NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN RHETT, :

:

Petitioner, : Civil No. 10-6511 (RBK)

:

v. : OPINION

:

SUPERINTENDENT KAREN BALICKI, :

et al., :

:

Respondents. :

APPEARANCES:

Petitioner pro se

John Rhett

South Woods State Prison

215 S. Burlington Road

Bridgeton, NJ 08302

KUGLER, District Judge

Petitioner John Rhett, a prisoner currently confined at

South Woods State Prison in Bridgeton, New Jersey, has submitted

a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. For the reasons stated herein, the Petition will be

dismissed as time-barred.

I. BACKGROUND

Certain relevant factual and procedural history is set forth

in the post-conviction relief (“PCR”) opinion of the Superior

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Court of New Jersey, Law Division, Criminal Part, Cumberland

County.12

Defendant was originally convicted of first-degree

attempted murder and first-degree robbery on October

28, 1988 and sentenced on November 17, 1988. His

conviction and sentence was affirmed by the Appellate

Division. The Supreme Court affirmed defendant’s

robbery conviction and sentence but reversed his

attempted murder conviction due to jury instruction

error. Upon remand, the State moved to re-sentence

defendant on the robbery charge to an extended-range

sentence as a persistent. That motion was granted by

the trial court on July 7, 1992, with defendant being

re-sentenced on that date to an extended term of life

imprisonment with a twenty-five year period of parole

ineligibility. The attempted murder charge was

ultimately dismissed by the State. The Appellate

Division affirmed defendant’s extended term re-sentence

on July 20, 1994. 

Defendant filed his PCR petition on February 22, 2005.

[...] 

Defendant’s direct appeal process ended on July 20,

1994, when the Appellate Division issued its opinion

affirming defendant’s extended term re-sentence on the

robbery charge. 

[...]

Other than a petition to correct an illegal sentence,

[New Jersey Court] Rule 3:22-12 requires a petition for

post-conviction relief to be filed within five years of the

Superior Court of New Jersey, Law Division, Cumberland 1

County, Indictment No. 88-02-0201.

 Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding 2

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

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

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

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

rebutting the presumption of correctness by clear and convincing

evidence.”

2

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date the judgment of conviction or sentence sought to be

attacked were entered, unless it alleges facts showing that

the delay was due to excusable neglect. Defendant filed his

PCR petition more than twelve years after the sentence he

seeks to attack was entered. Therefore, defendant’s

petition is time-barred unless he can establish excusable

neglect for the extraordinary delay. Defendant has made no

such showing.

Furthermore, the Superior Court of New Jersey, Appellate

Division affirmed the PCR decision. In its opinion, the 3

Appellate Court referred to the issue of timeliness, stating that

on September 26, 1994, the Supreme Court of New Jersey denied

certification of the July 20, 1994 Appellate Division opinion.

Petitioner then allowed over ten years to elapse before filing

his PCR petition, but did not offer any explanation of

exceptional circumstances for the delay. 

In this Petition (docket entry no. 1), dated December 8,

2010, Petitioner challenges his conviction on the grounds of

prosecutorial misconduct, ineffective assistance of counsel, and

that the procedural bar for filing PCR should have been relaxed.4

State v. Rhett, 2010 WL 457699 (N.J.Super. App.Div. 3

February 10, 2010)

 A pro se pleading is held to less stringent standards than 4

more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

A pro se habeas petition and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970).

3

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On June 30, 2011, this Court issued an Opinion and Order

(docket entry nos. 2, 4) directing Petitioner to show cause in

writing why his habeas petition should not be dismissed as timebarred. Petitioner filed a response (docket entry no. 5) and two

letters (docket entry nos. 6, 7). In his response, Petitioner

argues that equitable tolling should apply.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in

relevant part as follows:

A court, justice or judge entertaining an

application for a writ of habeas corpus shall forthwith

award the writ or issue an order directing the

respondent to show cause why the writ should not be

granted, unless it appears from the application that

the applicant or person detained is not entitled

thereto.

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

A pro se habeas petition and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of

the petition that the petitioner is not entitled to relief. See

4

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Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773

F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 2254, 2255.

III. ANALYSIS

As amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent

part:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of

the United States.

The limitation period for a § 2254 habeas petition is set

forth in 28 U.S.C. § 2244(d), which provides in pertinent part:

(1) A 1-year period of limitations shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run 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

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(d) the date on which the factual predicate of the

claim or claims presented could have been discovered

through the exercise of due diligence.

(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 section.

Section 2244(d) became effective on April 24, 1996 when the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

was signed into law. See Burns v. Morton, 134 F.3d 109, 111 (3d

Cir. 1998); Duarte v. Herschberger, 947 F. Supp. 146, 147 (D.N.J.

1996). The Third Circuit has ruled that state prisoners whose

convictions became final before the April 24, 1996 enactment of

AEDPA are permitted one year, until April 23, 1997, in which to

file a federal habeas petition under § 2254. See Burns, 134 F.3d

at 111. See also Lindh v. Murphy, 521 U.S. 320, 326-27

(1997)(“[t]he statute reveals Congress’ intent to apply the

amendments to chapter 153 only to such cases as were filed after

the statute’s enactment”).

Thus, 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.”

A state-court criminal judgment becomes “final” within the

meaning of § 2244(d)(1) by the conclusion of direct review or by

6

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the expiration of time for seeking such review, including the 90-

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); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d

Cir. 1999); U.S. Sup. Ct. R. 13.

Here, Petitioner’s direct appeal in state court concluded on

September 26, 1994 when the Supreme Court of New Jersey denied

certification. Allowing the time in which Petitioner could have

applied for writ of certiorari with the United States Supreme

Court, his judgment still would have become final before the

enactment of AEDPA. Thus, Petitioner would have had until April

23, 1997 to file his Petition. However, Petitioner did not

execute the instant Petition until December 8, 2010, and it was

not received by the Clerk of the Court until December 16, 2010.

To statutorily toll the limitations period, a state petition

for post-conviction relief must be “properly filed.”

An application is “filed,” as that term is

commonly understood, when it is delivered to, and

accepted by the appropriate court officer for placement

into the official record. And an application is

“properly filed” when its delivery and acceptance are

in compliance with the applicable laws and rules

governing filings. These usually prescribe, for

example, the form of the document, the time limits upon

its delivery, the court and office in which it must be

lodged, and the requisite filing fee. In some

jurisdictions the filing requirements also include, for

example, preconditions imposed on particular abusive

filers, or on all filers generally. But in common

usage, the question whether an application has been

“properly filed” is quite separate from the question

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whether the claims contained in the application are

meritorious and free of procedural bar.

Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (citations and footnote

omitted) (finding that a petition was not “[im]properly filed”

merely because it presented claims that were procedurally barred

under New York law on the grounds that they were previously

determined on the merits upon an appeal from the judgment of

conviction or that they could have been raised on direct appeal

but were not).

Where a state court has rejected a petition for postconviction relief as untimely, however, it was not “properly

filed” and the petitioner is not entitled to statutory tolling

under § 2244(d)(2). Pace v. Diguglielmo, 544 U.S. 408 (2005). 

This is so even where, in the alternative, the state court

addresses the merits of the petition in addition to finding it

untimely. Carey v. Saffold, 536 U.S. 214, 225-26 (2002).

An application for state post-conviction relief is

considered “pending” within the meaning of § 2244(d)(2), and the

limitations period is statutorily tolled from the time it is

“properly filed,” during the period between a lower state court’s

decision and the filing of a notice of appeal to a higher court,

Carey v. Saffold, 536 U.S. 214 (2002), and through the time in

which an appeal could be filed, even if the appeal is never

filed, Swartz v. Meyers, 204 F.3d at 420-24. However, “the time

during which a state prisoner may file a petition for writ of

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certiorari in the United States Supreme Court from the denial of

his state post-conviction petition does not toll the one year

statute of limitations under 28 U.S.C. § 2244(d)(2).” Stokes v.

District Attorney of the County of Philadelphia, 247 F.3d 539,

542 (3d Cir.), cert. denied, 534 U.S. 959 (2001).

Here, Petitioner filed his first state PCR petition on

February 22, 2005, after allowing approximately ten years to pass

after the judgment became final before filing for PCR, a lapse in

timeliness which was not excused at the state court level. 

To permit tolling of the one-year limitations period under

28 U.S.C. § 2244(d)(2), Petitioner would have had to file his

state PCR petition before the one-year period had expired, or

before April 23, 1997. Otherwise, the state PCR petition would

not serve to toll the statute of limitations. In this case,

Petitioner’s state PCR petition was filed on February 22, 2005, a

date which was certainly more than one year after the statute of

limitations had expired. Thus, this Court finds that there was

no statutory tolling of the limitations period in this case.

However, Petitioner argues that he can overcome this

statutory time bar because he is entitled to equitable tolling. 

See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.), cert. denied, 534

U.S. 944 (2001); Jones v. Morton, 195 F.3d 153, 159 (3d Cir.

1999); Miller v. New Jersey State Dept. of Corrections, 145 F.3d

616, 618 (3d Cir. 1998). Generally, a litigant seeking equitable

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tolling 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 and prevented timely

filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007); Pace v.

DiGuglielmo, 544 U.S. 408, 416-17 (2005); Merritt v. Blaine, 326

F.3d 157, 168 (3d Cir. 2003).

The Third Circuit instructs that equitable tolling is

appropriate when “principles of equity would make the rigid

application of a limitation period unfair, such as when a state

prisoner faces extraordinary circumstances that prevent him from

filing a timely habeas petition and the prisoner has exercised

reasonable diligence in attempting to investigate and bring his

claims.” LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005). 

However, the court cautioned that courts should use the equitable

tolling doctrine “sparingly,” “only in the rare situation where

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

of justice.” Lacava, 398 F.3d at 275 (3d Cir. 2005). A mere

showing of “excusable neglect is not sufficient” to warrant

equitable tolling. Id. at 276; Miller, 145 F.3d at 618-19;

Jones, 195 F.3d at 159. 

Extraordinary circumstances permitting equitable tolling

have been found where: (1) the petitioner has been actively

misled; (2) the petitioner has been prevented from asserting his

rights in some extraordinary way; (3) the petitioner timely

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asserted his rights in the wrong forum, see Jones, 195 F.3d at

159, or (4) the court has misled a party regarding the steps that

the party needs to take to preserve a claim, see Brinson v.

Vaughn, 398 F.3d 225, 230 (3d Cir.), cert. denied, 546 U.S. 957

(2005). Even where extraordinary circumstances exist, however, 5

“[i]f the person seeking equitable tolling has not exercised

reasonable diligence in attempting to file after the

extraordinary circumstances began, the link of causation between

the extraordinary circumstances and the failure to file is

broken, and the extraordinary circumstances therefore did not

prevent timely filing.” Brown v. Shannon, 322 F.3d 768, 773 (3d

Cir.)(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.

2000)), cert. denied, 539 U.S. 948 (2003).

As set forth above, in making his argument for equitable

tolling, Petitioner must show “(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance

stood in his way and prevented timely filing.” See Lawrence, 549

U.S. at 336. None of Petitioner’s arguments in his response

serve to overcome the time bar. 

 The Third Circuit has expressly held that, in non-capital 5

cases, attorney error, miscalculation, inadequate research, or

other mistakes are not the extraordinary circumstances necessary

to establish equitable tolling. Johnson v. Hendricks, 314 F.3d

159, 163 (3d Cir. 2002), cert. denied 538 U.S. 1022 (2003); Fahy,

240 F.3d at 244.

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The arguments brought by Petitioner in this case do not

establish that he exercised reasonable diligence in bringing his

claims and do not establish that Petitioner was “in some

extraordinary way been prevented from asserting his . . .

rights.” Miller v. New Jersey State Dep’t of Corr., 145 F.3d

616, 168-19 (3d Cir. 1998). This is not one of the “rare

situations” where equitable tolling “is demanded by sound legal

principles as well as the interests of justice.” Lacava, supra,

398 F.3d at 275. 

Petitioner has alleged no facts that would suggest any

grounds for either statutory or equitable tolling. Accordingly,

the Petition appears to be time-barred. 

IV. CERTIFICATE OF APPEALABILITY

The Court next must determine whether a certificate of

appealability should issue. See Third Circuit Local Appellate

Rule 22.2. The Court may issue a certificate of appealability

only if the petitioner “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

When a court denies a habeas petition on procedural grounds

without reaching the underlying constitutional claim, the

prisoner must demonstrate that jurists of reason would find it

debatable: (1) whether the petition states a valid claim of the

denial of a constitutional right; and (2) whether the court was

correct in its procedural ruling. Slack v. McDaniel, 529 U.S.

12

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473, 484 (2000). “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the

case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id.

For the reasons discussed above, this § 2254 habeas petition is

clearly time-barred. The Court also is persuaded that reasonable

jurists would not debate the correctness of this conclusion. 

Consequently, a certificate of appealability will not be issued.

V. CONCLUSION

For the reasons set forth above, this Court finds that the

petition for a writ of habeas corpus under 28 U.S.C. § 2254 is

time-barred pursuant to 28 U.S.C. § 2244(d). No certificate of

appealability will issue pursuant to 28 U.S.C. § 2253(c)(2). An

appropriate order follows.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: December 14, 2011

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