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. 1-15-cv-07158)

District Judge: Honorable Jerome B. Simandle

_________________________________

Argued November 18, 2020

Before: JORDAN, KRAUSE, and RESTREPO,

Circuit Judges

(Opinion Filed: January 21, 2022)
2

Benjamin R. Barnett

Micah Brown [ARGUED]

Dechert LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

Counsel for Appellant

Maura M. Sullivan [ARGUED]

Camden County Office of Prosecutor

200 Federal Street

Camden, NJ 08103

Counsel for 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-
3

conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 

Appellant Selwin Martin’s state conviction became “final” 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 expired 172 days later, on December 3, 2004. On June 12, 2015,

almost eleven years following the lapse of the limitations period, 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
4

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)(1)’s limitations period, we hold that Martin’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 ineligibility, to run consecutively to an unrelated federal sentence. 

On September 21, 2001, the Superior Court of New Jersey, Appellate 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. 
5

B.

On October 21, 2002, Martin filed a timely petition for

post-conviction relief. The trial court denied Martin’s PCR petition on April 30, 2004. Pursuant to N.J. Ct. R. 2:4-1(a), Martin 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

a pro 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 habeas 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 declaration, dated December 4, 2015, in which he denied responsibility for the nearly eight-year delay in appealing the trial

court’s denial of his PCR petition. J.A. 81-84. According to
6

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 ascertain the status of his PCR appeal, to include contacting histhencounsel and the Office of the Public Defender.

1

 See J.A. 190

1

 In his declaration, Martin refers to “attached letters” as evidence 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 support 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 letters” was “accurate.” J.A. 10 n.4. Relatedly, it concluded that

no evidentiary hearing was necessary because “after even accepting the alleged contents of the letters as true, [Martin] did

not act with reasonable diligence.” J.A. 10 n.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. 185-

212. These documents provide additional facts pertaining to
7

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. Additionally, his April 6, 2012 filing does not reference his seeking 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 exception 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
8

(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 alleges 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 December 2011 (following his transfer from a federal facility in

Virginia, where he had been serving an unrelated federal sentence, 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[,] 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) (taking 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 December 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).
9

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 thoughtful opinion, the District Court concluded that Martin, although

eligible for a period of statutory tolling, failed to adhere to

§ 2244(d)(1)’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 limitations 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
10

II.

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 dismissal of a state prisoner’s habeas petition on statute of limitations 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)(1)’s limitations period is likewise de

novo. See LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir.

2005).

III.

Martin, as a state prisoner, is subject to a one-year limitations 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 requests to appeal out of time.” J.A. 16-17 (citations omitted). 

We also appointed pro bono counsel for Martin pursuant to 28 U.S.C. § 1915(e)(1). We recognize Benjamin R. Barnett, 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. 
11

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 limitation 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 limitations period, Martin’s petition was untimely.

We must determine whether the District Court erred in

finding that neither statutory nor equitable tolling saves Martin’s petition from dismissal. First, we ask: does Martin’s entitlement to tolling pursuant to § 2244(d)(2) remedy the untimeliness 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 otherwise untimely habeas petition. Based on the following analysis, 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)(1)(B)-(D).
12

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 petition for state post-conviction review must have been both

pending and ‘properly filed.’”) (citing Fahy v. Horn, 240 F.3d

239, 243 (3d Cir. 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 review 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 “pending,” we need not consider whether it was “properly filed.” 
13

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
14

Martin’s PCR petition began “pending” pursuant to

§ 2244(d)(2) on October 21, 2002. See Saffold, 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 denial of his PCR petition to file an appeal. See N.J. Ct. R. 2:4-

1(a). The parties do not dispute that Martin’s PCR petition remained “pending” for 45 days following the trial court’s decision on April 30, 2004, i.e., until June 14, 2004. See Swartz v.

Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (“‘[P]ending’ includes the time for seeking discretionary review, whether or

not discretionary review is sought.”).

3.

Martin urges usto hold that his PCR petition was “pending” 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) (explaining that the date of a motion’s filing is excluded for the purposes of “calculating includable time” under the Speedy Trial

Act) (quoting United States v. Yunis, 723 F.2d 795, 797 (11th

Cir. 1984)).
15

2012 (the day on which Martin moved to file his PCR appeal

“as within time”). But he misconstrues the meaning of “pending” under § 2244(d)(2).

In Swartz, we held that “the term ‘pending’ must include 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 between 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 considered 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 law.” Id. at 191

(second emphasis added). 

Martin capitalizes on “timely” as used in Swartz, Saffold, 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 principles 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
16

of that issue.” Id. at 30; Reply Br. 2-3 (“[W]hether a state appellate 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 habeas court.”) (citing Saffold, 536 U.S. at 226). So, he urges us

to accept the Appellate Division’s designation of Martin’s petition “as within time” as a “conclusive[] determin[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 appellate 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 Frankenstein-like characteristics to § 2244(d)(2)’s tolling mechanism that threatens to write

§ 2244(d)(1)’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 acceptance of a belated appeal “as within time.” Rather “timely”

means an appeal filed in accordance with the state law delineating the period in which a petitioner may appeal following a

lower court’s adverse determination, before the appeal would
17

be considered belated. “Timely” does not encapsulate a belated appeal that was ultimately accepted through the application of a tolling mechanism or exception to the state law governing 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 petitioner 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 inquiry does not extend to whether an exception, if any, to California’s “reasonableness” requirement would turn an otherwise

unreasonable (and therefore untimely) petition suddenly reasonable, 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 recognized that “pending” applies “as long as the ordinary state col-
18

lateral review process is ‘in continuance.’” Id. at 219-20 (emphasis 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, 204 F.3d at 420. 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.’ On

May 2, 1997, the Pennsylvania Supreme Court denied his motion.”) (emphasis added). 

So, it remains whether we are to accept Martin’s invitation to expand the scope of “timely” beyond its meaning in

Swartz, Saffold, and Evans and hold that a “properly filed” petition 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
19

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. Sternes, 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 delay?” 227 F.3d 977, 978 (7th Cir. 2000). The petitioner in

Fernandez, much like Martin, failed to file his appeal in accordance 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 ‘pending’ 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 untimely 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 “pending” 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 petitioner’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
20

PCR petition for the state court system to consider. Nor isthere

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 constitutional 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 untimely appeal breathes new life into the state PCR proceeding—and may at that point trigger § 2244(d)(2)’s tolling mechanism (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
21

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 because 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 untimely 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 petitioner’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. 12-

15, 23-30. 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
22

* * * * *

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 denial of his PCR petition) and April 6, 2012 (the day on which

Martin moved to file his PCR appeal “as within time”).7 Martin 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.1 (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”).
23

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)(1)’s limitations period is subject to equitable 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 application 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) (quoting 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 powers. 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). 
24

With that framework in mind, we generally apply a twoelement test to determine whether a petition is entitled to equitable tolling of § 2244(d)(1)’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 requires 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 demonstrate that he has been pursuing his rights with “reasonable diligence 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. Determining whether a petitioner has exercised “reasonable diligence” 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
25

on all petitioners” because “whether a habeas petitioner has exercised 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 Sch.

Dist. of Allentown v. Marshall, 657 F.2d 16, 21 (3d Cir. 1981)

(“[I]gnorance of the law is not enough to invoke equitable tolling.”); see also Felder v. Johnson, 204 F.3d 168, 172 (5th Cir.

2000) (“[I]gnorance 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 diligence.” 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
26

2005, nearly nine months later (and nearly seven months following 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 Defender 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 appeal 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]f he had done so he still would

have had a small window of time in which to file a pro se petition 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
27

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 conclusion 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 appeal 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 his appeal may suggest some

consistency, that alone does not amount to a showing of “reasonable diligence” here, particularly given the substantial period 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 appeal 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) (holding 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”).
28

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 petitioner’s actions were reasonably diligent when, in addition to

writing his attorney “numerous” letters and “repeatedly” contacting 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 support a finding of reasonable diligence.9

9

 Martin urges us to hold that he is entitled to equitable tolling

as a result of the Appellate Division’s acceptance of his 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 analysis. See Appellant’s Br. 35 (citing State v. Molina, 902 A.2d

200 (N.J. 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 disagree. As an initial matter, and as Martin acknowledges, the
29

* * * * *

Taking these circumstances together, we hold that Martin 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 requisite diligence to entitle him to equitable tolling. See Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255-

56 (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 District 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 interpretation of state law.”) (second emphasis added).