United States District Court, D. New Jersey
petitioner, Victor Sanchez, is a state prisoner at East
Jersey State Prison in Rahway, New Jersey. He is proceeding
pro se with this habeas proceeding under 28 U.S.C. §
2254. On January 11, 2019, 1 issued a Memorandum and Order to
Show Cause directing Mr. Sanchez to show cause in writing
within 45 days why his habeas petition should not be
dismissed as untimely under the one-year limitations period
created by the Anti-Terrorism and Effective Death Penalty Act
('AEDPA"). (DE 2.) Mr. Sanchez has responded to that
Order to Show Cause, and I now consider whether the petition
is timely, AEDPA imposes a one-year limitations period for
habeas petitions by state prisoners. The limitations period
typically begins to run when the underlying judgment
"bec[omes] final by the conclusion of direct review or
the expiration of the time for seeking such review." 28
U.S.C. § 2244(d)(1)(A); see also Ross v.
Varano, 712 F.3d 784, 798 (3d Cir. 2013). According to
Mr. Sanchez's petition, in 2012 he pled guilty in New
Jersey Superior Court, Essex County, to first-degree
aggravated manslaughter and unlawful possession of a weapon,
and he was sentenced to 25 years in prison with 85% parole
ineligibility. (DE 1 ¶¶ 1-6.) In December 2012, the
Superior Court, Appellate Division, affirmed his sentence but
"remanded the matter in order to delete aggravating
factor N.J.S, A. 2C:44-la(6) from the judgment of
conviction." (Id. ¶ 9.) The petition
states that an amended judgment of conviction was issued on
January 10, 2013 and that Mr. Sanchez sought "[n]o
further review on Direct." (Id.) Mr. Sanchez
indicated that he filed a petition for post-conviction relief
("PCR") with the New Jersey Superior Court on
December 9, 2014. (Id. ¶¶ 11-12.)
these facts, I determined that it appeared that Mr.
Sanchez's time to file a federal habeas petition had
expired before he commenced his state PCR action.
Specifically, I noted that if the Superior Court issued a
judgment of conviction on January 10, 2013, from which Mr.
Sanchez took no direct appeal, then his judgment became final
on February 24, 2013, when his time to appeal expired.
(See DE 2.) Thus, I concluded that the one-year
period during which Mr. Sanchez could file a habeas petition
expired as of February 24, 2014. (Id.) By order to
show cause, however, I gave him an opportunity to show that
this analysis was incorrect or that the AEDPA limitations
period should be tolled.
response to the order to show cause, Mr. Sanchez asserts
that, after the amended judgment of conviction was entered on
January 10, 2013, "the office of the public defender led
[him] to [believe] that [he] needed to petition to the State
Supreme Court of New Jersey for certification, however, that
office nor the attorney assigned would be doing the petition
for me." (DE 3 ¶ 14.) He further asserts that both
he and his family "diligently pursued help from the
office of the public defender to continue appealing my
sentence unsuccessfully." (Id.) Mr. Sanchez
asserts that he lacked the capacity to file his own appeal
and "was not informed of any tolling of time," and
he thus argues that these facts show extraordinary
circumstances warranting equitable tolling. (Id.
Supreme Court established, in Holland v. Florida,
560 U.S. 631 (2010), that attorney malfeasance may warrant
equitable tolling of the AEDPA limitations period.
Id. at 645-54. Equitable tolling will be granted,
however, only if a petitioner can demonstrate "(1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing." Id. at 649 (internal quotation
marks omitted); see also Ross, 712 F.3d at 798;
Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 89 (3d Cir. 2013). The Holland Court
emphasized that such determinations, which are equitable in
nature, should be fact specific and rendered on a
case-by-case basis. See Holland, 560 U.S. at 649-50;
see also Ross, 712F.3dat799.
Holland Court reversed that Court of Appeals'
holding that attorney misbehavior could constitute an
extraordinary circumstance for the purpose of equitable
tolling only if it involved allegations
of'"bad faith, dishonesty, divided loyalty, mental
impairment or so forth.'" Holland, 560 U.S.
at 644, 651-52 (quoting Holland v. Florida, 539 F.3d
1334, 1339 (11th Cir. 2008)). Nonetheless, Holland
reaffirmed that equitable tolling will be appropriate only
under extraordinary circumstances. Thus, for example,
"garden variety" attorney negligence would not
provide sufficient justification. Id. at 651-52;
see also Jenkins, 705 F.3d at 89 n.16.
Holland found the potential for a showing of
extraordinary circumstances because Holland's attorney
failed to timely file a petition "despite Holland's
many letters that repeatedly emphasized the importance of his
doing so," failed to research the proper filing date
although Holland had identified the applicable rules for him,
failed to promptly inform Holland that the Florida Supreme
Court had ruled in his case despite Holland's requests
for that information, and "failed to communicate with
his client over a period of years, despite various pleas from
Holland that [counsel] respond to his
letters." Holland, 560 U.S. at 652.
the diligence prong, the Holland Court found that a
showing for equitable tolling requires only reasonable
diligence, "not maximum feasible diligence."
Holland, 560 U.S. at 653; see also Ross,
712 F.3d at 799. The Third Circuit has noted that a
petitioner must exercise diligence throughout the process of
exhausting state court remedies, not only in filing a habeas
petition. Ross, 712 F.3d at 799. Although the
diligence test is applied subjectively, it is still applied
to litigants proceeding pro se-a petitioner's
"lack of legal knowledge or legal training does not
alone justify equitable tolling." Id. at
the Third Circuit has required that litigants seeking
equitable tolling show that an attorney's extraordinary
misconduct caused the petitioner to miss the
deadline. Id. at 803, In other words, the
extraordinary circumstances "must somehow have affected
the petitioner's ability to file a timely habeas
petition." See Nara v. Frank, 264 F.3d 310, 320
(3d Cir. 2001), abrogated on other grounds by Carey v.
Saffold, 536 U.S. 214 (2002).
these standards, the circumstances as described by Mr.
Sanchez are insufficient to warrant equitable tolling. While
Mr. Sanchez contends that his public defender
"abandon[ed]" him, (DE 3 ¶ 16), he does not
show the level of extraordinary circumstances required for
equitable tolling. If there was attorney negligence at
all-and this is far from clear-it would not rise above
negligence of the "garden variety." Furthermore,
Mr. Sanchez cannot meet the diligence or causation prongs of
the test under Holland. He alleges that his public
defender advised him to pursue further appeal but
specifically told him that the public defender's office
would not "be doing the petition for [him]."
(Id. ¶ 14.) Mr. Sanchez does not establish that
the public defender was legally obligated to do so. Nor does
he allege that he was misled into believing that the attorney
would file an appeal on his behalf; indeed, the attorney
explicitly placed him on notice that the attorney would not
do so. Mr. Sanchez asserts that he did not understand the
applicable deadlines, but the Third Circuit has specifically
rejected the argument that a pro se litigant's lack of
legal knowledge or training is sufficient to justify
equitable tolling. See Ross, 712 F.3d at 799-800.
tolling is not warranted. Mr. Sanchez's habeas petition
must be dismissed as time-barred under AEDPA.
28 U.S.C. § 2253(c), a litigant may not appeal a final
order in a habeas proceeding unless the judge or a circuit
justice issues a certificate of appealability
("COA"). That section further directs courts to
issue a COA "only if the applicant has made a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). "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 the issues presented are adequate to deserve
encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a COA 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 v.
McDaniel, 529 U.S. 473, 484 (2000). Here, reasonable
jurists would not find the Court's procedural ruling
debatable. Accordingly, no certificate of appealability shall