United States District Court, D. New Jersey
Kiett, Petitioner Pro Se DAMON G. TYNER, Atlantic County
Prosecutor JOHN J. SANTOLIQUIDO, Assistant Prosecutor
Atlantic County Prosecutor's Office Attorney for
B. SIMANDLE U.S. District Judge
matter comes before the Court on an Order to Show Cause
issued sua sponte as to why Ralph Kiett's petition for
writ of habeas corpus should not be dismissed as time barred.
[Order to Show Cause, Docket Entry 3]. Petitioner Ralph Kiett
opposes the dismissal and requests equitable tolling. [Show
Cause Reponse, Docket Entry 4]. Respondent Willie Bonds
argues Petitioner is not entitled to equitable tolling.
[Limited Answer, Docket Entry 9]. The matter is being decided
on the papers pursuant to Federal Rule of Civil Procedure 78.
principal issue to be decided is whether Petitioner has
demonstrated that equitable tolling of the statute of
limitations under the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) is warranted based
on his alleged mental disability and new case law. The Court
concludes that equitable tolling is inappropriate in this
case for the reasons stated below. Therefore, the Court
dismisses the petition as time barred.
September 17, 1985, Petitioner pled guilty to murder,
N.J.S.A. § 2C:11-3(a), and second-degree escape,
N.J.S.A. § 2C:29-5(a). [Docket Entry 1 ¶¶
5-6]. He was sentenced by the Superior Court of New Jersey,
Atlantic County, Law Division, to life imprisonment with a
thirty-year term of parole ineligibility on November 25,
1985. [Id. ¶¶ 2-3]. Petitioner appealed to
the New Jersey Superior Court Appellate Division
(“Appellate Division”) seeking to withdraw his
guilty plea. The Appellate Division denied his request, but
the New Jersey Supreme Court vacated the guilty plea and
remanded to the trial court. State v. Kiett, 582
A.2d 630 (N.J. 1990). [Docket Entry 1 ¶ 9(g)].
remand, Petition again pled guilty and was resentenced on
April 26, 1991. [Docket Entry 1 at 4]. He filed another
appeal, this time challenging the validity of the search.
[Id.]. Petitioner indicates the New Jersey Supreme
Court denied certification of this appeal on July 17, 1992.
filed a petition for post-conviction relief
(“PCR”) on March 12, 2008 raising ineffective
assistance of counsel claims. [Docket Entry 9-3 at
The PCR Court denied the petition on April 12, 2010.
[Id.]. The Appellate Division affirmed
“substantially for the reasons set out in [the PCR
Court's] written opinion.” State v. Kiett,
No. A-5166-09, 2011 WL 2416876, at *2 ( N.J.Super.Ct.App.Div.
June 17, 2011).
October 2014, Petitioner filed a petition for “a new
trial based on newly discovered evidence.” [Docket
Entry 1 ¶ 11(b)]. He argued “[t]he statute used to
waive jurisdiction of the defendant from juvenile court to
Law Division was in an [sic] improper ex post facto
application and/or based on a nonexistent
law/unconstitutional act” and that “[t]he invalid
waiver based on non-existent law/unconstitutional act creates
a lack of jurisdiction.” [Id.]. The trial
court denied the motion as untimely on November 13, 2014 and
denied Petitioner's motion for reconsideration on
December 11, 2014. [Id. at 13-14]. Petitioner had
argued that he never received a copy of the Appellate
Division decision denying his motion to withdraw his guilty
plea, but the trial court noted that “[y]ou obviously
had access to this opinion because you appealed it.”
[Id. at 15]. The Appellate Division affirmed for the
reasons cited by the trial court. [Id. at 21;
State v. Kiett, No. A-2457-14 (N.J. Sup. Ct. App.
Div. July 20, 2016)]. The New Jersey Supreme Court denied
certification on December 7, 2016. [Docket Entry 1 at 23].
filed a motion to correct an illegal sentence on November 18,
2015, which was construed as a second PCR petition. [Docket
Entry 9-3 at 3; Kiett, No. A-005316-15, slip op. at
3]. He “insisted that the Law Division never had
jurisdiction over him because ‘the Statute relied upon
to waive [him] from Juvenile Court to Superior Court,
Criminal Division, [which he identified as N.J.S.A. 2A:4-48]
constituted an improper ex post facto application of the law
and resulted in an invalid waiver.'” [Docket Entry
9-3 at 3; Kiett, No. A-005316-15, slip op. at 3
(alterations in original)]. The PCR Court denied the petition
on June 28, 2016 without an evidentiary hearing. [Docket
Entry 1 at 9]. Petitioner appealed, and the Appellate
Division affirmed for the reasons stated by the PCR Court on
March 23, 2017. [Docket Entry 9-3; Kiett, No.
thereafter filed this petition for writ of habeas corpus
under 28 U.S.C. § 2254 on April 10, 2017. [Docket Entry
1]. The Court reviewed the petition under Habeas Rule 4 and
noted that it appeared to be untimely under AEDPA. The Court
issued an Order to Show Cause why the petition should not be
dismissed as untimely. [Docket Entry 3]. Petitioner filed a
response, [Docket Entry 4], and the Court concluded a limited
answer on the issue of timeliness was warranted from
Respondent Willie Bonds. [Docket Entry 5]. Respondent filed
the limited answer, [Docket Entry 9], and Petitioner did not
file a response.
matter is now ripe for decision without oral argument.