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

No.

In The

Supreme Court of the United States

LUIS RAMOS,

Petitioner;

V.

ADMINISTRATOR NEW JERSEY STATE PRISON, ET AL.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Third Circuit

APPENDIX TO PETITION FOR A WRIT OF.

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

'I

INDEX TO APPENDIX

Order of the United States District Court for the

District of New Jersey Dated March 20, 2017 ..........Pa-i

Opinion of the United States District Court for the

District of New Jersey Dated March 20, 2017 .........Pa-2-8

Order of the United States Court Of Appeals for the

Third Circuit Dated July 19, 2017 ....................Pa-9&10

Order of the United States Court Of Appeals for the

Third Circuit Dated August 28, 2017 ..................Pa-il&12

2

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LUIS RAMOS,

Petitioner,

:

Civ. No. 16-9139 (RBK)

NEW JERSEY STATE PRISON, et al.,

:

ORDER

V.

Respondents.

For the reasons expressed in the Opinion filed herewith:

IT IS this 20th day of March, 2017,

ORDERED that petitioner's petition for writ of habeas corpus is summarily dismissed

due to untimeliness; and it is further

ORDERED that a certificate of appealability shall not issue; and it is further

ORDERED that the Clerk shall serve this Order and the accompanying Opinion on

petitioner by regular U.S. mail; and it is further

ORDERED that the Clerk shall mark this case as closed.

s/Robert B. Kugler

ROBERT B. KUGLER

United States District Judge

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LUIS RAMOS,

Petitioner,

:

Civ. No. 16-9139 (RBK)

NEW JERSEY STATE PRISON, et al.,

:

OPINION

V.

Respondents.

ROBERT B. KUGLER, U.S.D.J.

I.

INTRODUCTION

Petitioner is a state prisoner incarcerated at the New Jersey State Prison. He is proceeding

pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Previously, this

Court ordered petitioner to show cause why his habeas petition should not be summarily

dismissed due to untimeliness. Having received petitioner's response, this Court finds that the

habeas petition is untimely. It will be summarily dismissed.

II.

SUA SPONTE SCREENING

Habeas Rule 4 requires a judge to sua sponte dismiss a petition without ordering a

responsive pleading "[i]f it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district court." 28 U.S.C. § 2254 Rule 4, applicable

through Rule 1(b). Thus, "Federal courts are authorized to dismiss summarily any habeas

petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856

(1994).

T~\-1

III. BACKGROUND & 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

direct review or at the expiration of time for seeking such review. See Swartz v. Meyers, 204

F.3d 4173 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'). In

particular, when a defendant does not file a petition for certiorari with the United States Supreme

Court, the one-year limitations period starts to run when the ninety-day period for seeking

certiorari expires. See Gonzalez v. Thaler, 132 S. Ct. 641, 653 (2012); Clay v. US., 537 U.S.

522, 532 (2003); Morris, 187 F.3d at 337 n.1 (holding that the period of direct review "include[s]

The statute states in full that the limitation period shall run from the latest of—

the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

review;

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;

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

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). There is no indication that any subsection other than (A) is applicable

here

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the 90-day period for filing a petition for writ of certiorari in the United States Supreme Court");

U.S. SUP. CT. R. 13 (90-day deadline to petition for certiorari).

Petitioner states in his habeas petition that his judgment became final on July 14, 2011, as

he did not file a petition for writ of certiorari with the United States Supreme Court after the New

Jersey Supreme Court denied certification on his direct appeal on April 14, 2011. (See Dkt. No.

1-3 at p.8) Therefore, his statute of limitations began to run on July 14, 2011.

The filing of a post-conviction relief ("PCR") petition may statutorily toll (i.e., suspend)

the running of the one-year 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 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)).

Petitioner states that he filed his PCR petition on December 16, 2011. (See Dkt. No. 1-3

at p.8; see also Dkt. No. 4 at p.1) Accordingly, by the time that petitioner had filed his PCR

petition, 155 days of his one-year statute of limitations to file a federal habeas petition had run.

Nevertheless, the filing of this PCR petition tolled his one-year statute of limitations period.

Petitioner states in his habeas petition that the New Jersey Supreme Court denied

certification on his PCR petition on March 24, 2016. (See Dkt. No. 1-3 at p.8; see also Dkt. No. 4

at p.2) Petitioner does not indicate that he filed a petition for certiorari with the United States

Supreme Court from that denial. Furthermore, in contrast to the rule on direct appeal, the tolling

period does not include the time during which petitioner could have filed a petition for writ of

7,0

certiorari in the United States Supreme Court from the denial of certification on his PCR petition.

See Stokes v. Dist. Attorney of Cnty. of Phila., 247 F.3d 539, 542 (3d Cir. 2001); see also

Ransome v. Holmes, No. 12-4889,2013 WL 6253668, at *4 (D.N.J. Dec. 4, 2013) (stating that

ninety-day period that petitioner had to file a petition for writ of certiorari on the denial of PCR,

petition does not toll the AEDPA statute of limitations). Therefore, petitioner's remaining period

of 210 days (365 days

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155 days = 210 days) to file his federal habeas petition began to run

again on March 24, 2016.

Pursuant to the prisoner mailbox rule, petitioner filed his federal habeas petition on

November 22, 2016. See Houston v. Lack, 487 U.S. 266, 270-71 (1988); see also Maples v.

Warren, No. 12-0993, 2012 WL 1344828, at *1 n.2 (D.N.J. Apr. 16, 2012) ("Often times, 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."). The

period between when the New Jersey Supreme Court denied certification on his PCR petition on

March 24, 2016, and when petitioner filed this federal habeas petition on November 22, 2016, is

243 days. However, petitioner only had 210 days remaining to file his federal habeas petition in

light of the 155 days that had run between when his judgment became final and when he filed his

PCR petition. Accordingly, it appears as if petitioner filed his federal habeas petition

approximately one-month after his one-year statute of limitations expired (155 days + 243 days =

398 days). Therefore, statutory tolling does not make petitioner's habeas petition timely.

While statutory tolling does not make petitioner's federal habeas petition timely, it is

possible that petitioner may be able to establish 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.

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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 Pabon 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)).

For equitable tolling to apply, the Third Circuit has required a showing of reasonable

diligence:

The diligence required for equitable tolling purposes is reasonable

diligence, not maximum, extreme, or exceptional diligence, [citing

Holland v. Florida, 130 S. Ct. 2549, 2565 (2010)]. "This

obligation does not pertain solely to the filing of the federal habeas

petition, rather it is an obligation that exists during the period

appellant is exhausting state court remedies as well." LaCava v.

Kyler, 398 F.3d 271, 277 (3d Cir. 2005).... The fact that a

petitioner is proceeding pro se does not insulate him from the

'reasonable diligence inquiry and his lack of legal knowledge or

legal training does not alone justify equitable tolling. See Brown v.

Shannon, 322 F.3d 768, 774 (3d Cir. 2003).

Ross, 712 F.3d at 799. Extraordinary circumstances may be found where: (1) the petitioner has

been actively misled; (2) the petitioner has in some extraordinary way been prevented from

asserting his rights; or (3) where the petitioner has timely asserted his rights in the wrong forum.

See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). 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." Id. (citations omitted).

Petitioner states that he is entitled to equitable tolling because he was reasonably diligent.

He notes that the state appellate division granted the motion to file as within time a notice of

appeal from the denial of his PCR petition. However, this period of time presumably would have

(Q

fallen within the time that his PCR petition was pending and not counting towards his one-year

federal statute of limitations to bring this § 2254 action in the first place due to statutory tolling.

Petitioner also alludes to the fact that he filed his federal habeas petition within eight

months after his PCR petition became final. However, unfortunately for petitioner, he had only

about seven months remaining on his one-year federal statute of limitations. This Court does not

find this argument warrants equitable tolling as well.

Finally, petitioner even concedes that attorney error and miscalculation is not a basis to

equitably toll his one-year statute of limitations. See Fahy, 240 F.3d at 244. Accordingly, as

equitable tolling also does not make petitioner's habeas petition timely, it is proper at this time to

summarily dismiss the habeas petition due to untimeliness.

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

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, petitioner has not met this standard as his habeas

petition is untimely. This Court will not issue a certificate of appealability.

TO

V. CONCLUSION

For the foregoing reasons, the habeas petition is summarily dismissed as untimely. A

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

DATED: March 20, 2017

s/Robert B. Kugler

ROBERT B. KUGLER

United States District Judge

ALD-292

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 17-2046

LUIS RAMOS, Appellant

VS.

NEW JERSEY STATE PRISON, ET AL.

(D.N.J. Civ. No. 1-16-cv-09139)

Present:

MCKEE, JORDAN and RESTREPO, Circuit Judges

Submitted is Appellant's notice of appeal, which may be construed as a

request for certificate of appealability under 28 U.S.C. § 2253(c)(1)

in the above-captioned case.

Respectfully,

Clerk

MMW/ACT/tmm

rsaxw

Jurists of reason would agree that the District Court correctly concluded that Luis

Ramos's petition filed pursuant to 28 U.S.C. § 2254 was untimely, and that there is no

arguable basis for equitable tolling or actual innocence. See 28 U.S.C. §§ 2244(d);

Holland v. Florida, 560 U.S. 631, 652-53 (2010); McOuiggin v. Perkins, 569 U.S.

____ 133 S. Ct. 1924, 1928 (2013). The application for a certificate of appealability is

denied. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253(c).

____

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By the Court,

s/ L. Felipe Restrepo

Circuit Judge

Dated: July 19, 2017

tmm/cc: Luis Ramos

Melissa H. Raksa, Esq.

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*•*

A True C opy",n

1

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Marcia M. Waldron, Clerk

Certified order issued in lieu of mandate.

?j~-ID

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 17-2046

LUIS RAMOS, Appellant

VS.

NEW JERSEY STATE PRISON, ET AL.

(]).N.J. Civ. No. 1-16-cv-09 139)

SUR PETITION FOR REHEARING

Present: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN,

HARDIMAN, GREENA WAY, JR., VANASKIE, SHWARTZ, KRAUSE, and

RESTREPO, Circuit Judges

The petition for rehearing filed by Appellant in the above-entitled case having

been submitted to the judges who participated in the decision of this Court and to all the

other available circuit judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a majority of the judges of the

circuit in regular service not having voted for rehearing, the petition for rehearing by the

panel and the Court en banc, is denied.

By the Court,

s/ L. Felipe Restrepo

Circuit Judge

Dated: August 28, 2017

yw~

tmm/cc: Luis Ramos

Melissa H. Raksa, Esq.

TR-p,