2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-30-2002

Johnson v. Hendricks

Precedential or Non-Precedential: Precedential

Docket No. 00-3633

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Recommended Citation

"Johnson v. Hendricks" (2002). 2002 Decisions. Paper 808.

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PRECEDENTIAL

Filed December 30, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3633

WADE JOHNSON,

Appellant

v.

ROY L. HENDRICKS;

ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 00-cv-01526)

District Judge: Hon. John W. Bissell

Submitted Under Third Circuit LAR 34.1(a)

October 31, 2002

Before: SLOVITER, FUENTES, Circuit Judges

and FULLAM,* District Judge

(Filed December 30, 2002)

Annette Verdesco

Pope, Bergrin & Verdesco

Newark, N.J. 07105

 Attorney for Appellant

_________________________________________________________________

* The Hon. John P. Fullam, Senior Judge of the United States District

Court for the Eastern District of Pennsylvania, sitting by designation.
Michael J. Williams

Office of Attorney General

 of New Jersey

Department of Law & Public Safety

Division of Criminal Justice

Trenton, N.J. 08625

 Attorney for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge:

This appeal raises the issue whether the statute of

limitations applicable to a habeas petition should be

equitably tolled where a prisoner relies on the erroneous

advice of counsel as to when his petition is due. We join the

other courts of appeals that have addressed this issue and

hold that in these circumstances equitable tolling is not

available.

I.

BACKGROUND

In 1993, Appellant Wade Johnson was convicted

following a jury trial in New Jersey state court of murder

and related offenses in connection with a drug-related

shooting and was sentenced to life in prison. The New

Jersey Superior Court, Appellate Division, affirmed his

conviction and sentence. The New Jersey Supreme Court

denied Johnson's petition for certification on May 23, 1996.

On April 1, 1997, Johnson filed a petition for postconviction relief in state court, which was denied. The New

Jersey Superior Court affirmed the denial of relief and the

New Jersey Supreme Court denied Johnson's petition for

certification on March 30, 1999. Johnson's counsel notified

him by letter that he had one year from this date to file a

habeas petition in federal court. This information was

erroneous.

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On March 28, 2000, Johnson filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in the United

States District Court for the District of New Jersey.1 The

State moved to dismiss the petition because it was filed

beyond the one-year time limitation provided in 28 U.S.C.

§ 2244(d)(1). The District Court found Johnson's habeas

petition to be untimely and granted the motion to dismiss.

It rejected Johnson's claim that the statute of limitations

should be equitably tolled because counsel incorrectly told

him when his habeas petition was due.

We granted Johnson's application for a certificate of

appealability to address the following question:"May a

miscalculation of the statute of limitations by petitioner's

attorney be grounds for equitable tolling of the statute of

limitations provided in 28 U.S.C. § 2244(d)(1)?"

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 2254. This court has jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. The standard of review over the decision

to dismiss a case as time-barred is plenary. See Nara v.

Frank, 264 F.3d 310, 314 (3d Cir. 2001).

III.

DISCUSSION

It is undisputed that Johnson's habeas petition is timebarred absent the application of the equitable tolling

doctrine. Briefly, Johnson had one year to file his petition

after his conviction became final on August 21, 1996, when

the time to petition the United States Supreme Court for a

_________________________________________________________________

1. Johnson signed his petition on March 28, 2000 and it was filed with

the court on April 4, 2000. For purposes of this appeal, we need not

determine the exact date of filing. See Houston v. Lack, 487 U.S. 266,

275-76 (1988) (prisoner's notice of appeal is filed at time of delivery to

prison authorities for filing with the court).

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writ of certiorari expired. The relevant statute, 28 U.S.C.

§ 2244(d)(1), provides that a § 2254 petition must be filed

within one year of the latest of four events, the one relevant

here being "(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." See also Kapral v. United

States, 166 F.3d 565, 570 (3d Cir. 1999) (if a defendant

does not file a certiorari petition, a judgment of conviction

does not become "final" until time for seeking certiorari

review expires).

The statute of limitations for Johnson's filing of a habeas

petition ran for 222 days until Johnson filed a petition for

post-conviction relief in state court on April 1, 1997. At that

time, the time for filing his habeas petition was tolled

pursuant to 28 U.S.C. § 2244(d)(2) which provides that "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." The statute remained tolled until March 30,

1999, when the New Jersey Supreme Court denied

Johnson's petition for certification. See Stokes v. District

Attorney, 247 F.3d 539, 543 (3d Cir.) (time during which a

prisoner may file a certiorari petition from the denial of his

state post-conviction petition does not toll the limitations

period), cert. denied, 122 S. Ct. 364 (2001). As of that day,

Johnson had 143 days remaining, or until August 20,

1999, to file his habeas petition. See Smith v. McGinnis, 208

F.3d 13, 17 (2d Cir.) (§ 2244(d)(2)'s tolling provision

excludes time during which a properly filed state postconviction is pending but does not reset the date from

which the one-year limitations period begins to run), cert.

denied, 531 U.S. 840 (2000). He filed his petition, however,

on March 28, 2000.

Johnson argues that the statute of limitations should be

equitably tolled based upon a letter that he received from

the Assistant Deputy Public Defender, Diane Toscano,

dated March 31, 1999, after the New Jersey Supreme Court

denied his petition for certification with respect to the

denial of post-conviction relief. In this letter, Toscano

informed Johnson that the office was terminating its

representation, and stated

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 If you decide to file a pro se Petition for Habeas

Corpus with the United States District Court, you can

request the clerk of that court to send you habeas

corpus forms to fill out. Once you have completed these

forms and have shown that you are indigent, the

federal court may appoint a lawyer for you. This

petition must be filed within one year of the date on the

enclosed order of the New Jersey Supreme Court, or, if

you first filed a Petition of Certiorari, within one year

from the date the United States Supreme Court denies

or otherwise rules on that petition.

Da at 24 (emphasis in original). A copy of the order of the

New Jersey Supreme Court dated March 30, 1999 was

enclosed with the letter. As noted above, the statement as

to the time the habeas petition was due was erroneous,

which is the fact that gives rise to Johnson's equitable

tolling contention.

As Johnson argues, and as the State concedes, the one

year filing deadline in 28 U.S.C. § 2244(d)(1) is subject to

equitable tolling. See Fahy v. Horn, 240 F.3d 239, 244 (3d

Cir.), cert. denied, 122 S. Ct. 323 (2001); Miller v. New

Jersey Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998).

However, " `equitable tolling is proper only when the

principles of equity would make the rigid application of a

limitation period unfair.' " Nara, 264 F.3d at 319 (quoting

Miller, 145 F.3d at 618). Equitable tolling is permitted if "(1)

the defendant has actively misled the plaintiff, (2) the

plaintiff has in some extraordinary way been prevented

from asserting his rights, or (3) the plaintiff has timely

asserted his rights mistakenly in the wrong forum." Fahy,

240 F.3d at 244 (quoting Jones, 195 F.3d at 159).

Johnson concedes, sub silentio, that the State did not

actively mislead him as he relies only on the second basis

for equitable tolling. He contends that he has been

prevented in an extraordinary way from asserting his

rights, and he finds this "extraordinary" prevention in his

counsel's error. The District Court rejected this ground as

a basis for equitable tolling, relying on the decisions from

the Courts of Appeals for the Fourth Circuit in Harris v.

Hutchinson, 209 F.3d 325 (4th Cir. 2000), and the Seventh

Circuit in Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999).

 5
In Harris, 209 F.3d at 330, the Court of Appeals for the

Fourth Circuit explained that there must be circumstances

beyond the prisoner's control that prevented him from

complying with the statute.

Johnson seeks to distinguish his situation from those

cases by arguing his counsel's error was external to his

conduct and that he detrimentally relied on counsel's

advice. He asserts that the extraordinary circumstances

consist of his reliance on his attorney's erroneous advice

and contends that he exercised reasonable diligence in

following counsel's advice and that, absent the application

of equitable tolling, he will be denied federal review based

upon the conduct of a third party. He proffers the

attorney's letter as proof of his attorney's erroneous advice.

Recently, other courts of appeals have considered this

issue, and have consistently rejected the argument that an

attorney's mistake in determining the date a habeas

petition is due constitutes extraordinary circumstances for

purposes of equitable tolling. See, e.g. , Miranda v. Castro,

292 F.3d 1063, 1068 (9th Cir. 2002), petition for cert. filed,

71 U.S.L.W. 3178 (U.S. Sep. 6, 2002); Helton v. Sec'y for the

Dep't of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001), cert.

denied, 122 S. Ct. 1965 (2002); Smaldone v. Senkowski,

273 F.3d 133, 138-39 (2d Cir. 2001), cert. denied, 122 S.

Ct. 1606 (2002); Kreutzer v. Bowersox, 231 F.3d 460, 463

(8th Cir. 2000), cert. denied, 122 S. Ct. 145 (2001).

Johnson has offered no other reason to warrant equitable

tolling. See Nara, 264 F.3d at 320; Taliani, 189 F.3d at 598.

In addition, this court in Fahy recognized that in noncapital cases, attorney error has not been found to rise to

the extraordinary circumstances required for equitable

tolling. 240 F.3d at 244.2

We agree with the District Court that Johnson has not

shown extraordinary circumstances to warrant equitable

tolling of the AEDPA statute of limitations. Although he

received erroneous advice, Johnson was not prevented in

an extraordinary way from asserting his rights.

_________________________________________________________________

2. Because Fahy was a capital case, we applied equitable tolling there.

See id. at 245.

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IV.

CONCLUSION

For the reasons set forth, we will affirm the order of the

District Court dismissing Johnson's petition for a writ of

habeas corpus as time-barred.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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