ROBERT B. KUGLER, District Judge.
Before this Court is the Petition for a writ of habeas corpus of Petitioner Samuel F. Ryan ("Petitioner"), brought pursuant to 28 U.S.C. § 2254. (D.E. No. 3.) Following an order to answer, Respondents filed a response to the Petition. (D.E. No. 10.) For the reasons explained below, the Petition is denied as time-barred under 28 U.S.C. § 2244(d) and the Court declines to issue a certificate of appealability.
The following brief factual summary is taken from the New Jersey Appellate Division's opinion, on direct appeal, affirming Petitioner's conviction and sentence:
(D.E. No. 10-11 at 2.)
After a trial by jury on Indictment No. 96-04-0475 ("WaWa Robbery"), Petitioner was convicted of armed robbery, two counts of aggravated assault, two counts of possession of a handgun for an unlawful purpose, unlawful possession of a handgun, and two counts of terroristic threats. (D.E. No. 10-11 at 1.) As a second Graves Act offender, he was sentenced to an extended term of sixty years with a minimum of twenty years for the armed robbery and a concurrent term of five years for unlawful possession of a handgun. (Id.) On direct appeal, the Superior Court of New Jersey, Appellate Division, affirmed the conviction on November 4, 1999 (D.E. No. 10-11), and the Supreme Court denied certification on February 16, 2000. (D.E. No. 10-12.)
Petitioner has filed many unsuccessful state petitions for post-conviction relief ("PCR") over the course of the past fifteen years, including petitions that challenged both this judgement of conviction (D.E. No. 10-8), and a separate judgment of conviction with respect to a robbery at a Texaco gasoline station ("Texaco Robbery").
Petitioner then filed an undated habeas Petition with this Court, postmarked as of January 2, 2015.
(D.E. No. 3 at 6-9.)
Respondents filed an answer in which they argue Petitioner's claims are time-barred and they lack merit.
The governing statute of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA") is found at 28 U.S.C. § 2244(d), which states in relevant part:
28 U.S.C. § 2244(d)(1)-(2); see also, Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999).
Pursuant to § 2244(d), evaluation of the timeliness of a § 2254 petition requires a determination of, first, when the pertinent judgment became "final," and, second, the period of time during which an application for state post-conviction relief was "properly filed" and "pending." The judgment is determined to be final by the conclusion of direct review, or 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. See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000).
Here, Petitioner received his judgement of conviction on May 16, 1997. (D.E. No. 10-8.) He appealed, and the Supreme Court of New Jersey ultimately denied certification on February 16, 2000. (D.E. No. 10-12.) Petitioner then had 90 days in which to file a petition for writ of certiorari to the United States Supreme Court, but does not appear to have done so. Accordingly, the 90 days expired on May 16, 2000, after which the one-year statute of limitations period began to run. See Thompson v. Adm'r New Jersey State Prison, 701 F. App'x 118, 122 (3d Cir. 2017).
A properly filed PCR petition will statutorily toll the AEDPA limitations period. See 28 U.S.C. § 2244(d)(2). In this case, Petitioner filed numerous PCR petitions between the date the one-year statute of limitations period began to run for AEDPA purposes on May 17, 2000, and the date he filed the instant habeas Petition on January 2, 2015.
To be entitled to equitable tolling, Petitioner must show "(1) that he faced extraordinary circumstances that stood in the way of timely filing, and (2) that he exercised reasonable diligence." United States v. Johnson, 590 F. App'x 176, 179 (3d Cir. 2014) (internal citation and quotations omitted). Further, while equitable tolling has been applied to the habeas limitations period, it "is a remedy which should be invoked only sparingly." United States v. Bass, 268 F. App'x 196, 199 (3d Cir. 2008) (internal citations and quotations omitted).
Petitioner cites to Martinez v. Ryan, 556 U.S. 1 (2012), in support of his assertion that the instant Petition is not time barred. (D.E. No. 3 at 14; D.E. No. 13 at 16-17.) Petitioner's argument, however, misapplies Martinez. Martinez addressed only whether ineffective assistance of first-PCR counsel was sufficient cause to permit a habeas petitioner to overcome the procedural default rule, not whether such ineffective assistance can act to toll the habeas limitations period. Id. at 4. Indeed, Martinez is entirely silent as to the habeas statute of limitations, and courts have consistently held that Martinez provides no basis for the equitable tolling of the habeas limitations period. See, e.g., Bland v. Superintendent Greene SCI, No. 16-3475, 2017 WL 3897066 at *1 (3d Cir. Jan. 5, 2017) ("[t]hough Martinez permits a procedurally defaulted claim of ineffective assistance of counsel to be raised where the default was caused by the ineffective assistance of post-conviction counsel, Martinez has nothing to do with the governing statute of limitations and cannot excuse a failure to file within the limitations period"); Wilson v. Sweeney, No. CIV. A. 11-1201 (SDW), 2014 WL 714920, at *12 (D.N.J. Feb. 24, 2014) (collecting cases). Thus, Martinez does not stand for the proposition that Petitioner should be entitled to equitable tolling of the limitations period.
Even assuming that Petitioner's reliance on Martinez is sufficient to establish exceptional circumstances sufficient to warrant tolling, Petitioner has failed to establish that he exercised reasonable diligence in filing the instant habeas Petition. For example, the claims raised in Grounds Two and Three of the instant habeas Petition concerning his plea deal, are nearly identical to issues he raised on an earlier PCR petition in April of 2009. (D.E. No. 10-68 at 18-27.) These claims were rejected by the state courts (D.E. No. 10-71; D.E. No. 10-74), and denied certification by the New Jersey Supreme Court on February 3, 2011. (D.E. No. 10-75.) Nevertheless, Petitioner still waited to file a habeas Petition on these matters until January of 2015.
Under 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2254. A certificate of appealability ("COA") may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted).
"When 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, jurists of reason would not find it debatable whether this Court is correct in its procedural ruling. Therefore, no certificate of appealability shall issue.
For the reasons stated above, the Petition for habeas relief is denied as untimely under 28 U.S.C. § 2244(d), and a certificate of appealability will not issue. An appropriate order follows.
