LUIBIL v. ROBINSON

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

LOUIS LUIBIL, :

:

Petitioner, : Civ. No. 19-16548 (KM)

:

v. :

:

GEORGE ROBINSON, et al., : OPINION

:

Respondent. :

_________________________________________ :

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

Petitioner Louis Luibil, a state prisoner at Northern State Prison in Newark, New Jersey,

is proceeding by counsel with a habeas petition pursuant to 28 U.S.C. § 2254. (DE 1 (the

“Petition”).) I previously issued an order directing Petitioner to show cause why the Petition

should not be dismissed as untimely pursuant to 28 U.S.C. § 2244(d) and Rule 4 of the Rules

Governing § 2254 cases, in that it was filed well past the one-year limitations period imposed by

the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) (DE 2.) Having now reviewed

Petitioner’s response to the order to show cause (DE 5), I will dismiss the Petition as untimely

and deny a certificate of appealability.

II. BACKGROUND

For the purposes of this opinion, I mostly credit Petitioner’s timeline, which is well

documented. According to the Petition, in December 2003, a jury in the Superior Court of New

Jersey, Passaic County, convicted Petitioner of carjacking, and the trial judge sentenced him to

34 years in prison with 85% parole ineligibility. (Petition ¶¶ 1-6.).1 The Appellate Division

affirmed the conviction on November 14, 2005. (Id. at 73.) The New Jersey Supreme Court

denied certification of Petitioner’s direct appeal on January 31, 2006. (Id. at 79). Petitioner’s

conviction became final, and the AEDPA clock began running, 90 days later on May 1, 2006,

because Petitioner did not seek certiorari from the Supreme Court. U.S. Sup.Ct. R. 13.1.

1 Petitioner was represented at trial by private counsel, and by the New Jersey Office of the

Public Defender on direct appeal. (Petition at 62, ¶ 16.) As discussed below, Petitioner was

represented by different private counsel on his first and second PCRs.

Shortly after the New Jersey Supreme Court’s denial of certification, Petitioner’s family

friend, Carol Cotugno, retained the Law Offices of Fusco & Macaluso, P.A. (the “Fusco Firm”)

to pursue a state post-conviction relief petition (“PCR”).2 (DE 5-2 (“Cotugno Aff.”) ¶ 1.)

Cotugno paid $10,000 toward the $25,000 retainer on May 15, 2006 (14 days into the AEDPA

limitations period). (Cotugno Aff. ¶ 1; DE 5 at 11.). On June 26, 2006, Cotugno paid another

$12,000. (Cotugno Aff. ¶ 3; DE 5 at 12.)

On March 25, 2008, Cotugno paid an additional $2,500 to the Fusco Firm, leaving a

balance of $500. (Cotugno Aff. ¶ 4, DE 5 at 13.) On December 2, 2008, the Fusco Firm filed the

first Petition for Post-Conviction Relief. (Petition at 5, ¶ 11(a)(4).)3 On January 7, 2009, Cotugno

paid the remaining $500 of the retainer. (Cotugno Aff. ¶ 5, DE 5 at 14.)

While the first PCR was pending, the New Jersey Supreme Court reprimanded and

suspended Anthony Fusco, a Fusco Firm partner, as the result of two ethics inquiries.4 (Pet’r Aff.

¶ 10.) In re Fusco, 197 N.J. 428, 429, 963 A.2d 816 (2009). On July 10, 2009, after Fusco had

been reinstated, the Superior Court denied Petitioner’s first PCR. (Petition at 83.) As of March

11, 2010, the New Jersey Office of the Public Defender replaced Fusco as Petitioner’s counsel

and briefed Petitioner’s first PCR appeal. (Id. at 23.) On January 10, 2012, the Appellate

Division affirmed the first PCR denial. (Id. at 94.) On September 7, 2012, the New Jersey

Supreme Court affirmed that denial of the first PCR. (Id. at 99.)

On or about May 26, 2013, Petitioner mailed a letter to this Court requesting updated

habeas corpus forms. “[S]everal months of requesting” forms from his prison library, he wrote,

produced only outdated forms. (Id. at 128.) At about the same time, Petitioner mailed a pro se

second PCR petition to the New Jersey Superior Court. (Id. at 129.) On June 12, 2013, the

Superior Court acknowledged receipt and sent an indigency application. Id.

2 The Fusco Firm provided receipts for all payments, but never a written retainer agreement.

(Cotugno Aff. ¶ 2.)

3 The first PCR was dated March 22, 2008, but not filed until December 2. (Petition at 62, ¶ 18.)

As I noted in the order to show cause, however, even the earlier date was nine months after the

AEDPA limitations period’s expiration. (DE 2 at 2, n. 1.)

4 Petitioner is incorrect that the suspension was for a year. (Pet’r Aff. ¶ 10.) The Disciplinary

Review Board recommended one year, but the New Jersey Supreme Court issued a three-month

suspension. Likewise, Petitioner’s counsel is incorrect that Fusco was suspended during the first

PCR oral argument on July 2, 2009. (DE 5 at 9.) Fusco was reinstated on June 1, 2009. In re

Fusco, 199 N.J. 117, 970 A.2d 1038 (2009).

The record does not reflect any further activity until a year later in June 2014, when

Cotugno contacted Petitioner’s current counsel. (DE 5 at 3.) Petitioner retained current counsel

on July 31, 2014, nearly two years after the conclusion of the first PCR. (Id.) On December 17,

2014, Petitioner, by current counsel, filed a second PCR petition. (Id. at 101.) On September 2,

2016, the Superior Court denied that PCR. (Id. at 103.) The Appellate Division affirmed the

denial on October 9, 2018, and the New Jersey Supreme Court again denied certification on

April 4, 2019. (Id. at 123-128.)

On August 10, 2019, Petitioner filed this § 2254 habeas petition. (DE 1.) Petitioner, in his

response to the order to show cause, blames the apparent untimeliness on Fusco: “[T]he failure

of the Fusco Firm to advise properly the Petitioner as to this one-year time limit also impacted

the delay in the filing of the second PCR Petition following the conclusion of the [first PCR]

with the denial of certification…on September 7, 2012.” (DE 5 at 3.) It is conceded that Cotugno

did not contact second PCR/current habeas counsel until June 2014 or formally retain current

counsel until July 31, 2014, nearly two years after the conclusion of the first PCR. (Id.) Both

Petitioner and Cotugno state, however, that they “would not have waited” if the Fusco Firm had

explained the one-year AEDPA limitations period. (Cotugno Aff. ¶ 10; Pet’r Aff. ¶ 9.)

III. DISCUSSION

A. Statutory Tolling

AEDPA imposes a one-year limitation period for a state prisoner to file a federal habeas

corpus petition. The limitation period ordinarily starts to run from “the date on which the

judgment became 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); Ross v. Varano, 712 F.3d 784, 798 (3d Cir.

2013). Under 28 U.S.C. § 2244(d)(2), “[t]he time during which a properly filed application for

State post-conviction or other collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this subsection.” In other

words, AEDPA’s statute of limitations is suspended while a “properly filed” collateral attack

remains pending in the state courts. That exclusion of time is known as “statutory tolling.”

As discussed above, Petitioner’s conviction became final on May 1, 2006, when

Petitioner did not seek certiorari from the Supreme Court. Because no PCR petition was filed

until December 2, 2008 (or, as discussed above, even in March of that year), the AEDPA clock

continued to run during that period. The clock expired—as Petitioner’s counsel concedes—on

May 1, 2007. (DE 5 at 1.). Thus, the suspension of statutory tolling cannot save Petitioner’s

habeas petition, because it was already time-barred when it was filed. See Saunders v. Lamas,

No. 12–1123, 2013 WL 943351, at *5 (E.D.Pa. Feb. 3, 2013) (petitioner's PCR was filed after

the expiration of AEDPA's one-year clock, making statutory tolling inapplicable) (citing Pace v.

DiGuglielmo, 544 U.S. 408 (2005)), report and recommendation adopted by, 2013 WL 943356

(E.D.Pa. Mar. 11, 2013); Shoatz v. Diguglielmo, No. 07–5424, 2011 WL 767397, at *1 n. 2

(E.D.Pa. Feb. 25, 2011) (“Because all of petitioner's subsequent PCRA petitions were filed after

his one-year limitation period expired ... none of these filings entitle petitioner to statutory

tolling, regardless of their disposition.”). Absent some other basis for tolling, the habeas petition

is untimely.

B. Equitable Tolling

Petitioner’s response focuses on another avenue to preserve untimely habeas claims:

equitable tolling. “Generally, a litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary

circumstance stood in his way.” Pace, 544 U.S. at 418 (citing Irwin v. Dep't of Veterans Affairs,

498 U.S. 89, 96 (1990)). “There are no bright lines in determining whether equitable tolling is

warranted in a given case.” Pabon, 654 F.3d at 399. The Supreme Court has emphasized,

however, that in considering whether there could be equitable tolling, courts should favor

flexibility over adherence to mechanical rules, and make each decision on a “case-by-case

basis.” Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citing Holland v. Florida, 560 U.S.

631, 645 (2010)). “[E]quitable tolling is appropriate when principles of equity would make the

rigid application of a limitation period unfair, but ... a court should be sparing in its use of the

doctrine.” Varano, 712 F.3d at 799.

Here, Petitioner alleges that he pursued his rights diligently, and that his first PCR

attorney’s failure to advise him of the one-year AEDPA deadline or promptly file the first PCR

petition constituted an “extraordinary circumstance” meriting equitable tolling. As to diligence,

“[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum,

extreme, or exceptional diligence.” Id. (citing Holland, 130 S.Ct. 2565). The petitioner must

have exercised such reasonable diligence with respect to both the exhaustion of state remedies

and the filing of the federal habeas petition. See id. “A determination of whether a petitioner has

exercised reasonable diligence is made under a subjective test: it must be considered in light of

the particular circumstances of the case.” Id. (citing Schlueter v. Varner, 384 F.3d 69, 74 (3d

Cir.2004); Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir.2011)). That a petitioner may be

proceeding pro se “does not insulate him from the ‘reasonable diligence’ inquiry.” Id. at 799–

800.

Petitioner cites Ross for the proposition that the Third Circuit has forgiven even a lengthy

five-year delay where there is significant evidence of attorney malfeasance or negligence. (DE 5

at 6-7.) Ross and this case do share some similarities: For example, the Third Circuit found in

Ross that between 2004 and 2008, the petitioner’s attorney ignored or refused regular

correspondence and had very little knowledge of the case. 712 F.3d at 794. As in Ross, after

Petitioner Luibil’s conviction became final, he or his family friend Ms. Cotugno promptly

secured Fusco’s representation. Though the exact reasons for Fusco’s failure to file either a

protective federal habeas petition or a first PCR petition within one year are unclear, I credit

Petitioner’s diligence during that time period, noting multiple communications between Cotugno,

Petitioner, and Fusco’s office. (Cotugno Aff. ¶ 6; Pet’r Aff. ¶ 8.)

Even so, however, Ross is ultimately distinguishable, because it did not rest solely on

attorney neglect. There, the Third Circuit found in addition that the petitioner had “a limited

intellectual ability and education, a history of poor mental health, and [was] an incarcerated

prisoner with limited resources at his disposal who was moved among facilities within the prison

system.” 712 F.3d at 803–04. Additionally, the Ross petitioner’s efforts to obtain new counsel

were impeded by a state court’s denial of new counsel based on the (incorrect) assumption that

the petitioner’s current attorney was moving the case forward. Nothing similar is in the record

here; Petitioner’s argument here is limited to criticizing Fusco’s failure to advise Petitioner of the

one-year AEDPA deadline.

Moreover, even if I ascribe any untimeliness to Fusco, Fusco’s representation spanned, at

most, from May 1, 2006, when Petitioner’s conviction became final, through 2010, when the

Public Defender replaced Fusco on Petitioner’s first PCR appeal. (Petition at 23.) But Petitioner

also had other attorneys before that: private counsel at trial, and the Public Defender on direct

appeal.

Petitioner also demonstrated awareness of state and federal procedures. He filed a second,

pro se PCR petition on or about May 26, 2013, 261 days after the Supreme Court denied

certification on September 7, 2012, and wrote to the Clerk of this Court to request a habeas form

at about the same time. (Id. at 128-29.) The record does not reveal whether or how the Clerk

responded to Petitioner’s letter.

Petitioner’s letter indicates at least some awareness of the existence of a habeas remedy,

if not a deadline. However, even accepting that Petitioner first learned of the one-year AEDPA

deadline when he retained current counsel in 2014 (Pet’r Aff. at 3, ¶ 9),5 Petitioner still waited

five years from that point to file any habeas petition, and over thirteen years from the point that

his conviction became final. See Pace v. Diguglielmo, 544 U.S. 408, 416 (2005) (petitioner may

file “a ‘protective’ petition in federal court and ask[ ] the federal court to stay and abey the

federal habeas proceedings until state remedies are exhausted”) (internal citations omitted);

Darden v. Sobina, 477 Fed. App’x. 912, 918 (3d Cir. 2012) (petitioner failed to diligently pursue

his federal rights by not filing a “protective” federal petition while pursuing state collateral

relief); Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009) (petitioner may seek a “protective”

petition despite presenting only unexhausted claims). That a petitioner is proceeding pro se does

not insulate him from the “reasonable diligence” inquiry and his lack of legal knowledge or legal

training does not alone justify equitable tolling. See Brown v. Shannon, 322 F.3d 768, 774 (3d

Cir.2003) (equitable tolling not justified where petitioner had one month left in limitations period

in which he could have “fil [ed] at least a basic pro se habeas petition” at the time that

petitioner's attorney informed him that he would not file an appeal in state court on his behalf

and could no longer adequately represent him); see also Doe v. Menefee, 391 F.3d 147, 177 (2d

Cir.2004) (“Given that we expect pro se petitioners to know when the limitations period expires

... such inadvertence on Doe’s part cannot constitute reasonable diligence.”).

Thus, even excluding the period before Petitioner’s current counsel represented him,

Petitioner did not diligently pursue his federal rights after Fusco no longer represented him, and

thus is not entitled to equitable tolling on that basis. Darden v. Sobina, 477 F. App'x 912, 918 (3d

Cir. 2012) (finding that petitioner failed to diligently pursue his federal rights by not filing a

5 I note that the older § 2254 habeas forms Petitioner acknowledged receiving, or the form in use

at the time of Petitioner’s letter to this Court, like the current version, contain this field:

“TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago,

you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d)

does not bar your petition.” See AO-241 (Rev. 12/04 and 10/07) at ¶ 18. I note also that

submission of a habeas petition, even on an outdated form, would ordinarily be credited by this

Court as a filing for purposes of the AEDPA deadline.

“protective” federal petition while pursuing state collateral relief)); Bennett v. Clark, No. CV 16-

3687, 2017 WL 6758399, at *5 (E.D. Pa. Feb. 1, 2017) (finding lack of diligence where

petitioner promptly filed state post-conviction petition but did not file federal petition until a

decade later), report and recommendation adopted, No. CV 16-3687, 2017 WL 6731622 (E.D.

Pa. Dec. 29, 2017); Cutler v. Davis, No. CV 20-9011 (JMV), 2021 WL 2411306, at *4 (D.N.J.

June 14, 2021) (dismissing petition where petitioner did not file any habeas petition, including a

protective petition, for sixteen years).

Moreover, even if Petitioner could demonstrate diligence, he would still fail to satisfy

equitable tolling’s second requirement: that an “extraordinary circumstance” stood in the way of

satisfying AEDPA’s one-year deadline, because there was no obstacle beyond Petitioner’s

control that prevented him from filing a petition. To address this prong, Petitioner again blames

Fusco’s representation (the failure to provide a written retainer agreement and his suspension

from the practice of law), and Fusco’s failure to advise him of AEDPA time limitations. But

even an attorney’s mistaken advice, or lack of advice, as to a deadline does not suffice to as a

basis for equitable tolling. Johnson v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002) (joining other

courts in rejecting the argument “that an attorney’s mistake in determining the date a habeas

petition is due constitutes extraordinary circumstances for purposes of equitable tolling”); Taylor

v. Palmer, 623 F. App'x 783, 788 (6th Cir. 2015), citing See Lawrence v. Florida, 549 U.S. 327,

336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (“Attorney miscalculation is simply not sufficient

to warrant equitable tolling.”); see also Cristin v. Wolfe, 168 F. App'x 508, 511 (3d Cir.2006)

(not precedential) (“[g]enerally, an attorney’s delinquency is chargeable to a client and is not a

basis for equitable tolling.”)).

Moreover, as discussed above, even accepting that Fusco’s representation had a material

impact on Petitioner’s ability to exercise his rights would apply only to the time during and

perhaps shortly after Fusco’s representation—not indefinitely. After that period, Petitioner fails

to suggest that “there was an obstacle beyond Petitioner's control that necessarily prevented him

from filing a timely petition, [and] there is no basis for equitable tolling.” Phillips v. D'Illio, No.

15-2884, 2016 WL 54673, at *4 (D.N.J. Jan. 4, 2016) (PCR counsel failed to file a protective

petition) (emphasis added). Even if Petitioner’s late filing was due to his lack of legal knowledge

and awareness of the AEDPA's limitations period, that does not warrant equitable tolling. See,

e.g., Walker, 2013 WL 3223552, at *11 (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.

1999) (“ignorance of the law, even for an incarcerated pro se petitioner, generally does not

excuse prompt filing”)). Accordingly, Petitioner fails to satisfy either equitable tolling prong, and

the Petition is untimely.

IV. CERTIFICATE OF APPEALABILITY

AEDPA provides that an appeal may not be taken to the Court of Appeals from a final

order in a § 2254 proceeding unless a judge issues a certificate of appealability stating that "the

applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §

2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme Court

held: “When 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.” Id. I will deny a certificate of appealability

because jurists of reason would not find it debatable that this petition is untimely.

V. CONCLUSION

For the reasons stated above, I will dismiss the Petition for habeas corpus as untimely and

deny a certificate of appealability. An appropriate order follows.

Dated: November 1, 2021

/s/ Kevin McNulty

______________________________

KEVIN MCNULTY

United States District Judge