Petition for Writ of Certiorari — Malvern L. Lewis, Petitioner v. Patrick Nogan, Administrator, East Jersey State Prison, et al.

Case 3:13-cv-03705-BRM Document 25 Filed 05/05/17 Page 1 of 6 PagelD: 1537

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MALVERN L. LEWIS,

Civil Action No. 13-3705-BRM

Petitioner,

V.

:

OPINION

CHARLES WARREN, et al.

Respondents

MARTINOTTI, DISTRICT JUDGE

Before this Court is the Petition for Writ of Habeas Corpus ("Petition") filed by Petitioner

Malvern L. Lewis ("Petitioner") for relief under 28 U.S.C. § 2254. The Court previously reviewed

the Petition, the records of proceedings submitted by Respondents, the Answer and Petitioner's

Traverse, and found that the Petition was time-barred. (Order (ECF No. 18) at 3.) The Court

issued an order to show cause, directing Petitioner to submit any argument on why the Petition

should not be dismissed as time-barred. (Id. at 6.) The Court also directed Respondents to submit

the record from the state court proceedings to determine if there were further delays that would

support Petitioner's request to toll the statute of limitations period. (Id.) Presently before the

Court are the parties' responses to the Court's order. (See Pet'r's Resp. (ECF No. 22) & Resp't's

Resp. (ECF No. 23).) Having considered the responses, the Court now dismisses the Petition as

time-barred.

In its order to show cause, the Court directed Petitioner to:

submit any arguments, supported by evidence, why equitable tolling

should apply, other than the argument already discussed [in this

order]. Petitioner may also raise any other argument as appropriate

with regard to the timeliness of the Petition. Petitioner is hereby

notified that if there were delays during his PCR proceedings that

Case 3:13-cv-03705-BRM Document 25 Filed 05/05/17 Page 2 of 6 PagelD: 1538

would have further shortened his limitations period, he must also

account for those delays, and the Court will consider any such delays

in its final ruling.

(ECF No. 18 at 6.) Instead of presenting new arguments for equitable tolling, Petitioner rehashes

the argument the Court already rejected in the order to show cause, finding that a short delay,

caused by prison officials when obtaining a prison account statement needed for Petitioner's in

forma pauperis application, did not warrant equitable tolling. (Compare ECF No. 18 at 3-4 with

ECF No. 22 at 7.) He also challenges this Court's integrity, questioning why his case has been

reassigned twice when it was initially assigned to the Honorable Joel A. Pisano, who has since

retired. (See ECF No. 22 at 4-5.) Indeed, none of this is responsive to the Court's order to show

cause.

Petitioner then argues that Judge Pisano had previously found the Petition timely. (Id. at

3.) The Court has carefully reviewed the docket, and finds no basis for his argument. For support,

Petitioner relies on the order to answer issued by Judge Pisano. (See Order, Nov. 12, 2013 (ECF

No. 5).) In that order, Judge Pisano stated he "examined the Petition and determined that dismissal

prior to submission of an answer and the record [was] not warranted." (Id. at 1.) Petitioner argues

that this statement essentially presumed the Petition was timely. The Court fails to see how that

statement can be construed in any way as making a finding on the timeliness of the Petition.

Oftentimes, without the state court record, for which federal district courts rely on the state

respondents to provide, it is impossible to determine the timeliness of a petition. As such, the

Court finds that its order to show cause did not contradict any earlier holdings by another judge in

this matter.

Finally, Petitioner directs this Court's attention to his diagnosis of schizophrenia. (See

ECF No. 22 at 8.) The Court acknowledges that Petitioner had made it aware of his mental

2

Case 3:13-cv-03705-BRM Document 25 Filed 05/05/17 Page 3 of 6 PagelD: 1539

condition on October 14, 2014, by submitting a "Notice of Medical Report." (ECF No. 15.)

However, the medical report was dated June 25, 2014, well after this Petition was filed. (See ECF

No. 15 at 1.) Petitioner claims to have been diagnosed since December of 2010 (ECF No. 22 at

8), but provides no documentary proof of the diagnosis—indeed, Petitioner makes no mention of

his schizophrenia in the Petition or in his Traverse, both filed before his unprompted "Notice of

Medical Report." Regardless, "[m]ental incompetence is not aper se cause for equitable tolling."

Champney v. Sec. Pa. Dep't of Corr., 469 F. App'x 113, 117 (3d Cir. 2012). "For tolling to be

appropriate, the alleged mental incompetence must somehow have affected the petitioner's ability

to file a timely action," and "the burden [is] on the petitioner to demonstrate with particularized

description the causal relationship between the mental deficiency and failure to timely file the

petition[.]" Id. (citations omitted). Significantly, a petitioner's "participation in court proceedings

over an extended period of time [would] compel the conclusion that the extraordinary remedy of

equitable tolling is not warranted[.]" Id. at 118.

Here, the Petition was filed in June of 2013. Throughout the course of this proceeding,

Petitioner has repeatedly demonstrated his ability to grasp the legal concepts relevant to his habeas

claims, and has made numerous filings that show he was and is mentally capable of litigating his

case. Indeed, if the schizophrenia that was diagnosed as early as December of 2010 was so

debilitating, Petitioner should not have been able to file this response to the order to show cause.

Notably, Petitioner has not shown how his schizophrenia prevented him from making a timely

filing of the Petition, when he has time and again been able to meet the much tighter deadlines

imposed by this Court in this matter. Under these facts, the Court finds that Petitioner's alleged

mental incompetence did not prevent him from making a timely filing of the Petition, and equitable

tolling is not warranted. See Todish v. Cigna Corp., 206 F.3d 303, 306 (3d Cir. 2000) (relying on

3

Case 3:13-cv-03705-BRM Document 25 Filed 05/05/17 Page 4 of 6 PagelD: 1540

evidence showing that the plaintiff had been able to pursue her legal claims, despite having a

history of mental problems, as proof that she had the ability to understand her legal rights and to

institute legal action within the statute of limitations period).

Beyond the delays the Court found in the prior opinion, subsequent records submitted by

Respondents in their response to the order to show cause reveal at least one additional delay

occurred during Petitioner's PCR proceedings. As the record reflects, Petitioner's PCR application

was denied by the trial court on May 19, 2009. (Resp't's Resp. (ECF No. 23-1) at 2.) Under state

law, he had 45 days, or until July 3, 2009, to file a timely appeal. See N.J. Ct. R. 2:4-4(a); Lombardi

v. Masso, 207 N.J. 517, 540-41 (2011). However, he did not file his notice of appeal until January

19, 2010, (ECF No. 23-1 at 3), causing his one-year limitations period to run for 200 additional

days. See Swartz v. Meyers, 204 F.3d 417, 423 n.6 (3d Cir. 2000) ("We

.

.

.

agree that the time

during which Swartz's nunc pro tunc request for allowance of appeal was pending does not toll

the statute of limitation."). Factoring these 200 days, even if the Court was to grant Petitioner

equitable tolling for the aforementioned short delay caused by prison officials, the Petition would

still be untimely. As discussed, the Court provided notice to Petitioner to make equitable tolling

arguments regarding any potential delays during the PCR proceedings, and he has not done so.1

Because the Court raised the timeliness issue sua sponte, the Court must now analyze

whether dismissal on the statute of limitations ground would unduly prejudice Petitioner. (See

ECF No. 18 at 2 (citing Day v. McDonough, 547 U.S. 198, 210 (2006); United States v. Bendoiph,

1

To the extent Petitioner blames his PCR attorneys for the late appeal, "attorney malfeasance or

non-feasance is typically not an 'extraordinary circumstance' which justifies equitable tolling."

United States v. Bass, 268 F. App'x 196, 199 (3d Cir. 2008) (citing Schlueter v. Varner, 384 F.3d

69, 76 (3d Cir. 2004)); see Valerio v. United States, No. 15-1906,2015 WL 4086577, at *3 (D.N.J.

July 6, 2015). An attorney's miscalculation of the filing deadline is not a ground for equitable

tolling. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007); Fahy v. Horn, 240 F.3d 239, 244

(3d Cir. 2001).

4

Case 3:13-cv-03705-BRM Document 25 Filed 05/05/17 Page 5 of 6 PagelD: 1541

409 F.3d 155, 158 (3d Cir. 2005)).) In determining what constitutes prejudice, courts should

consider whether the defense would "(i) require the [aggrieved party] to expend significant

additional resources to conduct discovery and prepare for trial; (ii) significantly delay the

resolution of the dispute; or (iii) prevent the [aggrieved party] from bringing a timely action in

another jurisdiction." Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004).

Here, there is no prejudice to Petitioner in dismissing his Petition as time-barred. No

discovery has occurred in this case, and no discovery request has been filed with the Court. Indeed,

ordinarily, discovery is not allowed in § 2254 cases unless the Court finds good cause to authorize

it. See Rule 6, Rules Governing Section 2254 Cases; Cullen v. Pinholster, 563 U.S. 170, 182

(2011). The delay in raising the statute of limitations issue also does not affect Petitioner's rights

in any other case, as this Court is the only court with jurisdiction to adjudicate Petitioner's habeas

claims. There is also no showing that Petitioner's ability to defend his case was impaired; Petitioner

was given an opportunity to respond to the timeliness argument, and he filed a response.

Accordingly, the Petition is dismissed as time-barred.

Lastly, the Court denies a certificate of appealability ("COA"). Federal law provides that

an appeal may not be taken to the court of appeals from a final order in a § 2254 proceeding unless

a judge issues a COA on the ground that "the applicant has made a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 474

(2000), the United States Supreme Court held:

[w]hen the district court denies a habeas petition on procedural

grounds without reaching the prisoner's underlying constitutional

claim, a COA should issue. if 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.

.

.

5

Case 3:13-cv-03705-BRM Document 25 Filed 05/05/17 Page 6 of 6 PagelD: 1542

Here, the Court denies a COA pursuant to 28 U.S.C. § 2253(c) because jurists of reason would not

find it debatable that dismissal of the Petition is correct.

Date: May 5, 2017

Is/Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

no

Case 3:13-cv-03705-BRM Document 26 Filed 05/05/17 Page 1 of 1 PagelD: 1543

F-AUNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MALVERN L. LEWIS,

Petitioner,

V.

Civil Action No. 13-3705-BRM

ORDER

CHARLES WARREN, et al.

Respondents.

THIS MATTER is before the Court on the Petition for Writ of Habeas Corpus of

Petitioner Malvern L. Lewis, for relief under 28 U.S.C. § 2254. For the reasons stated in the

Opinion filed on even date, and for good cause shown,

IT IS on this 5" day of May 2017,

ORDERED that the Petition (ECF No. 1) is DISMISSED; it is further

ORDERED that a certificate of appealability is DENIED; and it is further

ORDERED that the Clerk shall serve a copy of this Order and the accompanying Opinion

upon Petitioner, and shall CLOSE the file.

Is/Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

F2

November 30, 2017

ALD-061

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 17-2207

Malvern Lewis, Appellant

vs.

Administrator East Jersey State Prison;

Attorney General of New Jersey

(D.N.J. Civ. No. 3-13-cv-03705)

Present:

MCKEE, VANASKIE, and SCIRICA, Circuit Judges

Submitted is appellant's request for a certificate of

appealability under

28U.S.C. § 2253(c)(1) in the above-captioned case.

Respectfully,

Clerk

"[W]hen a district court denies a habeas petition on procedural grounds without

reaching the merits of the underlying constitutional claim. a COA may issue only of

the petitioner shows that: (1) 'jurists of reason would find it debatable whether the district

court was correct in its procedural ruling;' and (2) 'jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right.'"

Pabon v. Superintendent, SCI-Mahanoy, 654 F.3d 385, 392 (3d Cir. 2011) (quoting Slack

v. McDaniel, 529 U.S. 473, 478 (2000)). For substantially the reasons given by the

District Court, reasonable jurists would agree that Lewis's habeas petition was untimely,

see, e.g., United States v. Bendolph, 409 F.3d 155, 158 (3d Cir. 2005) (en banc), and that

he is not entitled to equitable tolling. See Holland v. Florida, 560 U.S. 631, 649 (2010).

Accordingly, the request for a certificate of appealability is denied.

.

.

By the Court,

ift.\

s/ Theodore A. McKee

Circuit Judge

Dated: March 1, 2018

Malvern L. Lewis

CJG/cc:

'

A True Copy:

Th

Patricia S. Dodszuweit, Clerk

Certified Order Issued in Lieu of Mandate

Additional material

from th,els filing is

available in the

Clerk's Office.