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

October 24, 2019

DLD-022

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

C.A. No. 19-2274

ANTHONY MAY, Appellant

VS.

ADMINISTRATOR NEW JERSEY STATE PRISON, ET AL.

(D.N.J. Civ. No. 2-16-cv-00190)

Present:

RESTREPO, PORTER and NYGAARD, Circuit Judges

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

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

in the above-captioned case.

Respectfully,

Clerk

________________________________ ORDER_____________________________

Appellant’s request for a certificate of appealability is denied. See 28 U.S.C.

§ 2253(c). Jurists of reason would agree, without debate, that Appellant’s habeas petition

was untimely and that his claims were meritless, for essentially the reasons set forth in

the District Court’s opinion. See Slack v. McDaniel 529 U.S. 473, 484 (2000); MillerTEl

v. Cockrell 537 U.S. 322, 327 (2003). The District Court did not err in denying

Appellant’s request for an evidentiary hearing, as his claims could properly be addressed

on the record. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record

refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.”).

By the Court,

s/ L. Felipe Restrepo

Circuit Judge

Dated: November 13, 2019

Lmr/cc: Anthony May

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Patricia S. Dodszuweit, Clerk

Certified Order Issued in Lieu of Mandate

UNITED STATES DISTRICT COURT

DISTRICT OP NEW JERSEY

ANTHONY MAY,

Civil Action No. 16-0190(MCA)

Petitioner,

ORDER

v.

STEVEN JOHNSON and

THE ATTORNEY GENERAL OF THE

STATE OF NEW JERSEY,

Respondents.

This matter having been opened to the Court by pro se

petitioner Anthony May ("Petitioner") filing a Petition under 28

U.S.C. § 2254 seeking for the Court to vacate his guilty plea

and to order a psychological examination to determine his mental

competence, or alternatively, to order an evidentiary hearing;

and the Court having considered the Petition, the Respondents'

Answer to the Petition (Carolyn A. Murray, Esquire and Kayla

Elizabeth Rowe, Esquire, on the brief) (ECF No. 9), and the

record of the proceedings in this matter; and this matter being

considered pursuant to Fgd. R. Civ. P. 78; and for, the reasons

set forth in the Court's Opinion filed herewith,

IT IS on this

[v

day of

ku

, 2019,

ORDERED that the habeas Petition is DEFIED WITH PREJUDICE;

and it is further

ORDERED that Petitioner's request for an evidentiary

hearing is DENIED; and it is further

ORDERED that Petitioner's request for a psychological

evaluation is DENIED; 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 at the

address on file; and it is further

ORDERED that the Clerk shall mark this case as CLOSED.

Dated:X

2019

Madeline Cox Arleo

United States District Judge

2

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OP NEW JERSEY

ANTHONY MAY,

Petitioner,

v.

Civil Action No. 16-0190(MCA)

OPINION

STEVEN JOHNSON and

THE ATTORNEY GENERAL OF THE

STATE OF NEW JERSEY,

Respondents.

MADELINE COX ARLEO, District Judge

I.

INTRODUCTION

Anthony May ("Petitioner") has opened this matter to the

Court with his pro se Petition for writ of habeas

corpus (EOF

No. 1) seeking to vacate his guilty plea and seeking an order

for a psychological examination to determine mental

competence;

or alternatively, seeking an evidentiary hearing. (EOF No. 1 at

15.) On July 1, 2016, Respondents filed an Answer to the

Petition. (EOF No. 9.) Petitioner states that

is not filing a

reply.

(EOF No. 14.)

For the reasons explained below, the Court will: deny the

Petition with prejudice as not only time-barred but also because

it lacks merit; deny an evidentiary hearing; deny a

psychological examination; and deny a certificate of

appealability.

II.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

A. Factual Background

This Court, affording the state court's factual

determinations the appropriate deference, see 28 U.S.C. §

2254(e)(1),1 relies upon the recitation of facts set forth by the

Law Division of the Superior Court of New Jersey ("Law

Division") in its October 7, 2013 opinion denying Petitioner's

application for post-conviction relief ("PCR"). (EOF No. 11-2.)

On November 9, 1998, Ms. Olga Schwab was home alone at her

residence in Orange, New Jersey. The Petitioner rang her

doorbell and asked her if the landlord was home. Ms. Schwab told

the Petitioner that she would take down his name and number. As

she turned to walk back in the house, Petitioner followed behind

He then

her, grabbed her head from behind, and slit her throat.

laid Ms. Schwab down and stabbed her additional times in the

side and chest. At the time of her death, Ms. Schwab was eightysix years old. Petitioner proceeded to steal several items of

1 Pursuant to 28 U.S.C. § 2254(e)(1), "[i]n a proceeding

instituted by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden o

rebutting the presumption of correctness by clear and convincing

evidence."

2

jewelry from Ms. Schwab's house that he sold that same night to

a drug dealer in exchange for drugs.

(EOF No. 11-2 at 2.)

On January 21, 1999, Mr. Robert Wang was home alone at his

residence in Orange, New Jersey, Petitioner broke into the

residence with a screwdriver and was in the process of a theft

when Mr. Wang entered the kitchen in his wheelchair, Petitioner

slit Mr. Wang's throat and proceeded to take several items of

monetary value from Mr. Wang's residence. At the time of his

death, Mr. Wang was seventy-seven years old. Later that night,

Petitioner sold the stolen items and used the money to purchase

drugs.

(Id. at 2-3.)

On January 27, 1999, police arrested Petitioner. He

confessed in separate statements to both murders. In his

confession for Mr. Wang's murder, Petitioner stated that he

could read, write, and fully understand English. Additionally,

he stated that he had completed high school and that he was

enrolled in computer typing classes. After Petitioner's first

confession, he indicated that he wished to clear up something

else. Petitioner then confessed to killing Ms. Schwab.

Petitioner stated that he was not on drugs at the time of either

murder. (Id. at 3.)

3

B. Procedural History

On July 29, 1999, an Essex County grand jury returned a

twelve-count indictment against Petitioner, as follows.

first-

degree murder of Olga Schwab and Robert Wang (Counts One and

Seven); first-degree felony murder of Olga Schwab and Robert

Wang (Counts Two and Eight); second-degree burglary of the

victims' premises (Counts Three and Nine); first-degree armed

robbery of the victims (Counts Four and Ten); fourth—degree

unlawful weapon possession (Counts Five and Eleven); and thirddegree weapon possession for an unlawful purpose (Counts Six and

Twelve). (ECF No. 11-2 at 3; ECF No. 9-4.)

Appearing before the Honorable Richard C. Camp, J.S.C. on

November 2, 2000, Petitioner entered guilty pleas pursuant to a

plea agreement on these charges in Indictment 99-07 02630 It

first-degree felony murder (Count Two), second-degree burglary

(Count Three), fourth-degree unlawful weapon possession (Count

Five), first-degree felonymurder (Count Eight), second-degree

burglary (Count Nine), and fourth-degree unlawful weapon

possession (Count Eleven). (ECF No. 11-2 at 3; ECF No. 9-1 at 34.) In exchange, the State dismissed Indictment 99-07-02630-1's

other six counts, as well as the entirety of three other

indictments (99-07-9627; 99-078-2628; and 99-04-1288). (ECF No.

11-2 at 3.)

4

The State agreed to recommend a thirty-year term of

imprisonment for each of the counts charging felony murder, to

run consecutive to each other with sixty years of total parole

ineligibility. (ECF No. 11-2 at 3; ECF No. 9-1 at 3-4.)

On December 8, 2000, the Department of Probation

interviewed Petitioner for purposes of creating a Pre Sentence

Report. (ECF No. 11-2 at 4.) Petitioner stated that he was

classified as being "slow" in grammar school and that he was

enrolled in special education training in high school. Contrary

to the history he gave in previous confessions, Petitioner

stated that he had never completed high school, as he dropped

out after the eleventh grade. In addition, he told the probation

officer that he was "high" when he committed these crimes. (Id.)

On December 15, 2000, the sentencing judge sentenced

Petitioner in accordance with the plea agreement, as follows, a

thirty-year term with thirty years of parole ineligibility on

Count Two as to felony murder of Ms. Schwab; and a thirty-year

term with thirty years of parole ineligibility on Count Eight as

to felony murder of Mr. Wang. The sentences were consecutive,

for a total prison term of sixty years with no parole

eligibility. (ECF 9-2 at 12.) Judge Camp merged Counts Three and

Five into Count Two, and also Counts Nine and Eleven into Count

Eight. (ECF No. 11-2 at 4; ECF No. 9-2 at 12.) The remaining

5

counts and indictments were dismissed. (ECF No. 11-2 at 4; ECF

No. 9-2 at 9-10; ECF No. 9-5.)

Petitioner directly appealed his sentence, arguing that his

sentence was excessive as the trial court did not take into

consideration his full-scale IQ of 60 and performance IQ. of 71.

(ECF No. 11-2 at 4.) On April 10, 2001, the Appellate Division

of the Superior Court of New Jersey ("Appellate Division")

affirmed Petitioner's sentence.

(ECF Nos. 9-6 and 9-7.) On

September 6, 2001, the New Jersey Supreme Court denied

Petitioner's petition for certification. State v. May, 784 A.2d

718 (N.J. 2001). (ECF No. 9-8; ECF No. 11-2 at 4.)

Over ten years later, on February 3, 2012, Petitioner filed

a pro se PCR petition, asserting ineffective assistance of

counsel ("IAC"). (ECF No. 9-9.) His assigned counsel filed a

supporting brief on July 15, 2013. (ECF No. 9-10.) After hearing

argument on September 16, 2013 (ECF No. 11-2 at 4), the

Honorable Patricia K. Costello, A.J.S.C. denied PCR on October

7, 2013.

(ECF NO. 11-2; ECF No. 11-3.)

Judge Costello ruled that the PCR petition was procedurally

barred because it was filed beyond the five-year period allowed

by New Jersey Rule of Court 3:22-12(a)2, and Petitioner "provided

2 "Except as provided in paragraphs (a)(2), (a) (3) , and (a) (4) of

this rule, no petition shall be filed pursuant to this rule more

than 5 years after the date of entry pursuant to Rule 3:21-5 of

the judgment of conviction that is being challenged..." New Jersey

6

no factual assertions to back up his claim that a failure to

hear his petition would result in a fundamental injustice.

(ECF

No. 11-2 at 4, 5.) The judge stated further that Petitioner

"provided no explanation for the delay.

(Id.)

After applying the two-prong test of Strickland v.

Washington, 466 U.S. 668 (1984), and subsequently adopted by the

New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987), Judge Costello also reviewed and denied Petitioner's PCR

application on the merits.

(ECF No. 11-2 at 11.)

Petitioner filed a Notice of Appeal of the PCR denial,

dated April 21, 2014.

(ECF No. 11-4; ECF No. 11-5 at 3.) On May

6, 2015, the Appellate Division affirmed Judge Costello's denial

of PCR. State v. May, No. A-3735-13T3, 2015 WL 2070061, at *1

(N.J. Super. Ct. App. Div. May 6, 2015). On October 9, 2015, the

New Jersey Supreme Court denied certification. State v. May, 122

A.3d 991 (N.J. 2015).

Petitioner executed his § 2254 Petition on December 1,

2015.

(ECF No. 1 at 15-16.) However, he left blank the form's

section directing him to indicate the date on which he placed

the Petition into the prison mailing system. (Id. at 15.) The

Clerk's Office received and docketed his original habeas

petition on January 12, 2016. (ECF No. 1.) Petitioner

Rule of Court 3:22-12 (a) (1).

7

acknowledges the untimeliness of the Petition (id. at 13) but

argues that he "lacked the reasonable level of intelligence to

timely file his PCR petition and this [habeas] Petition for

habeas corpus " because of his "extremely low IQ and condition of

'mental retardation.

9 ft

(Id.)

Respondents' Answer argues, inter alia, that Petitioner s

application for habeas relief is untimely. (ECF No. 8 at 22-30.)

III.

ANALYSIS

A. The Petition Is Untimely

Under the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), Congress prescribed a one-year period of

limitation for the filing of federal habeas corpus petitions by

state prisoners. See Douglas v. Horn, 359 F.3d 257, 261 (2004);

28 U.S.C. § 2244(d)(1). The limitation period runs from the

latest of —

(A) [T]he date on which the judgment became

final by the conclusion of direct review or

the expiration of the time for seeking such

review;

(B) [T]he 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) (T]he 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

8

(D) [T]he 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). Thus, except in extremely limited

circumstances, a prisoner must file one all-inclusive petition

within one year of the date when judgment of conviction becomes

final by the conclusion of direct review or the expiration of

the time for seeking such review. See 28 U.S.C. § 2244(d).

State courts' criminal judgments become "final" for AEDPA

purposes by the conclusion of direct review or by 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. Swartz v. Meyers, 204 F.3d 417, 419 (3d

Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n.l (3d Cir.

1999). United States Supreme Court Rule 13.1 affords litigants

ninety days to file a petition for writ of certiorari in the

United States Supreme Court. Accordingly, if a state prisoner,

such as Petitioner here, seeks discretionary review to the

state's highest court but does not file a petition for writ of

certiorari with the United States Supreme Court, the state court

judgment becomes final ninety days after the state's highest

court denies review or relief. Since Petitioner did not pursue

direct review all the way to the United States Supreme Court,

his judgment of conviction became final ninety days after entry

9

of the New Jersey Supreme Court's September 6, 2001 order

denying certification —i.e., December 5, 2001. See 28 U.S.C. §

2244(d)(1)(A). The AEDPA's one-year limitations period began to

run on December 6, 2001, and it expired one year later -

on

December 6, 2002.

Petitioner has not provided this Court with any evidence

that he placed his § 2254 Petition into the prison mailing

system on or before December 6, 2002. Instead, the record

demonstrates only that he executed his Petition on December 1,

2015 (ECF No. 1 at 15-16), making it per se untimely unless

saved by statutory or equitable tolling. See 28 U.S.C. §

2244(d)(1)(A).

1. The Record Does Not Support Statutory Tolling

Under the AEDPA's statutory tolling provision of §

2244 (d)(2), "[t] he 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

section." Under this statutory tolling exception, the AEDPA's

one-year limitation period is tolled during the time a properly

filed application for state PCR relief is pending. See Merritt

v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003); Fahy v. Horn, 240

10

F. 3d 239, 243 (3d Cir.), cert. denied, Horn v. Fahy, 534 U.S.

944 (2001).3

Statutory tolling does not remedy the Petition's

untimeliness in this case. Petitioner's February 3, 2012 PCR

petition (ECF No. 9-9) would have been Petitioner's first action

that might have statutorily tolled the running of the AEDPA s

one-year limitations period. See Pace v. DiGuglielmo, 544 U.S.

408, 410 (2005)

(habeas limitations period is statutorily tolled

while a properly filed state collateral relief petition is

pending); Figueroa v. Buechele, No. 15-1200, 2015 WL 1403829, at

*2 (D.N.J. Mar. 25, 2015)

(citing Swartz, 204 F.3d at 419 and

Morris, 187 F.3d at 337 n.l).

The AEDPA's one-year period had already expired on December

6, 2002

i.e., over nine years before Petitioner filed his PCR

petition on February 3, 2012. Thus, there was no limitations

period to "toll" by the time he filed for PCR. That is, the

AEDPA's one-year period had already expired by the time he filed

his PCR petition. Thus, his PCR petition cannot serve to

statutorily toll the running of the AEDPA's limitations period.

See Boston v. Warden, Sussex Corr. Inst., No. 17-1789, 2017 WL

3 An application for post-conviction relief is considered

"pending" within the meaning of § 2244(d)(2) during the period

between a lower state court's ruling and the period a petitioner

has to seek review of the decision, whether or not the appeal

was actually sought. Swartz, 204 F.3d at 424.

11

8220427, at *1 {3d Cir. June 8, 2017)

("statutory tolling does

not help [petitioner] because he did not seek state post­

conviction relief until after AEDPA's limitations period had

expired"). "[Statutory] tolling applies [] only when the

application for state post-conviction review was filed before

the expiration of the [AEDPA's] limitations period .. . [N]o

statutory tolling, results if a PCR application is filed more

than a year after the litigant's judgment became final. " Jones

v. Warren, No. 12-4046, 2013 WL 5674167, at *1 (D.N.J. Oct. 15,

2013)

(citing Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir.

2004) and Schlueter v. Varner, 384 F-3d 69, 78-79 (3d Cir.

2004)) .4

For these reasons, the Petition is per se untimely, and

Petitioner is not entitled to statutory tolling.

In light of Petitioner's pro se status, this Court will

also consider equitable tolling.

2. The Record Does Not Support Equitable Tolling

When, as here, statutory tolling is unavailable, the

AEDPA's statute of limitations may be equitably tolled in

certain extraordinary circumstances. United States v. Thomas,

< Accord Terry v. Cathel, No. 12-5263, 2012 WL 4504590, at *5

(D.N.J. Sept. 27, 2012); Bull v. Power, No. 08-1380, 2009 WL

2928904, at *8 (D.N.J. Sept. 9, 2009); Helmlinger v. Adult

Diagnostic & Treatment Ctr., No. 07-3187, 2008 WL 4058511, at *4

n.8 (D.N.J. 2008); and Denmon v. Ricci, No. 07-4900, 2009 WL

2898829, at *3 (D.N.J. Sept. 9, 2009).

12

713 F.3d 165, 174 (3d Cir. 2013). Courts may grant equitable

tolling sparingly and only when equitable principles make rigid

application of a limitation period unfair, See Thomas, 713 F.3d

at 174 (citing Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir.

2011))- "There are no bright lines in determining whether

equitable tolling is warranted in a given case, " Pabon, 654 F.3d

at 399. The courts should only permit it "in the rare situation

where it is demanded by sound legal principles as well as the

interests of justice." LaCava v. Kyler, 398 F.3d 271, 275 (3d

Cir. 2005). Mere excusable neglect is insufficient. Id.

To claim equitable tolling, a habeas petitioner must show.

(1) that he faced "extraordinary circumstances " that stood in

the.way of timely filing, and (2) that he exercised "reasonable

diligence" in pursuing his rights throughout the period to be

tolled. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 256263 (2010); United States v. Johnson, 590 F. App'x 176, 179 (3d

Cir. 2014)

(quoting Pabon, 654 F.3d at 399).

Here, Petitioner has not demonstrated that this case is one

of those "rare situation[s]." LaCava, 398 F.3d at 275.

a. Extraordinary Circumstances

To establish "extraordinary circumstances," a petitioner

must show either that he has been actively misled, that he was

prevented from asserting his rights in some extraordinary way,

that he timely asserted his rights in the wrong forum, or that

13

the court misled him regarding the steps he needed to take to

preserve his claim. Jones v. Morton, 195 F.3d 153, 159 . (3d Cir.

1999); see also Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir.),

cert. denied, 546 U.S. 957 (2005). The requisite degree of

extraordinariness turns on

how severe an obstacle it is for

the prisoner endeavoring to comply with the AEDPA's limitations

period.

/ ft

Pabon, 654 F.3d at 400 (citing Diaz v. Kelly, 515 F.3d

149, 154 (2d Cir. 2008)).

"Extraordinary circumstances" do not exist here.

The Court construes Petitioner's equitable tolling argument

as an allegation that he was prevented from asserting his rights

in some extraordinary way, see Jones

195 F.3d at 159, by virtue

of his "extremely low5 IQ" and "mental retardation

during an

unspecified time period, which prevented him from timely filing

the § 2254 Petition. (ECF No. 1 at 13-14; ECF No. 1-2 at 1 and

4-5, 7-8, and 9-10.) He provides no objectively verifiable

evidence that either claimed impediment occurred during the

relevant time frame or that they in fact impacted his Petition s

timely filing.

Exhibit 1 to the § 2254 Petition contains a December 13,

2000 report to Judge Camp by a clinical social worker, intended

5 See also ECF No. 9-2 at 10 (sentencing hearing) (Judge Camp:

"... You're probably learning disabled, But you're a daily user

of cocaine until this arrest ... I have to feel that regardless

of your psychological limitations, you do have a brain").)

14

to "augment the pre-sentencing report of the probation

department." (ECF No. 1-1 at 2 ("the CVA Report").) The CVA

Report includes, inter alia, educational performance and

learning capability assessments during middle school and high

school.

(Id. at 3, 6, and 7-8.) The most recent mental health or

intelligence assessment of Petitioner documented in the CVA

Report was a neuro-psychiatrist's evaluation done in 1980.

(Id.

at 7.)

During PCR proceedings, Judge Costello noted that "[n]o

evidence has been proffered regarding the defendant's diminished

mental capacity at the time of the Mirandized statements." (ECF

No. 11-2 at 7.) The record compels this Court to make a similar

conclusion again on habeas review. Petitioner has not

substantiated his IQ-related assertions as it relates to the

pertinent time period -- i.e., on or around when the AEDPA's

limitations period began (December 6, 2001) and when it expired

(December 6, 2002). While the CVA Report documents IQ-related

assessments of Petitioner only through 1980 (ECF No. 1-1 at 67), the relevant time frame here is the period during which

Petitioner could have timely filed for PCR and habeas relief.6

6 In addition, Petitioner was represented by counsel during much

Of state court proceedings prior to his § 2254 Petition. (See,

e.g., ECF Nos. 9-1 (guilty, plea hearing), 9-2 (sentencing

hearing), 9-3 (PCR hearing), 9-6 (excessive sentencing hearing),

9-10 (PCR brief of Petitioner's counsel), and 9-15 (PCR

appellate brief of Petitioner's counsel).

15

Thus, Petitioner's unsubstantiated assertions do not demonstrate

the requite extraordinariness7 to justify waiting over seven

years past New Jersey Rule of Court 3:l-l's deadline to file his

PCR petition -- which could have statutorily tolled his AEDPA

statute of limitations.

For these reasons, Petitioner - a defendant with an

unsubstantiated low IQ well in advance of the relevant time

frame — has not shown "extraordinary circumstances.

Petitioner's submissions to the state tribunals and to this

habeas Court offer no evidence that he was ever adjudicated

incompetent, was ever diagnosed as irreversibly retarded

or was

ever institutionalized for his alleged mental impairments so as

to impact timely filings during the pertinent 2001-2002 time

period. The CVA Report neither diagnoses him with mental

retardation nor states that his functional retardation level is

chronic and irreversible. (ECF No. 1-1 at 6 (in 1980, Petitioner

"was functioning in the educable mentally retarded range ) .

7 Moreover, the record irrefutably demonstrates evidence of

Petitioner's guilt for the crimes charged. See, e.g., ECF No. 92 at 9, 13 ("On November 2nd you plead guilty to count two,

first degree murder — felony murder; count three, second degree

burglary; count five, fourth degree unlawful possession of a

weapon; count eight, first degree felony murder; count nine,

second degree burglary; count 11, fourth degree unlawful

possession of a weapon’... [T]he facts and the evidence (were]

overwhelming [as to] guilt"). Petitioner neither alleges actual

innocence, nor does the record reflect any evidence suggesting

that such is the case.

16

Thus, the CVA Report does not raise a factual issue as to

whether a causal connection exists between his mental impairment

and his ability to file a timely § 2254 petition during 20012002.

In similar contexts, federal courts have rejected any

finding of "extraordinary circumstances." See, e.g., Champney v.

Sec'y of Pennsylvania Dep't of Corr.,

(3d Cir. 2012)

469 F. App'x 113, 118-19

(prisoner's alleged mental incompetency was not

"extraordinary circumstance," despite mental health reports

indicating diminished cognitive ability, neurodevelopmental

brain dysfunction, and anxiety disorder, in view of prisoner's

history of timely filing documents in court, and absence of

evidence that prisoner had ever been adjudicated incompetent or

that he had been treated for mental illness)

(emphasis added).

See also Columbert v. Brewer, No. 18-1339, 2018 WL 4621951,

at *3 (6th Cir. July 5, 2018) (petitioner's "documents indicate

that she has low intelligence [and] was enrolled in special

education classes during her schooling ,. . But none of these

records reflects [her] ... mental competence at the time the

limitations period was running"); Alvarado v. Smith, 713 F.

App'x 739, 743 (10th Cir. 2017)

(petitioner "needs to show that

he had been institutionalized for mental incapacity, judged

incompetent, or not capable of pursuing his own claim during the

period in which he needed to file his application — that is May

17

22, 2009 to May 24, 2010. First, he has not been judged

incompetent. Second, he was not institutionalized during the

relevant time"); Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th

Cir. 2009) (a 1997 competency report "showed [petitioner] was

diagnosed with chronic, irreversible mental retardation" that

"remain[ed] probative of [petitioner's] mental impairment as to

the § 2254 petition during the limitations period")

(emphasis

added); Blackhurst v. Pugh, 65 F. App'x 103, 104 (9.th Cir. 2003)

(petitioner "submitted no evidence indicating his mental state

during the relevant time period"); Simon v. Stephen, No. 3:14cv-2930, 2015 WL 10372432, at *1 (N.D. Tex. Dec. 15, 2015)

("The

lack of a causal connection between the 1998 intellectual

deficiency determination and the timely pursuit of federal

habeas relief more than a decade later . » « / together with the

fact that Simon pursued state and federal habeas relief pro se,

regardless of his alleged mental impairments" prevented a

showing of exceptional circumstances) (internal citations

omitted). 8

In short, the constitutional standard far exceeds

Petitioner's showing here. Cf. Ross v. Varano, 712 F.3d 784 (3d

Cir. 2013). Petitioner states only that, were this Court not to

8 Accord Kitchen v. Bauman, 629 F. App'x 743, 749 (6th Cir.

2015); Steel v. Ryan, 468 F. App'x 659, 661 (9th Cir. 2011);

Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005);

Green v. Hinsley, 116 F. App'x 749, 751 (7th Cir. 2004).

18

consider the merits of his § 2254 Petition because of its

untimeliness, such circumstance "would be contrary to the

federal and NJ State Constitutions." {ECF No. 1 at 14.) This

blanket assertion does not in any way begin to meet his burden.

b.

Reasonable Diligence

The United States Supreme Court has instructed that "[t]he

diligence required for equitable tolling purposes is 'reasonable

diligence,' ... not 'maximum feasible diligence.

t ft

Holland, 560

U.S. at 653. The Third Circuit has similarly held that "[d]ue

diligence does not require 'the maximum feasible diligence,' but

it does require reasonable diligence in the circumstances.

Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir.2004)

(internal

citations omitted).

Allegations of mental impairments, such as Petitioner's

supposed "extremely low IQ" and "mental retardation

(ECF No. 1

at 13-14), without more, are insufficient to justify equitable

tolling. See, e.g * / Columbert, 2018 WL 4621951, at *3; Alvarado,

713 F. App'x at 743; Blackhurst, 65 F. App'x at 104. Rather, the

Court agrees with Respondents that he

has been monbidly

dilatory in exercising his right to pursue habeas relief." (ECF

No. 9 at 26.) Petitioner was not simply a few weeks or months

late with respect to his PCR and habeas filings. He executed his

§ 2254 Petition on December 1, 2015 — over twelve years past

the AEDPA's December 6, 2002 deadline. The Third Circuit has

19

rejected findings of "reasonable diligence" in far less

egregious situations than Petitioner's case. See, e.g., Merritt,

326 F.3d at 170 (defendant who exhausted all state remedies and

waited two years past the AEDPA's deadline was not diligent).

Furthermore, Petitioner's participation in court proceedings

such as his 2001 direct appeal, 2012 pro se PCR filing, and 2014

PCR appeal compels the conclusion that a finding of "reasonable

diligence" is not warranted here as to his belated § 2254

Petition

For all of these reasons, Petitioner is not entitled to

equitable tolling.

B. The Petition Fails On The Merits

In addition to the Petition's untimeliness and the

unavailability of statutory or equitable tolling, the Petition

fails on the merits, as well.

1.

S tandard Of Review

Under 28 U.S.C. § 2254(a), the district court "shall

entertain an application for a writ of habeas corpus fo]n behalf

of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

A habeas

petitioner has the burden of establishing his entitlement to

relief for each claim presented in his petition. See Herrington

v. Richter, 562 U.S. 86, 98 (2011); Price v. Vincent, 538 U.S.

20

634, 641 (2003). District courts must give great deference to

the determinations of the state trial and appellate courts.

See

Renico v. Lett, 559 U.S. 766, 773 (2010).

Where state courts have adjudicated a claim on the merits,

the district court shall not grant an application for a writ of

habeas corpus unless the state court adjudication

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts

in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254 (d) (l)-(2). See Conover v. Main, 601 F. App'x

112, 114 (3d Cir. 2015) (citing 28 U.S.C. § 2254(d)).

Federal law is "clearly established" for these purposes

where it is clearly expressed in "only the holdings, as opposed

to the dicta" of the opinions of the United States Supreme

Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015).

A decision is "contrary to" federal precedent for these

purposes if the state court "contradicts the governing law set

forth in [the Supreme Court's] cases" or if it "confronts a set

of facts that are materially indistinguishable from a decision

of th[e Supreme] Court and nevertheless arrives at a [different]

result." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

21

Under the

unreasonable application' clause of §

2254(d> (1), a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle

from th[e Supreme] Court's decisions but unreasonably applies

that principle to the facts of the prisoner’s case. " Williams,

529 U.S. at 413. With regard to 28 U.S.C. § 2254(d)(1)/ a

federal court must confine its examination to evidence in the

record. See Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).

The petitioner carries the burden of proof, and review

under § 2254(d) is limited to the record that was before the

state court that adjudicated the claim on the merits^ See

Harrington, 562 U.S. at 100. "When reviewing state criminal

convictions on collateral review, federal judges are required to

afford state courts due respect by overturning their decisions

only when there could be no reasonable dispute that they were

wrong." Id. at 102-03. Where a petitioner challenges an

allegedly erroneous factual determination of the state courts,

"a determination of a factual issue made by a State court shall

be presumed to be correct [and the] applicant shall have the

burden of rebutting the presumption of correctness by clear and

convincing evidence." 28 U.S.C. § 2254(e)(1).

Under these standards, the relevant state court decision

that is appropriate for federal habeas corpus review is the last

reasoned state court decision. See Bond v. Beard, 539 F.3d 256,

22

289-90 (3d Cir. 2008). Furthermore, "when the relevant state

court decision on the merits ... does not come accompanied with

. .. reasons ... [w]e hold that the federal court should 'look

through' the unexplained decision to the last related statecourt decision that does provide a relevant rationale. " Wilson

v. Sellers, 138 S. Ct. 1188, 1192 (2018).

A federal court may not grant a writ of habeas corpus under

§ 2254 unless the petitioner has "exhausted the remedies

available'in the courts of the State." 28 U.S.C. §

2254(b)(1)(A). To do so, a petitioner must "fairly present' all

federal claims to the highest state court before bringing them

in federal court." Leyva v. Williams, 504 F.3d 357, 365 (3d Cir.

2007)

(internal citations omitted). To the extent a petitioner s

constitutional claims are unexhausted and/or procedurally

defaulted, a court can fjgyertheless deny them on the merits

under 28 U.S.C. § 2254(b)(2). See Taylor v. Horn, 504 F.3d 416,

427 (3d Cir. 2007); Bronshtein v. Horn, 404 F.3d 700, 728 (3d

Cir. 2005).

2.

reminds One And Three: Claims Of PCR Court Errors

Ground One alleges that the PCR court "erred in denying

defendant's petition for PCR without affording him an

evidentiary hearing to fully address his contention that he

23

-

failed to receive effective legal representation at the trial

level." (ECF No. 1-2 at 3 ("PCR Evidentiary Hearing Claim").)9

Ground Three argues that "[t]he PCR court erred in denying

the defendant's petition for PCR, in part, on procedural grounds

pursuant to [New Jersey] R. 3:22-12(a)." (Id. at 9 ("PCR

Procedural Ruling Claim").)

Judge Costello ruled that the PCR petition "was filed

untimely." (Id. at 18.) She also determined that "[e]ven if the

five year time limit were relaxed, this petition for PCR would

be denied" because "defendant has not been able to meet his

burden for relief" on his IAC claim. (Id. at 20, 25.)

During appeal of PCR denial, the Appellate Division

rejected the PCR Evidentiary Hearing Claim and the PCR

Procedural Ruling Claim, "affirm[ing] substantially for the

reasons expressed by Judge Costello." 2015 WL 2070061, at *1.

9 To the extent that Ground One purports to assert a claim of IAC

by trial counsel, separate and distinct from Ground One's claim

of PCR court error, Petitioner has not sustained his burden

under Strickland v. Washington, 466 U.S. 668 (1984) for any such

IAC claim. (See ECF No. 1-2 at 3 (Ground One: "[Petitioner]

failed to receive adequate legal representation by [trial

counsel] not conducting a thorough investigation [and] ...

arranging] for [Petitioner] to be evaluated by a psychiatric or

psychological expert").) For the same reasons discussed infra as

to Ground Two's IAC claim, Petitioner cannot show as to any IAC

claim in Ground One that "there is a reasonable probability that

the result of the [case] would have been different absent the

[supposedly] deficient act or omission" by trial counsel. See

Hinton v. Alabama, 134 S. Ct. 1081, 1083 (2014) (per curiam).

24

This Court determines that Grounds One and Three of the

Petition lack merit.

Infirmities in a state PCR proceeding do not raise

constitutional questions in a federal habeas action. Habeas

petitioners are not entitled to relief based upon any alleged

deficiencies in state PCR proceedings because purported errors

in state post-conviction relief proceedings are collateral to

the conviction and sentence and do not give rise to a claim for

federal habeas relief. Hassine v. Zimmerman, 160 F.3d 941, 954

.(3d Cir. 1998), cert. denied, 526 U.S. 1065 (1999)

("The federal

role in reviewing an application for habeas corpus is limited to

evaluating what occurred in the state or federal proceedings

that actually led to the petitioner's conviction; what occurred

in the petitioner's collateral proceeding does not enter into

the habeas calculation .... Federal habeas power is limited ...

to a determination of whether there has been an improper

detention by virtue of the state court judgment ; what occurs in

state collateral review proceedings "does not enter into the

habeas calculation").

Thus, the PCR Evidentiary Hearing Claim and the PCR

Procedural Ruling Claim do not raise claims that are cognizable

in a federal habeas proceeding. Even if errors in Petitioner s

state PCR proceedings are presumed to have been present, they

are irrelevant to the instant habeas matter because they were

25

collateral to Petitioner's conviction and sentence and thus

cannot give rise to a claim for federal habeas relief. See

Hassine, 160 F.3d at 954. See also 28 U.S.C. § 2254(i).

Accordingly, Grounds One and Three fail to assert a

violation of Petitioner's federal rights.

3.

Ground Two: Claim of Ineffective Assistance of Counsel

Ground Two argues that Petitioner's PCR counsel rendered

IAC by "fail[ing] to investigate an effective defense as he

proceeded with the PCR petition without even attempting to

obtain a psychological or psychiatric expert to evaluate

[Petitioner]." {ECF No. 1-2 at 6 ("IAC Claim").}

Petitioner's PCR petition alleged IAC as to trial counsel.

(ECF No. 9-9 at 7; ECF No. 9-10 at 25-39, 34, 38) (counsel was

ineffective for "failing to retain an expert ... regarding a

diminished capacity defense and/or on the issue of competency to

stand trial ...").) Judge Costello rejected this argument. She

noted that "when a petition claims his trial attorney

inadequately investigated his case, he must assert the facts

that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge

of the affiant." (ECF No. 1-2 at 21 (internal citation

omitted).) Judge Costello next correctly set forth the governing

standard of Strickland v. Washington, 466 U.S. 668 (1984) for

IAC claims. (Id. at 20-21.) She then explained that the court

26

rejected the IAC Claim because: (1) Petitioner did not sustain

his burden of offering any facts showing what a mental capacity

investigation of him would have yielded if counsel had pursued

it (ECF No. 1-2 at 21, 23); and (2) Petitioner "fail[ed] both

prongs of Strickland/Fritz

(Id. at 22, 24.)

During appeal of PCR denial, Petitioner argued IAC as to

PCR counsel. 2015 WL 2070061, at *1. However, his core criticism

remained the same as that in his PCR petition - i.e.,

allegations about counsel's failure to retain a mental health

expert: "PCR counsel also failed to investigate an effective

defense as he proceeded with the PCR petition without even

attempting to obtain a psychological or psychiatric expert to

evaluate [Petitioner]." (ECF No. 11-5 at 3 and 23-26.) The

Appellate Division rejected his argument, "affirm[ing]

substantially for the reasons expressed by Judge Costello." Id.

The record demonstrates that Judge Costello's ruling as to

trial counsel and the Appellate Division's ruling as to PCR counsel

did

not

unreasonably

apply

federal

law.

Petitioner

did

not

establish either prong of Strickland as to trial and PCR counsel.

First,

evidence

as

to

Strickland's

deficient performance

contradicted Petitioner's contentions

that

counsel failed to act:

Specifically[,] counsel submitted an omnibus

motion on behalf of defendant. Within that

motion, counsel sought a pre-trial hearing

27

element,

his

trial

to determine the admissibility of any

statement made by the defendant. The omnibus

motion was only withdrawn in exchange for

the defendant's plea agreement [that]

dismissed 3 additional indictments and

allowed defendant to avoid the death

penalty. Thus, there were strategic reasons

for the decision by counsel to withdraw

defendant's suppression argument.

(ECF No. 1-2 at 21-22.) As to PCR counsel, Petitioner expressly

concedes that he consented to "proceed on the existing PCR

petition" after "the court offered to allow [him] to withdraw

the PCR petition and refile it when any and all investigations

and evaluations were complete." (Id. at 8.) In short, Petitioner

conduct to which

now criticizes PCR counsel for the very

Petitioner himself agreed after consulting with counsel.

However

Petitioner cannot raise an IAC claim simply because he

is unhappy that his case did not conclude as he wished.

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)

See

(IAC claim

analysis is not to "focus[] solely on mere outcome

determination"); Kim v. United States, No. 05-3407, 2006 WL

981173, at *3 (D.N.J. Apr. 4, 2006) ("[T]hat [he] now appears

unhappy with the result does nothing to change the fact that

there is not the slightest indication that petitioner received

ineffective assistance of counsel").10 Judge Costello's ruling on

io The Court notes also that, at sentencing, counsel did argue

that Petitioner's mental defects should mitigate the sentence.

same mental

(ECF No. 1-2 at 23-24.) Counsel relied upon the very

defects of Petitioner described in the CVA Report (see ECF No.

28

Strickland defective performance was not objectively

unreasonable as to trial counsel, and the Appellate Division

reasonably could have found that PCR counsel's performance was

not defective.

As to Strickland's prejudice element regarding trial

counsel and PCR counsel, Petitioner has not shown "there is a

reasonable probability that the result of the [case] would have

been different absent the deficient act or omission.

Hinton v.

Alabama, 134 S. Ct. 1081, 1083 (2014) (per curiam). Petitioner

confessed to the two murders. (ECF No. 11-2 at 3.) He entered a

guilty plea to the crimes. (ECF No. 9-1 at 4-5; ECF No. 9-2 at

9.) The state court determined that Petitioner "did not suffer

from any cognitive deficiency when he confessed!,] as the

statements were made with specificity and clarity ... Moreover,

[Petitioner] expressed remorse for his actions. As [he] was

familiar with the processes of the criminal justice system given

his extensive criminal record, [his] words suggest that he

1-D -- which Petitioner himself now offers on habeas review as

the sole evidence of his purported cognitive deficiencies. (ECF

No. 1-2 at 24, 25 ("Counsel and the sentencing court were well

aware of the defendant's limitations").) Petitioner offers no

further evidence of cognitive deficit beyond what his counsel

submitted to the state courts - i.e., the CVA Report. His

election now not to offer evidence on habeas -- beyond the CVA

Report -- is disingenuous. He criticizes counsel's decision to

proceed on the PCR petition without a mental health evaluation,

and yet that was a decision in which Petitioner himself joined.

Habeas review was not designed to indulge such self-serving

cherry-picking.

29

understood the nature of the questioning and the consequences of

making a detailed confession." (ECF No. 1-2 at 22.) The state

court also found that he "was competent to stand trial and plead

guilty as he was able to assist and understand his trial

counsel." (ECF No. 1-2 at 23.) Petitioner has not shown that any

further investigation by either trial or PCR counsel of

unspecified "cognitive limitations" (ECF No. 1-2 at 7) would

have undermined or changed the verdict or the PCR ruling.

Accordingly,

Judge Costello's ruling as to IAC by trial

counsel, and the Appellate Division's rejection of Petitioner's

IAC claim against PCR counsel,

involved

an

unreasonable

were neither contrary to,

application

of,

clearly

nor

established

federal law under Strickland. Nor did they result in a decision

that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding.

For all of these reasons, Ground Two is without merit.

C. Petitioner Is Not Entitled To An Evidentiary Hearing Or A

Psychological Evaluation.

The Court'will deny Petitioner's demand for an evidentiary

hearing. Petitioner having failed to make the threshold proffer

necessary for statutory or equitable tolling, and the Petition

failing on the merits as well, his hearing request does not

merit further written discussion and is denied at this time. See

Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 n.2 (3d Cir. 1991)

30

(petitioner not entitled to evidentiary hearing based on "bald

assertions and conclusory allegations").

The Court will also deny Petitioner's demand for a

psychological evaluation. Federal district courts have a duty of

inquiry to determine whether there is verifiable evidence of the

incompetence of a pro se litigant. Powell v. Symons, 680 F.3d

■ 301, 307 (3d Cir. 2012). Here, the Petition asks for a

psychological evaluation "to determine his mental competence."

(ECF No. 1 at 15.) The Petition does not, however, contain any

reason to believe that Petitioner was incompetent during the

time periods pertinent to the issues discussed in this Opinion.

IV.

CERTIFICATE OF APPEALABILITY

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

judge issues a certificate of appealability ("COA"), an appeal may

not be taken from a final order in a proceeding under 28 U.S.C. §

2254.

A certificate

applicant has made

constitutional

of appealability may issue "only

a substantial

28

right."

U.S.C.

if

showing of the denial

§

2253(c)(2).

the

of a

"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

further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

31

proceed

"When

procedural

the

district

court

grounds without

constitutional claim[s],

a

denies

reaching

habeas

petition

the prisoner s

on

underlying

a COA should issue when the prisoner

shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural

ruling." Didiano v. Balicki, Civil Action No. 09-2315 (FLW), 2010

WL 1752191, at *6-7 (Apr. 29, 2010) (citing Slack v. McDaniel, 529

U.S. 473, 484 (2000) ) . Here, reasonable jurists would not find

the Court's habeas ruling debatable. Accordingly, no certificate

of appealability shall issue.

V.

CONCLUSION

For all of these reasons, the Petition is untimely. The

current record does not support statutory or equitable tolling.

Furthermore, the Petition, in any event, fails on the merits.

Therefore, the Petition will be denied with prejudice.

Petitioner's requests for evidentiary hearing and psychological

evaluation will be denied as well. An appropriate Order follows.

Dated:

/ / //

f

2019

/

_

---------------

iiadelTne Cox Arleo

United States District Judge

32

Additional material

from this filing is

available in the

Clerk's Office.