ALI v. DAVIS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

:

KAREEM ALI, :

:

Petitioner, : Civ. No. 19-18403 (NLH)

:

v. : OPINION

:

BRUCE DAVIS, et al., :

:

Respondents. :

___________________________________:

APPEARANCES:

Kareem Ali

793553-B

New Jersey State Prison

PO Box 861

Trenton, NJ 08625

Petitioner Pro se

Jill S. Mayer, Acting Camden County Prosecutor

Maura Murphy Sullivan, Acting Assistant Prosecutor

Camden County Prosecutor’s Office

200 Federal Street

Camden, NJ 08210

Counsel for Respondent

HILLMAN, District Judge

Respondent Bruce Davis, Administrator of New Jersey State

Prison, moves to dismiss Kareem Ali’s petition for writ of

habeas corpus under 28 U.S.C. § 2254 as time barred. ECF No.

19. Petitioner opposes the motion. ECF Nos. 23 & 24. For the

reasons that follow, the motion to dismiss will be granted.

I. BACKGROUND

Petitioner pled guilty to first-degree aggravated sexual

assault, N.J.S.A. § 2C:14-2A(2)(A), on April 23, 2008. ECF No.

19-6 at 1. On July 22, 2008, the trial court sentenced him to

74 years imprisonment subject to an 85% parole disqualifier.

Id. The judgment was amended on October 6, 2008 to change

“Community Supervision for Life” to “Parole Supervision for

Life.” ECF No. 19-7. Petitioner filed a motion for

reconsideration on October 17, 2008. ECF No. 19-8. The trial

court denied the motion as untimely on October 20, 2008. Id.

Petitioner filed an appeal with the New Jersey Superior

Court, Appellate Division (“Appellate Division”) on May 20,

2009. ECF No. 19-9. He also requested the assignment of

counsel and to file his appeal as within time. ECF No. 19-10.

The Appellate Division heard the appeal on its excessive

sentence oral argument panel and found that the sentence was

manifestly excessive and unduly punitive. State v. Ali, No. A–

4887–08 (App. Div. June 28, 2010). It remanded to the trial

court for resentencing. Id.

The trial court resentenced Petitioner to 50 years with an

85% parole disqualifier on October 22, 2010. ECF No. 19-13.

Petitioner appealed on July 13, 2011. ECF No. 19-14. The

Appellate Division affirmed the sentence on October 19, 2011.

ECF No. 19-15. The New Jersey Supreme Court denied

certification on October 25, 2012. State v. Ali, 54 A.3d 811

(N.J. 2012); ECF No. 19-18.

Petitioner filed his petition for post-conviction relief

(“PCR”) on October 15, 2014. ECF No. 19-19. The PCR Court

conducted an evidentiary hearing and ultimately dismissed the

petition as untimely on April 15, 2016. ECF No. 19-21.

Petitioner appealed, ECF No. 19-22, and the Appellate Division

affirmed the dismissal based on untimeliness, State v. K.A., No.

A-0139-16T1, 2017 WL 5186271 (N.J. Super. Ct. App. Div. Nov. 9,

2017). The New Jersey Supreme Court denied certification on

March 26, 2018. State v. K.A., 182 A.3d 379 (N.J. 2018)

(Table); ECF No. 19-24.

Petitioner submitted a petition under § 2254 on September

22, 2019. ECF No. 1. The Court administratively terminated the

petition as Petitioner had not paid the filing fee or submitted

an in forma pauperis application. ECF No. 3. Petitioner

submitted an in forma pauperis application, ECF No. 4, which the

Court granted, ECF No. 6. The Court ordered Respondent to

answer the petition. ECF No. 7.

Respondent moved to dismiss the petition as untimely. ECF

No. 10. It submitted its exhibits under seal, ECF No. 11, and

asked the Court to seal the entire case, ECF No. 12. The Court

denied that request but permitted Respondent to file an amended

motion. ECF No. 18. Respondent filed an amended motion to

dismiss containing redacted documents, ECF No. 19, and the Court

dismissed the first motion as moot, ECF No. 20.1 Petitioner

opposes the motion to dismiss. ECF Nos. 23 & 24.

II. STANDARD OF REVIEW

Title 28 U.S.C. § 2254 permits a federal court to entertain

a petition for writ of habeas corpus on behalf of a person in

state custody pursuant to the judgment of a state court “only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a).

The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) imposes a one-year period of limitation on a

petitioner seeking to challenge his state conviction and

sentence through a petition for writ of habeas corpus under §

2254. See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the

limitation period runs 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 for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

1 The Court permitted the unredacted documents filed as part of

the first motion to dismiss, ECF No. 11, to remain under seal.

ECF No. 20. The sealed documents have not been considered as

part of the motion to dismiss.

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through

the exercise of due diligence.

28 U.S.C. § 2244(d)(1).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” is excluded from the

one-year statute of limitations. 28 U.S.C. § 2244(d)(2). “In

determining whether a petition is ‘properly filed,’ a federal

court ‘must look to state law governing when a petition for

collateral relief is properly filed.’” Douglas v. Horn, 359

F.3d 257, 262 (3d Cir. 2004) (quoting Fahy v. Horn, 240 F.3d

239, 243 (3d Cir. 2001)).

III. ANALYSIS

The State argues that the § 2254 petition was filed after

the one-year statute of limitations period expired. ECF No. 19-

1 at 13. The New Jersey Supreme Court denied certification for

2 Petitioner’s conviction became final after AEDPA’s April 24,

1996 effective date; therefore, he is subject to its one-year

statute of limitations.

Petitioner’s direct appeal on October 25, 2012. State v. Ali,

54 A.3d 811 (N.J. 2012). Petitioner had ninety (90) days

beginning on October 26, 2012 to file a petition for writ of

certiorari with the Supreme Court. Fed. R. Civ. P. 6(a)(1).

That time ended January 23, 2013.3 See Gonzalez v. Thaler, 565

U.S. 134, 150 (2012) (holding that if prisoners do not seek

Supreme Court review, “judgment becomes final . . . when the

time for pursuing direct review in this Court, or in state

court, expires”). AEDPA’s one-year clock began to run on

January 24, 2013. Unless some form of tolling applies,

Petitioner’s habeas petition was due on January 23, 2014.

A. Statutory Tolling

“[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” is excluded from the

one-year statute of limitations. 28 U.S.C. § 2244(d)(2). The

Court considers Petitioner’s PCR petition to be filed on October

3 Petitioner stated in his habeas petition that he filed a

petition for certiorari with the Supreme Court. ECF No. 1 at 4.

However, he listed the docket number of his Appellate Division

case, A-05611-10, and the date on which the New Jersey Supreme

Court denied his petition for certification on direct appeal.

Id. The Court’s review of online legal research databases did

not return a Supreme Court docket associated with Petitioner.

Therefore, the Court concludes Petitioner did not file a

petition for certiorari.

15, 2014.4 “In determining whether a petition is ‘properly

filed,’ a federal court ‘must look to state law governing when a

petition for collateral relief is properly filed.’” Douglas v.

Horn, 359 F.3d 257, 262 (3d Cir. 2004) (quoting Fahy v. Horn,

240 F.3d 239, 243 (3d Cir. 2001)).

Here, the PCR court and the Appellate Division held that

Petitioner’s PCR petition was filed more than five years after

his August 1, 2008 judgment of conviction, making it

“procedurally barred as untimely unless the delay was due to

defendant’s excusable neglect and there is a reasonable

probability enforcement of the time-bar would result in a

fundamental injustice.” State v. K.A., No. A-0139-16, 2017 WL

5186271, at *4 (N.J. Super. Ct. App. Div. Nov. 9, 2017). The

panel concluded Petitioner had not met this standard.

4 Petitioner submitted his PCR petition on October 3, 2014. The

stamps on the petition indicate it was received by the Clerk’s

Office on October 15, 2014 and filed on January 13, 2015. ECF

No. 19-19. “[S]tate law governs when a post-conviction relief

petition is ‘properly filed’ for purposes of tolling AEDPA’s

statute of limitations. New Jersey courts have not determined

whether to apply the ‘prisoner mailbox rule’ to PCR petitions.”

Alston v. Att’y Gen. of New Jersey, No. 18-10138, 2019 WL

2304664, at *3 (D.N.J. May 30, 2019) (internal citations

omitted). See also Oliver v. Lee, No. A-1669-10, 2012 WL

1414081, at *3 (N.J. Super. Ct. App. Div. Apr. 25, 2012)

(declining to determine whether “prisoner mailbox rule” applies

to post-conviction relief petitions). The Appellate Division

noted “[o]n October 15, 2014, defendant filed a petition for

PCR, and subsequently filed an amended petition for PCR.” State

v. K.A., No. A-0139-16, 2017 WL 5186271, at *1 (N.J. Super. Ct.

App. Div. Nov. 9, 2017). Therefore, the Court considers the PCR

petition to have been filed on October 15, 2014.

“Defendant fails to provide any facts to show his failure to

timely file his [PCR] petition was due to excusable neglect.

Defendant admitted he knew well in advance of the five-year

deadline he had to file a petition before August 1, 2013.” Id.

“Defendant claims that after the two paralegals ceased working

on his file, another inmate told him he had five years from the

date of his resentencing, which was on October 22, 2010, to file

a PCR. However, defendant does not provide any plausible reason

why his reliance on the inmate’s advice should be deemed

excusable.” Id. The New Jersey Supreme Court did not disturb

this finding.

“[T]ime limits on postconviction petitions are

‘condition[s] to filing,’ such that an untimely petition would

not be deemed ‘properly filed.’” Pace v. DiGuglielmo, 544 U.S.

408, 413 (2005) (quoting Artuz v. Bennett, 531 U.S. 4, 8, 11

(2000)) (second alteration in original). “[T]he AEDPA

explicitly directs us to toll the statute of limitations only

when a collateral petition for state relief was ‘submitted

according to the state’s procedural requirements, such as the

rules governing the time and place of filing.’” Fahy v. Horn,

240 F.3d 239, 243 (3d Cir. 2001) (quoting Morris v. Horn, 187

F.3d 333, 338 (3d Cir. 1999)). See also Martin v. Adm’r New

Jersey State Prison, ___ F.4th ___, 2022 WL 189809, at *5 (3d

Cir. 2022). (“‘[T]imely’ means an appeal filed in accordance

with the state law delineating the period in which a petitioner

may appeal following a lower court’s adverse determination,

before the appeal would be considered belated.”).

This Court is bound by the New Jersey courts’ decision that

Petitioner’s PCR petition was untimely. See Carey v. Saffold,

536 U.S. 214, 226 (2002) (“If the California Supreme Court had

clearly ruled that Saffold’s 4 ½ month delay was ‘unreasonable,’

that would be the end of the matter, regardless of whether it

also addressed the merits of the claim, or whether its

timeliness ruling was ‘entangled’ with the merits.”); Merritt v.

Blaine, 326 F.3d 157, 166 (3d Cir. 2003) (“[W]e are bound by the

state court’s finding that Merritt’s second PCRA petition was

untimely.”). Because the state courts clearly ruled that

Petitioner’s PCR petition was untimely, it was not properly

filed within the meaning of AEDPA and the statutory tolling

provision of § 2244(d)(2) does not apply. AEDPA’s one-year

statute of limitations ran uninterrupted from January 23, 2013

to January 23, 2014.5 The § 2254 petition is untimely under

AEDPA and must be dismissed unless equitable tolling applies.

5 Since Petitioner did not file his PCR petition until October

15, 2014, his petition would have been untimely under AEDPA even

if the state courts had found his petition to be properly filed

under state law.

B. Equitable Tolling

Petitioner does not dispute that his § 2254 petition was

submitted after AEDPA’s statute of limitation expired;6 however,

he asserts the Court should equitably toll the time and not

dismiss his petition. ECF No. 23 at 3. “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 v. DiGuglielmo, 544 U.S. 408, 418 (2005). Courts “are

‘sparing’ in our use of the doctrine and do so ‘only in the rare

situation where [it] is demanded by sound legal principles as

well as the interests of justice.’” Martin, ___ F.4th ___, 2022

WL 189809, at *7 (quoting LaCava v. Kyler, 398 F.3d 271, 275 (3d

Cir. 2005))(alteration in original).

The Court concludes Petitioner has not shown extraordinary

circumstances prevented him from filing a timely § 2254

petition. Petitioner argues:

After Defendant’s final certiorari on Post-Conviction

Relief, Defendant gave his complete file back to the

paralegal whom had helped him throughout this entire

appeals certifications and (PCR) Post-Conviction Relief.

There’s not one moment when defendant was competent

6 Petitioner asserted at one point that he submitted a § 2254

petition in June 2018. ECF No. 17 at 6. Neither the State nor

the Court has any record of a § 2254 petition being filed under

Petitioner’s name around that date. ECF No. 19-1 at 9 n.2.

This is ultimately irrelevant because a timely § 2254 petition

was due in January 2014, well before this alleged “first” § 2254

petition was submitted in 2018.

enough to understand what was the paralegal was talking

about when discussing motions in the lower courts, the

timeliness issues on first petition for PCR, and the

courts sided with the defendant for that the same

paralegal had been involved in the defendant’s first

petition for PCR, defendant was unable to find any

additional (ILA) Inmate legal assistance, members

because of the nature of my convictions as well as the

complexity of defendant’s appeals . . . .

ECF No. 23 at 3. “Under circumstances of this case, there was

excusable neglect for [Petitioner’s] delay in filing his

petition.” Id. at 5. “Initially, he relied on the mis-advice

of a paralegal in the prison system. He was then placed in

quarantine with very limited access to any assistance or other

resources.” Id.

Petitioner’s argument that the Court should toll the time

between the conclusion of his PCR appeal on March 26, 2018 and

his submission of his § 2254 petition on September 22, 2019

misses the point; Petitioner must show why he could not file his

§ 2254 petition by January 23, 2014. It is not enough for

Petitioner to state he relied on prison paralegals’ calculation

of relevant statutes of limitations. A “garden variety claim of

excusable neglect, such as a simple miscalculation that leads a

lawyer to miss a filing deadline, does not warrant equitable

tolling.” Holland v. Fla., 560 U.S. 631, 651–52 (2010)

(internal quotation marks omitted); see also Brown v. Shannon,

322 F.3d 768, 773 (3d Cir. 2003) (“Mere excusable neglect is not

sufficient.” (internal quotation marks omitted)).

Nor does Petitioner’s claim that he is mentally incompetent

warrant equitable tolling. “[M]ental incompetence is not a per

se reason to toll a statute of limitations.” Nara v. Frank, 264

F.3d 310, 320 (3d Cir. 2001) (citing Lake v. Arnold, 232 F.3d

360, 371 (3d Cir. 2000), overruled in part on other grounds by

Carey v. Saffold, 536 U.S. 214 (2002). “[T]o qualify as an

extraordinary circumstance, the mental illness must have

affected the petitioner’s ability to seek relief in some way.”

Wallace v. Mahanoy, 2 F.4th 133, 144 (3d Cir. 2021). The burden

is on Petitioner to give a particularized description of how his

condition adversely affected his capacity to function generally

or to pursue his rights specifically. See Bolarinwa v.

Williams, 593 F.3d 226, 232 (2d Cir. 2010).

Petitioner asserts that he has “serious mental

incapabilities to actually know right from wrong and the lower

court was very much aware of defendants inability to comprehend

right and wrong for that he is mentally incapable of doing so.”

ECF No. 23 at 5. “[T]he state know[s] this from Petitioner’s

history throughout his entire life starting and the tender age

of eight years old when the Dr.’s and schools deemed petitioner

mentally challenged, so he has to rely [solely] on someone else

to file all his paperwork read the responses from the courts . .

. .” Id. at 5-6. Petitioner submitted his individualized

education plan (“IEP”) from the Camden City School District in

support of his claim. ECF No. 17 at 18.

Petitioner’s alleged inability “to actually know right from

wrong” has no relevance to his ability to file a timely habeas

petition, nor does the fact that he needs assistance in filing

paperwork. Although Petitioner’s IEP describes his reading

performance as “significantly below age and grade level

expectations,” id. at 22, the IEP is for the 1991-1992 school

year, decades before the relevant time period. Moreover, the

IEP reflects he had age-appropriate adaptive behavior and self-

help skills as well as adequate personal/social adjustment and

did not need structured extensive supervision. Id. at 19.

There is no evidence to suggest he has ever been adjudicated

incompetent, voluntarily or involuntarily committed, or in need

of continuous psychiatric care. Wallace, 2 F.4th at 144 (citing

Champney v. Sec’y DOC, 469 F. App’x 113, 117–18 (3d Cir. 2012)).

As the Appellate Division noted, Petitioner “knew well in

advance of the five-year deadline he had to file a [PCR]

petition before August 1, 2013.” K.A., No. A-0139-16, 2017 WL

5186271, at *4. It follows that he had the ability to

understand there were applicable court deadlines, even if he

miscalculated those deadlines after receiving inaccurate advice.

Petitioner has failed to satisfy the “extraordinary

circumstance” prong of the analysis. Thus the Court need not

decide whether Petitioner was reasonably diligent under the

circumstances. Menominee Indian Tribe of Wis. v. United States,

577 U.S. 250, 256 (2016) (“[W]e have treated the two

requirements as distinct elements ... rejecting requests for

equitable tolling where a litigant failed to satisfy one without

addressing whether he satisfied the other.”).

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 on the ground that

“the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme

Court held in Slack v. McDaniel that “[w]hen 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.” 529 U.S. 473, 484 (2000).

This Court denies a certificate of appealability because

jurists of reason would not find it debatable that dismissal of

the petition as untimely is correct.

V. CONCLUSION

For the foregoing reasons, the motion to dismiss will be

granted. No certificate of appealability shall issue.

An appropriate order will be entered.

Dated: February 15, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.