Petitioner.

Civil No. 11-1873 (SRC)

V.

GREG BARTKOW SKI et al

OPINION

Respondents

APPEARANCES

MANUEL H \VISPE Q07174B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

Petitioner Pro Se

STEPHANIE DAVIS- ELSON. Assistant Prosecutor

HUDSON COUNTY PROSECUTOR

574 Newark Avenue

Jersey City, New Jersey 07306

Attorneys for Respondents

ERDisthctJude

Manuel H Wispe filed a Petition for a Writ of Habeas Corpus pursuant to 28 U S C §

254(a) challenging a judgment of coiwiction enteied in the Superior Court of New Jersey on

M web 15, 1995, aftLr a iur round him guilty of the purposeful and knowing murder ofJairo

Zapata and weapons offenses. Respondents filed an Answer arguing that the Petition should hedismissed as time barred or on the merits. Wispe filed a Reply and an Amended Reply. For the

reasons expressed below, this Court will dismiss the Petition as untimely and deny a certificate of

appeal abilit.
(Dkt. 8-9.) Wispe appealed. On Februar 4, 1997, the New Jersey Superior Court. Appellate

Division. affirmed. See State v. Wispe. Docket No. A-4893-94T4 si. opinion (N.J. Super. Ct..

App. Div.. Feb. 4. 1997) (Dkt. 8-15). The New Jersey Supreme Court denied certification onMay 21. 1997. See State v. Wispe, 149 N.J. 407 (1997) (table).

On March 10. 2000, through counsel. Wispe filed his first state petition for postconviction relief (“PCR”). (Dkt. Nos. 8-20. 8-53 at p. 2.) The Law Division denied relief by

order entered August 17. 2001. (Dkt. 8-30.) On December 30, 2002, the Appellate Divisionaffirmed. See State v. Wispe, Docket No. A-6592-00T5 si. opinion (N.J. Super. Ct., App. Div.,

Dec. 30, 2002) (Dkt, 8-46). The New Jersey Supreme Court denied certification on March 18,2003. See State v. Wispe, 176 N.J. 72 (2003) (table).

On December 4, 2007, Wispe filed a second pro se PCR petition in the Law Division.

(Dkt. 8-53.) By order filed June 30, 2008, the Law Division denied relief without an evidentiary

hearing, (Dkt. 8-57.) On April 14. 2010, the Appellate Division affirmed, finding that all butone of Wispe’s grounds were barred by New Jersey Court Rule 3:22-4 because he could have

raised them on direct appeal, and that the alleged violation 373 U.S. 83(1963) based on newly discovered evidence was too speculative to support a claim that Wispe’s

father was an undisclosed confidential informant. See State v. Wispe. Docket No. A-0344-08T4

sl. opinion (N.J. Super. Ct.. App. Div.. Apr. 14, 2010) (Dkt. 8-72). The New Jersey Supreme

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Petition raises fiur wounds:

Ground One: FAILURE TO GIVE JURY AN IDENTIFICATIONCHARGE, AS WELL AS THE DEFENSE FAILURE TO

INVESTIGATE FACTS PERTAINING TO OTHER SUSPECTS

AND FLIGHT EVIDENCE.

Ground Two: I DO NOT HAVE A PROPERLY SIGNED

INDICTMENT, NOR HAS ANYONE PROVIDED ME WITH

GRAND JURY TRANSCRIPTS. EVER.Ground Three: NO TRUE FLIGHT EVIDENCE.

Ground Four: BALLISTICS DESCRIPTION OF GUN. GUN

DESCRIBED BY EYEWITNESSES (SILVER, LONG BARREL)

WAS NOT MY FATHER’S GUN.

(Dkt. 1 at 5-10.)

Wispe also raised the following grounds in his brief filed with the Petition:

Point I: PROSECUTORIAL MISCONDUCT OF WILLFUL NON

DISCLOSURE OF BRADY MATERIAL. DEFENDANT/WISPE. JR. WAS

NOT INDICTED BY AN INDEPENDENT AND INFORMED GRAND JURY

IN VIOLATION OF THE SIXTH AMENDMENT OF THE U.S.

CONSTITUTION AND INEFFECTIVE ASSISTANCE OF COUNSEL DURING

TRIAL.

Point II: THE TRIAL COURT S UN rSTENTIONALLY OBSTRUCTING OF

GOX ER\M\ f AL OPER \TIO\S B’ THE COI/RT S PRE I1 DIE [AL OF

THE JtR’ OF \\ FIlCH \ lOLA FED HIS CO\STITF TIO\ \T RIGHTS TO A

FAIR & IMPARTiAL TRIAL.

Point III: PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHTS TO

A FAIR & IMPARTIAL TRIAL BY THE TRIAL COURT AND HIS

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COUNSEL.

Point V: PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL FOR COUNSEL’S FAILURE TO OBTAIN A BALLiSTICS

EXPERT TO EXAMINE THE WEAPON AND WEAPON’S EVIDENCE AND

PROSECUTORIAL MISCONDUCT DURING THE SUMMATION.

Point VI: THE[REJ WAS INSUFFICIENT EVIDENCE TO CONVICT MR.WISPE, JR. AND TKE[RE] WAS THE FAILURE OF COUNSEL TO

CHALLENGE THE VALIDITY OF THE IDENTIFICATION AT TRIAL AND

ON DIRECT APPEAL

(Dkt. I-I at 2-3.)

The state filed an Answer, arguing that the Petition should be dismissed as untimely or on

the merits. (Dkt. 8.) Wispe filed a Reply and an Amended Reply. (Dkt. Nos. 12, 13.)

II. DISCUSSION

A. Statute of Limitations

In this case, Respondents’ Answer raises the statute oflimitations as an affirmative

defense, arguing that this Court should dismiss the Petition as time barred:

[PJetitioner’s conviction became final on August 19, 1997. There was a lapse of

934 days before he properly filed his first PCR. The instant habeas corpus

petition was tiled April 1. 2011 There ftwe. respondents contend that this

habeas petition is out of time and must he dismissed.

(Dkt. 8-2 at 1 0.) This Court will accordingly determine whether the Petition is time barred.

“Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.

1214, a state prisoner has one year to file a federal petition for habeas corpus relief, starting from

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[TJhe text of 2244(d)( I )(A). which marks finality as of “the conclusion of direct

review or the expiration of the time for seeking such review.” consists of two

prongs. Each prong - the conclusion of direct review” and the “expiration of thetime for seeking such review” - relates to a distinct category of petitioners. Forpetitioners who pursue direct review all the way to this Court. the judgment

becomes final at the conc1usion of direct review” -when this Court affirms a

conviction on the merits or denies a petition for certiorari. For all other

petitioners, the judgment becomes final at the “expiration ofthe time for seeking

such review” -when the time for pursuing direct review in this Court, or in state

court, expires.

Gonzalez, 132 S.Ct. at 653-54.

Section 2244(d) provides that the limitations period runs from the latest of

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration ofthe time for seeking suchreview;(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws ofthe United States is removed, ifthe applicant was prevented fromfiling by such State action;

(C) the date on which the constitutional right asserted was initially

recoiized by the Supreme Court, ifthe right has been newly

recognized by the Supreme Court and made retroactivelyapplicable to cases on collateral review; or(D) the date on which the factual predicate ofthe claim or claims

presented could have been discovered through the exercise of due

diligence . . .

28 U.S.C. 2244(d)(l).
direct review. See Long v. Wilson, 393 F.3d 390 394 (3d Cir. 2004): Kapral v. United States,

166 F.3d 565, 575 (3d Cir. 1999); 28 U.S.C. § 2244(d)(1)(A). The New Jersey Supreme Court

denied certification on direct review on May 21, 1997. The 90-day period began the next day -

May 22, 1997 - and expired on August 20, 1997. The statute oflimitations began on August 21,

1997, and ran for the next 365 days until, in the absence ofstatutory or equitable tolling, it

expired on August 21, 1998.

B. Statutory Tolling

Section 2244(d)(2) of Title 28 requires statutory tolling under the following

circumstances: “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.” 28 U.S.C. § 2244(d)(2).

In this case, Wispe did not file his first PCR petition until March 10, 2000. Because

Wispe did not have an application for State post-conviction review pending at any time from

August 21, 1997, through August 21, 199, he is not entitled to statutory tolling. See Long, 393F3d at 394-95 (state post conviction review petition had no effect on tolling because the

limitations period had already run when it was tiled); Schlueter v. \‘arner, 384 F.3d 69, 78-79 (3d

Cir. 2004) (same).

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Urcinoli, 546 F. 3d at 272 (quoting Shendock v. Dir.. Office of Workers’ Comp. Programs, 893

F. 2d 1458. 1462 (3d Cir. 1990)). “Generally. a litigant seeking equitable toiling 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. 130 S. Ct. at2562 (quoting

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also LaCava v. Kyler, 398 F.3d 271, 275-

276 (3d Cir. 2005). Extraordinary circumstances have been found where “(1) the defendant has

actively misled the plaintiff; (2) ifthe plaintiff has in some extraordinary way been prevented

from asserting his rights; or (3) if the plaintiff has timely asserted his rights mistakenly in the

wrong forum.” Urcinoli, 546 F. 3d at 272 (quoting Satterfield v. Johnson, 434 F. 3d 185, 195 (3d

Cir. 2006) (internal quotation marks omitted).

In this case, Respondents raised the statute of limitations as an affirmative defense in the

Answer. Wispe filed a Reply and an Amended Reply, but neither addressed the statute of

limitations defense or argued that Wispe is entitled to equitable or statutory toIling. Wispe did

address the statute of limitations in his brief filed with the Petition. (Dkt. 1-I at 10.) Heasserted that the Petition was timely because his conviction became final on December 23. 2010,

90 days after the date the New .Jersey Supreme Court denied certification on his second PCR

petition on September 23, 2010. According to Wispe’s reasoning, his § 2254 Petition was

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has ruled that “a garden variety claim of excusable neglect... does not warrant equitable

tolling.” Holland, 130 S. Ct. at 2564 (citations and internal quotation marks omitted). 2This

Court finds that neither Petitioner’s ignorance of the limitations period nor his excusable neglect

is an extraordinary circumstance warranting equitable tolling. Moreover, this Court has reviewedWispe’s submissions, as well as the state court opinions and orders, and discerns no

extraordinary circumstance to warrant equitable tolling ofthe statute of limitations in this case.This Court finds that reaching the merits of the Petition is not in the interest ofjustice, and will

dismiss the Petition as time barred. See Day v. McDonou, 547 U.S. 198, 210(2006).

D. Certificate of Appealability

The AEDPA provides that an appeal may not be taken to the court of appeals from a final

order in a § 2254 proceeding unless a judge issues a certificate of appealability on the ground that

“the applicant has made a substantial showing ofthe denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This Court denies a certificate of appealability because jurists ofreason would not

find it debatable that dismissal of the Petition as untimely is correct. Slack v. McDaniel, 529

2 Compare Lawrence v. Florida. 549 US. 327, 336-37 (2007) (rejecting the argument that

“counsel’s mistake in miscalculating the limitations period entitles [a petitioner] to equitable

tolling. If credited, this argument would essentially equitably toll limitations periods for every

person whose attorney missed a deadline”) with Holland v. Florida, 130 S.Ct. 2549, 2562 (2010)(“an attorney’s tilurc to satisfi professional standards of care” can warrant equitable tolling

where the attorney misconduct is eueeious).

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whether the district court was correct in its procedural ruling”).

III. CONCLUSION

Based on the foregoing. the Court dismisses the Petition as untimely and denies a

certificate of appealability.

DATED:

CHESLER. U.S.D.J.

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