POMPEY v. DAVIS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JOSH POMPEY,

Petitioner,

v.

Civil Action No. 23-00324 (BRM)

WARDEN BRUCE DAVIS,

OPINION

Respondent.

MARTINOTTI, DISTRICT JUDGE

Before the Court is Petitioner Josh Pompey’s (“Petitioner”) petition for a writ of habeas

corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner is a state prisoner

confined at New Jersey State Prison in Trenton, New Jersey. Respondents filed a Motion to

Dismiss (“Motion”) the Petition as time barred. (ECF No. 7.) Petitioner filed a counseled response

(ECF No. 10), and Respondents replied (ECF No. 12). Having considered the submissions of the

parties without oral argument, for the reasons set forth below and for good cause shown,

Respondents’ Motion is GRANTED and the Petition is DENIED.

I. BACKGROUND

In March 1998, Petitioner was convicted of the murder and sexual assault of his former

girlfriend, Audrey Robinson, and the murder of her aunt, Madeline Mitchell. The Superior Court

of New Jersey, Law Division summarized this matter’s lengthy factual history as follows:

A. Scene of the Murder

On September 5, 1989, the bodies of Audrey Robinson and her aunt

Madeline Mitchell were discovered in Ms. Robinson’s Hackensack

apartment. The medical examiner determined that the cause of death

for both victims was multiple stab wounds. When Audrey

Robinson’s body was discovered in her bedroom, she was wearing

only a pair of socks with a belt tied around her neck and had 30 stab

wounds to her head and neck. The fact that Ms. Robinson was

discovered without any clothing led detectives to believe that there

had been a sexual assault prior to her murder. Similarly, Ms.

Mitchell’s body was discovered in the living room and had a single

stab wound below her left eye and 12 stab wounds to her chest.

Medical examiners also discovered numerous contusions to both

victims’ faces which were consistent with being struck by closed

fists.

Detectives from the Bergen County Prosecutor’s Office and

Hackensack Police Department conducted the crime scene

investigation. The detectives found that a door leading from the

basement to the kitchen had been shattered, and also noticed a

basement window that appeared to be forcibly opened. Throughout

the entire crime scene, detectives observed bloody hand prints that

did not have any fingerprints leading them to conclude that the

suspect wore gloves at the time of the murders. In addition,

detectives found a bloody knife in Ms. Robinson’s bedroom. The

bedroom was in a state of disarray demonstrating that there had been

a struggle. As with the bloody handprints, detectives found no

fingerprints on the bloody knife.

As detectives searched Ms. Robinson’s vehicle, which was parked

in her driveway, they discovered that somebody had attempted to

hot-wire it. In addition, the interior of the victim’s vehicle contained

a large amount of blood, which led detectives to believe that the

suspect may have been injured by the knife used during the

commission of the murders. Much like the inside of the victim’s

home, detectives found bloody hand prints on the vehicle but no

fingerprints. Due to the similar nature of the hand impressions,

detectives believed that the same person who left the bloody hand

prints inside the victim’s apartment, attempted to hot-wire the

victim’s vehicle to flee the scene of the murders.

B. Investigation of Suspects

After ruling out two initial suspects, detectives went to the

[Petitioner]’s residence at 227 Central Avenue in Hackensack to

interview him on September 6, 1989. When they arrived, the

[Petitioner]’s brother advised the detectives that he was not home.

The detectives then contacted Larry Holmes, a professional boxer,

with whom the [Petitioner] trained. Mr. Holmes told detectives that

he hadn’t seen the [Petitioner] in a few days, but was able to provide

them with a phone number where he could be reached. Later that

evening, detectives returned to the [Petitioner]’s residence to speak

with his mother. The detectives asked the [Petitioner]’s mother to

have him contact the police when he arrived home.

The next day, September 1, 1989, Detective Michael Mordaga of the

Hackensack Police Department observed the [Petitioner] walking

along train tracks in Maywood. Detective Mordaga, who was off-

duty at the time, turned his vehicle around and made eye contact

with the [Petitioner]. Upon seeing Detective Mordaga, the

[Petitioner] turned and walked away in the opposite direction and

eventually ran through yards in an apparent attempt to evade police.

Eventually, Detective Mordaga called the Maywood Police for

backup and apprehended the [Petitioner]. While placing the

[Petitioner] under arrest, Detective Mordaga observed cuts on the

[Petitioner]’s knuckles and palms, which appeared to be knife

wounds.

C. [Petitioner]’s Statement

Once the [Petitioner] was transported to police headquarters,

detectives provided him with a Miranda rights form which the

[Petitioner] signed, indicating that he understood and voluntarily

waived his rights. Initially, the [Petitioner] maintained that he had

nothing to do with the murders and stated that he had been home all

day on September 5, 1989. However, after further questioning, the

[Petitioner] gave a detailed statement recounting the murders of

Audrey Robinson and Madeline Mitchell and the disposal of key

evidence.

Specifically, the [Petitioner] admitted that he went to the victim’s

home on September 5, 1989, and that he wore his mother’s gloves

because he did not want to leave any fingerprints. The [Petitioner]

stated that he pried open a basement window to gain access to the

victim’s home to wait until she got home so he could talk her into

rekindling their past relationship. At around 1:30 p.m. his ex-

girlfriend, Ms. Robinson, pulled into the driveway and entered her

first floor apartment. She left the apartment, but returned again

around 3:30 p.m., and at that time discovered the [Petitioner] in her

apartment.

The [Petitioner] told detectives that Ms. Robinson tried to get him

to leave, but he pushed her toward her bedroom. After exchanging

words with Ms. Robinson, the [Petitioner] stated that he began to

choke her and asked her to have sexual intercourse. After rejecting

his advances, the [Petitioner] claimed that Ms. Robinson eventually

got undressed due to his “persuasiveness” and he proceeded to have

intercourse with her. The [Petitioner] claimed he became angry

when he could not perform sexually due to Ms. Robinson’s

resistance. He then began to choke her again and a struggle ensued.

During the struggle, the [Petitioner] stated that Ms. Robinson pulled

the glove off of his right hand. Importantly, the [Petitioner] told

officers that he wrapped a belt around Ms. Robinson’s neck in an

attempt to make her pass out and quiet her down.

Upon hearing the struggle, the victim’s aunt, Ms. Mitchell, came

downstairs. When she saw the [Petitioner], she attempted to run

back to her upstairs apartment to call the police. The [Petitioner] ran

after her and grabbed her leg as she was running up the stairs,

dragging her back into Ms. Robinson’s living room. At that time,

the [Petitioner] punched Ms. Mitchell in the face repeatedly. After

striking Ms. Mitchell, the [Petitioner] stated that he saw Ms.

Robinson moving and ran to the kitchen to get a knife. The

[Petitioner] then proceeded to stab Ms. Robinson repeatedly in the

chest. The [Petitioner] specifically told officers that as he was

stabbing Ms. Robinson, his hand slipped off of the knife handle,

causing him to cut his hand. After stabbing Ms. Robinson numerous

times, the [Petitioner] saw Ms. Mitchell attempting to stand up in

the living room. According to the [Petitioner], he went to the kitchen

and took a smaller knife which he used to stab Ms. Mitchell.

D. Items Recovered After [Petitioner]’s Statement

During the [Petitioner]’s statement, he told detectives that after

committing the murders, he left Ms. Robinson’s apartment and

attempted to hot-wire her vehicle which was parked in the driveway.

When he was unable to start it, he fled the scene, walking along the

railroad tracks so that nobody would see him covered in blood. The

[Petitioner] stated that he took money from Ms. Robinson’s purse

before discarding it, along with the knife used to stab Ms. Mitchell,

in a dumpster. Once the [Petitioner] returned home, he removed the

bloody clothing and returned to the railroad tracks where he hid the

clothing under old tires next to the tracks. After discarding the

bloody clothes, the [Petitioner] returned home to wash the blood off

of his sneakers.

When detectives received this information, they advised other

officers to search for the discarded evidence at the locations

described with great specificity by the [Petitioner], in the vicinity of

Second Street in Hackensack. The detectives searched the dumpster

that the [Petitioner] described, and discovered a white short-sleeve

shirt which was covered in blood. The officers then proceeded to

search the area for the rest of the clothing that the [Petitioner]

claimed to have discarded under old tires. After searching the area

to no avail, the officers requested the assistance of a canine to locate

the evidence. Approximately half an hour later, the canine located a

brown plastic bag with yellow pull ties which contained a pair of

dark pants, and a maroon jacket, both of which were also covered in

blood. Notably, these items were discovered under old tires in a

wooded area near the railroad tracks, exactly as the [Petitioner] had

described to detectives during his statement. In addition, officers

discovered a left-handed knit glove which was described as having

cut marks and what appeared to be blood stains. When the glove was

discovered, it was extremely damp and seemed to have been sitting

in stagnant water.

After securing the items discovered in the dumpster and next to the

railroad tracks, the officers secured and executed a search warrant at

the [Petitioner]’s home. Upon searching the [Petitioner]’s home,

officers discovered brown plastic garbage bags with yellow pull ties,

matching the bag in which the bloody clothing was found. In

addition, officers seized a pair of sneakers from the [Petitioner]’s

home which subsequently tested positive for blood. Forensic

analysis of the items retrieved from the dumpster and railroad tracks

revealed transfer fibers, linking those articles of clothing to the

victim’s home and car.

E. [Petitioner]’s Statements for Medical Treatment

After the [Petitioner]’s arrest, he was seen by the intake nurse at the

Bergen County Jail, Margaret Neely, L.P.N. Upon examining the

[Petitioner], Ms. Neely noticed cuts on his left hand. According to

Ms. Neely’s testimony, the cuts appeared to be 24 to 48 hours old.

Ms. Neely’s report indicated that the [Petitioner] stated that he cut

his hand on a kitchen knife on September 5, 1989, the day of the

victims’ murders.

(ECF No. 7-23 at 156–61, PCR Court Op. 8/29/2017.)

On December 4, 1989, a Bergen County grand jury returned indictment number 89-12-

01594-1, charging the defendant with two counts of knowing or purposeful murder contrary to

N.J.S.A. 2C:11- 3(1) and (2); four counts of felony murder contrary to N.J.S.A. 2C:11-3a(3); one

count of aggravated sexual assault contrary to N.J.S.A. 2C:14-2a(3); and one count of aggravated

assault contrary to N.J.S.A. 2C:12-lb(5)(a). (See id. at 154.) Petitioner’s initial trial, during which

the State sought the death penalty, resulted in a mistrial due to a deadlocked jury. (Id.) The State

did not seek the death penalty on retrial, and Petitioner’s retrial was scheduled before the

Honorable William C. Meehan, J.S.C. (Id.) On March 9, 1990, following the retrial, Petitioner was

found guilty on all counts of the indictment. (Id. at 154-155.) On April 3, 1998, the trial court

sentenced Petitioner to an aggregate term of two life sentences plus 21 ½ years, with a 7-year and

9-month period of parole ineligibility. (Id. at 155.)

Petitioner filed a Notice of Appeal and on May 17, 2004, the Appellate Division affirmed

Petitioner’s conviction. (ECF No. 7-12 at 63–121.) On June 22, 2005, the New Jersey Supreme

Court denied Petitioner’s petition for certification. (ECF No. 7-7 at 66.) Petitioner did not file a

petition for certiorari with the Supreme Court of the United States.

On January 4, 2006, Petitioner filed his first pro so Petition for Post-Conviction Relief

(“PCR”). (Id. at 67–72.) On May 24, 2007, the State moved for summary dismissal of Petitioner’s

pro se PCR petition. (Id. at 73.) On August 14, 2007, Petitioner filed a counseled amended PCR

petition, as well as a request for DNA testing. (ECF No. 7-9 at 23 to ECF No. 7-11 at 69.) On

September 28, 2007, the PCR judge held a hearing and denied Petitioner’s PCR petition on the

record as time-barred but granted Petitioner’s request for DNA testing. (ECF No. 7-32.) On

October 18, 2017, the PCR court filed an Order memorializing the dismissal of Petitioner’s PCR

petition. (ECF No. 7-21 at 66–68.)

On December 18, 2007, Petitioner filed a Notice of Appeal from the PCR court’s October

18, 2007 order dismissing the PCR petition as time-barred. (ECF No. 7-7 at 74.) On July 21, 2008,

Petitioner sought to stay his appeal until conclusion of the DNA testing, or in the alternative to

extend the deadline for filing his appellate brief. (Id. at 75–82.) The State did not oppose

Petitioner’s request, rather the State left the matter to the Appellate Divisions discretion. (Id. at

83.) On August 13, 2008, the New Jersey Superior Court, Appellate Division, dismissed

Petitioner’s appeal without prejudice, noting that Petitioner may file a new appeal at the

completion of the DNA testing because “in that manner, all post-conviction proceedings [could]

be considering one appeal.” (Id. at 84.)

On September 9, 2011, Petitioner filed a motion seeking (i) a new trial based on newly

discovered evidence; (ii) an evidentiary hearing; (iii) request for post-conviction discovery; or

alternatively, to include these newly discovered facts and evidence with respect to existing PCR

and/or as part of excluded record in future direct appeal. (ECF No. 7-21 at 144–79.) Petitioner

sought a new trial, arguing that news articles related to one of the detectives involved in

Petitioner’s case alleged that the detective was associated with the mob. (See id.) On February 1,

2012, the PCR court denied Petitioner’s motion for a new trial. The PCR court also found that if

the motion was treated as a second PCR petition, that petition was dismissed as time barred. (ECF

No. 7-21 at 192–200.)

On March 13, 2012, Petitioner motioned the Appellate Division to consolidate all issues

related to the 2012 denial of his second PCR petition with his first 2007 PCR petition appeal. (ECF

No. 7-7 at 85–91.) On April 9, 2012, the Appellate Division denied Petitioner’s motion to

consolidate issues and noted that there was nothing to consolidate, as Petitioner’s first PCR appeal

was dismissed in August 2008. (Id. at 92.) The DNA testing was completed in 2014. (ECF No. 7-

22 at 114.)

On April 13, 2015, Petitioner filed a “successor” PCR petition, and a motion for a new trial

and for additional DNA testing. (Id. at 43–88.) In addition to other arguments, Petitioner argued

that new DNA evidence pertaining to the right-hand glove, shows the Petitioner is innocent and

that his confession is false. (See id.) On August 29, 2017, following oral argument, the PCR court

denied Petitioner’s third PCR petition and motion for a new trial. (ECF No. 7-23 at 154–77.)

Petitioner filed appeals from the 2007 and 2017 orders denying him PCR relief. On May 18, 2021,

the New Jersey Superior Court, Appellate Division, affirmed both the 2007 and 2017 denials of

Petitioner’s PCR petitions. (ECF No. 7-1.) On January 28, 2022, the New Jersey Supreme Court

denied Petitioner’s petition for certification. (ECF No. 7-30.)

On January 20, 2023, Petitioner filed his petition for writ of habeas corpus. (ECF No. 1.)

Petitioner raises to following claims:

1. PETITIONER SHOULD BE GRANTED AN EVIDENTIARY HEARING

BECAUSE NEWLY DISCOVERED EVIDENCE DERIVED FROM STATE-OF-

THE-ART DNA TESTING PROVES THAT THE CONFESSION WAS FALSE

AND ESTABLISHES A PRIMA FACIE CASE THAT PETITIONER’S

CONVICTION WAS OBTAINED IN VIOLATION OF DUE PROCESS;

2. THE DISTRICT COURT SHOULD GRANT ADDITIONAL DNA TESTING TO

ALLOW PETITIONER TO ESTABLISH THIRD-PARTY GUILT;

3. THE NEWLY DISCOVERED EVIDENCE RAISES PROOF THAT NAPUE

VIOLATIONS INCLUDING MANUFACTURED OR FALSE EVIDENCE AND

FALSE TESTIMONY OCCURRED AND THIS AFFECTED THE OUTCOME

OF THE VERDICT;

4. NEWLY DISCOVERED EVIDENCE IMPACTS PREVIOUS RULINGS AS TO

THE SUPPRESSION OF THE BLOOD EVIDENCE, THE CONFESSION, AND

THE BARRING OF THE FALSE CONFESSION EXPERT, THE PLANTED

EVIDENCE EXPERT, THE FINGERPRINT EXPERT AND THE EDTA

EXPERTS’ TESTIMONY;

5. THE TRIAL COURT EFFECTIVELY DENIED PETITIONER THE RIGHT TO

A DEFENSE;

6. THE TAMPERED WINDBREAKER LABEL EVIDENCE REQUIRES

REVERSAL OF THE CONVICTIONS;

7. PROSECUTORIAL MISCONDUCT IN THE FORM OF BRADY

VIOLATIONS, FALSE TESTIMONY THAT REMAINS UNCORRECTED TO

THIS DAY, AND INTENTIONAL TAMPERING AND DESTRUCTION OF

EXCULPATORY PHYSICAL EVIDENCE DENIED PETITIONER THE RIGHT

TO DUE PROCESS AND A FAIR TRIAL; and

8. PETITIONER ASSERTS A FREE-STANDING ACTUAL INNOCENCE CLAIM

(ECF No. 2 at 34–89.)

On February 17, 2023, Petitioner filed a brief in support of his habeas petition. (ECF No.

2.) Respondents subsequently filed the instant Motion to Dismiss, arguing that the petition is

untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (ECF No.

7.) Petitioner filed a response, and Respondents filed a reply. (ECF Nos. 10, 11, 12.)

The matter is now ripe for decision without oral argument. Fed. R. Civ. P. 78(b).

II. STANDARD OF REVIEW

The 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 pursuant to 28 U.S.C.

§ 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 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); see also Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). “[T]he statute

of limitations set out in § 2244(d)(1) should be applied on a claim-by-claim basis.” Fielder v.

Varner, 379 F.3d 113, 118 (3d Cir. 2004).

Pursuant to § 2244(d), evaluation of the timeliness of a § 2254 petition requires a

determination of, first, when the pertinent judgment became “final,” and, second, the period of

time during which an application for state post-conviction relief was “properly filed” and

“pending.” The judgment is determined to be final by the conclusion of direct review, or the

expiration of time for seeking such review, including the ninety-day period for filing a petition for

writ of certiorari in the United States Supreme Court. See Gonzalez v. Thaler, 132 S.Ct. 641, 653–

54 (2012).

The AEDPA limitations period is tolled, however, during any period a properly filed PCR

petition is pending in the state courts. 28 U.S.C. § 2244(d)(2); see also Thompson v. Adm’r New

Jersey State Prison, 701 F. App’x 118, 121 (3d Cir. 2017); Jenkins v. Superintendent of Laurel

Highlands, 705 F.3d 80, 85 (3d Cir. 2013). The PCR petition is considered to be pending, and the

AEDPA limitations period continues to be tolled, during the time the petitioner could have

appealed a PCR decision within the state courts, even if the petitioner did not in fact file such an

appeal. Carey v. Saffold, 536 U.S. 214, 219–21 (2002); Swartz v. Meyers, 204 F.3d 417, 420–24

(3d Cir. 2000) (citing Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999)). However, “[t]he

application for state postconviction review is…not ‘pending’ after the state court's postconviction

review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the

pendency of a petition for certiorari.” Lawrence v. Florida, 549 U.S. 327, 332 (2007).

III. DECISION

Respondents argue that the Petition is untimely. The Court agrees.

A. Timeliness

Petitioner’s conviction became final within the meaning of AEDPA on September 20,

2005, 90 days after the New Jersey Supreme Court denied certification of his direct appeal on June

22, 2005. (ECF No. 7-7 at 66); see Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80,

84 (3d Cir. 2013) (“[T]he expiration of the time for seeking direct review is the deadline for

petitioning for certiorari to the United States Supreme Court.”) Therefore, absent statutory tolling,

Petitioner’s AEDPA one-year time limitation expired on year later, on September 20, 2006.

1. Statutory Tolling

The AEDPA limitations period is tolled during the time a properly filed PCR petition is

pending in the state courts. 28 U.S.C. § 2244(d)(2); see also Thompson v. Adm’r New Jersey State

Prison, 701 F. App’x 118, 121 (3d Cir. 2017); Jenkins, 705 F.3d at 85. A properly filed application

is one that the Court accepted for filing by the appropriate court officer and the Petitioner filed the

application within the time limits prescribed by the relevant jurisdiction. Pace v. DiGuglielmo, 544

U.S. 408, 413 (2005). A properly filed PCR petition will continue to be “pending” in the state

courts following an adverse determination by the PCR court until the time in which a petitioner

has to file a timely direct appeal in the state courts has run. See Swartz, 204 F.3d could at 420-24,

423 n.6. Importantly, it is well established that a petition for state post-conviction relief that was

rejected by the state courts as untimely is not deemed “properly filed” under § 2244(d)(2). See

Pace, 544 U.S. at 414 (“When a postconviction relief petition is untimely under state law, that [is]

the end of the matter for purposes of § 2244(d)(2).”) (internal quotation marks and citation

omitted); see also Allen v. Siebert, 552 U.S. 3 (2007).

As noted above, Petitioner’s judgment of conviction became final on September 20, 2005.

The following day on September 21, 2005, Petitioner’s habeas statute of limitations began to run,

and it elapsed one year later, on September 21, 2006. See 28 U.S.C. § 2244(d)(1)(a). Petitioner

filed this habeas petition in January 2023, over sixteen years later.

The fact that Petitioner filed his first PCR petition on January 4, 2006, after the AEDPA

limitations period ran for only 104 days, does not induce statutory tolling of Petitioner’s one-year

habeas deadline because Petitioner’s first PCR was not “properly filed.” (ECF No. 7-7 at 67–72.)

See Pace, 544 U.S. at 414; see also Long v. Wilson, 393 F.3d 390, 394–95 (3d Cir. 2004) (“The

state habeas petition had no effect on tolling, because an untimely state post-conviction petition is

not properly filed for the purposes of tolling.”). Under New Jersey Court Rule 3:22-12, a petition

for PCR must be filed within five years of the date of entry of a judgment of conviction. See e.g.,

Pressler, Current N.J. Court Rules, cmt. 2 on N.J. Ct. R. 3:22-12 (2015) (“The five-year period . . .

commences when the judgment of conviction is entered and is neither stayed nor tolled by

appellate or other review proceedings.”); State v. Dillard, 506 A.2d 848, 850 (N.J. Super. Ct. App.

Div.), cert. denied, 523 A.2d 169 (1986) (finding that “there is no provision for tolling in R. 3:22-

12 by reason of a direct appeal”).

In Petitioner’s case, the PCR court held that his first PCR petition was untimely because

more than five years elapsed between Petitioner’s judgment of conviction on April 3, 1998, and

Petitioner’s filing of his PCR on January 4, 2006. (See ECF No. 7-32.) Therefore, since Petitioner’s

PCR was not “properly filed,” he is not entitled to statutory tolling for the pendency of his PCR

proceedings.

Petitioner argues that although the PCR court dismissed his first PCR petition as untimely,

his properly filed motion for DNA testing triggered statutory tolling. (See ECF No. 10 at 16–20.)

Petitioner argues that the PCR judge’s grant of Petitioner’s motion for post-conviction DNA

testing remained pending until the New Jersey Supreme court denied certification on January 28,

2022, within one year of the filing of the habeas petition on January 20, 2023. (Id.)

The Third Circuit Court of Appeals has not resolved the issue of whether a post-conviction

request for DNA testing in New Jersey constitutes a “properly filed application for . . . other

collateral review” under Section 2244(d)(2). However, the majority of circuits to examine this

issue have determined that post-conviction motions for discovery or DNA testing are not forms of

collateral or post-conviction review. See Woodward v. Cline, 693 F.3d 1289, 1293 (10th Cir. 2012)

(determining that a motion under Kansas statute permitting biological testing is not an application

for collateral review that tolls AEDPA’s statute of limitations); Brown v. Sec’y for Dep’t of Corr.,

530 F.3d 1335, 1338 (11th Cir. 2008) (determining that Florida rule permitting post-conviction

DNA testing did not toll AEDPA’s limitations period because it did not provide a review

mechanism); Price v. Pierce, 617 F.3d 947, 952–53 (7th Cir. 2010) (determining that Illinois

statute permitting postconviction forensic testing was not a collateral review mechanism and did

not toll AEDPA’s limitations period); Ramirez v. Yates, 571 F.3d 993, 999–1000 (9th Cir. 2009)

(determining that post-conviction discovery motions did not toll AEDPA limitations period

because they did not challenge his conviction); Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001)

(determining that post-conviction motion for discovery under New York law did not challenge

conviction and therefore did not toll AEDPA’s limitations period).

However, this Court does not need to determine whether Petitioner’s motion for DNA

testing tolled the AEDPA statute of limitations. Even assuming, arguendo, that the AEDPA

limitations period was tolled from January 4, 2006, the date of filing of Petitioner’s first PCR

petition and request for DNA testing, until January 28, 2022, the date the New Jersey Supreme

Court denied Petitioner’s petition for certification, the habeas petition is still untimely. As

explained above, the AEDPA limitations period ran for 104 days from September 21, 2005, the

date Petitioner’s habeas statute of limitations began to run, until January 4, 2006, the date he filed

his first PCR petition and motion for DNA testing. Petitioner’s habeas clock would have started to

run again on January 28, 2022, the date the New Jersey Supreme Court denied Petitioner’s petition

for certification, with 261 days (365 – 104 = 261) days remaining on his habeas limitation period.

As such, Petitioner had 261 days, or until October 17, 2022, to file a timely habeas Petition. The

instant habeas petition was not filed until January 20, 2023, over three months after Petitioner’s

AEDPA limitations period had run. Therefore, even allowing for statutory tolling for the time in

which Petitioner’s DNA results were pending, his habeas petition is still untimely.

2. Alternate Habeas Limitations Start Date

While Petitioner does not argue that his “newly discovered” DNA evidence qualifies for

an alternate start date under § 2244(d)(1), the Court will address the issue. The AEDPA gives a

state prisoner one year to file a federal habeas petition, starting from “the date on which the

judgment became final.” 28 U.S.C. § 2244(d)(1)(A). But if the petition alleges newly discovered

evidence, the filing deadline is one year from “the date on which the factual predicate of the claim

. . . could have been discovered through . . . due diligence.” § 2244(d)(1)(D).

By way of background, the New Jersey Superior Court, Appellate summarized the original

DNA testing results from Petitioner’s trial as follows:

DNA testing established that [Petitioner] could not be ruled out as a

major contributor, and the former girlfriend a minor contributor, to

blood samples taken from inside her car and from his black pants.

Additional items, found at the locations [Petitioner] identified, were

also tested. The victim could not be ruled out as the major

contributor and [Petitioner] the minor contributor, to blood found on

his windbreaker and to blood stains found on a shirt in a dumpster.

Additionally, [Petitioner] could not be ruled out as a contributor to

the blood on the mattress and the victim’s brassiere. Her boyfriend

was excluded as a contributor to any samples.

(ECF No. 7-1 at 3.)

Petitioner argues the following pieces of DNA evidence are “new” and show his confession

was coerced and exonerate him.

1) DNA evidence from the right glove. Petitioner argues that the NJSP

DNA lab identified DNA that was from the interior of the right

brown glove [sample 57-3] and the lab called it an ‘as worn’ sample

that had no blood on it.” (ECF No. 2 at 20.) Petitioner submits that

the DNA results from inside the right glove finger matches the

victim’s, Audrey Robinson, DNA profile and excluded Petitioner.

(Id., see also ECF No. 7-19 at 146.) Petitioner also submits that

blood found on the right glove was a match to the victim’s DNA

profile, and no male DNA was found in the blood sample. (Id. at 22;

see also ECF No. 7-16 at 147.)

2) DNA evidence from the left glove. Petitioner submits that the new

DNA results indicate no DNA was found on the left glove. (Id., see

also ECF No. 7-16 at 147.)

3) DNA evidence from the belt. Petitioner submits that the new DNA

results indicate that DNA found on the belt that was used to strangle

the victim matched the DNA profile of the victim, but Petitioner’s

DNA was not found on the belt. (Id. at 25, see also ECF No. 7-16 at

149.)

4) DNA evidence from the brown plastic bag. Petitioner submits that

the new DNA results from the brown plastic bag that Petitioner

confessed to carrying his bloody clothes in indicated that no blood

was found on the bag. (Id. at 26–27; see also ECF No. 7-16 at 149.)

5) DNA evidence from hair from the crime scene. Petitioner submits

that the new DNA results from the hairs from the crime scene

exclude Petitioner. (Id. at 26; see also ECF No. 7-16 at 149.)

6) DNA evidence from the rape kit evidence. Petitioner submits that

the new DNA results excluded Petitioner from being a contributor

from the rape kit evidence. (Id.; see also ECF No. 7-16 at 149.)

The Appellate Division also summarized Petitioner’s claims in his first 2006 PCR petition

as follows:

[Petitioner] filed his first PCR petition in January 2006, claiming

that his experts were improperly barred from testifying as

established by subsequent caselaw and news articles; the prosecutor

engaged in misconduct during opening and closing statements;

police tampered with evidence and conspired against him, as did the

judges who presided over the case; the DNA evidence had been

tampered with and was unreliable; he was wrongfully precluded

from pursuing an investigation into the victim’s boyfriend as a

“bloody” fingerprint had been found on the utensil drawer (during

the trial, the State’s fingerprint expert said that although the

boyfriend’s fingerprint was found on the utensil drawer, it had no

blood on it, and was not in a bloody area); the jury charge was

erroneous; his confession was coerced and he should have been

granted a Miranda rehearing after it was revealed that he had a

handcuff on one arm when the stenographer transcribed his

statement to police; the physical evidence against him should have

been suppressed; the jury was prejudiced and engaged in

misconduct; he was wrongfully precluded from trying on one of two

knit gloves he allegedly wore during the killing; he was wrongly

denied discovery essential to his attack on the credibility of the

investigating officers who testified against him; the serology log

books were doctored by police and prosecutors; the prosecutor

presented perjured testimony regarding photos taken of the victim’s

car; defense witness testimony regarding his reaction to “learning”

of the victim’s death was wrongfully precluded; there was judicial

bias against him; and appellate counsel failed to advise him of PCR

filing deadlines and was otherwise ineffective. [Petitioner] also

requested an evidentiary hearing and additional DNA testing.

(ECF No. 7-1 at 4–5.)

In order to determine the “factual predicate of the claim or claims presented” for purposes

of section 2244(d)(1)(D), the Court must identify Petitioner’s claims. Petitioner’s brief in support

of habeas relief is voluminous and many of his claims overlap. In addition to his request for an

evidentiary hearing and additional DNA testing, Petitioner raises several due process claims,

allegedly supported by “newly discovered evidence.” Petitioner argues that he was denied due

process and a fair trial because newly discovered DNA evidence shows Petitioner’s confession

was coerced, law enforcement manufactured false evidence, and prosecutorial misconduct in the

form of introducing false testimony and the intentional tampering and destruction of exculpatory

physical evidence. Petitioner also argues that the newly discovered DNA evidence impacts the trial

court’s rulings as to the suppression of blood evidence, Petitioner’s confession, and the preclusion

of various experts. Petitioner’s claims all boil down to his allegations that he was not the

perpetrator, law enforcement coerced his confession, and law enforcement and the prosecution

planted the evidence to match his coerced confession and/or tampered with the evidence. Petitioner

argues that the “new” DNA results prove that he is innocent, and his confession was coerced.

The Third Circuit Court of Appeals considered what section 2241(d)(1)(A)’s term “factual

predicate” means and explained “though the AEDPA does not define ‘factual predicate,’ we have

held that ‘[s]ection 2244(d)(1)(D) provides a petitioner with the later accrual date than section

2244(d)(1)(A) only if vital facts could not have been known.’” McAleese v. Brennan, 483 F.3d

206, 214 (3d. Cir. 2007) (citation omitted). The Third Circuit found that the “factual predicate” of

petitioner’s claims constitutes the “vital facts” underlying those claims. Id.

Here, Petitioner confuses the facts that make up his claims, with “new” DNA evidence that

support his claims. McAleese, 483 F.3d at 214, citing Johnson v. McBride, 381 F.3d 587, 589 (7th

Cir. 2004) (“A desire to see more information in the hope that something will turn up differs from

‘the factual predicate of [a] claim or claims’ for purposes of § 2244(d)(1)(D).”).

Any argument that the new DNA results from the left glove, the belt, the brown plastic

bag, the hairs, or the rape kit presents a new factual predicate for Petitioner’s claims fails, as it is

merely additional support for a claim already raised by Petitioner. The PCR court explained in

Petitioner’s third PCR petition that these items are not new. (ECF No. 7-23 at 175–76.) In fact, the

PCR court noted that “the defense strategy at trial was to highlight the lack of [Petitioner’s] DNA

found on the gloves, in the victim’s car and at the crime scene in general,” and defense counsel

argued in his summation that the left glove lacked Petitioner’s DNA. (Id. at 175.) Defense counsel

noted that Petitioner’s hairs were not found on the glove or the knife. (ECF No. 14-4 at 91.) The

fact that hairs tested post-conviction were not a match for Petitioner is not new evidence, rather

just additional support for an argument already made to the jury regarding the lack of Petitioner’s

hairs at the scene. Defense counsel agued to the jury at trial that there was no blood in the plastic

bag. (Id. at 122.) Therefore, the lack of Petitioner’s DNA in the plastic bag is not new evidence.

The jury was informed that DNA testing of the rape kit was not done because state laboratory had

reported the absence of any seminal fluid. (ECF No. 14-2 at 81.) Finally, the lack of DNA on the

belt is not “new evidence” that would be the factual predicate for a new claim, rather it is simply

additional support for Petitioner’s position that he is not the perpetrator and law enforcement

tampered with evidence. The absence of Petitioner’s DNA on these items is not new evidence and

does not provide a new factual predicate for a different habeas limitations start date under section

2241(d)(1)(D).

The alleged “newly discovered” DNA evidence of the victim’s DNA inside the finger of

the right glove is merely cumulative evidence that Petitioner is attempting to use to corroborate

his argument that his confession was coerced, and he is not the owner of and did not wear the

gloves. Petitioner has claimed all along that he was not the owner of the gloves and that the police

planted the gloves and coerced him to testify that he brought the gloves to the victim’s house. (See

generally, ECF No. 14-4.) The DNA testing results of the right glove from prior to trial indicated

that the blood matched the DNA profile of the victim, and Petitioner was excluded as a contributor.

(See ECF No. 14-2 at 66.) Therefore, the DNA evidence before trial already excluded Petitioner

as a contributor and found that blood on the right glove matches the DNA profile of the victim.

Additional DNA from the victim on the right glove is cumulative of the evidence before the jury

and merely supports for the claim petitioner was already making, i.e., that he was not the owner of

the gloves.

Petitioner now attempts to resurrect his time-barred habeas claims by alleging the fact that

the victim’s DNA was found on a different portion of the right glove is newly discovered evidence

which is the factual predicate for his claim. Here, since his first PCR petition filed prior to the

2007, Petitioner set out the argument that his DNA was not on the gloves, which proved they were

planted and his confession was coerced, the “newly discovered” DNA evidence of the victim

inside the glove is not a fact that Petitioner is using to support a new claim, rather is support for

previous claim. At this juncture Petitioner would be precluded from resorting to § 2244(d)(1)(D)

to reset the limitations clock.

3. Equitable Tolling

The one-year statute of limitations period under § 2244(d) is also subject to equitable

tolling.

“Equitable tolling is proper only when the ‘principles of equity would make [the] rigid

application [of a time period] unfair.’ Generally, this will occur when the petitioner has ‘in some

extraordinary way . . . been prevented from asserting his or her rights.’ Moreover, to be entitled to

equitable tolling, ‘[t]he petitioner must show that he or she ‘exercised reasonable diligence in

investigating and bringing [the] claims.’ Mere excusable neglect is not sufficient.” Brown v.

Shannon, No. 01-1308, 2003 WL 1215520 at *4 (3d Cir. March 17, 2003) (citations omitted).

Equitable tolling may be appropriate where: “(1) the defendant has actively misled the

plaintiff; (2) if the plaintiff has ‘in some extraordinary way’ been prevented from asserting his

rights; or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum.” Jones

v. Morton, 195 F.3d 153, 159 (3rd Cir.1999).

In the final analysis, federal review, on an equitable basis, of an untimely habeas petition

is limited to the “rare situation where equitable tolling is demanded by sound legal principles as

well as the interests of justice.” Id.

Petitioner argues that he is entitled to equitable tolling because the DNA test results upon

which his habeas petition is based were not previously available to him, and they show that the

prosecution used a false confession to convict Petitioner. The Court notes that Petitioner argues

“actual innocence” as one of his habeas claims.1 To the extent Petitioner is arguing that the DNA

results show Petitioner is actually innocent and that is a basis for equitable tolling, Petitioner has

not met his burden of proof.

In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the Supreme Court held that a credible

claim of actual innocence may serve as an “equitable exception” that can overcome the bar of

AEDPA’s one-year limitations period. However, the McQuiggin Court cautioned that “tenable

actual-innocence gateway pleas are rare,” and a petitioner only meets the threshold requirement

by “persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably,

would have voted to find him guilty beyond a reasonable doubt.” Id. at 1928. An actual innocence

claim must be based on “new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence [] that was not presented at trial.”

Schlup v. Delo, 513 U.S. 298, 324 (1995). In the Third Circuit, evidence is “new” for the purposes

of the Schlup standard only if it was not available at the time of trial and could not have been

1 To the extent that Petitioner argues actual innocence as an independent basis for habeas relief,

free-standing claims of actual innocence are not reviewable in habeas actions. A claim of actual

innocence is merely a gateway-the petitioner must allege at least one separate constitutional

violation. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based on

newly discovered evidence have never been held to state a ground for federal habeas relief absent

an independent constitutional violation occurring in the underlying state criminal proceeding.”).

discovered earlier through the exercise of due diligence, except in situations where that evidence

was not discovered due to the ineffective assistance of trial counsel. See Houck v. Stickman, 625

F.3d 88, 93–94 (3d Cir. 2010). In turn, when determining if a petitioner’s new evidence shows it

is “more likely than not that no reasonable juror would have convicted him,” a court must consider

“all the evidence, old and new, incriminating and exculpatory, without regard to whether it would

necessarily be admitted under rules of admissibility that would govern at trial.” House v. Bell, 547

U.S. 518, 538 (2006). Finally, a court “may consider how the timing of the submission [of actual

innocence] and the likely credibility of the affiant[] bear on the probable reliability of that

evidence.” Schlup, 513 U.S. at 332.

As explained above, Petitioner bases his claim of “actual innocence” on the absence of his

DNA on both the right and left gloves, the brown plastic bag, the belt that was used to strangle the

victim, the hairs found at the crime scene, and the rape kits. Additionally, Petitioner claims that

the victim’s DNA on the inside of the right gloves proves that he is innocent, and that law

enforcement tampered with the evidence. Petitioner’s argument fails for several reasons. First, as

noted above, the lack of Petitioner’s DNA on the gloves, the victim’s DNA on the right glove, the

lack of Petitioner’s hairs at the scene, and the lack of blood on the plastic bag were presented to

the jury at trial. The PCR court found on Petitioner’s third PCR appeal “that the DNA test results

of: (1) the gloves believed to be worn by the defendant, during the murder, (2) the brown plastic

bag that the defendant’s bloody clothing was discovered in; (3) the belt found around the victim’s

neck; and (4) swabs #81 and #82 from the victim's rape kit, all amount to cumulative,

impeachment, and contradictory evidence and would not have had a probable impact on the jury’s

verdict.” (ECF No. 7-23 at 175.) This is not “new reliable evidence” that was “not presented at

trial.” Schulp, 513 U.S. at 324.

Second, regarding the new DNA results that the victim’s DNA was found inside the right

glove, this evidence is cumulative of the evidence produced at trial. The DNA available prior to

trial showed that the victim’s DNA was found on the outside of the right glove. Additionally, as

the PCR court noted “the DNA being discovered on the inside of the right glove is the only

evidence that was not presented at the time of [Petitioner’s] trial. However, this evidence is

consistent with [Petitioner’s] statement to detectives that the victim pulled his right glove off

during the struggle, which the jury heard and considered before convicting [Petitioner].” (ECF No.

7-23 at 176.)

The PCR court explained that:

The evidence at the [Petitioner’s] trial included the [Petitioner’s]

own statement recounting the murders with specific details that were

not disclosed to anyone prior to his statement. The [Petitioner’s]

statement included (1) how he entered the victim’s apartment, (2)

the rooms in which the bodies were found, (3) the areas of the

victims’ bodies that were stabbed, (4) the use of a belt tied around

the victim’s neck, (5) the fact that he attempted to hot-wire her car

to flee the scene, (6) the route he took to avoid being seen covered

in blood, and (7) the areas along the railroad tracks where he

discarded key evidence. Virtually all of the [Petitioner’s] statements

were corroborated by the evidence collected by investigating

officers.

In addition, the following evidence was presented at trial: (1) the

[Petitioner] had cuts on his palms and knuckles that corresponded

with the cuts on the glove which was believed to be used during the

murder, (2) the [Petitioner] made a statement to the nurse at the

Bergen County Jail stating that he cut his hand on a kitchen knife on

the same date as the murder, (3) there was blood discovered on the

[Petitioner’s] sneaker after officers executed the search warrant at

his home, and (4) brown garbage bags with yellow tics that were

seized from the [Petitioner’s] home, which matched the brown bag

that his bloody clothing was found in.

(ECF No. 7-23 at 173.)

Additionally, on appeal, the Appellate Division summarized the DNA evidence from

Petitioner’s trial that did place him at the crime scene as follows:

DNA testing established that [Petitioner] could not be ruled out as a

major contributor, and the former girlfriend a minor contributor, to

blood samples taken from inside her car and from his black pants.

Additional items, found at the locations [Petitioner] identified, were

also tested. The victim could not be ruled out as the major

contributor and [Petitioner] the minor contributor, to blood found on

his windbreaker and to blood stains found on a shirt in a dumpster.

Additionally, [Petitioner] could not be ruled out as a contributor to

the blood on the mattress and the victim’s brassiere. Her boyfriend

was excluded as a contributor to any samples.

(ECF No. 7-1 at 3.)

The jury was informed that Petitioner’s DNA was not found on the gloves and plastic bag

and Petitioner’s hairs were not found at the scene. The jury was also informed that the victim’s

DNA was found on the right glove. The jury was informed that DNA testing of the rape kit was

not done because state laboratory had reported the absence of any seminal fluid. Additionally, the

jury was informed that Petitioner’s could not be ruled out as a major contributor to blood samples

inside the victim’s car and he could not be ruled out as a contributor to the blood on the mattress

and the victim’s bra. (ECF No. 7-1 at 3.) Finally, DNA testing showed the victim was a minor

contributor to blood samples from Petitioner’s black pants and a major contributor to blood

samples from Petitioner’s windbreaker and shirt. (Id.) “To qualify for [the actual innocence]

exception, the petition must present new, reliable evidence showing it is more likely than not that

no reasonable juror would have voted to convict him. Reeves v. Fayette SCI, 897 F.3d 154, 157

(3d Cir. 2018). Considering, Petitioner’s reliance on DNA results that already existed at trial, the

extensive DNA evidence at trial that placed Petitioner at the scene, and Petitioner’s detailed

confession, he cannot show that it is more likely than not that no reasonable juror would have

convicted him if they had known about the victim’s DNA being on the inside of the right glove.

Therefore, Petitioner’s actual innocence argument does not qualify him for equitable tolling.

Petitioner’s petition for habeas relief is dismissed 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 a state court proceeding 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 here are adequate

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Here, Petitioner has failed to make a substantial showing of the denial of a constitutional

right. Thus, no certificate of appealability shall issue.2

V. CONCLUSION

For the reasons set forth above, Respondents’ Motion is GRANTED, Petitioner’s petition

for a writ of habeas corpus (ECF No. 1) is DENIED, and Petitioner is DENIED a certificate of

appealability.3 An appropriate order follows.

Date: November 15, 2023

/s/Brian R. Martinotti _____

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

2 We need not order an evidentiary hearing. Congress permits evidentiary hearings for section

2254 petitions “only in a limited number of circumstances.” Campbell v. Vaughn, 209 F.3d 280,

286 (3d Cir. 2000). Petitioner must show, among other things, “the facts underlying the claim

would be sufficient to establish by clear and convincing evidence that but for constitutional error,

no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28

U.S.C. § 2254(e)(2)(B). Petitioner does not make such a showing because his petition is time

barred.

3 Petitioner’s request for additional DNA testing is denied as moot.