Petition for Writ of Certiorari — Selwin Martin, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.
Supreme Court briefJul 26, 2022
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In The
FILED
JUL 26 2022
Supreme Court of the United States
'ST*
SELWIN MARTIN,
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
1
j
INDEX TO APPENDIX
Order of the United States District Court for the
District' of New Jersey Dated March 15, 2017 .........
Pa-1-2
Opinion of the United States District Court for the
District of New Jersey Dated March 15, 2017 ........
Pa-3-14
Order of the United States Court Of Appeals for the .
Third Circuit Dated December 11, 2019 .............................
Pa-15-16
Order of the United States -Court Of Appeals for the
Third Circuit Dated January 21, 2022 ............................
Pa-17-18
Opinion of the United States Court Of Appeals for the
Pa-19-47
Third Circuit Dated January 21, 2022 ..............................
Order of the.United States Court Of Appeals for the
. Third Circuit Dated May 3, 2022 .................................
2
Pa-48-49
Case £S§^v'lfo1&$JB£>°0tiB§fi>tefrl:Ll FfaSSi §§/15/!i^t^^lQMWPib: 186
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
SELWIN MARTIN,
Petitioner,
Civil Action
No. 15-7158 (JBS)
v.
WARDEN STEPHEN D'lLIO, et al.,
ORDER
Respondents.
This matter having come before the Court on Petitioner
Selwin Martin's Petition for Writ of Habeas Corpus pursuant to
28 U.S.C
S 2254 (Docket Entry 1); and the Court having issued
an Order to Show Cause directing Petitioner to demonstrate why
his § 2254 petition should not be dismissed as untimely,
(Docket
Entry 3); Respondent having filed a Motion to Dismiss (Docket
Entry 8); the Court having considered the submissions of the
parties, including Petitioner's response to the Order to Show
Cause,
(Docket Entry 4); for the reasons explained in the
Opinion of today's date; and for good cause shown;
IT IS this
15th
day of
March
, 2017, hereby
ORDERED that Respondent's Motion to Dismiss. (Docket Entry
8) is GRANTED; and it is further
ORDERED that the Petition.is DISMISSED WITH PREJUDICE as
untimely under 28 U.S.C
5 2244(d)(1); and it is further
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ORDERED that no certificate of appealability shall issue;
• and it is finally
ORDERED that the Clerk shall serve a copy of this Opinion
and Order on Plaintiff by regular mail and mark this case
CLOSED.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
2
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
SELWIN MARTIN,
Petitioner,
Civil Action
No. 15-7158 (JBS)
v.
WARDEN STEPHEN D'ILIO, et al.,
OPINION
Respondents.
SELWIN MARTIN, Petitioner Pro Se
509251C 666997
New Jersey.State Prison
P.O. Box 8614
Trenton, New Jersey 08625
MARY EVA COLALILLO, Camden County Prosecutor
ROBIN ANN HAMETT, Assistant Prosecutor, Section Chief
Camden County Prosecutor's Office
Motion and Appeals Unit
25 North Fifth Street
Camden, New Jersey 08102
Attorney for Respondent Stephen D'Ilio
SIMANDLE, Chief Judge:
I. INTRODUCTION .
This matter comes before the Court on Respondent Stephen
D'llio's Motion to Dismiss this petition for writ of habeas
corpus under 28 U.S.C
S 2554 as time-barred. Motion to Dismiss,
Docket Entry 8. Pro se Petitioner Selwin Martin did not file a
response to the motion. The matter is being decided on the
papers pursuant to Federal Rule of Civil Procedure 78. For the
reasons stated below, the motion is granted, and the petition is
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dismissed with prejudice as untimely. No certificate of
appealability will issue.
IX. BACKGROUND
After a jury trial in Camden County, Petitioner was
sentenced by the Superior Court of New Jersey, Law Division to
life imprisonment with a thirty-five-year term of parole
ineligibility on October 15, 1999. Petition, Docket Entry 1 at
1. He filed a direct appeal, and the New Jersey Superior Court
Appellate Division ("Appellate Division") affirmed his
convictions. State v. Martin, No. A-1742-99 (N.J. Super. Ct.
' App.- Div. Sept. 21, 2001).1 The New Jersey Supreme Court denied
certification on January 10, 2002. State v. Martin, 791 A.2d 220
(N.J. 2002) .
Petitioner filed a timely petition for post-conviction
relief ("PCR") in the state courts on October 21, 2002. Petition
at 2; Respondent's Exhibit 3. On April 30, 2004, the PCR court
denied the petition. See State v. Martin., No. A-3994-11, 2014 WL
7178019. at *1 (N.J. Super. Ct. App. Div. Dec. 18, 2014);
Respondent's Exhibit 8. Petitioner did not appeal the denial of
his PCR petition until April 6, 2012. The Appellate Division
granted his motion to file his notice of appeal as within time
i
"[A] court may take judicial notice of a prior judicial
opinion." McTernan v. City of York, 577 F.3d 521. 525 (3d Cir.
2009).
2
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on June 27, 2012. Respondent's Exhibit 6. The Appellate Division
affirmed the PCR court on December 18, 2014, Martin,- 2014 WL
7178019. at *1, and the New Jersey Supreme Court denied
certification on April 30, 2015, State v. Martin, 112 A.3d 593
(N.J. 2015).
Petitioner handed this petition for a writ of habeas corpus
to prison officials for mailing on June 12, 2015.2 Petition at
13; Postage Remit, Docket Entry 1-4 at 3-6. On November 10,
2015, the Court issued an order to show cause as to why the
petition should not be dismissed as time-barred under the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
Order to Show Cause, Docket Entry 3. Petitioner filed a response
on December 10, 2015. Show Cause Response, Docket Entry 4. The
Court thereafter- ordered Respondent to file either a motion to
dismiss or an answer to the petition. Docket Entry 5. Respondent
filed the instant motion on June 30, 2016; Petitioner did not
submit a response to the motion.
2 The Clerk's Office received the filing fee on June 19, 2015; .
however, the petition itself was not received until September
29, 2015. As the postage remit indicates Petitioner asked the
prison business office to mail his petition on June 12, 2015,
the Court considers the petition filed as of that date. See
Burns v. Morton, 134 F.3d 109. 113 (3d Cir. 1998) ("[A] pro se
prisoner's habeas petition is deemed filed at the moment he
delivers it to prison officials for mailing to the district
court.").
3 .
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177
III. ANALYSIS
A. Timeliness
AEDPA imposes a one-year period of limitation on a
.petitioner seeking to challenge his state conviction and
sentence through a petition for writ of habeas corpus pursuant
to 2 8 U. S-C
S 2254. See 2 8 II-S.C
S 2244 fril m . Under §
2244(d)(1), the limitation period runs from the latest of:
(A)'the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to
filing an application created by State
•action in violation of the Constitution or
laws of the United States is removed, if the
applicant was prevented from filing by such
State action;
(C) the date on which the constitutional
right asserted was initially recognized by
the Supreme Court,, if the right' has been
newly recognized by the Supreme Court and
made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate
of the claim or claims presented could have
been discovered through the'exercise of due
diligence.
1
28 U.S.C
S 2244 (dMl) . As Petitioner's conviction occurred
after AEDPA's effective date, he is subject to its orie-year
statute of limitations.
Petitioner's direct appeal concluded on January 10, 2002.
State v. Martin, 791 A.2d 220 (N.J. 2002).. Petitioner's
4
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conviction therefore became "final" for habeas purposes upon the
expiration of the ninety (90) day period in which he could have
sought a writ of certiorari from the United States Supreme
Court, April 10, 2002. His one-year limitations period began
running on April 11, 2002, and was tolled 194 days later when
Petitioner filed his PCR .petition on October 21, 2002. See 23.
II-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."). At the time of the filing of the PCR petition,
171 days remained in Petitioner's'AEDPA limitations period.
X.
,
Petitioner's .PCR petition was denied on April 30, 2004. It
remained "pending" during the time period in which Petitioner
could have filed a timely appeal. Swartz v. Meyers, 204 F.3d 417
(3d Cir. 2000)
("[F]or purposes of § 2244(d)(2)
'pending'
includes the time for seeking discretionary review, whether or
not discretionary review is sought."). Under New Jersey law,
Petitioner had forty-five days to seek review by the Appellate
Division. N.J. Ct. R. 2:4-1(a). Therefore, the PCR'petition
5
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remained pending until June 14, 2004, and the remaining 171 days
in the one-year AEDPA period expired on December 2, 2004.3
In response to the Court's Order to Show Cause, Petitioner
argues that he should be given the benefit of equitable tolling
because his PCR attorney failed to file a timely appeal after
assuring Petitioner one would be filed. Show Cause Response f 3.
After the PCR court denied the application in April 2004,
Petitioner was transferred to Lee County Federal Prison in
Virginia. Id. I 4. Petitioner began writing to PCR counsel in
January 2005 inquiring as to the status of his appeal. Id. $ 5.
He states he called and wrote to his attorney every six months,
3 The filing of a motion to file an appeal out of time does not
stop the running of the statute of limitations. See Douglas v.
Horn, 359 F.3d 257. 263 (3d Cir. 2004) (rejecting notion that by
"filing a nunc pro tunc petition for leave to appeal a
petitioner could obtain further tolling after the time for even
discretionary review of a judgment has expired."); Swartz, 204
at 423 n.6 ("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.")'; see also Alvarenga v.
Lagana, No. 13-4604, 2016 WL 3610156. at *1 (D.N.J. July 1,
2016) ("When an out-of-time appeal is filed, even if the appeal
is accepted as properly filed by the state appeals court,
statutory tolling does not include the period between the
expiration of time to appeal and when the appeal was actually
filed."), aff'd sub nom Alvarenga v. Admin N. State Prison, No.
16-3538 (3d Cir. Dec. 14, 2016)(denying certificate of
appealability). Even if the filing of the motion to appeal out
of time did toll the statute of limitations, Petitioner would
not be entitled to statutory tolling as the one-year period
under 28 U.S.C. S 2244(d)(1). supra, expired long before
Petitioner's .motion was filed on April 6, 2012.
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but counsel never answered any of the letters or phone calls.4
Id. I 6. Petitioner was transferred to Camden County Jail on
December 6, 2011 and was eventually placed in New Jersey State
r
Prison ("NJSP") on December 9. Id. f 7. Upon his arrival at
NJSP, Petitioner realized he did not have all of his papers.. Id.
f 8. Petitioner spoke with a NJSP prison paralegal who learned
from the Appellate Division that no PCR appeal had been filed on
Petitioner's behalf. Id. I 9. Thus, four months later, on April
6, 2012, Petitioner filed his motion for leave to file an appeal
out of time. Id. H 10. Petitioner asserts he was diligent in
"attempting to acertain the status of [his] appeal and
demonstrated excusable neglect in not filing [his] Federal
Habeas petition earlier." Id. f 11.AEDPA's statute of limitations is subject to equitable
tolling in appropriate cases. Holland v. Florida, 560 U.S. 631.
645 (2010) . "Generally, a litigant seeking equitable tolling
4 Petitioner refers to the "attached" letters to PCR counsel, but
no letters were attached to the original petition or to the show
cause response. Petitioner has not submitted the letters in
response to Respondent's motion'. The Court accepts for purposes
of this motion that Petitioner's description of the letters is
accurate. However, the Court finds that an evidentiary hearing
is not warranted as it concludes that after even accepting the
alleged contents of the letters as true, Petitioner did not act
with reasonable diligence. LaCava v. Kyler, 398 F.3d 271. 277
(3d Cir. 2005) (affirming denial of equitable tolling without a
hearing "where petitioner failed to show that he exercised,
reasonable diligence in attempting to file a timely petition"
(citing Robinson v. Johnson, 313 F.3d 128. 143 (3d Cir. 2002))).
7
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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 v.
DiGuglielmo, 544 U.S. 408. 418 (2005) . "The diligence required
for equitable tolling purposes is reasonable diligence, not
maximum, extreme, or exceptional diligence. ... A
determination of whether a petitioner has exercised reasonable •
diligence is made under a subjective test: it must be considered
in light of the particular circumstances of the case." Ross v.
Varano, 712 F.3d 784. 799 (3d Cir. 2013). "Mere excusable
neglect is not sufficient." LaCava v. Kyler, 398 F.3d 271. 276
(3d Cir. 20.05) .
Attorney abandonment can constitute extraordinary
circumstances. Jenkins v. Superintendent of Laurel Highlands,
705 F.3d 80. 89 (3d Cir. 2013). See also Ross, 712 F.3d at 800
(holding attorney malfeasance may warrant equitable tolling
"when combined with reasonable diligence on the part of the
petitioner in pursuit of his rights"). However, Petitioner has
not established he acted with reasonable diligence, and he must
establish both elements in order to be entitled to equitable
tolling. See Menominee Indian Tribe of Wis. v. United States,
136 S. Ct. 750. 756 (2016)
{"[W]e have expressly characterized
equitable tolling's two components as 'elements,' not merely
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factors of indeterminate or commensurable weight."). The
obligation to act with reasonable diligence « \ 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. t n Ross, 712 F.3d at 799
(quoting LaCava, 398 F'.3d at 277) . Accepting the facts stated in
Petitioner's declaration as true, he was not reasonably diligent
in pursuing the appeal of his PCR denial.
Petitioner asserts that he began writing to his PCR counsel
in January 2005, almost a year after his petition had been
denied by the PCR court. He further indicates that he wrote to
counsel every six months thereafter and made several calls to
counsel's office, Show Cause Response 1! 5-6, but he never
attempted to contact the Public Defender's Office or the state
courts until December 2011 in spite of not hearing from counsel
in the intervening time period. Moreover, he delayed filing his
motion for four months after the prison paralegal informed him
f
no appeal had been
filed. Id. 15 8-10.
Under the circumstances set forth in Petitioner's
declaration, it was not reasonable for Petitioner to wait seven
years before contacting the court when counsel did not respond
to his letters or phone calls during that time. See LaCava, 3M
• F.3d at 279 (noting "twenty-one months of inactivity . . ;
9
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.crosses the line of what constitutes due diligence for purposes
of employing that principle to save an otherwise untimely •
filing"). See also Holland v. Florida, 560 U.S
631. 653 (2010)
(finding reasonable diligence where petitioner "not only wrote
his attorney numerous letters seeking crucial information and
providing direction[,]
[but] also repeatedly contacted the state
courts, their clerks, and the Florida State Bar Association in
an effort to have [counsel] . . . removed from his case").
Moreover, it was not.reasonably diligent under the circumstances
for Petitioner to wait four months to file his motion once he
learned counsel had not filed an appeal. See id.
("And, the very
day that Holland discovered that his AEDPA clock had expired due
to [counsel's] failings, Holland prepared his own habeas
petition pro se and promptly filed it with the District Court."
(emphasis in original)). The lack of reasonable diligence on
Petitioner's part in pursuing a PCR appeal breaks any nexus
between counsel's failure to file an appeal and Petitioner's
failure to file a timely habeas petition. Ross v. Varano, 712
F.3d 784. 803 (3d Cir. 2013).
As Petitioner has not established he pursued an appeal of
his PCR denial with reasonable diligence under the
circumstances, he is not entitled to equitable tolling of
AEDPA's statute of .limitations. Pace v. DiGuglielmo, 544 U.S.
10
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'408, 419 (2005)
("Under long-established principles,
petitioner's lack of diligence precludes equity's operation.").
His federal habeas petition is therefore untimely and must be
dismissed with prejudice. Respondent's motion to dismiss is
granted.
B. Certificate of Appealability
AEDPA 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 certificate of appealability on the ground that
"the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C
S 2253(c) 12) . The United States
Supreme Court held in Slack v. McDaniel that "[w]hen the
district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim,
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." 529 U.S
475. 484 (2000). This Court denies a certificate of
appealability because jurists of reason would not find it
debatable that dismissal of the petition as untimely is correct.
11
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IV. CONCLUSION
For the reasons stated above, Respondent's motion to
dismiss is granted, and the habeas petition is dismissed as
untimely under 28 U.S.C
§ 2244. No certificate of appealability
shall issue.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
March 13, 2017
Date
v
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April 25,2019
CLD-169
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
C.A. No. 17-1918
SELWIN MARTIN, Appellant
VS.
ADMINISTRATOR NEW JERSEY STATE PRISON; ET AL.
(D.NJ. Civ. No. 15-CV-07158)
Present:
CHAGARES, RESTREPO and SCIRICA, Circuit Judges
Submitted is Appellant’s request for a certificate of appealability
under 28 I I S C. S 2253(c¥U
in the above-captioned case.
Respectfully,
Clerk
________________________ORDER____________________________________
Martin’s application for a certificate of appealability is granted on the issue
whether the District Court properly dismissed his petition as untimely. See 28 U.S.C. §
2253fcX2V Buckv. Davis. 137 S. Ct. 759. 773 (2017); Slack v. McDaniel 529 U.S. 473.
484 (2000). The tolling issues in this case are “adequate to deserve encouragement to
proceed fhrther,” Buck v. Davis, 137 S. Ct. 759. 773 (2017) (citation omitted), in light of
the June 27, 2012 decision of the New Jersey Appellate Division granting Martin’s
motion to file his notice of appeal as within time, see ECF No. 8-7.
2244(d¥21 (“[T]he time during which a properly filed application for State post
conviction or other collateral review ... is pending shall not be counted toward [the]
period of limitation.”); Evans v. Chavis. 546 U.S. 189.191 (2006) (“The time that an
application for state postconviction review is ‘pending’ includes the period between (1) a
lower court’s adverse determination, and (2) the prisoner’s filing of a notice of appeal,
provided that the filing of the notice of appeal is timely under state law.”); cf. Saffold v.
Newland. 250 F.3d 1262r 1266 (9th Cir. 2001), vacated on other grounds sub nom. Carev
v. Saffold, 536 U.S. 214 (2002). In their briefs, in their discussion of the tolling issues,
?«-\£
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the parties shall address the questions whether and to what extent the state court’s
decision to permit the filing of the appeal “as within time” distinguishes this case from
others addressing requests to appeal out of time. See Swartz v. Meyers. 204 F.3d 417r
423 n.6 (3d Cir. 2000); Streuv. Dormire. 557 F.3d 960. 966-67 (8th Cir. 2009);
Fernandez v. Stemes. 227 F3d 977r 981 (7th Cir. 2000); Hoggro v. Boone. 150 F.3d
1223. 1227 n.4 (10th Cir. 1998).
By the Court,
s/ L. Felipe Restrepo
Circuit Judge
Dated: December 11,2019
PDB/cc: Selwin Martin
Linda A. Shashoua, Esq
Benjamin R. Barnett, Esq.
Micah Brown, Esq.
A True Copy:
Patricia S. Dodszuweit, Clerk
A17
Case: 17-1918
Document: 73-1
Page: 1
Date Filed: 01/21/2022
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 17-1918
SELWIN MARTIN,
Appellant
v.
ADMINISTRATOR NEW JERSEY STATE PRISON;
ATTORNEY GENERAL NEW JERSEY
On Appeal from the United States District Court
for the District of New Jersey
(D.C.No. l-15-cv-07158)
District Judge: Honorable Jerome B. Simandle
Argued November 18, 2020
Before: JORDAN, KRAUSE, and RESTREPO, Circuit Judges
JUDGMENT
This cause came to be considered on the record from the United States District Court
for the District of New Jersey and was argued on November 18, 2020. On consideration
whereof, it is now ORDERED and ADJUDGED by this Court that the judgment of the
District Court entered on March 15,2017 is AFFIRMED. Costs shall be taxed against the
Appellant. All of the above in accordance with the Opinion of this Court.
1 of 4
Case: 17-1918
Document: 73-1
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Date Filed: 01/21/2022
ATTEST:
s/ Patricia S. Dodszuweit
Clerk
Dated: January 21, 2022
2 of 4
Case: 17-1918
Document: 72
Page: 1
Date Filed: 01/21/2022
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 17-1918
SELWIN MARTIN,
Appellant
v.
ADMINISTRATOR NEW JERSEY STATE PRISON;
ATTORNEY GENERAL NEW JERSEY
On Appeal from the United States District Court
for the District of New Jersey
(D.C.No. l-15-cv-07158) ,
District Judge: Honorable Jerome B. Simandle
Argued November 18,2020
Before: JORDAN, KRAUSE, and RESTREPO,
Circuit Judges
(Opinion Filed: January 21, 2022)
Case: 17-1918
Document: 72
Page: 2
Date Filed: 01/21/2022
Benjamin R. Barnett
Micah Brown [ARGUED]
Dechert LLP
Cira Centre
2929 Arch Street
■ Philadelphia, PA 19104
Counselfor Appellant
Maura M. Sullivan [ARGUED]
Camden County Office of Prosecutor
200 Federal Street
Camden, NJ 08103
Counselfor the Appellees
OPINION OF THE COURT
RESTREPO, Circuit Judge.
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) imposes a one-year statute of limitations on
state prisoners seeking federal habeas corpus relief. 28 U.S.C.
§ 2244(d)(1). The one-year clock begins to run, as relevant
here, when a state prisoner exhausts all options on direct appeal
thus rendering the state conviction “final.” Id. § 2244(d)(1)(A).
However, AEDPA also provides a tolling mechanism: under
28 U.S.C. § 2244(d)(2), the one-year clock pauses for “[t]he
time during which a properly filed application for State post-
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Document: 72
Page: 3
Date Filed: 01/21/2022
conviction or other collateral review with respect to the perti
nent judgment or claim is pending.”
Appellant Selwin Martin’s state conviction became “fi
nal” on April 10, 2002, triggering the limitations period. The
clock ran for 193 consecutive days, until October 21, 2002,
when Martin filed a petition for state post-conviction relief
(“PCR”). The one-year clock was paused until June 14,
2004—the last day on which Martin could have appealed (but
did;not) the trial court’s denial of his PCR petition—and ex
pired 172 days later, on December 3,2004. On June 12,2015,
almost eleven years following the lapse of the limitations pe
riod, Martin filed a petition seeking federal habeas relief.
Martin appeals the District Court’s denial of his habeas
petition as untimely. The crux of Martin’s argument stems
from his April 6,2012 filing in state appellate court of a motion
for leave to appeal “as within time” the trial court’s denial of
his PCR petition. Martin argues that the state appellate court’s
acceptance of his appeal “as within time” retroactively tolls the
one-year limitations period (retroactive in the sense that the
limitations period had expired more than seven years prior to
the time Martin moved for leave to appeal “as within time” the
trial court’s PCR decision). In essence, Martin asks us to hold
that a “properly filed” PCR petition is “pending” in accordance
with § 2244(d)(2) for the period between (1) the expiration of
time under state law in which a state prisoner could have timely
appealed (but did not) a trial court’s denial of a PCR petition,
and (2) a state prisoner’s submission of a motion for leave to
file a PCR appeal “as within time.” We disagree. Section
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2244(d)(2)’s tolling mechanism looks forward, not backward,
and a state court’s acceptance of an appeal “as within time”
does not rewind AEDPA’s one-year clock.
Because Martin is not entitled to statutory or equitable
tolling of § 2244(d)(l)’s limitations period, we hold that Mar
tin’s petition fails on the grounds of timeliness. For the reasons
discussed below, we will affirm the District Court’s dismissal
of Martin’s habeas petition.
I.
A.
In October 1999, following a jury trial in the Superior
Court of New Jersey, Camden County, Martin was convicted
of multiple crimes including murder, felony murder, and firstdegree kidnapping. Martin received a sentence of, inter alia,
life imprisonment subject to thirty-five years of parole ineligi
bility, to run consecutively to an unrelated federal sentence.
On September 21,2001, the Superior Court ofNew Jersey, Ap
pellate Division affirmed Martin’s conviction, and the New
Jersey Supreme Court denied Martin’s petition for certification
on January 10,2002. The 90-day period in which Martin could
have sought certiorari from the United States Supreme Court,
but did not, expired on April 10,2002.
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B.
On October 21, 2002, Martin filed a timely petition for
post-conviction relief. The trial court denied Martin’s PCR pe
tition on April 30,2004. Pursuant to NJ. Ct. R. 2:4-l(a), Mar
tin had 45 days—i.e., until June 14, 2004—to appeal the trial
court’s denial of his PCR petition. That 45-day period lapsed
without Martin filing an appeal.
Nearly eight years later, on April 6, 2012, Martin filed
apro se motion to appeal “as within time” the trial court’s April
30, 2004 denial of his PCR petition. J.A. 83. The Appellate
Division granted Martin’s request on June 27, 2012, without
providing the grounds upon which it based that decision. On
December 18, 2014, the Appellate Division affirmed the trial
court’s denial of Martin’s PCR petition, and the New Jersey
Supreme Court denied Martin’s petition for certification on
April 30, 2015.
C.
On June 12, 2015, Martin filed a petition for writ of ha
beas corpus pursuant to § 2254 in the District of New Jersey.
The District Court ordered Martin to show cause as to why his
petition should not be dismissed on timeliness grounds.
In response, Martin—still acting pro se—filed a decla
ration, dated December 4, 2015, in which he denied responsi
bility for the nearly eight-year delay in appealing the trial
court’s denial of his PCR petition. J.A. 81-84. According to
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Martin, his counsel at the time of the. trial court’s denial of the
PCR petition assured him immediately following the court’s
decision that an appeal, would be filed. Beginning in January
2005, Martin claims that he attempted multiple times to ascer
tain the status ofhis PCR appeal, to include contacting his thencounsel and the Office of the Public Defender.1 See J.A. 190
1 In his declaration, Martin refers to “attached letters” as evi
dence of the frequency with which he wrote his then-counsel
inquiring as to the status of his appeal. J.A. 83. However, no
letters were attached to his declaration, nor to any filing in sup
port of his habeas petition. The District Court acknowledged
this discrepancy and assumed, for the purposes of deciding the
State’s motion to dismiss, that Martin’s “description of the let
ters” was “accurate.” J.A. 10n.4. Relatedly, it concluded that
no evidentiary hearing was necessary because “after even ac
cepting the alleged contents of the letters as true, [Martin] did
not act with reasonable diligence.” J.A. 10n.4.
“In preparing to respond to Martin’s appeal in this
Court, the State came across letters attached to Martin’s April
6, 2012 state court motion to file as within time and related .
filings.” Appellee’s Br. 6 n.5. In addition to the letters, the
State acknowledged that the entirety of Martin’s April 6, 2012
filing, except for his notice of appeal, see J.A. 126, was not
included in the District Court’s record. The parties included
the missing documents in their joint appendix. See J.A. 185212. These documents provide additional facts pertaining to
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the delay that were not included in Martin’s December 2015
declaration; for example, Martin alleges that he wrote a letter,
dated March 8, 2012, to the trial court judge requesting a copy
of the order denying his PCR petition. See J.A..190, 196. Ad
ditionally, his April 6, 2012 filing does not reference his seek
ing of assistance from a prison paralegal in December 2011.
See J.A. 189-96. Martin does not challenge the District Court’s
determination that an evidentiary hearing was unwarranted,
nor does he otherwise argue for remand based on the letters not
being in the District Court’s record. And neither party filed a
motion for leave to supplement the record on appeal, nor do
they ask that we take judicial notice of the missing filings.
Although “[t]his Court has said on numerous occasions
that it cannot consider material on appeal that is outside of the
district court record,” we may allow for an expansion of the
record under certain circumstances. In re Cap. Cities/ABC,
Inc.’s Application for Access to Sealed Transcripts, 913 F.2d
89, 96-97 (3d Cir. 1990); see also 2 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice & Procedure § 37.1
(7th ed.). However, we need not decide whether such an ex
ception exists here, as we take judicial notice of the entirety of
the state court record. See U.S. ex rel. Geisler v. Walters, 510
F.2d 887, 890 n.4 (3d Cir. 1975) (taking judicial notice of
briefs and petitions filed in state court that had been missing at
the time of the district court’s decision so that the Court may
review “a full and proper record,” as the district court “could
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(Martin alleging that “all [his] efforts” to contact his thencounsel as to the status of his appeal were “fruitless,” despite
his then-counsel having made him a “solemn promise” “[a]t
the conclusion of [his] hearing” to file an appeal). Martin al
leges that he made “[n]umerous .. . unanswered” calls to this
then-counsel and wrote him “every six months” inquiring as to
his appeal. J.A. 83. According to Martin, it was not until De
cember 2011 (following his transfer from a federal facility in
Virginia, where he had been serving an unrelated federal sen
tence, to a state prison in New Jersey) that he was made aware
there was no pending PCR appeal. Explaining that he had no
legal training, was without “personal letters, law books[J and
several legal files” that had gone missing during his transfer to
New Jersey, and otherwise “didn’t know what to do,” Martin
have done” if the documents had been found sooner); see also
Swanger v. Zimmerman, 750 F.2d 291,297 (3d Cir. 1984) (tak
ing judicial notice of state court documents that were provided
to the Court on appeal).
This is not to say that we view the letters filed by Martin
on April 6, 2012 as those that he intended to attach to his De
cember 4, 2015 declaration—that inference is unsupported at
best. As relevant to our review of the District Court’s denial
of Martin’s petition on the grounds of timeliness, those letters
remain missing. We also see no reason to deviate from the
District Court’s determination that an evidentiary hearing was
unwarranted. See Robinson v. Johnson, 313 F.3d 128,143 (3d
Cir. 2002).
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sought the assistance of a prison paralegal in filing a notice of
appeal and a motion for leave to file “as within time”—both of
which form the basis of his April 6, 2012 submission to the
Appellate Division. J.A. 83.
Following Martin’s response to the order to show cause,
the State moved to dismiss the petition as untimely. Martin did
not file a response. And on March 15,2017, the District Court
dismissed the petition with prejudice. In a sound and thought
ful opinion, the District Court concluded that Martin, although
eligible for a period of statutory tolling, failed to adhere to
§ 2244(d)(l)’s one-year statute of limitations. The District
Court reasoned that the one-year clock was tolled for certain
periods during the pendency of his PCR petition, but the clock
restarted—and never stopped—following the expiration of the
45-day period in which Martin could have, but did not, file an
appeal of the trial court’s denial of the PCR petition. Thus,
according to the District Court, the one-year statute of limita
tions expired in December 2004. As to equitable tolling, the
District Court found that Martin failed to demonstrate that he
undertook reasonable diligence in pursuing an appeal of the
trial court’s denial of his PCR petition. Martin timely appeals.2
2 The District Court declined to issue Martin a certificate of
appealability. We granted him a certificate of appealability on
the issue of “whether the District Court properly dismissed his
petition as untimely,” to include “whether and to what extent
the state court’s decision to permit the filing of the appeal ‘as
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n.
The District Court had jurisdiction under 28 U.S.C.
§ 2254(a). We exercise jurisdiction pursuant to '28 U.S.C.
§§ 1291 and 2253. We review de novo a district court’s dis
missal of a state prisoner’s habeas petition on statute of limita
tions grounds. See Merritt v. Blaine, 326 F.3d 157, 161 (3d
Cir. 2003). Where, as here, the district court did not hold an
evidentiary hearing, our review of the district court’s refusal to
equitably toll § 2244(d)(l)’s limitations period is likewise de
novo. See LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir.
2005).
m.
Martin, as a state prisoner, is subject to a one-year lim
itations period for seeking federal habeas relief. See 28 U.S.C.
§ 2244(d)(1) (“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
within time’ distinguishes this case from others addressing re
quests to appeal out of time.” J.A. 16-17 (citations omitted).
We also appointed pro bono counsel for Martin pursu
ant to 28 U.S.C. § 1915(e)(1). We recognize Benjamin R. Bar
nett, Esq. and Micah Brown, Esq. of Dechert LLP—appointed
counsel—for their commitment to pro bono service as well as
their dedicated and high-quality representation of Martin in
this appeal.
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pursuant to the judgment of a State court.”)- Martin’s one-year
clock began running on April 10, 2002, the date on which his
judgment became “final.”3 See id. § 2244(d)(1)(A) (“The lim
itation 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[.]”).
Therefore, Martin’s habeas petition was due no later than April
9, 2003. Yet he did not seek habeas relief until June 12, 2015,
over twelve years later. Absent tolling of the one-year limita
tions period, Martin’s petition was untimely.
We must determine whether the District Court erred in
finding that neither statutory nor equitable tolling saves Mar
tin’s petition from dismissal. First, we ask: does Martin’s en
titlement to tolling pursuant to § 2244(d)(2) remedy the un
timeliness of his petition? Answering in the negative, we next
ask: did Martin act with the requisite due diligence to entitle
him to equitable tolling? Again, answering in the negative, we
hold that the District Court did not err in finding that neither
statutory nor equitable tolling applies to save Martin’s other
wise untimely habeas petition. Based on the following analy
sis, we will affirm the District Court’s order granting the
State’s motion to dismiss Martin’s petition on the grounds of
timeliness.
3 The parties do not dispute that § 2244(d)(1)(A) governs the
start of Martin’s limitations period, and we see no reason to
suggest that an alternative start date should apply. See 28
U.S.C. §§ 2244(d)(l)(B)-(D).
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A.
We first look to the extent to which Martin is eligible
for statutory tolling. AEDPA’s tolling mechanism provides
that “[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 subsection.” 28
U.S.C. § 2244(d)(2) (emphasis added); see Merritt, 326 F.3d at
162(“[T]o fall within the AEDPA tolling provision, the peti
tion for state post-conviction review must have been both
pending and ‘properly filed.’”) (citing Fahy v. Horn, 240 F.3d
239, 243 (3dCir. 2001)). It is undisputed that Martin’s petition
was “properly filed.”4 Rather, at issue is whether Martin’s
PCR petition was “pending” such that it tolled the one-year
limitations period and thereby saved his otherwise untimely
habeas petition. A PCR petition is “pending” in accordance
with §. 2244(d)(2) “as long as the ordinary state collateral re
view process is ‘in continuance’—i.e., ‘until the completion of
that process.” Carey v. Saffold, 536 U.S. 214, 219-20 (2002).
A PCR petition “by definition” remains “pending” “until the
application has achieved final resolution through the State’s
post-conviction procedures.” Id. at 220.
4 The District Court likewise recognized that Martin’s petition
was “properly filed” within the meaning of § 2244(d)(2). See
J.A. 76. Because we conclude that the petition was not “pend
ing,” we need not consider whether it was “properly filed.”
12
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Keeping this standard in mind, we must look to three
distinct time periods to determine the extent to which Martin is
entitled to statutory tolling: (1) October 21, 2002 to April 30,
2004; (2) April 30, 2004 to June 14, 2004; and (3) June 14,
2004 to April 6, 2012. As detailed below, we hold that Martin
is undoubtedly entitled to some tolling of the limitations period
pursuant to § 2244(d)(2); however, the tolling that he is entitled ■
to is insufficient to rectify the untimeliness of his petition.
1.
To begin, Martin’s conviction became final pursuant to
§ 2244(d)(1)(A) on April 10, 2002, the last day that Martin
could have sought certiorari from the United States Supreme
Court. Martin’s one-year clock began running on April 11,
' 2002 and did not pause until Martin filed his PCR petition on
October 21, 2002—193 days later.5 As of October 21, 2002,
Martin had 172 days remaining on the clock.
5 To determine the number of days remaining on Martin’s oneyear clock, we count beginning the first day following the date
upon which the judgment became “final,” see Fed. R. Civ. P.
6(a)(1), and treat his PCR petition as “pending” from the date
of its filing, see Windland v. Quarterman, 578 F.3d 314, 315
(5th Cir. 2009) (“[A] state habeas petition is ‘pending’ for the
purposes of tolling under § 2244(d)(2) on the day it is filed
through (and including) the day it is decided.”); cf United
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.Martin’s PCR petition began “pending” pursuant to
§ 2244(d)(2) on October 21, 2002. See Sajfold, 536 U.S. at
219-20 (stating that a petition is “pending” under § 2244(d)(2)
when it is “in continuance”). The parties do not dispute that
Martin’s PCR petition continued to be “pending” through April
30,2004, when the trial court denied his PCR petition.
2.
Under New Jersey law, Martin had 45 days after the de
nial of his PCR petition to file an appeal. See N.J. Ct. R. 2:41(a). The parties do not dispute that Martin’s PCR petition re
mained “pending” for 45 days following the trial court’s deci
sion on April 30, 2004, i.e., until June 14, 2004. See Swartz v.
Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (“‘[Pending’ in
cludes the time for seeking discretionary review, whether or
not discretionary review is sought.”).
3.
Martin urges us to hold that his PCR petition was “pend
ing” for the approximately eight-year period between June 14,
2004 (the last day on which he could have appealed, but did
not, the trial court’s denial of his PCR petition) and April 6,
States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006) (explain
ing that the date of a motion’s filing is excluded for the pur
poses of “calculating includable time” under the Speedy Trial
Act) (quoting United States v. Yunis, 723 F.2d 795, 797 (11th
Cir. 1984)).
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2012 (the day on which Martin moved to file his PCR appeal
“as within time”). But he misconstrues the meaning of “pend
ing” under § 2244(d)(2).
In Swartz, we held that “the term ‘pending’ must in
clude the time between a court’s ruling and the timely filing of
an appeal.” 204 F.3d at 420, 424 (emphasis added). Shortly
thereafter, the Supreme Court agreed with this interpretation of
“pending,” confirming that “pending” includes the period be
tween a lower state court’s adverse finding and a petitioner’s
filing of a timely notice of appeal. Saffold, 536 U.S. at 217. In
2006, the Supreme Court, in Evans v. Chavis, once again con
sidered the meaning of “pending” under § 2244(d)(2). 546
U.S. 189 (2006). In doing so, the Evans Court reaffirmed its
holding in Saffold that the one-year clock tolls for the period
“between (1) a lower court’s adverse determination, and (2) the
prisoner’s filing of a notice of appeal, provided that the filing
of the notice of appeal is timely under state lawId. at 191
(second emphasis added).
Martin capitalizes on “timely” as used in Swartz, Saf
fold, and Evans to argue that a belatedly filed appeal that is
ultimately accepted “as within time” satisfies § 2244(d)(2)’s
“pending” requirement because it is “timely.” According to
Martin, “an appeal is properly pending so long as it was timely
filed.” Appellant’s Br. 22. Consistent with AEDPA’s princi
ples of comity, finality, and federalism, Martin maintains that
resolving whether a petition is “timely” for the purposes of the
“pending” analysis “depends on the state courts’ determination
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of that issue.” Id. at 30; Reply Br. 2-3 (“[W]hether a state ap
pellate petition is timely and properly filed—and therefore
‘pending* for AEDPA purposes—is a determination to be
made by the courts of that state, and not by a later federal ha
beas court.”) (citing Saffold, 536 U.S. at 226). So, he urges us
to accept the Appellate Division’s designation of Martin’s pe
tition “as within time” as a “conclusive[] detennin[ation] that
the appeal in question was timely filed” for the purposes of the
“pending” analysis. Appellant’s Br. 23, 30; see also id. at 16
(arguing that a state appellate court’s acceptance of an appeal
“as within time” is a “clear indication that [the] request for ap
pellate review was timely”) (quoting Evans, 546 U.S. at 198).
And because his petition was “timely” filed, he argues that it
was “pending” for the nearly eight years between the last day
on which he could have appealed, but did not, the trial court’s
denial of his PCR petition and the day on which he moved to
file his PCR appeal “as within time.” ■
Martin’s reasoning gives Frankensteimlike characteris
tics to § 2244(d)(2)’s tolling mechanism that threatens to write
§ 2244(d)(l)’s limitations period out of AEDPA. At the outset,
we agree with Martin that “timely” in the “pending” context,
as used in Swartz, Saffold, and Evans, indeed refers to a state’s
determination of an appeal’s timeliness. However, “timely”
here is not synonymous with a state appellate court’s ac
ceptance of a belated appeal “as within time.” Rather “timely”
means an appeal filed in accordance with the state law deline
ating the period in which a petitioner may appeal following a
lower court’s adverse determination, before the appeal would
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V..-*
be considered belated. “Timely” does not encapsulate a be
lated appeal that was ultimately accepted through the applica
tion of a tolling mechanism or exception to the state law gov
erning the period in which a petitioner may file an appeal.
For example, in Evans, the Supreme Court considered
the “pending” requirement in the context of whether § 2244’s
limitations period was tolled during the time in which a peti
tioner in California could submit an “original petition.” Evans,
546 U.S. at 192. California, as opposed to a state like New
Jersey, has an “indeterminate” timeliness requirement that is
based on a finding of reasonableness. Id. at 192-93; see also
Saffold, 536 U.S. at 222 (“Other States... specify precise time
limits, such as 30 or 45 days, within which an appeal must be
taken, while California applies a general ‘reasonableness’
standard.”). The “timely” in Evans asks whether the petitioner
filed his “original petition” within a “reasonable” time; its in
quiry does not extend to whether an exception, if any, to Cali
fornia’s “reasonableness” requirement would turn an otherwise
unreasonable (and therefore untimely) petition suddenly rea
sonable, and thereby resuscitate its “pending” status. Evans,
546 U.S. at 201.
An examination of Saffold and Swartz leads us to the
same conclusion. In Saffold, the Supreme Court focused on
whether a petition was “pending” during the period in which a
petitioner may appeal under California’s “reasonableness”
standard. Saffold, 536 U.S. at 219-21. It specifically recog
nized that “pending” applies “as long as the ordinary state col-
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lateral review process is ‘in continuance.’” Id. at 219-20 (em
phasis added); see also Evans, 546 U.S. at 192, 199-200 (“[I]n
Saffold, we held that timely filings in California (as elsewhere)
fell within the federal tolling provision on the assumption that
California law in this respect did not differ significantly from
the laws of other States, i.e., that California’s ‘reasonable time’
standard would not lead to filing delays substantially longer
than those in States with determinate timeliness rules,” which
are “typically just a few days.”) (emphasis omitted). Likewise
in Swartz, our examination focused on whether a petition was
“pending” during the period “between one appellate court’s
ruling and the deadline for filing a timely request for allowance
of appeal when a timely request for allowance of appeal is not
filed.” Swartz, 204F.3dat420. There, “timely request” refers
to the determinate period under Pennsylvania state law in
which Swartz could have, but did not, file a “timely” appeal.
See, e.g., id. at 419 (“Swartz did not file a timely petition for
allowance of appeal in the Pennsylvania Supreme Court. But,
on March 4, 1997, Swartz filed a ‘Motion for Permission to
File Petition for Allowance of Appeal Nunc Pro Tunc I On
May 2, 1997, the Pennsylvania Supreme Court denied his mo
tion.”) (emphasis added).
So, it remains whether we are to accept Martin’s invita
tion to expand the scope of “timely” beyond its meaning in
Swartz, Saffold, and Evans and hold that a “properly filed” pe
tition is “pending” for the period between the expiration of time
in which a petitioner could have appealed, but did not, the trial
court’s denial of a PCR petition and the day on which the state
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appellate court grants his petition to appeal “as within time.”
We join our sister Courts of Appeals in declining to do so.
In Fernandez v. Stemes, the Seventh Circuit addressed
essentially an identical question to that on appeal here: “what
is the period ‘during which’ a petition was pending, when it
became ‘properly filed* because the state court excused a de
lay?” 227 F.3d 977, 978 (7th Cir. 2000). The petitioner in
Fernandez, much like Martin, failed to file his appeal in ac
cordance with Illinois’s rules concerning the timeliness of an
appeal and instead, nearly a year after that deadline expired,
filed a motion to file a late petition for leave to appeal, which
the state court granted. Id. at 979. The Fernandez Court took
a common-sense approach, holding that “State processes ended
when the time to seek further review expired. They may be
revived, but the prospect of revival does not make a case ‘pend
ing’ in the interim.” Id. at 980-81. Accordingly, it is “a .makebelieve approach ... [to view] petitions . . . [as] continuously
pending whenever a state court allows an untimely filing.” Id.
at 981. “[P]refer[ing] reality,” the Court held that “[a]n un
timely petition is just that; it is filed when it is filed, and it was
not ‘pending’ long before its filing.’” Id.
We too prefer “reality.” Section 2244(d)(2)’s “pend
ing” requirement looks forward, not backward. This sensible,
construction of the statute comports with the fact that, at the
expiration of time in which to file a timely PCR appeal, a peti
tioner’s PCR proceedings have concluded. In other words,
from the expiration of time in which to file a timely appeal and
the state court’s acceptance of the belated appeal, there is no
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PCR petition for the state court system to consider. Nor is there
a petition that could be appealed. The state review process is
done; it is not dormant, it is not latent, and it is not hibernating
in case a petitioner should choose at some point down the road
to request a state appellate court to review a belated appeal.
This amounts to the exhaustion of a petitioner’s state court
remedies, and thereby does not step on the toes of AEDPA’s
principles of comity, finality, and federalism. See Saffold, 536
U.S. at 220 (“A federal habeas petitioner must exhaust state
remedies before he can obtain federal habeas relief. . . . The
exhaustion requirement serves AEDPA’s goal of promoting
comity, finality, and federalism, by giving state courts the first
opportunity to review [the] claim, and to correct any constitu
tional violation in the first instance. And AEDPA’s limitations
period—with its accompanying tolling provision—ensures the
achievement of this goal because it promotes the exhaustion of
state remedies while respecting the interest in the finality of
state court judgments.”) (internal citations and quotations
omitted).
While it is true that a state court’s acceptance of an un
timely appeal breathes new life into the state PCR proceed
ing—and may at thatpoint trigger § 2244(d)(2)’s tolling mech
anism (a determination that we need not reach today)—it does
not resuscitate the PCR petition for the period in which it was,
for all practical purposes, defunct. Any other reading would
essentially “sap the federal statute of limitations of much of its
effect,” Fernandez, 227 F.3d at 980, allowing a petitioner to sit
on his federal rights while waiting an indeterminate time to file
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a belated state appeal. This would give § 2244(d)(2)’s tolling
mechanism a “Cheshire-cat like quality, both there and not
there at the same time.” Id.; see also Streu v. Dormire, 557 '
F.3d 960, 966-67 (8th Cir. 2009) (holding that a PCR petition
was not “pending” between the expiration of time for an appeal
and the filing of a motion for leave to file a belated appeal be
cause there was nothing “in continuance” or “not yet decided”
after the expiration of time in which the petitioner could have
filed a notice of appeal, even in light of the fact that the state
court later granted petitioner’s motion for leave to file an un
timely appeal); Hoggro v. Boone, 150 F.3d 1223, 1226 n.4
(10th Cir. 1998) (noting in dicta that “[§] 2244(d)(2) requires
a court to subtract time only for the period when the peti
tioner’s ‘properly filed’ post-conviction application is being
pursued”).6
6 Martin attempts to distinguish Fernandez, Streu, and Swartz
on the ground that none of these cases concern the acceptance
of a belated appeal “as within time.” See Appellant’s Br. 1215, 23i30. Rather they concern either a request to file a late
petition, a request to file a notice of appeal out of time, or a
nunc pro tunc motion. See Streu, 557 F.3d at 962; Swartz, 204
F.3d at 419; Fernandez, 227 F.3d at 979; see also Hoggro, 150
F.3d at 1226 n.4. The differences in nomenclature are cosmetic
and make no difference in our analysis. And, as relevant to
Martin’s case, the New Jersey Supreme Court has said that it .
prefers “as within time” as the “contemporary descriptive” of
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$ '^s $ $ $
We hold that Martin’s petition was not “pending” for
the nearly eight years between June 14, 2004 (the last day that
he could have timely appealed, but did not, the trial court’s de
nial of his PCR petition) and April 6, 2012 (the day on which
Martin moved to file his PCR appeal “as within time”).7 Mar
tin is ineligible for tolling under § 2244(d)(2) for the duration
of this period. Therefore, the one-year limitations period for
Martin to file his habeas petition expired on December 3,2004,
i.e., 172 days following June 14, 2004.
“nunc pro tunc” State v. Molina, 902 A.2d 200, 203] n.l (N.J.
2006).
7 We need not make a determination as to Martin’s entitlement
to statutory tolling for the period beginning on April 6, 2012
(when he requested to appeal “as within time”) and running
through June 27, 2012 (when the Appellate Division accepted
his appeal “as within time”). But see Swartz, 204 F.3d at
423 n.6 (agreeing with the Tenth Circuit in Hoggro that “the
time during which [the petitioner’s] nunc pro tunc request for
allowance of appeal was pending does not toll the statute of
limitation”).
22
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B.
Given that Martin’s entitlement to statutory tolling does
not rectify the timeliness deficiency of his habeas petition, we
next turn to whether Martin is entitled to equitable tolling.
Section 2244(d)(l)’s limitations period is subject to eq
uitable tolling, see Holland v. Florida, 560 U.S. 631, 645-49
(2010); however, we are “sparing” in our use of the doctrine
and do so “only 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) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998));
see also Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80,89 (3d Cir. 2013) (“We extend the remedy of equitable
tolling ... when principles of equity would make the rigid ap
plication of a limitation period unfair[.]”) (internal quotations
- and citations omitted). “The decision to equitably toll
§ 2244(d) ‘must be made on a case-by-case basis.’”
Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012) (quot
ing Holland, 560 U.S. at 649-50). Recognizing that “specific
circumstances, often hard to predict in advance, could warrant
special treatment in an appropriate case,” we do not rely on
“bright lines” in deciding whether to exercise our equity pow
ers. Id. (quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d
. Cir. 2011)). Instead, our inquiry prioritizes “flexibility” over
“mechanical rules.” Id. (quoting Pabon, 654 F.3d at 399).
23
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With that framework in mind, we generally apply a twoelement test to determine whether a petition is entitled to equi
table tolling of § 2244(d)(l)’s limitations period. See Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner bears
the burden of establishing: ‘“(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland, 560
U.S. at 649 (quoting Pace, 544 U.S. at 418); accord
Munchinski, 694 F.3d at 329; see also Sistrunk v. Rozum, 674
F.3d 181, 190 (3d Cir. 2012) (“This conjunctive standard re
quires showing both elements before we will permit tolling.”).
We begin, and end, our analysis of Martin’s equitable tolling
claim with an examination of the diligence prong. As detailed
below, we hold that Martin has not demonstrated the requisite
due diligence to entitle him to equitable tolling.
1.
To satisfy the diligence prong, a petitioner must demon
strate that he has been pursuing his rights with “reasonable dil
igence in the circumstances.” Wilson v. Beard, 426 F.3d 653,
660 (3d Cir. 2005) (quoting Schlueter v. Varner, 384 F.3d 69,
74 (3d Cir. 2004)); accord Holland, 560 U.S. at 653. Deter
mining whether a petitioner has exercised “reasonable dili
gence” is a “fact-specific” inquiry and, again, “depends on the
circumstances faced by the particular petitioner.” Munchinski,
694 F.3d at 331; see also Wilson, 426 F.3d at 661 (“The fact
that we require a petitioner in one situation to undertake certain
• actions does not necessitate that we impose the same burden
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on all petitioners” because “whether a habeas petitioner has ex
ercised due diligence is context-specific.”). A petitioner need,
not have acted with “maximum feasible diligence,”
Munchinski, 694 F.3d at 331 (quoting Holland, 560 U.S. at
653), but he also cannot have been “sleeping on his rights,” id.
(quoting Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010)).
This “reasonable diligence” requirement applies not only to a
petitioner’s filing for federal habeas relief, but it also extends
to the steps that the petitioner takes to exhaust available state
court remedies. See LaCava, 398 F.3d at 277. Although we
do not “expect Herculean efforts on the part of’ a petitioner in
exercising “reasonable diligence,” a “lack of legal knowledge
or legal training does not alone justify equitable tolling.” Ross
v. Varano, 712 F.3d 784, 799-800, 802 (3d Cir. 2013); see Sck.
Dist. ofAllentown v. Marshall, 657 F.2d 16, 21 (3d Cir. 1981)
(“[Ijgnorance of the law is not enough to invoke equitable toll
ing.”); see also Felder v. Johnson, 204 F.3d 168,172 (5th Cir.
2000) (“[Ijgnorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.”) (internal
quotations omitted).
2.
We agree with the District Court that Martin failed to
establish that he has pursued his rights with “reasonable dili
gence.” On April 30, 2004 (at the conclusion of the hearing
during which the trial court denied his PCR petition), Martin’s
then-counsel made him a “solemn promise” that “he would file
a Notice of Appeal on [his] behalf.” J.A. 82, 190. Yet Martin
did not inquire into the “status” of his appeal until January
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2005, nearly nine months later (and nearly seven months fol
lowing the lapse of the 45-day period under N.J. Ct. R. 2:4-1(a)
in which Martin could have timely appealed the trial court’s
denial). See J.A. 82-83 (“In January 2005 I began attempts to
contact [my then-counsel] and the Office of the Public De
fender to ascertain the status of my appeal.”). There is nothing
in the record to suggest that Martin made any attempt over
those nine months to confirm with his then-counsel, the Office
of the Public Defender, the court, or any other entity that an
appeal had been filed.
What constitutes “reasonable diligence” may differ
when a petitioner’s counsel promises that an appeal will be
filed versus when a petitioner’s counsel promises that an ap
peal has been filed. Compare, e.g., Schlueter, 384 F.3d at 76
(noting that the petitioner, who failed to follow up on counsel’s
promise to file a PCR petition within a certain time period,
“could have learned, as he did later, that [his counsel] had not
filed a PCR petition.... [And] [i] fhe had done so he still would
have had a small window of time in which to file a pro se peti
tion and save his [PCR] claims from dismissal as untimely”),
with Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236,
237-38, 242 (3d Cir. 1999) (concluding, in the context of an
untimely filing of a Title VII case, that equitable tolling was
warranted where “a diligent client persistently questioned the
lawyer as to whether he had filed the complaint in time, and he
affirmatively misrepresented to her that he had”).
We proffer no bright line rule as to how long is too long
to be considered “reasonable diligence” in following up on
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whether a state PCR appeal was filed. However, in Martin’s
case, waiting nine months to first inquire as to the status of his
appeal—after only having been “promise[d],” “at the conclu
sion of [his] hearing,” J.A. 190, that an appeal would be filed
and never having reached out to any source, his then-counsel
or otherwise, during those nine months to confirm that an ap
peal in fact had been filed—suggests that he was “sleeping on
his rights.” See Munchinski, 694 F.3d at 331. Furthermore,
although Martin’s unanswered calls and bi-annual letters to his
then-counsel as to the status of hi's appeal may suggest some
consistency, that alone does not amount to a showing of “rea
sonable diligence” here, particularly given the substantial pe
riod of time between letters and that Martin had never received
confirmation that an appeal in fact had been docketed.8
Finally, Martin learned in December 2011 that his ap
peal of the trial court’s denial of his PCR petition was never
8 Martin makes no showing as to how the missing “personal
letters, law books[,] and several legal files,” J.A. 83, prevented
him from filing a habeas petition, nor why he could not have
filed a petition prior to those materials going missing. See, e.g.,
Barton v. Pliler, 65 F. App’x 108,109-10 (9th Cir. 2003) (hold
ing equitable tolling unwarranted when a petitioner who lost
his personal legal files for approximately 13 months did not explain “why he had failed to file a petition before his materials
were lost” or “how the materials at issue prevented him from
filing a habeas petition without them”).
27
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submitted. Yet he waited approximately four months, until
April 6, 2012, to file a motion with the Appellate Division for
leave to appeal the denial “as within time.” There is nothing
in the record to explain why Martin waited nearly four months
to submit his “as within time” motion, and certainly nothing
suggesting that he exercised “reasonable diligence” during that
period. In Holland, the Supreme Court concluded that a peti
tioner’s actions were reasonably diligent when, in addition to
writing his attorney “numerous” letters and “repeatedly” con
tacting the courts, its clerks, and the relevant bar association,
he prepared his own habeas petition on the same day that he
found out that his AEDPA clock had expired and mailed it the
next day. 560 U.S. at 639, 653. A comparison to Holland is
thus fruitless for Martin. After learning that his appeal was
nearly eight years late, Martin’s decision to wait approximately
four months to file his “as within time” motion does not sup
port a finding of reasonable diligence.9
9 Martin urges us to hold that he is entitled to equitable tolling
as aresult ofthe Appellate Division’s acceptance ofhis appeal
“as within time.” He bases'this argument on the ground that
the Appellate Division could have accepted his appeal “as
within time” only if it had conducted an equitable tolling anal
ysis. See Appellant’s Br. 35 (citing State v. Molina, 902 A.2d
200 (NJ. 2006)). And applying the doctrine of comity, Martin
suggests that we must defer to New Jersey’s determination that
he is entitled to equitable tolling. See id. at 37-38. We disa
gree. As an initial matter, and as Martin acknowledges, the
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$ $ $ $ ^
Taking these circumstances together, we hold that Mar
tin has failed to satisfy the diligence prong and is therefore not
entitled to equitable tolling. This is not to say that the record
fails to present a clear possibility of attorney abandonment.
We simply need not reach the “extraordinary circumstance”
prong of the analysis given Martin’s failure to exercise the req
uisite diligence to entitle him to equitable tolling. See Menom
inee Indian Tribe of Wis. v. United States, 577 U.S. 250,' 25556 (2016) (“[W]e have treated the two requirements as distinct
elements in practice ... rejecting requests for equitable tolling
where a litigant failed to satisfy one without addressing
whether he satisfied the other.”).
IV.
For these reasons, we will affirm the order of the Dis
trict Court dismissing Martin’s habeas petition as untimely.
Appellate Division did not give a reason for why it granted
Martin’s motion to appeal “as within time.” Second, whether
the state court found Martin entitled to equitable tolling as to
his state PCR appeal has no bearing on the equitable tolling
analysis in the federal habeas context. See Holland, 560 U.S.
at 650 (“Equitable tolling ... asks whether federal courts may
excuse a petitioner’s failure to comply with federal timing
rules, an inquiry that does not implicate a state court’s inter
pretation of state law.”) (second emphasis added).
29
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 17-1918
SELWIN MARTIN,
Appellant
v.
ADMINISTRATOR NEW JERSEY STATE PRISON;
ATTORNEY GENERAL NEW JERSEY
(D.NJ.No. l-15-cv-07158)
SUR PETITION FOR REHEARING
Before: CHAGARES, ChiefJudge, McKEE, AMBRO, JORDAN, HARDIMAN,
GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY,
and PHIPPS 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,
sf L. Felipe Restrepo
Circuit Judge
^
»
1,
i
Date: May 3, 2022
PDB/cc: Selwin Martin
All Counsel of Record
%
*
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.