NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KENNETH WILSON, :

: Civil Action No. 11-1201 (SDW)

Petitioner, :

:

v. : OPINION

:

CINDY SWEENEY, et al., :

:

Respondents. :

APPEARANCES:

KENNETH WILSON, Petitioner pro se

# 74578/130668B

East Jersey State Prison

Lock Bag R

Rahway, New Jersey 07065

BARBARA A. ROSENKRANS, ESQ.

ESSEX COUNTY PROSECUTOR’S OFFICE

Essex County Courts Building

50 West Market Street

Newark, New Jersey 07102

Counsel for Respondents

WIGENTON, District Judge

Petitioner Kenneth Wilson (“Petitioner” or “Wilson”), a 

convicted state prisoner presently confined at the East Jersey 

State Prison in Rahway, New Jersey, has submitted a petition for 

a writ of habeas corpus pursuant to 28 U.S.C. § 2254, 

challenging his New Jersey state court judgment of conviction 

entered on or about September 30, 1993. For the reasons stated 

herein, the Petition is dismissed as time-barred. Because the 

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Court finds this action is time-barred, Petitioner’s application

for an evidentiary hearing (ECF No. 42) and his motion for leave 

to file to file a reply to Respondents’ opposition letter brief1

(ECF No. 50) are rendered moot and are denied accordingly.

I. BACKGROUND

A. Procedural History

In October 1992, an Essex County Grand Jury indicted 

Petitioner and co-defendants, Clara Sloan, Samuel Dugger and 

Eugene Jenkins with the following offenses: (Count One) second 

degree conspiracy to murder Matthew McDaniel, in violation of 

N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a; (Count Two) first degree 

robbery, in violation of N.J.S.A. 2C:15-1; (Count Three) felony 

murder, in violation of N.J.S.A. 2C:11-3a(3); (Count Four)

knowing or purposeful murder, in violation of N.J.S.A. 2C:11-

3(a)(1) or (2); (Count Five) fourth degree unlawful possession 

of a weapon, in violation of N.J.S.A. 2C:39-5d; and (Count Six) 

third degree possession of a weapon for an unlawful purpose, in 

 1 In his motion (ECF No. 50), Petitioner seeks leave to file his 

reply to the Respondents’ opposition to Petitioner’s motion for 

an evidentiary hearing and for tolling of the statute of 

limitations period. Petitioner attaches his reply with his 

motion, and this Court has reviewed and considered same in 

reaching a decision in this matter.

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violation of N.J.S.A. 2C:39-4d. (Ra1,2 Essex County Indictment 

No. 3652-10-92.) 

Before trial, Counts One through Three, the charges of 

conspiracy to commit murder, robbery and felony murder, were 

dismissed as against Petitioner and co-defendants Jenkins and 

Sloan. (Ra22, Mar. 12, 1993 Transcript at 6:11-8:24.) On April 

3, 1993, Dugger pled guilty to the charge of conspiracy to 

commit murder pursuant to a plea agreement recommending a prison 

sentence not to exceed ten years in exchange for Dugger’s

testimony against Petitioner and co-defendants at trial. 

(Ra23.) In July and August 1993, Petitioner, Jenkins and Sloan 

were jointly tried before a jury and the Honorable Peter B. 

Cooper, J.S.C. (Ra24-Ra31.) Petitioner and co-defendants 

ultimately were convicted on the remaining counts of murder and 

weapons offenses (Counts Four, Five and Six). (Ra31, Aug. 5, 

1993 Transcript at 28:5-20.)

On September 30, 1993, after denying Petitioner’s motion 

for a new trial (Ra32, Sep. 30, 1993 Motion Transcript at 12:21-

23), Judge Cooper merged Count Six into Count Four and sentenced 

Petitioner to life imprisonment with a 30-year parole 

disqualifier. On Count Five, Judge Cooper sentenced Petitioner 

 2 “Ra” refers to the Respondents’ appendix of exhibits that 

comprise the relevant state court record in this matter. The 

exhibits are identified in an Index provided by the State and 

docketed at ECF No. 18-2.

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to a concurrent term of 18 months in prison. (Ra2, Judgment of 

Conviction; Ra33, Sep. 30, 1993 Sentencing Transcript at 11:23-

12:7.)

Petitioner thereafter filed a direct appeal from his 

conviction and sentence before the Superior Court of New Jersey, 

Appellate Division. (Ra3.) On May 25, 1995, the Appellate 

Division affirmed Petitioner’s conviction and modified the 

sentence on the judgment of conviction “to reflect a VCCB 

penalty of $30 on the conviction for murder.” (Ra5, May 25, 

1995 App. Div. Op. at 9.) The Supreme Court of New Jersey 

denied certification on September 8, 1995. (Ra7.) Petitioner 

did not seek a writ of certiorari before the Supreme Court of 

New Jersey.

On May 21, 1997, Petitioner filed his first application for 

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

Jersey, Law Division, Essex County. (Ra8.) A PCR hearing was 

conducted before the Honorable Edward R. Schwartz, J.S.C., on 

October 18, 2000, (Ra34), and on that same date, Judge Schwartz 

issued an Order denying the PCR application. (Ra9.) Petitioner 

appealed from denial of his PCR petition. On May 30, 2002, the 

Appellate Division affirmed Judge Schwartz’s denial of postconviction relief. (Ra11.) The Supreme Court of New Jersey 

denied certification on October 22, 2002. (Ra12.)

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On May 7, 2003, Petitioner filed a motion for a new trial 

based on newly discovered evidence regarding co-defendant 

Dugger’s plea agreement and anti-psychotic medication at the 

time of his trial testimony against Petitioner. (Ra13.) On 

January 18, 2008, the Honorable Jerome M. St. John, J.S.C. 

issued an Order denying Petitioner’s motion for a new trial. 

(Ra14.) On March 15, 2008, Judge St. John filed a 10-page 

opinion explaining his denial of Petitioner’s motion. (Ra15.) 

Petitioner thereafter filed an appeal from the denial of his 

motion. The Appellate Division affirmed the trial court’s 

decision in an Opinion issued on August 19, 2010. (Ra19.) The 

New Jersey Supreme Court denied certification on January 20, 

2011. (Ra21.)

On February 24, 2011, Petitioner filed this federal habeas 

petition under 28 U.S.C. § 2254. The petition was received and 

docketed March 2, 2011. (ECF No. 1.) On March 15, 2012, the 

State filed an answer to the petition with a copy of the 

relevant state court record. (ECF Nos. 18, 19, 20, 21, 22.)

On January 24, 2013, this Court issued an Opinion and Order 

directing Petitioner to show cause in writing why his petition 

should not be dismissed as untimely, pursuant to 28 U.S.C. § 

2244(d). (ECF No. 36.) Petitioner filed his response on May 

28, 2013, together with a request for an evidentiary hearing. 

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(ECF Nos. 41 and 42.) On June 10, 2013, this Court directed the 

State to file a response/opposition to Petitioner’s May 28, 2013 

submission. (ECF No. 45.) The State filed a letter brief in 

opposition on June 17, 2013. (ECF Nos. 46, 47.) On July 3, 

2013, Petitioner filed a motion for leave to file a reply to the 

State’s opposition. (ECF No. 50.) Petitioner attached his 

certification and brief in reply with his motion. (ECF Nos. 50-

1, 50-2.) 

B. Factual Background 

The facts of this case, as recounted by the state court on 

direct review, are afforded appropriate deference under 28 

U.S.C. § 2254(e)(1). Accordingly, this Court will simply recite 

the abbreviated factual findings, as set forth in the 

unpublished opinion of the Superior Court of New Jersey, 

Appellate Division, decided on May 25, 1995, with respect to 

Petitioner’s direct appeal, as follows:

The State’s chief witness, Samuel Dugger, testified that 

the day of the murder, he, Jenkins, Wilson, and Sloan were 

smoking cocaine in his cousin’s apartment. While returning 

from the bathroom, Dugger heard Jenkins tell Wilson 

“[l]et’s kill a homo.” Although Sloan remained silent, 

Wilson immediately agreed to participate in the plot. 

Dugger was initially concerned because he was a homosexual, 

but his fear dissipated because he believed only Sloan knew 

he was gay. At Dugger’s suggestion, they all departed for 

Matthew McDaniel’s’ house a short distance away. Dugger 

knew McDaniels was a homosexual and in fact was going to 

McDaniels’ apartment in the hope of engaging in sexual 

activities with him. However, Dugger allegedly was not 

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concerned that Jenkins and Wilson would harm McDaniels 

because they did not know he was gay.

McDaniels invited the three into his house where they drank 

wine. The group then pooled their money and purchased more 

cocaine. At some point, Dugger and McDaniels went into the 

bedroom and began to engage in sexual activities. Jenkins 

and Wilson interrupted them and ordered Dugger to leave the 

bedroom. Dugger complied and sat with Sloan at the kitchen 

table. Dugger left the apartment when he heard McDaniels 

screaming for help.

Several days later, the police responded to a neighbor’s 

complaint of foul odors emanating from McDaniels’ house. 

The police discovered McDaniels’ body bound with telephone 

wire at the wrist, neck, and ankles and gagged at the mouth 

with a towel. The cause of death was ligature 

strangulation. 

(Ra5, May 25, 1995 App. Div. Op. at 3-4.)

II. STATEMENT OF CLAIMS

Petitioner asserts the following claims in his petition for 

habeas relief:

Ground One: The State’s failure to disclose exculpatory 

evidence to the defense before and during trial regarding the 

prosecution’s key witness deprived Petitioner his rights under 

the Sixth and Fourteenth Amendments. Specifically, petitioner 

argues that the State failed to disclose information concerning 

witness Dugger’s use of psychotropic medications at the time of 

his plea and testimony at trial, as well as Dugger’s subsequent 

release from prison shortly after testifying for the State at 

Petitioner’s trial. (ECF No. 1, Petition at ¶ 12.)

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Ground Two: Petitioner was denied effective assistance of 

trial and appellate counsel in violation of his Sixth Amendment 

rights. In particular, Petitioner contends that trial counsel 

failed to properly investigate the extent of Dugger’s plea 

agreement with the State and the extent of Dugger’s psychiatric 

history, including Dugger’s taking of psychotropic medications 

before and during Petitioner’s trial. Petitioner also argues 

that appellate counsel “failed to properly investigate the 

prosecutorial misconduct that had occurred with regard to the 

failure of the prosecution to comply with the rules of discovery

in light of the nature of Samuel Dugger’s plea agreement and 

subsequent release from custody.” (Id.)

The State contends that the habeas claims lack substantive 

merit. The State also asserts the affirmative defense that this 

habeas petition is untimely and should be dismissed accordingly. 

(ECF No. 18.)

In an Opinion entered on January 24, 2013, this Court found 

that the habeas petition was filed beyond the one-year statutory 

limitations period under 28 U.S.C. § 2244(d)(1)(A), which had 

expired on April 24, 1997. This Court further ruled that the 

matter would be dismissed as untimely unless Petitioner could 

allege facts to support equitable tolling of the limitations 

period. (ECF No. 36 at 10.)

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III. DISCUSSION

The limitations period for a § 2254 habeas petition is set 

forth in 28 U.S.C. § 2244(d),3 and states:

(1) A 1–year period of limitation shall apply to an 

application for a writ of habeas corpus by a person in 

custody pursuant to a 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

(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 

subsection.

The first step in resolving the timeliness of this habeas 

petition requires a determination of when petitioner’s state 

 3 The limitations period is applied on a claim-by-claim basis. 

See Fielder v. Verner, 379 F.3d 113 (3d Cir. 2004); Sweger v. 

Chesney, 294 F.3d 506 (3d Cir. 2002).

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court judgment became final. 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 Gonzalez v. Thaler, ---U.S. ----, 132 

S.Ct. 641, 653-54, 181 L.Ed.2d 619 (2012).

In this case, direct review concluded before the effective 

date of AEDPA on April 24, 1996. Thus, Petitioner should have 

filed this habeas petition by April 24, 1997 for it to be deemed 

timely under 28 U.S.C. § 2244(d), unless the limitations period 

was statutorily and/or equitably tolled. See Miller v. 

Dragovich, 311 F.3d 574, 576 (3d Cir. 2002) (noting that there 

would be a one-year grace period following the enactment of 

AEDPA in those cases in which a prisoner’s conviction had become 

final before April 24, 1996). 

The statute of limitations may be statutorily tolled during 

the time in which a properly filed state post-conviction relief 

petition is pending. See 28 U.S.C. § 2244(d)(2). The Third 

Circuit has explained that:

A prisoner’s application for state collateral review is 

“‘properly filed’ when its delivery and acceptance are in 

compliance with the applicable laws and rules governing 

filings[,]” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 

148 L.Ed.2d 213 (2000) (emphasis omitted), including “time 

limits, no matter their form,” Pace v. DiGuglielmo, 544 

U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). 

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Thus, if a state court determines that an application is 

untimely, “‘that [is] the end of the matter’ for purposes 

of statutory tolling of AEDPA’s limitation period, id. at 

414 (quoting Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct. 

2134, 153 L.Ed.2d 260 (2002)), “regardless of whether it 

also addressed the merits of the claim, or whether its 

timeliness ruling was ‘entangled’ with the merits[,]” 

Carey, 536 U.S. at 226. But if a state court fails to rule 

clearly on the timeliness of an application, a federal 

court “must ... determine what the state courts would have 

held in respect to timeliness.” Evans v. Chavis, 546 U.S. 

189, 198, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006).4

Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85–

86 (3d Cir. 2013). Furthermore, the 90-day time period during 

which a state prisoner may file a petition for writ of 

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). Lawrence 

v. Florida, 549 U.S. 327, 332 (2007).

In this case, Petitioner filed his first PCR petition on 

May 21, 1997, after the one-year limitations period had expired 

on April 24, 1997. Consequently, that first PCR petition could 

not serve to statutorily toll the limitations period because the 

limitations period already had expired when the PCR petition was 

filed. See Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004).

 4

 In Evans, the Supreme Court also held that the time between 

denial of post-conviction relief and the filing of an appeal 

from that decision was not tolled where the appeal was untimely, 

even where the state court considered the untimely appeal on the 

merits. Evans, 546 U.S. at 191.

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However, in Holland v. Florida, the Supreme Court held that 

AEDPA’s one-year limitations period is subject to equitable 

tolling in appropriate cases. 560 U.S. 631, 645 (2010); Ross v. 

Varano, 712 F.3d 784, 798 (3d Cir. 2013). A litigant seeking 

equitable 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.”

Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005)); see also Jenkins, 705 F.3d at 89.

The diligence required for equitable tolling is reasonable 

diligence, not maximum, extreme, or exceptional diligence. 

Holland, 560 U.S. at 653. “This obligation 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.” LaCava v. Kyler, 398 

F.3d 271, 277 (3d Cir. 2005) (citing Jones, 195 F.3d at 160). 

Reasonable diligence is examined under a subjective test, and it 

must be considered in light of the particular circumstances of 

the case. See Ross, 712 F.3d at 799; Schlueter v. Varner, 384 

F.3d 69, 74 (3d Cir. 2004) (“Due diligence does not require the 

maximum feasible diligence, but it does require diligence in the 

circumstances.”) (emphasis added) (internal quotation marks and 

citation omitted).

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The court also must determine whether extraordinary 

circumstances exist to warrant equitable tolling. “[G]arden 

variety claim[s] of excusable neglect” by a petitioner’s 

attorney do not generally present an extraordinary circumstance 

meriting equitable tolling. Holland, 560 U.S. at 651-52

(citations omitted); see also Merritt v. Blaine, 326 F.3d 157, 

168 (3d Cir. 2003). Rather, equitable tolling could be 

triggered only when “the 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, 398 F.3d at 275–276; see also 

Holland, 130 S.Ct. at 25 62 (relying on Pace, 544 U.S. at 418). 

Indeed, extraordinary circumstances have been found only 

where: (a) the respondent has actively misled the plaintiff, (b) 

the petitioner has in some extraordinary way been prevented from 

asserting his rights, (c) the petitioner has timely asserted his 

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

159, or (d) the court itself 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. 2005).

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Nevertheless, it must be restated that, even where 

extraordinary circumstances do exist, “if 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. 2003) (quoting Valverde 

v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). 

There are no bright lines in determining whether equitable 

tolling is warranted. See Pabon v. Mahanoy, 654 F.3d 385, 399 

(3d Cir. 2011). In determining whether equitable tolling is 

appropriate, “the particular circumstances of each petitioner 

must be taken into account,” see id., and each decision made on

a case-by-case basis. See Holland, 560 U.S. at 649. The Third 

Circuit has explained, consistent with Supreme Court holdings in 

Holland, 560 U.S. at 648-49 and Pace, 544 U.S. at 418, that 

“equitable tolling is appropriate when principles of equity 

would make rigid application of a limitation period unfair, but 

that a court should be sparing in its use of the doctrine.” 

Ross, 712 F.3d at 799 (citing Pabon, 654 F.3d at 399); see also 

Jenkins, 705 F.3d at 89; Urcinoli v. Cathal, 546 F.3d 269, 278 

(3d Cir. 2008).

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In this case, Petitioner first argues that he is entitled 

to either equitable tolling or statutory tolling of the 

limitations period under 28 U.S.C. § 2244(d)(1)(B), because the 

inadequacy of the prison law library in 1997 constituted a 

state-created impediment to his timely filing of his habeas 

petition. Specifically, Petitioner claims that he only became 

aware of the newly enacted AEDPA on May 2, 1997, more than a 

year after its enactment, because it was not available in the 

prison law library before that date. Once aware, Petitioner 

filed his state PCR 19 days later, on May 21, 1997, to trigger 

tolling under 28 U.S.C. § 2244(d)(2). Petitioner explains that 

before AEDPA, he believed he had five years from the date of 

entry of his state judgment of conviction to file his state PCR, 

pursuant to N.J.Ct.R. 3:22-12, or until September 30, 1998. 

Thus, his federal habeas petition should be regarded as timely 

because the filing of his first state PCR petition properly 

served to toll the limitations period. 

Petitioner relies on Whalem/Hunt v. Early, 233 F.3d 1146 

(9th Cir. 2000) in support of this argument for tolling. In 

Whalem/Hunt, the Ninth Circuit had remanded a habeas case to the 

district court for the development of facts regarding whether 

AEDPA materials were unavailable in the prison law library and 

the legal significance of such a finding. 233 F.3d at 1148. 

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Accordingly, Petitioner suggests that he is entitled to an 

evidentiary hearing to develop similar facts.

However, the mere fact that the prison law library is 

inadequate, standing alone, which is the only factual allegation 

Petitioner makes in this regard, does not serve to establish 

extraordinary circumstances necessary to invoke equitable 

tolling in this case. See Marsh v. Soares, 223 F.3d 1217, 1220 

(10th Cir. 2000); Dickinson v. Masan, No. 3:11-cv-700-MEF WO, 

2014 WL 495363, *7 (M.D.Ala. Feb. 6, 2014). See also Miller v. 

Florida, 307 F. App’x 366, 368 (11th Cir. 2009) (“even 

restricted access to a law library, lock-downs, and solitary 

confinement do not qualify as [extra]ordinary circumstances 

warranting equitable tolling”); Bell v. Secretary, Dept. of 

Corrections, 248 F. App’x 101, 104–105 (11th Cir. 2007) (holding 

that inability to access prison law library was not 

extraordinary circumstance beyond prisoner’s control that 

prevented him from timely filing his habeas petition despite his 

due diligence). Rather, a petitioner must show that the law 

library was inadequate and this inadequacy actually prevented 

him from timely filing his habeas petition. See Spencer v. 

Magrady, Civil Action No. 10-703, 2010 WL 5830500, *7 (E.D.Pa. 

Dec. 1, 2010) (holding that “a petitioner must show ‘that the 

alleged shortcomings in the library or legal assistance program 

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actually hindered his efforts to pursue a legal claim’”) 

(quoting Jones v. Armstrong, 367 F. App’x 256, 258 (2d Cir. 

2010)).

In this case, Petitioner alleges only a bald claim that the 

prison law library was inadequate because it did not make AEDPA 

available until May 2, 1997. Petitioner does not show that the 

prison law library lacked the adequate legal materials to inform 

him about AEDPA before April 24, 1997; nor does Petitioner 

demonstrate that this alleged inadequacy actually prevented him 

from filing his petition on time. Rather, he simply states that 

he relied on the New Jersey state court five-year rule to file 

his state PCR petition, and was unaware of AEDPA. This is 

merely a statement of ignorance of the law, which he remedied as 

soon as he discovered it. It is well established that ignorance 

of the law, even for pro se prisoners, generally does not excuse 

prompt filing. United States v. Johnson, 544 U.S. 295, 311 

(2005) (holding that “we have never accepted pro se 

representation alone or procedural ignorance as an excuse for 

prolonged inattention when a statute’s clear policy calls for 

promptness”); see also Fisher v. Johnson, 174 F.3d 710, 714 (5th

Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Williamson v. 

Giroux, Civil Action No. 12-1477, 2013 WL 4774468, *4 (E.D.Pa. 

Sep. 6, 2013); Walker v. Ricci, 2013 WL 3223552, *11 (D.N.J. 

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Jun. 25, 2013). Further, miscalculation of the limitations 

period or the time remaining on a limitations period does not 

constitute extraordinary circumstances to warrant equitable 

tolling. Walker, supra (citing Johnson v. Hendricks, 314 F.3d 

159, 161, 163 (3d Cir. 2002); Fahey v. Horn, 240 F.3d 239, 244 

(3d Cir. 2001)). 

Moreover, Petitioner does not show that he was diligent in 

pursuing his rights. He waited almost two years before filing 

his first state PCR petition without any explanation other than 

his belief that he had five years from the date of his judgment 

of conviction to so file his first PCR petition. Thus, this 

delay is insufficient to support the application of equitable 

tolling or statutory tolling under § 2244(d)(1)(B).

Petitioner also asserts that the accrual date for his oneyear limitations period should be September 22, 1997, because 

that is when he discovered a constructive denial of effective 

appellate counsel. Plaintiff alleges that appellate counsel had 

filed a copy of the brief for Petitioner’s co-defendant on 

Petitioner’s behalf. Petitioner claims that this is an 

“interrupting event” that should establish a new date for 

equitable tolling. (ECF No. 41 at 5.)

This Court likewise rejects this event as extending a new 

accrual date for limitations purposes. Petitioner does not 

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explain how he did not know about this appellate brief before 

September 22, 1997, which brief had been filed in February 1995, 

and was ruled upon by the Appellate Division on May 25, 1995. 

Clearly, “discovery” of his brief on appeal more than 21⁄2 years 

later undermines any claim of diligence on Petitioner’s part and 

defeats his argument for equitable estoppel. 

Petitioner further argues that he is entitled to statutory 

tolling of his one-year limitations period pursuant to 28 U.S.C. 

§ 2244(d)(1)(D). Namely, Petitioner contends that the start 

date for his limitations period began on “the date on which the 

factual predicate of the claim or claims presented could have 

been discovered through the exercise of due diligence.” 28 

U.S.C. § 2244(d)(1)(D). Petitioner alleges that his statute of 

limitations began to run on September 10, 2001, when he received 

an affidavit from Private Investigator Maria Polumbo regarding 

newly discovered evidence of prosecutorial misconduct. 

Polumbo’s affidavit stated that Dugger was sentenced to time 

served for his testimony against Petitioner at Petitioner’s 

trial. Petitioner alleges that the prosecuting attorney told 

Dugger that he would be given a lenient sentence if Dugger 

testified that he conspired with Petitioner to murder the 

victim, McDaniel. (ECF No. 41 at 3.)

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Petitioner also blames ineffective assistance of trial, 

appellate and PCR counsel for the late discovery date of this 

information, as well as information regarding Dugger’s

psychiatric and medication history that would have affected the 

credibility of Dugger’s testimony at Petitioner’s trial. (Id. 

at 3-9.) Petitioner contends that these deficiencies of his 

counsel warrant application of equitable tolling. 

This Court finds no merit to Petitioner’s claim that his 

limitations period should be governed by 28 U.S.C. § 

2244(d)(1)(D). Although “factual predicate” is not defined 

under AEDPA, the Third Circuit has held that “[§] 2244(d)(1)(D) 

provides a petitioner with a later accrual date than section 

2244(d)(1)(A) only if vital facts could not have been known.” 

McAleese v. Brennan, 483 F.3d 206, 213 (3d Cir. 2007)(quoting 

Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004). Therefore, 

under Schlueter, the “factual predicate” of a petitioner’s 

claims constitutes the “vital facts” underlying those claims. 

Id.

Here, as this Court discussed in its January 24, 2013 

Opinion (ECF No. 36), Petitioner’s two habeas claims are based 

on information about the State’s key witness, Samuel Dugger, 

that Petitioner allegedly did not have prior to Dugger’s

testimony at Petitioner’s trial. However, as properly found by 

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the state court when denying Petitioner’s motion for a new trial 

based on this same information, at the time of trial, 

Petitioner’s counsel was well aware of Dugger’s history of 

psychiatric problems and drug use and in fact, cross-examined 

Dugger extensively about said problems. State v. Wilson, 2010 

WL 4025639, *1 (N.J. Super. Ct. App. Div. August 19, 2010).

Further, at the time of trial, Petitioner and his trial 

counsel were aware of Dugger’s plea agreement, and trial counsel 

cross-examined Dugger on this issue to impeach his credibility. 

Even if this Court were to assume that the length of time Dugger

later received as a sentence (time served as opposed to the plea 

agreement of “no more than ten years”) is a “vital fact,” 

Petitioner could have discovered said fact through due diligence 

well before 2001, since Dugger was sentenced to time served and 

released from prison on October 1, 1993.

Thus, based on the foregoing, utilizing § 2244(d)(1)(D) 

does not provide Petitioner with a later accrual date than 

§ 2244(d)(1)(A) since the factual predicate of the claims 

presented could have been discovered through the exercise of due 

diligence, at the latest, shortly after Petitioner’s trial in 

1993. 

To overcome this obstacle, Petitioner now argues that the 

ineffective assistance he received from trial, appellate and PCR 

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counsel, constituted extraordinary circumstances warranting 

application of equitable tolling. Petitioner contends that 

there is “cause and prejudice to excuse any procedural default 

of Petitioner’s claims” based on counsel blunders and 

ineffectiveness. (ECF No. 41 at 6.) 

For instance, Petitioner again refers to his appellate 

counsel having filed the exact same brief on direct appeal as 

for co-defendant. As noted above, this fact could have been 

ascertained by Petitioner much earlier than the alleged 

September 22, 1997 discovery date asserted by Petitioner. 

Moreover, Petitioner does not articulate how the arguments 

advanced by appellate counsel, even if they were identical to 

claims asserted on behalf of co-defendant on appeal, were 

deficient. Indeed, at the first PCR hearing on October 18, 

2000, the PCR court found that there was no evidence to show 

that the defenses of the co-defendants were inconsistent. 

(Ra34, Oct. 18, 2000 PCRT 57:5-7.) Finally, the Appellate 

Division found Petitioner’s arguments concerning the 

ineffectiveness of his appellate counsel “unpersuasive,” and 

held that there was no discernible error by appellate counsel 

that would warrant “a reversal of [Petitioner’s] well-deserved 

convictions.” (Ra11, May 30, 2002 App. Div. Op. at 8.)

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Thus, appellate counsel’s filing of a brief on behalf of 

Petitioner identical to a brief on behalf of a co-defendant, 

where the claims were consistent for both, having been tried 

jointly, does not amount to an extraordinary circumstance 

necessary to apply equitable tolling. Even if this alleged 

deficiency of appellate counsel was extraordinary, Petitioner 

cannot show reasonable diligence required to warrant equitable 

tolling. See Brown v. Shannon, 322 F3d at 773 (holding that 

even if extraordinary circumstances exist, equitable tolling is 

not available where petitioner has not exercised reasonable 

diligence in filing his petition). 

Petitioner next argues that his trial counsel’s failure to 

effectively investigate and pursue defenses based on Dugger’s 

mental and drug abuse history and the extent of his plea 

agreement at the time of trial provides grounds for equitable 

tolling. This argument is also unavailing. 

First, this Court notes that the first PCR court found that 

trial counsel was competent and effective. Guided by Strickland 

v. Washington, 466 U.S. 668 (1984), the PCR court rejected each 

argument advanced by Petitioner regarding counsel’s alleged 

deficiencies. For instance, the court found the lack of an 

expert witness on intoxication was a strategic decision by 

counsel and that such a witness would not have changed the 

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outcome of trial given testimony that Dugger and Petitioner, as 

well as the other co-defendants had consumed 17 vials of cocaine 

in three or four hours. (Ra34, Oct. 18, 2000 PCR Hearing 

Transcript at 37:4-40:8.) 

The PCR court also rejected Petitioner’s argument that 

trial counsel was ineffective in failing to call two witnesses 

to testify about a robbery motive. The court found that counsel 

made a strategic decision to disregard the robbery motive so as 

to get three charges dismissed (robbery, conspiracy to commit 

robbery, and felony murder), and also because a robbery motive 

is much easier for a jury to understand than the more subjective 

motive to murder a homosexual. (Id., 40:9-47:23.) In affirming 

the PCR court, the Appellate Division stated: “Even viewing the 

record indulgently, there is nothing before us, except bare 

allegations, supporting current counsel’s claim of professional 

errors.” (Ra11, May 30, 2002 App. Div. Op. at 7.)

Further, in Petitioner’s later motion for a new trial,

filed in May 2003, which raised similar claims asserted in this 

habeas petition, the state court rejected Petitioner’s claim 

that the prosecutor and Dugger had a secret or hidden agreement 

to have Dugger testify against Petitioner in exchange for a more 

lenient sentence than that made known at trial. The state court 

found this contention to be “pure speculation.” (Ra15, Mar. 3, 

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2008 Law Div. Op. at 7.) Moreover, the court found that even if 

Petitioner could show something more solid concerning a hidden 

plea deal, it would not have changed the outcome of trial as 

trial counsel had emphasized Dugger’s plea deal of a ten year 

prison term rather than life imprisonment during crossexamination to discredit Dugger’s testimony against Petitioner. 

(Id. at 8.)

The trial court also rejected Petitioner’s contention that 

he was entitled to a new trial based on newly discovered 

evidence concerning Dugger’s drug use and mental history. 

Specifically, the court ruled:

Here, defendant and his counsel were well aware of Mr. 

Dugger’s history of psychiatric problems during the trial. 

In fact, defendant’s attorney, who was in possession of Mr. 

Dugger’s medical record, spent a significant amount of time 

cross-examining the witness regarding his hospitalization, 

his suicidal thoughts and his use of illegal drugs. ... 

Furthermore, if in fact defendant was taking such 

medication, it cannot be said this information was not 

“discoverable” at the time, especially since defendant and 

his counsel were in possession of Mr. Dugger’s medical 

history.

(Id. at 9-10.)

The court also noted that even if this amounted to new 

evidence, it would not have changed the outcome of trial. The 

jury “was well aware of the issues concerning Mr. Dugger’s 

credibility including his mental health and his history of heavy 

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drug use. At best, such evidence would be ‘merely’ cumulative 

or impeaching.” (Id. at 10.)

Indeed, on appeal from denial of his motion for a new 

trial, the Appellate Division again noted that trial counsel had 

a copy of Dugger’s medical records at the time of trial. These 

records reflected an admitting diagnosis of “major depression 

w[ith] substance abuse disorder w[ith] suicidal ideation.” 

(Ra19, Aug. 19, 2010 App. Div. Op. at 5.) The records also 

showed that Dugger had been administered “Triavil” as part of 

his treatment of his depression. (Id. at 6.) The Appellate 

Division further observed that, at Petitioner’s trial, Dugger 

had been “cross-examined at length about his drug use, 

specifically his drug use on the day of the murder,” which 

included testimony that about 20 vials of cocaine were smoked by 

Dugger and the co-defendants in the two hours before the murder. 

Dugger even admitted that he “got pretty high” that day. (Id. 

at 7.) Thus, even if the court were to construe Petitioner’s 

evidence of Dugger’s habitual daily drug use as “newly 

discovered evidence,” the prior hospital records and trial 

testimony of Dugger rendered this “new” evidence merely 

cumulative and not likely to result in a different verdict. 

(Id. at 7-8.)

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The Appellate Division further dismissed Petitioner’s 

argument about prosecutorial misconduct concerning Dugger’s plea 

agreement. The court noted that the plea “agreement restricted 

the prosecutor’s right to seek a sentence that exceeded ten 

years; it did not deprive the prosecutor of the option to 

recommend a more lenient sentence in the event that Dugger’s 

cooperation merited it.” (Id. at 9.) Moreover, the Appellate 

Division found that even if Dugger’s sentence to time served 

“could be construed as newly discovered evidence, knowledge of 

that sentence was available in 1993, before defendant filed his 

first petition for post-conviction relief,” and therefore, any 

claim based on that evidence was time-barred. (Id.) 

Therefore, because all of the information Petitioner claims 

to be newly discovered as of September 2001, were known or 

easily discoverable to Petitioner before he filed his first 

state PCR petition, he cannot rely on these arguments of 

ineffective assistance of counsel to support equitable tolling.

Finally, Petitioner contends that his state PCR counsel was 

ineffective, resulting in the late discovery of the information 

brought to his attention by Investigator Polumbo in September 

2001, after he already had filed his first state PCR petition on 

May 21, 1997. Petitioner claims that this ineffectiveness 

constitutes extraordinary circumstances to permit equitable 

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tolling. However, Petitioner’s extensive letters of 

dissatisfaction with his PCR counsel spanning many months from 

early 2003 through early 2006, occurred well after the statute 

of limitations had expired on April 24, 1997, and almost two 

years after Petitioner “newly” discovered the evidence of 

Dugger’s sentence to time served and daily habitual drug use. 

Consequently, any ineffectiveness of PCR counsel does not serve 

to equitably toll the limitations period.

Moreover, Petitioner’s claim that his PCR counsel rendered 

ineffective assistance of counsel does not provide a basis for 

equitable tolling of the AEDPA one-year limitations period. See 

e.g., Dixon v. Bartkowski, Civil Action No. 11-3213 (DMC), 2013 

WL 5730152, *8 (Oct. 21, 2013); Pitts v. Kerestes, No. 12–2661, 

2013 WL 4718950, *4 (E.D.Pa. Sept.3, 2013) (“By its own terms, 

the narrow rule of Martinez5 applies only to excuse procedural 

default. It makes no mention of providing a basis for equitable 

tolling.”) (internal citation omitted) Garcia v. Warren, Civ. 

No. 12–7680(JAP), 2013 WL 3221306, *4 (D.N.J. Jun.25, 2013) 

(finding that general allegations of ineffective assistance of 

PCR counsel, along with a reliance on Martinez, did not show 

 5

 Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 

272 (2012). In Martinez, the Supreme Court held that inadequate 

assistance of counsel at initial state PCR proceedings may 

establish cause for a prisoner’s procedural default of a claim 

of ineffective assistance at trial. 132 S.Ct. at 1317–18.

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extraordinary circumstance prevented petitioner from timely 

filing his federal habeas petition); Silfies v. Walsh, No. 02–

1777, 2013 WL 3049096, at *3 (M.D.Pa. June 17, 2013) (holding 

that “Martinez did not provide that postconviction counsel’s 

ineffectiveness could establish an exception to or equitable 

tolling of AEDPA’s one-year statute of limitations for filing a 

federal habeas corpus petition.”) (citations omitted); Saunders 

v. Lamas, No. 12–1123, 2013 WL 943351, at *6 (E.D.Pa.Feb.13, 

2013) (noting that “[t]he Supreme Court does not state in 

Martinez that a blanket allegation of ineffectiveness of PCRA 

counsel can constitute a basis for equitable tolling of the 

habeas statute of limitations. The Martinez decision did not 

allow for equitable tolling of the AEDPA deadlines.”) (citations 

omitted), report and recommendation adopted by, 2013 WL 943356 

(E.D.Pa. Mar.11, 2013); Terry v. Cathel, No. 12–5263, 2012 WL 

4504590, at *4 (D.N.J.Sept.27, 2012) (“No aspect of the Martinez

decision implicated, addressed or even reflected on the issue of 

untimeliness of the litigant’s federal habeas petition.”); see 

also Scaife v. Falk, No. 12–2530, 2013 WL 1444236, at *5 

(D.Colo. Apr.9, 2013) (“[A]lthough Martinez might be relevant if 

Mr. Scaife were seeking to overcome a procedural default in the 

context of exhaustion of state court remedies, nothing in 

Martinez demonstrates the existence of any extraordinary 

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circumstances to justify equitable tolling of the one-year 

limitation period.”).

Thus, while Petitioner generally argues that there is cause 

and prejudice to excuse procedural default of his claims, (see

ECF No. 41 at 6-9), this Court did not find that Petitioner’s

claims were procedurally defaulted. Rather, this Court 

determined that the federal habeas petition was time-barred 

under the applicable AEDPA statute of limitations. 

Consequently, any allegations by Petitioner that his PCR 

counsel’s ineffectiveness constitutes extraordinary 

circumstances to warrant equitable tolling lacks merit and will 

be denied accordingly. See Clark v. Ricci, Civ. No. 08-3347 

(RBK), 2013 WL 5817655, *4 (D.N.J. Oct. 29, 2013).

Therefore, because this Court finds that neither statutory 

tolling nor equitable tolling applies in this case, the habeas 

petition filed by Petitioner on March 10, 2011, more than 

thirteen years after the April 24, 1997 expiration of 

Petitioner’s one-year limitations period, is time-barred and the 

petition will be dismissed with prejudice.

Finally, because this Court finds that the petition is 

time-barred, Petitioner’s motion for an evidentiary hearing (ECF 

No. 42) and his motion for leave to file a reply to Respondents’ 

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opposition (ECF No. 50) are rendered moot and are denied 

accordingly.

IV. CERTIFICATE OF APPEALABILITY

This 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. 

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 timebarred. 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.

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V. CONCLUSION

For the above reasons, this Court finds that the § 2254 

habeas petition must be dismissed as time-barred, and that a 

certificate of appealability will not issue. An appropriate 

Order follows.

s/ SUSAN D. WIGENTON

United State District Judge

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