Petition for Writ of Certiorari — George King, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.

August 24, 2017

ALD-343

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___

C.A. No. 17-2262

GEORGE KING, Appellant

VS.

ADMINISTRATOR NEW JERSEY STATE PRISON, ET AL.

(D.N.J. Civ. No. 2-16-cv-00654)

Present:

MCKEE, JORDAN and RESTREPO, Circuit Judges

Submitted are:

Appellant's request for a certificate of appealability under 28 U.S.C.

§ 2253(c)(1); and

Appellees' response

in the above-captioned case.

Respectfully,

Clerk

MMW/AG/dwb

ORDER________________________

The foregoing request for a certificate of appealability is denied. See Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003). For substantially the reasons given by the District

Court, jurists of reason would not debate whether King's 28 U.S.C. § 2254 petition was

time-barred, and whether he was not entitled to either statutory or equitable tolling.

By the Court,

s/ L. Felipe Restrepo

Circuit Judge

Dated: September 11, 2017

DWB/:

George King

Lucille M. Rosano, Esq.

A True Cop3°

APPENDIX A

Marcia M. Waldron, Clerk

Certified order issued in lieu of mandate.

Case 2:16-cv-00654-KM Document 12 Filed 05101/17 Page 1 of 8 Page ID: 162

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GEORGE KING,

Civ. No. 16-0654 (KM)

Petitioner,

V.

OPINION

STEPHEN JOHNSON, et al.,

Respondents.

KEVIN MCNULTY, U.S.D.J.

INTRODUCTION

I.

The petitioner, George King, is a state prisoner currently incarcerated at the New Jersey

State Prison in Trenton, New Jersey. He is proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Presently pending before this Court is respondents' motion

to dismiss the habeas petition as untimely. For the following reasons, the motion to dismiss will

be granted.

U. BACKGROUND

Mr. King pled guilty in 2004 to aggravated manslaughter, possession of a weapon for an

unlawful purpose, and resisting arrest. On the aggravated manslaughter conviction, he was

sentenced to a twenty-five year prison term subject to an eighty-five percent period of parole

ineligibility. He also received a concurrent five-year sentence for resisting arrest. The weapons

possession conviction merged into the others for sentencing purposes.

Mr. King moved for resentencing. On April 28, 2006, Mr. King received the same

sentence. He did not file a direct appeal.

APPENDIX B

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On December 22, 2009, Mr. King filed a petition for post-conviction relief ("PCR"). The

Superior Court of New Jersey, Law Division, Essex County, denied that PCR petition on June

24, 2010. Mr. King appealed that decision to the New Jersey Superior Court, Appellate Division.

(See Dkt. No. 9-1 at p.31) On March 23, 2012, the Appellate Division affirmed the denial of the

PCR petition in a written decision. (See id at p.35-39) The New Jersey Supreme Court denied

certification on October 5, 2012. See State v. King, 212 N.J. 287 (2012).

On August 23, 2013, Mr. King filed a second PCR petition. That petition was denied on

November 27, 2013. On January 28, 2015, the Appellate Division affirmed. (See Dkt. No. 9-1 at

p.43-44) Thereafter, on July 10, 2015, the New Jersey Supreme Court denied certification. (See

id. at p.46)

Mr. King's federal habeas petition is deemed filed as of January 21, 2016.' On October 7,

2016, Respondents filed a motion to dismiss the habeas petition as untimely. (See Dkt. No. 9)

Thereafter, Mr. King filed a motion for extension of time to file his response to the motion to

dismiss. (See Dkt. No. 10) Good cause being shown, the motion for an extension of time is

granted and his response to the motion to dismiss, filed November 9, 2016, will be accepted.

Respondents did not file a reply in support of their motion to dismiss.

Ill. DISCUSSION

"A 1-year period of limitation shall apply to an application for a writ of habeas corpus by

a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). That

limitations period begins to run when the criminal judgment becomes "final." A state-court

criminal judgment becomes "final" within the meaning of § 2244(d)(1) at the conclusion of

I follow the so-called "prisoner ,mailbox rule. See Houston v. Lack, 487 U.S. 266,270-71 (1988);

Maples v. Warren, No. 12-0993, 2012 WL 1344828, at *1 n.2 (D.N.J. Apr. 16, 2012) ("Oftentimes,

when the court is unable to determine the exact date that a petitioner handed his petition to prison officials

for mailing, it will look to the signed - and dated certification of the petition.")

Case 2:16-cv-00654-KM Document 12 Filed 05/01/17 Page 3 of 8 PagelD: 164

direct review. If direct review is not sought, the judgment becomes final at the expiration of time

for seeking such review. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Morris v.

Horn, 187 F.3d 333, 337 n.1 (3d Cir. 1999); see also 28 U.S.C. § 2244(d)(1)(A) (the 1-year

period begins on 'the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review).

Mr. King was resentenced on April 28, 2006.2 New Jersey Court Rule 2:4-1(a) gave Mr.

King forty-five days from that date to file an appeal to the New Jersey Superior Court, Appellate

Division. However, Mr. King did not file a direct appeal. His judgment of conviction therefore

became final on July 12, 2006. The one-year limitations period, unless tolled, would therefore

have expired on July 12, 2007. Mr. King did not file his federal habeas petition until January 21,

2016. Therefore, unless the one-year limitations period is tolled, Mr. King's habeas petition is

untimely.

A. Statutory Tolling

-

The filing of a PCR petition may statutorily toll (i.e., suspend) the running of the oneyear habeas limitations period. See 28 U.S.C. § 2244(d)(2) ("The 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."). A prisoner's application for state collateral review is "properly filed' when its

delivery and acceptance are in compliance with the applicable laws and rules governing

This Court will use the date of the resentencing in April, 2006, as opposed to the date of the original

sentencing in 2004, as the operative date to determine when Mr. King's judgment of conviction became

final. See Douglas v. Phelps, 10-0519,2014 WL 1116984, at *2 (D. Del. Mar. 17, 2014) ("In cases

involving re-sentencing, the petitioner's judgment becomes final, and AEDPA's limitations period begins

to run, from the date on which direct review of the re-sentencing or amended sentence expires.") (citing

In

Burton v. Stewart, 549 U.S. 147 (2007); Cochran v. Phelps, 600 F. Supp. 2d 603, 607 (D. Del. 2009)).

reasons

the

for

untimely

still

is

petition

any event, applying this later date, Mr. King's federal habeas

discussed infra.

2

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filings[.]" Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 (3d Cir. 2013)

(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).

A timely PCR petition filed during the one year limitations period will suspend its

running; a PCR petition filed after the expiration of the one year limitations period, however,

will not revive it., See 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 purposes of tolling and, in any event, the limitations period had already run

when it was filed."); see also Saunders v. Lamas, No. 12-1123, 2013 WL 943351, at

*5 (E.D. Pa.

Feb. 3, 2013) (Statutory tolling inapplicable when PCR petition was filed after the expiration of

AEDPA's one-year limitations period) (citing Pace v. DiGuglielmo, 544 U.S. 408 (2005)), report

and recommendation adopted, 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) ("[Bjecause 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.").

When Mr. King filed his first PCR petition on December 22, 2009, statutory tolling was

not available. The one-year federal habeas statute of limitations period had already expired over

two years previously, on July 12, 2007.

B. Equitable Tolling

Mr. King argues that he is entitled to equitable tolling because of mental illness. Mr. King

states that he has suffered from extreme mental illnesses since he was nine years old. He explains

that he has been diagnosed with Schizophrenia, Bipolar Disorder, Schizoaffective Disorder,

Major Depression, Atypical Psychosis, and Personality Disorders. He claims that these disorders

make him unable to understand his legal rights or institute legal actions on his own behalf.

4

Case 2:16-cv-00654-KM Document 12 Filed 05/01/17 Page 5 of 8 PageD: 166

A petitioner may be able to overcome a time bar if he can show a basis for 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; see also Jenkins, 705 F.3d at 89. "There

are no bright lines in determining whether equitable tolling is warranted in a given case." See

Pábon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). The Third Circuit has explained that

"equitable tolling is appropriate when principles of equity would make rigid application of a

limitation period unfair, but that a court should be sparing in its use of the doctrine." Ross v.

Varano, 712 F.3d 784, 799 (3d Cir. 2013) (citing Pabon, 654 F.3d at 399; Jones v. Morton, 195

F.3d 153, 159 (3d Cir. 1999)).

Mental illness is not per se a basis for equitable tolling. See Nara v. Frank, 264 F.3d 310,

320 (3d Cir. 2001), overruled in part on other grounds by, Carey v. Saffold, 536 U.S. 214

(2002). "For tolling to be appropriate, "'the alleged mental incompetence must somehow have

affected the petitioner's ability to file' a timely action." Champney v. Sec 'y Pa.. Dep 't of Corr.,

469 F. App'x 113, 117 (3d Cir. 2012) (citing Nara, 264 F.3d at 320; Bolarinwa v. Williams, 593

F.3d 226, 232 (2d Cir. 2010). In determining whether the mental illness constitutes an

extraordinary circumstance for tolling the statute of limitations, the court will consider a nonexhaustive list of factors, such as:

"(1) [whether] the petitioner [was] adjudicated incompetent and, if

so, when did the adjudication occur in relation to the habeas

statutory period; (2) [whether] the petitioner [was] institutionalized

for his mental impairment; (3) [whether] the petitioner handled or

assisted in other legal materials which required action during the.

federal limitations period; and (4) [whether] the petitioner

supported his allegations of impairment with extrinsic evidence

such as evaluations and/or medications."

5

Case 2:16-cv-00654-KM Document 12 Filed 05/01/17 Page 6 of 8 PageD: 167

Champney, 469 F. App'x at 118 (quoting Passmore v. Pennsylvania, No. 08-0705,2008 WL

2518108, at *3 (M.D. Pa. June 19, 2008) (citing McCray v. Oxley, 553 F. Supp. 2d 368, 372 (D.

Del. 2008))). Additionally, some courts have noted that "[a] mental condition which burdens but

does not prevent a petitioner from meeting timely filing requirements does not constitute

'extraordinary circumstances' for the purposes of equitable tolling." Martin v. Giroux, No. 116229, 2013 WL 3819431, at *3 (P.O. Pa. July 23, 2013) (citing United States v. Harris, 268 F.

Supp. 2d 500, 506 (E.D. Pa. 2003)) (footnoted omitted).

It does not appear from the papers before me that Mr. King was ever adjudicated

incompetent. Mr. King attaches medical records and documents, but none of them indicate that

he was declared incompetent, or that he was institutionalized, after his judgment became final in

July 2007. All other things being equal, I might require further evidence as to Mr. King's mental

capacity in the relevant period.

But all other things are not equal. Before filing his federal habeas petition, Mr. King filed

two PCR petitions. He filed one on December 22, 2009. When all appeals were exhausted on that

one, he filed a second on August 23, 2013. Thus he was not disabled from filing legal claims and

petitions; he did file them. Clearly there were no extraordinary circumstances warranting nine

years' worth of equitable tolling, until 2016. See, e.g., Bumpas. v. Elrich, No. 15-5450, 2016 WL

8606249, at *3 n.3 (E.D. Pa. Oct. 31, 2016) ("[A]ny claim that Bumpas's alleged mental illness

justifies equitable tolling would be undermined by his filing four PCRA petitions after his

conviction.") (citation omitted), report and recommendation adopted by 2017 WL 1105650

(E.D. Pa. Mar. 24, 2017); Kim v. Cameron, 2016 WL 1623426, at *5 (E.D. Pa. Apr. 25, 2016)

(petitioner's filing of PCR petitions in state court illustrates that he Was capable of filing a proper

-

Case 2:16-cv-00654-KM Document 12 Filed 05101/17 Page 7 of 8 PagelD: 168

and timely motion such that his claim of mental illness does not constitute extraordinary

circumstance to equitably toll statute of limitations).

In an abundance of caution, I consider whether this federal habeas petition would be

timely if all of the time prior to the filing of the first PCR were tolled. It would not. Assume that

such tolling would render the first PCR timely (in the sense of falling within the habeas

limitations period). If so, then the pendency of the PCR would suspend further running of the

one-year habeas limitations period until it was finally resolved. The first PCR was finally

resolved on October 5, 2012. The habeas limitations period then began running again, and it ran

until the second PCR was flied on August 23, 2013—a period of 322 days, leaving 43 days to

go.3 Assume further that the one-year habeas period was suspended during the pendency of this

second PCR petition, i.e., until July 10, 2015. At that point, the balance of the habeas period that

remained was 43 days. But Mr. King did not file his federal habeas petition until 190 days later,

on January 21, 2016. So even on a series of highly favorable and doubtful assumptions favoring

equitable tolling, this habeas petition would be untimely.

IV.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. §

2254. A certificate of appealability may issue "only if the applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies

Mr. King asserts that this period of 322 days should not be counted against his federal one-year

statute of limitations because his second PCR petitionis an appeal of the first one. (See Dkt. No.. Ii at

p.7) In support of this argument, he cites to Carey, 536 U.S. 214. However, in Carey, the Supreme Court

held that a PCR petition is pending during the intervals between a lower court's entry of judgment and the

timely filing of a notice of appeal to the higher court. See Id. at 219-21. Carey does not stand for the

proposition as Mr. King claims that the statute of limitations should be tolled between when the New

Jersey Supreme Court denied certification on his first PCR petition and when he filed his second PCR

petition. During this 322 days, Mr. King had no "pending" PCR petition. Therefore, this time is

appropriately counted.

Case 2:16-cv-00654-KM Document 12 Filed 05/01/17 Page 8of 8 PageD: 169

I

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 the issues presented are

adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). For the reasons discussed above, Mr. King has not met this standard as his habeas

petition is untimely. Therefore, I will not issue a certificate of appealability.

V. CONCLUSION

For the foregoing reasons, respondents' motion to dismiss the habeas petition as untimely

will be granted. A certificate of appealability shall not issue. An appropriate order will be

entered.

DATED: May 1, 2017

2 yIN MCNULTY

United States District Judge