The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PABLO J. GUZMAN,
Petitioner, Civil Action No. 21-30 (MAS)
“ OPINION
JOHN POWELL, et al.,
Respondents.
SHIPP, District Judge
This matter comes before the Court on Petitioner’s Response (ECF No. 5) to this Court’s
order directing him to show cause why his habeas petition should not be dismissed as time barred.
(ECF No. 4.) For the following reasons, this Court will dismiss the Petition (ECF No. 3) as time
barred, and will deny Petitioner a certificate of appealability.
I. BACKGROUND
Petitioner was convicted of various assault related crimes in September 2010. (ECF No. 3
at 3.) He appealed, and the Appellate Division affirmed his conviction in May 2013. (ECF No.
4,) The New Jersey Supreme Court denied Petitioner’s certification petition on December 3, 2013.
(ECF No. 3 at 4.) Petitioner did not file a petition for certiorari.
On June 2, 2014, Petitioner sent a letter to the criminal division manager for the county
from which his conviction arose asking about the status of a post-conviction relief petition he
claims to have filed in March 2014. (ECF No. 5 at 7.) The manager replied with a letter in which
she informed him that no petition had been received, and he thus had no pending post-conviction
relief petition at that time. (Ud. at 8.) To the extent he wished to pursue post-conviction relief, he
was instructed to file a new petition. Ud.) Petitioner thereafter filed his post-conviction relief
petition by mailing it on February 13, 2015. (Ud. at 9.) That petition was received and filed on
March 19, 2015. (/d.) Petitioner’s post-conviction relief petition thereafter remained pending until
the New Jersey Supreme Court denied certification on April 7, 2020. (ECF No. 3 at 9.) Petitioner
was sent a copy of this denial on November 24, 2020. (ECF No. 5 at 4.)
I. LEGAL STANDARD
Under 28 U.S.C. § 2254(a), the district court “‘shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in 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.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state courts. See Eley v.
Erickson, 712 F.3d 837, 846-47 (3d Cir. 2013). Under the statute, as amended by the Anti-
Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), district courts are
required to give great deference to the determinations of the state courts. See Renico v. Lett, 559
U.S. 766, 772-73 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C, § 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is clearly
expressed in “only the holdings, as opposed to the dicta” of the opinions of the United States
Supreme Court. See Woods v. Donald, 575 U.S. 312, 316 (2015).
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, this Court is required to
preliminarily review a petitioner’s habeas petition and determine whether it “plainly appears from
the petition and any attached exhibits that the petitioner is not entitled to relief.” Pursuant to this
rule, a district court is “authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
Il. DISCUSSION
As this Court explained in its order to show cause,
Petitions for a writ of habeas corpus brought pursuant to 28 U.S.C,
§ 2254 are subject to a one-year statute of limitations, which in cases
such as this one begins to run when the petitioner’s conviction
becomes final upon either the conclusion of direct review or the
expiration of the time for seeking such review, up to and including
the 90-day period for the filing of a certiorari petition to the United
States Supreme Court. See Ross v. Varano, 712 F.3d 784, 798 (3d
Cir. 2013); Jenkins v. Superintendent of Laurel Highlands, 705 F.3d
80, 84 (3d Cir. 2013); see also 28 U.S.C. § 2244(d)(1)(A). As
Petitioner did not file a petition for certiorari on direct appeal, his
conviction became final and his one year limitations period began
to run ninety days after he was denied certification by the New
Jersey Supreme Court on December 3, 2013, (ECF No. 3 at 4), or
on March 3, 2014. Ross, 712 F.3d at 798. Absent some basis for
the tolling of the limitations period, Petitioner’s one year limitations
period would have expired on March 3, 2015.
While the one-year limitations period is subject to statutory tolling,
that tolling only applies during the period where a “properly filed”
petition for post-conviction relief is pending in the state courts.
Jenkins, 705 F.3d at 85.
(ECF No. 4 at 1-2.)
According to Petitioner, he first attempted to submit a post-conviction relief petition in
February 2014. That petition, however, never became “properly filed” nor did it become
“pending” before the state courts — it was never received, and Petitioner was directly informed of
that fact in June 2014. He did not thereafter attempt to “properly file” a habeas petition until
February 13, 2015. Thus, even if Petitioner was entitled to the application of the prisoner mailbox
rule,' he was not entitled to statutory tolling until that date. Thus, giving Petitioner even the benefit
of the date on which he mailed his PCR petition, at the time statutory tolling attached at most only
18 days of his one year limitations period remained. That tolling ceased to apply once the New
Jersey Supreme Court denied certification on April 7, 2020. Absent some basis for equitable
tolling, Petitioner’s one year limitations period thus began running on that date and expired
eighteen days later on April 25, 2020, eight months before Petitioner filed his initial habeas petition
on or about December 21, 2020, the date on which he signed his initial habeas petition.
Equitable tolling “is a remedy which should be invoked ‘only sparingly.’” United States
v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174,
179 (3d Cir. 1998)). To receive the benefit of equitable tolling, a petitioner must show “(1) that
he faced ‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that he
exercised reasonable diligence.” United States v. Johnson, 590 F. App’x 176, 179 (3d Cir. 2014)
(quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)).
In his response to the Court’s order to show cause, Petitioner presents two arguments for
equitable tolling. First, he argues that he should be provided with equitable tolling because his
state court public defenders did not tell him about the denial of his PCR certification petition until
' As many courts in this district have observed, the New Jersey Courts have not yet determined
that the prisoner mailbox rule applies to state court PCR petitions. See, e.g., Poteat v. Att’y Gen.
of N.J., No. 16-2351, 2017 WL 436259, at *3 (D.N.J. Feb. 1, 2017). It is thus not clear that
Petitioner is entitled to the benefit of the rule as to the date his PCR petition was considered
properly filed by the state courts. Because he is time barred regardless, this Court need not
determine whether the rule applies, and thus assumes its applicability for the purposes of this
opinion.
November 2021. As Petitioner himself acknowledges, however, “[i]n non-capital cases, attorney
error, miscalculation, inadequate research, or other mistakes have not been found to rise to the
‘extraordinary’ circumstances required for equitable tolling.” Fahy v. Horn, 240 F.3d 239, 244
(3d Cir. 2001), The inadvertent delay in informing Petitioner of the denial of his certification
petition on the part of his PCR attorneys thus does not provide an adequate basis for equitable
tolling. Even were such a failing to be considered an extraordinary circumstance, Petitioner has
presented nothing to suggest that he was diligent in determining the status of his PCR certification
petition. He does not state that he asked counsel for an update, called the state courts, or otherwise
sought to stay abreast of the status of his PCR appeal. Absent such actions, Petitioner has likewise
failed to show adequate diligence, and he fails to qualify for equitable tolling for that reason as
well,
In his second argument, Petitioner contends that he was delayed in filing a habeas petition
by COVID-related lockdowns during December and January 2021. Even if this Court were to
accept that the COVID-related library lockdowns did amount to an extraordinary circumstance,
and that Petitioner was diligent between November 24 and December 21, 2020 — the date he filed
his initial habeas petition, that would only warrant equitable tolling for approximately one month.
Petitioner’s habeas petition would still remain time barred by seven months. This second argument
is thus of no avail — Petitioner’s habeas petition remains well and truly time barred. Because it is
clear that Petitioner’s habeas petition is untimely, his pending petition (ECF No. 3) is dismissed
with prejudice as time barred.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “[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 [that] the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a [Certificate of Appealability] 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). Because reasonable jurists could not dispute this Court’s conclusion that Petitioner’ □
Petition was untimely filed and that Petitioner has failed to show any basis for sufficient tolling to
evade the time bar, Petitioner has failed to make a substantial showing of the denial of a
constitutional right, and he is therefore denied a certificate of appealability.
V. CONCLUSION
Petitioner’s Petition (ECF No. 3) is DISMISSED WITH PREJUDICE as time barred,
and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
UNITED STATES DISTRICT JUDGE