habeas petition does not warrant
encouragement to proceed further. Petitioner is thus denied a
certificate of appealability.
conclusion, Petitioner's habeas petition is DISMISSED as
time barred and Petitioner is DENIED a certificate of