NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

CARNELL GIBBS, :

: Civil Action No. 11-1137 

(NLH)

Petitioner, :

:

v. : OPINION

:

GREG BARTKOWSKI, et al., :

:

Respondents. :

APPEARANCES:

Carnell Gibbs, Pro Se

407358/SBI 399805C

New Jersey State Prison

P.O. Box 861

Trenton, NJ 08625

James F. Smith

Atlantic County Prosecutor’s Office

4997 Unami Boulevard

Mays Landing, NJ 08330

Attorney for Respondents

HILLMAN, District Judge

Petitioner, Carnell Gibbs, a prisoner confined at the New 

Jersey State Prison, Trenton, New Jersey, submitted a petition 

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

respondents are Greg Bartkowski, Paula T. Dow, and Charles 

Warren. For the reasons stated herein, the petition will be 

dismissed, with prejudice, as time-barred.

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BACKGROUND

According to the petition, Petitioner was convicted of 

first degree murder, possession of a handgun for an unlawful 

purpose, unlawful possession of a handgun, and conspiracy. His 

judgment of conviction, entered on June 2, 2000 in the Superior 

Court of New Jersey, Atlantic County, led to a sentence of fifty 

years with a thirty year period of parole ineligibility. The 

Superior Court of New Jersey, Appellate Division (“Appellate 

Division”) affirmed Petitioner’s conviction on May 24, 2002.1 

The New Jersey Supreme Court denied Petitioner’s petition for 

certification by order filed on October 21, 2002.

Petitioner filed a motion for post-conviction relief 

(“PCR”) in the trial court on May 16, 2003.2 PCR was denied on 

August 22, 2007. Petitioner filed an appeal to the PCR decision 

in Appellate Division on January 12, 2010. The Appellate 

Division affirmed on May 21, 2010. Petitioner then appealed to 

the New Jersey Supreme Court on June 2, 2010 and certification 

was denied on October 5, 2010. 

 1

In his initial Petition, Petitioner lists this date as June 21, 2002. The May 24, 2002 date 

is taken from Petitioner’s most recent filing. 

2

In his initial Petition, Petitioner lists this date as June 2, 2003. The May 16, 2003 date is 

taken from Petitioner’s most recent filing.

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Petitioner signed the instant petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254 challenging the state court

conviction for filing on February 9, 2011, and it was docketed 

by the Clerk of the Court on February 25, 2011. He was advised 

of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 

2000), and an Order to Answer was issued. On July 8, 2011, 

Petitioner filed his first motion to stay this matter (docket 

entry no. 11), claiming that he wishes to pursue nine previously 

unexhausted issues in state court. None of those proposed 

claims were raised in the initial petition. Petitioner states 

that those issues were recently discovered with the help of a 

paralegal at the prison.

On January 9, 2012, this Court entered a Notice and Order 

(docket entry no. 14) to deny Petitioner’s first motion to stay, 

without prejudice to Petitioner filing a response which would 

include a properly supported motion to amend the petition to add 

new claims contained in the addendum to Petitioner’s Motion to 

Stay, to equitably toll the statute of limitations, and to stay 

the petition, as amended.

Petitioner filed his response, including an amended 

Petition (docket entry no. 15), a request to proceed in forma 

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pauperis3 (docket entry no. 16), and an Amended Motion for Stay 

and Abeyance (docket entry no. 17). Petitioner’s amended motion 

set forth his arguments as to why he believes that the Petition 

should be stayed, and provided further dates, as listed above, 

regarding the timeliness of the Petition. 

DISCUSSION

A. Pleading Standards

A pro se pleading is held to less stringent standards than 

more formal pleadings drafted by lawyers. See 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). 

B. The Petition is Time-Barred

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 

 3

Petitioner paid the filing fee on April 25, 2011.

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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.

28 U.S.C. § 2254(a). A petitioner’s ability to pursue the writ 

of habeas corpus is subject to various affirmative defenses, 

including the defense that the petition is time-barred.

The limitations 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

(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 

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pending shall not be counted toward any period of 

limitation under this section.

Thus, evaluation of the timeliness of this § 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” for tolling purposes.

A state court criminal judgment becomes “final” within the 

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

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. 

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 

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is never filed, Swartz, 204 F.3d at 420-24.4

 However, “the time 

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).” Stokes v. 

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

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

The limitations period of § 2244(d) is also subject 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). Equitable 

tolling applies:

only when the principles of equity would make the 

rigid application of a limitation period unfair. 

Generally, this will occur when the petitioner has in 

some extraordinary way been prevented from asserting 

his or her rights. The petitioner must show that he or 

she exercised reasonable diligence in investigating 

and bringing the claims. Mere excusable neglect is not 

sufficient.

Miller, 145 F.3d at 618-19 (citations and punctuation marks 

omitted). Among other circumstances, the Court of Appeals for 

 4

 To statutorily toll the limitations period pursuant to § 2244(d)(2), a state petition for 

post-conviction relief must be “properly filed.” Artuz v. Bennett, 531 U.S. 4, 8-9 (2000); see

also Pace v. DiGuglielmo, 544 U.S. 408 (2005) (state PCR petition rejected as untimely under 

state statute of limitations was not “properly filed” for purposes of § 2244 (d)(2)).

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the Third Circuit has held that equitable tolling may be 

appropriate “if the plaintiff has timely asserted his rights 

mistakenly in the wrong forum,” i.e., if a petitioner has filed 

a timely but unexhausted federal habeas petition. See Jones, 

195 F.3d at 159; see also Duncan v. Walker, 533 U.S. 167, 183 

(2001) (Stevens, J., joined by Souter, J., concurring in part) 

(“neither the Court’s narrow holding [that the limitations 

period is not statutorily tolled during the pendency of a 

premature federal habeas petition], nor anything in the text or 

legislative history of AEDPA, precludes a federal court from 

deeming the limitations period tolled for such a petition as a 

matter of equity”); 533 U.S. at 192 (Breyer, J., dissenting, 

joined by Ginsburg, J.) (characterizing Justice Stevens's 

suggestion as “sound”).

Here, Petitioner’s direct appeal concluded on October 21, 

2002, and the last date in which Petitioner could have 

petitioned the United States Supreme Court for certiorari would 

have been January 19, 2003. Thus, the conviction became “final” 

on that date. Petitioner had one year, or until January 19, 

2004, to file an application for a writ of habeas corpus in this 

Court.

 

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Petitioner did file his PCR motion within that time period, 

on May 16, 2003, tolling the statute of limitations at that 

point with less than four months having run on the limitations 

period, and allowing over eight months still available before 

the expiration of the limitations period. PCR was denied on 

August 22, 2007, but Petitioner did not file his appeal to the 

PCR division in Appellate Division until January 12, 2010. 

Thus, even though Petitioner had approximately eight months left 

on his statutory limitations period at the time PCR was denied, 

he allowed the one year limitations period to run out well 

before he filed his appeal, which was not filed for over two 

years after PCR was denied. 

Further, the Appellate Division affirmed on May 21, 2010, 

and Petitioner then quickly appealed to the New Jersey Supreme 

Court on June 2, 2010, but that short turnaround is of no 

consequence for the limitations analysis since the one year 

statutory period had previously been exhausted. Finally, after 

certification was denied on October 5, 2010, Petitioner did not 

signed the instant petition for filing until February 9, 2011, 

allowing even more time to run on the already elapsed 

limitations period. 

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In the January 9, 2012 Notice and Order, this Court 

afforded Petitioner the opportunity to address the timeliness 

issue. This Court has reviewed Petitioner’s filings and finds 

that Petitioner asserts no facts that would indicate that his 

petition should be equitably tolled. Accordingly, this petition 

must be dismissed as time-barred. Since the Petition must be 

dismissed as time-barred, the Court will not address the issue 

of whether a stay would be appropriate.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice 

or judge issues a certificate of appealability, an appeal may 

not be taken from a final order in a proceeding under 28 U.S.C. 

§ 2254. A certificate of appealability may issue “only if the 

applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner 

satisfies this standard by demonstrating that jurists of reason 

could disagree with the district court's resolution of his 

constitutional claims or that jurists could conclude the issues 

presented are adequate to deserve encouragement to proceed 

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

“When the district court denies a habeas petition on 

procedural grounds without reaching the prisoner's underlying 

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constitutional claim, a COA should issue when the prisoner 

shows, at least, that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a 

constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its 

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 

(2000). Here, reasonable jurists would not find this Court’s 

procedural ruling debatable. Accordingly, no certificate of 

appealability shall issue.

CONCLUSION

For the reasons set forth above, the request to proceed in

forma pauperis is denied, the amended motion to stay is denied 

as moot, and the petition is dismissed with prejudice as timebarred. An appropriate order follows.

At Camden, New Jersey s/ Noel L. Hillman 

Noel L. Hillman

United States District Judge

Dated: August 17, 2012

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