United States District Court, D. New Jersey
MICHAEL VAZQUEZ, UNITED STATES DISTRICT JUDGE
matter comes before the Court on pro se Petitioner
Roy Savage a/k/a Talub Mohuwa's
(“Savage's”) certification/answer (at DE 8)
by which Savage requests that the Court equitably toll his
otherwise untimely habeas petition seeking relief pursuant to
28 U.S.C. § 2254 (at DE 1). For the reasons set forth
below, Savage's certification fails to demonstrate that
equitable tolling is appropriate for his case. The Court will
therefore dismiss his petition with prejudice and decline to
issue a certificate of appealability.
BACKGROUND & RELEVANT LEGAL STANDARD
“was convicted by a jury in [New Jersey state court in]
1991 . . . for the murders of two women. He was sentenced on
November 21, 1991 . . . to two consecutive life
sentences[.]” State v. Savage, No.
A-4333-13T2, 2016 WL 3389917, at *1 ( N.J.Super.Ct.App.Div.
June 21, 2016). Notably, Savage “filed a pro
se brief in support of his direct appeal in July
1994.” Id. The New Jersey Superior Court,
Appellate Division, affirmed Savage's convictions and
sentences on direct appeal shortly thereafter, on July 28,
1994. See Id. (citing State v. Savage, No.
A-2282-91 ( N.J.Super.Ct.App.Div. July 28, 1994)). The New
Jersey Supreme Court then denied certification on October 19,
1994. State v. Savage, 649 A.2d 1290 (N.J. 1994)
three years later, on or about May 13, 1997, Savage filed a
pro se petition for post-conviction relief
(“PCR”) in the New Jersey Superior Court, Law
Division (the “PCR court”). Savage, 2016
WL 3389917, at *1. “That petition was dismissed without
prejudice [on an unspecified date] following [Savage's]
request for a voluntary dismissal; the reasons for the
withdrawal [are unclear].” Id. (alterations in
original omitted). Savage filed a second PCR application on
May 23, 2011. Id. The PCR court denied Savage's
second PCR application on March 4, 2014. Id. The
Appellate Division affirmed on June 21, 2016. Id. In
so doing, that court, among other things, agreed that
Savage's 2011 PCR petition was time-barred under New
Jersey Court Rule 3:22-12 because it was filed five years
after the entry of Savage's judgment of conviction and
Savage failed to establish excusable neglect that could
excuse that untimeliness. The Appellate Division noted the
following in support of that finding:
[Savage's] mental illness, as alleged generally in his
moving papers, and his treatment while in custody, including
forced medication, do not equate to excusable neglect. As our
Supreme Court said in State v. D.D.M., 140 N.J. 83,
100 (1995), a defendant must allege “specific facts . .
. to show that his psychological treatment would have
prevented him from pursuing his rights and remedies . . .
within the five years[.]” [Savage] has not done so
In fact, as the [PCR court] noted in [its] decision,
[Savage], despite his mental health, was able to file a
pro se brief in July 1994 in support of his direct
appeal. That filing was well within the five-year period
after sentence. [Savage] asserted, according to the [PCR
court], that he was unaware of the existence of PCR until
1995, yet that left unexplained the delay between the
dismissal of the 1997 petition and this filing in 2011.
Additionally, [Savage] obtained Veteran's Administration
benefits in 2009, a process uniquely challenging for a
prisoner who has to marshal records and correspond with
Veteran's Administration personnel under the difficult
circumstances. [Savage's] ability to make himself heard
by the courts and an administrative agency, even while in
custody, belies his claim that his mental health status
constitutes excusable neglect.
Savage, 2016 WL 3389917, at *2.
October 14, 2016, the New Jersey Supreme Court denied
certification on Savage's PCR appeal. State v.
Savage, 154 A.3d 674 (N.J. 2016) (table). Thereafter, on
or about December 6, 2016, Savage filed the present §
2254 petition. (See DE 1 at 17.) On February 7,
2017, the Court, after noting that his petition failed to
“assert a sufficient basis to grant equitable
tolling[, ]” dismissed Savage's habeas pleading
without prejudice as “barred by the statute of
limitations in 28 U.S.C. § 2244(d).” (DE 2 at 1,
6.) As the Court then explained:
28 U.S.C. § 2244(d) provides:
(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 the 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 ...