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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

TAIBIKA DAWSON, :

:

Petitioner, :

:

v. : Civil Action No. 11-2593 (JAP)

:

UNITED STATES OF AMERICA : OPINION

:

Respondent. :

____________________________________:

This matter comes before the Court by way of a Motion by pro se Petitioner Taibika 

Dawson for an extension of time to file a Potion to vacate, set aside or correct a sentence pursuant 

to 28 U.S.C. § 2255. 

As amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 

U.S.C. § 2255 contains a one-year statute of limitations. This one-year period runs from the latest 

of the following four events:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental 

action in violation of the Constitution or laws of the United States is removed, if the 

movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme 

Court, if that right has been newly recognized by the Supreme Court and made 

retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have 

been discovered through the exercise of due diligence.

 28 U.S.C. § 2255(f). Based on the facts presented by Dawson’s Motion, only the first is 

relevant to the instant matter. 

“[A] ‘judgment of conviction becomes final’ within the meaning of § 2255 on the later of 

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(1) the date on which the Supreme Court affirms the conviction and sentence on the merits or 

denies the defendant’s timely filed petition for certiorari, or (2) the date on which the defendants 

time for filing a timely petition for certiorari review expires.” Kapral v. U.S., 166 F.3d 565 (3d 

Cir. 1999). The Third Circuit affirmed Dawson’s conviction on April 16, 2009, and granted a 

request by Dawson to file an untimely motion for rehearing on July 8, 2009. The Circuit denied 

his motion for rehearing on November 12, 2009. Thus, Dawson’s judgment of conviction 

became final on February 10, 2010, the day his time to file a petition for a writ of certiorari expired. 

Sup. Ct. R. 13 (if the circuit court entertains an untimely motion for rehearing, a petition for writ of 

certiorari must be filed within 90 days of from the date of denial of rehearing). Consequently, the 

last day for Dawson to timely file his § 2255 motion was February 10, 2011. Dawson’s papers are 

dated April 19, 2011, and the Court shall consider Dawson’s § 2255 motion filed as of that date. 

Burns v. Morton, 134 F.3d 109, 113 (3d Cir.1998) (pro se prisoner’s habeas petition is deemed 

filed “the moment he delivers it to prison officials for mailing.”). 

A district court may grant an extension of time to file a § 2255 motion only if (1) the 

moving party requests the extension upon or after filing a § 2255 motion; and (2) where equitable 

tolling of the statute of limitations applies. Anderson v. Pa. Attorney Gen., 82 Fed. Appx. 745, 

749 (3d Cir. 2003) (applying Green v. United States, 260 F.3d 78, 82-83 (2d Cir. 2001)). Dawson 

filed his motion for an extension of time along with his § 2255 motion, so he has satisfied the first 

element. Thus, the question for this Court is whether application of equitable tolling is 

appropriate.

“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.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep’t of Veterans 

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Affairs, 498 U.S. 89, 96 (1990)). Equitable tolling is a remedy which should be invoked “only 

sparingly.” United States v. Midgley, 142 F.3d 174, 179 (3d Cir.1998) (quoting Irwin, 498 U.S. at 

96).

Dawson alleges that immediately after the Third Circuit’s November 2009 decision 

affirming his conviction, he began researching and preparing his § 2255 Petition. However, 

Dawson alleges that for the next fifteen months the institution in which he was held was 

“constantly in and out of institutional lock down,” and as a result, he was unable to devote a 

significant amount of time to research relating to his motion in the law library. Records submitted 

by Dawson show that the institution was in lockdown status for approximately 51 days (February 

20, 2010 to April 12, 2010)1

In early 2011, Dawson was transferred to a different facility, and was in transit from 

December 30, 2010 to February 10, 2011. Id. at 3 (April 12, 2011 Memorandum from D. 

Bedore). As a result of the transfer, Dawson did not have access to his property or legal materials

until March 4, 2011. Id. On March 4, 2011, Dawson wrote a letter to the Court advising of the 

foregoing circumstances and of his intention to file a § 2255 motion. He alleges that his filing 

was then further delayed because he had a “previous version” of a § 2255 motion form; he 

requested an updated form from the Clerk on March 22, 2011. His new institution was also 

placed in lockdown status in late March 2011. See Mot. for Ext. of Time 20-21 [docket entry no. 

at the very beginning of the applicable one-year limitations period, 

which began running on February 10, 2010, when Dawson’s judgment of conviction became final. 

Mot. for Ext. of Time 4-18 [docket entry no. 2]. The records show another lockdown occurred on 

or about August 7, 2010. Id. at 19. 

 1 While Dawson provides evidence of other periods of lockdown status, these occurred during time periods not 

relevant to the instant Motion, e.g., 2009.

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2] (March 26, 2011 Memorandum from R. A. Perdue).

The Court is mindful that it must grant equitable tolling “only sparingly.” Midgley, 142 

F.3d at 179 (quoting Irwin, 498 U.S. at 96). However, Dawson’s records show that he was unable 

to access any legal materials for over two months in early 2011, during which time his statute of 

limitations ran out. Denying this Motion for an Extension would, therefore, effectively penalize 

Dawson for failing to file his Petition almost two months before the deadline. Dawson had 

already lost a significant amount of time to institutional lockdown at the beginning of the statute of 

limitations period in early 2010. The time that Dawson was deprived of access to necessary legal 

materials therefore constitutes an “extraordinary circumstance.” Pace, 544 U.S. at 418. Finally, 

the short period of time that elapsed between his regaining access to legal materials and the filing 

of his Petition and this Motion supports Dawson’s claim that “he has been pursuing his rights 

diligently.” Id. Therefore, this Motion is granted, and the accompanying Petition will be 

considered timely filed. An Order granting this Motion and a Miller Order follow.

s/ Joel A. Pisano 

JOEL A. PISANO 

United States District Judge

Dated: November 15, 2011

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