NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AGUSTIN GARCIA,

Civil Action No, 11-3689 (DM0)

Petitioner,

v. : OPINION

GREG BARTKOWSKI,

Respondent.

APPEARANCES:

Petitioner pg se

Agustin Gardia

New Jersey State Prison

Trenton, NJ 08625

CAVANAUGH, District Judge

Petitioner Agustin Garcia, a prisoner currently confined at

New Jersey State Prison at Trenton, New Jersey, has submitted a

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

§ 2254’ and an application to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915(a). The respondent is Administrator Greg

Bartkowski.

‘ Section 2254 provides in relevant 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,

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Based on his affidavit of indigence, the Court will grant

Petitioner’s application to proceed jj forma pauperis. Because

it appears from a review of the Petition that the Petition is

untimely, this Court will order Petitioner to show cause why the

Petition should not be dismissed with prejudice. See 28 U.S.C. §

2243.

I. BACKGROUND

The facts surrounding Petitioner’s conviction are briefly

set forth in the opinion of the Superior Court of New Jersey,

Appellate Division. 2

Defendant is serving a life sentence with a

thirty-year period of parole ineligibility following a

lengthy jury trial and his conviction for murdering his

former girlfriend, Gladys Ricart, shooting her three

times at close range in her home on the day of her

intended wedding to another man. The shooting was

witnessed by several wedding guests and recorded by the

videographer hired by the bride to memorialize the

wedding festivities. Defendant testified in his

defense, explaining he was attacked by the bride’s

brothers after he entered the house, there was a

struggle, he reached for his gun and blacked out; later

learning the bride had been killed. On February 1,

2002, defendant was sentenced to life in prison for the

murder, subject to a thirty-year period of parole ineligibility. A consecutive four-year term of

imprisonment was imposed for the weapons offense along with two concurrent four-year terms for endangering the

welfare of a child.

2 Pursuant to 28 U.S.C. § 2254(e) (1), “In a proceeding 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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State v. Garcia, 2011 WL 3516933, *1 (N.J. Super. App.Div, Aug.

12, 2011)

On direct appeal, the Appellate Division affirmed

Petitioner’s convictions and the sentences imposed for murder and

the weapons offenses. The Appellate Division reversed the

convictions for endangering the welfare of a child. On September

10, 2004, the Supreme Court of New Jersey denied certification.

State v. Garcia, 181 N.J. 545 (2004) . Petitioner did not seek a

writ of certiorari from the Supreme Court of the United States.

Petitioner alleges that he filed his first Petition for

post-conviction relief on January 3, 2005. The PCR court denied

relief on May 4, 2007. On November 6, 2009, the Appellate

Division affirmed the denial of PCR relief, State v. Garcia, 2009

WL 3808269 (N.J. Super. App.Div. Nov. 6, 2009), and on June 21,

2010, the Supreme Court of New Jersey denied certification, State

v. Garcia, 202 N.J. 348 (2010).

While the appeal of the first PCR petition was pending,

Petitioner filed a second state PCR petition on April 15, 2008.

The PCR court found the second PCR petition untimely and also

denied on the merits the claims presented therein, Similarly, on

August 12, 2011, the Appellate Division affirmed the PCR court’s

findings in their entirety, holding the second PCR petition both

untimely and meritless.

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Because more than five years had passed from the

entry of the judgment of conviction, review of

defendant’s contentions is precluded. R. 3:22-12.

We have considered defendant’s argument that there

is sufficient evidence supporting excusable neglect to

warrant a waiver of the time bar imposed by Rule 3:22-

12(a) and are not persuaded. Defendant maintains the

time spent presenting his direct appeal and first PCR

qualifies as excusable neglect. Were this an

acceptable position, the limitation of the rule would

be rendered meaningless, Defendant had ample

opportunity to present claims of error in these prior

proceedings.

State v, Garcia, 2011 WL 3516933, *3*4 (N.J. Super. App.Div.

Aug. 12, 2011) . On March 9, 2012, the Supreme Court denied

certification with respect to this second state PCR petition.

State v. Garcia, 209 N.J. 596 (2012).

Petitioner asserts that he filed a third state PCR petition

on October 23, 20l0, which was denied on December 15, 2010.

Reconsideration was denied on March 3, 2011. Based on the

discussion of the third state PCR petition contained in the Brief

attached to the Petition, it appears that the third state PCR

petition also was dismissed as untimely. Petitioner asserts that

the appeal of his third state PCR petition has not yet been

decided.

In his attached brief, Petitioner states that he mailed

his third PCR petition on November 8, 2010. (Brief at 11.)

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In this Petition, 4Petitioner asserts the following grounds

for relief: (1) multiple claims of ineffective assistance of

trial, appellate, and PCR counsel; 5(2) multiple claims of

prosecutorial misconduct, including claims of procurement of

perjured testimony, tampering with evidence, and failure to

provide material exculpatory evidence in violation of Brady v.

Maryland, 373 U.s. 83 (1972); (3) denial of the right to be tried

by a fair and impartial jury; (4) erroneous jury instructions;

(5) denial of the right to present a full defense; (6) error in

the admission of the wedding videotape; (7) Petitioner’s oral

statement should have been suppressed; (8) violations of due

process rights by the PCR court; 6 (9) the trial court denied

Although the Petition is undated, Petitioner’s attached

certification is dated May 30, 2011, A separate certification

regarding Petitioner’s institutional account statement, attached

to the application for leave to proceed j forma pauperis which

accompanied the Petition, is dated June 7, 2011. Accordingly, it

does not appear that the Petition could have been mailed before

June 7, 2011, which will be deemed the date of filing for

purposes of this Opinion. Burns v. Morton, 134 F.3d 109 (3d

Cir. 1998) (typically, a pro se prisoner’s habeas petition is

deemed filed at the moment he delivers it to prison officials for

mailing to the district court) (citing Houston v. Lack, 487 U.S.

2676 (1988)) . Nevertheless, the same result would obtain if the

Petition were deemed filed on May 30, 2011.

Ineffective assistance of counsel in state post-conviction

relief proceedings is not a ground for relief in a federal habeas

corpus action. See 28 U.S.C. § 2254(i).

6 Errors in state post-conviction relief proceedings are

collateral to the conviction and sentence and do not give rise to

a claim for federal habeas relief. ,e.g., Hassine v.

Zimmerman, 160 F.3d 941, 954 (3d Cir.1998), cert. denied, 526

U.S. 1065 (1999) (“The federal role in reviewing an application

5

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Petitioner’s due process rights when it denied certain pre-trial

motions, including motions for experts and motions to disqualify

the prosecutor and trial judge; (10) Plaintiff is actually

innocent of murder and should have been convicted of

passion/provocation manslaughter.

It appears that this Petition is untimely, however, and

Petitioner will be ordered to show cause why it should not be

dismissed.

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.

Thus, “Federal courts are authorized to dismiss summarily

any habeas petition that appears legally insufficient on its

face.” McFarland v. Scott, 512 U.S. 849, 856 (1994) See also

Rule 4 of the Rules Governing Section 2254 Cases in the United

for habeas corpus is limited to evaluating what occurred in the

state or federal proceedings that actually led to the

petitioner’s conviction; what occurred in the petitioner’s

collateral proceeding does not enter into the habeas

calculation.... Federal habeas power is ‘limited ... to a

determination of whether there has been an improper detention by virtue of the state court judgment,”); Ferguson v. State, 1996 ML

1056727 (D.Del. 1996) and cases cited therein.

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States District Courts (“If it plainly appears from the petition

and any attached exhibits that the petitioner is not entitled to

relief in the district court, the judge must dismiss the petition

(emphasis added))

Moreover, “[h]abeas corpus petitions must meet heightened

pleading requirements.” McFarland v. Scott, 512 U.S. at 856, A

petition must “specify all the grounds for relief” and must set

forth “facts supporting each ground.” Rule 2(b) of the Rules

Governing Section 2254 Cases in the United States District

Courts.

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. 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.

Brierly, 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. j

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.

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III. ANALYSIS

A. Untimeliness of the Petition

The limitation period for a § 2254 habeas petition is set

forth in 28 U.S.C. § 2244(d), 7which 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

pending shall not be counted toward any period of

limitation under this section.

The limitations period is applied on a claim-by-claim

basis. .Q Fielder v. Verner, 379 F.3d 113 (3d cir. 2004), cert.

denied, 543 U.S. 1067 (2005); Sweger v. chesney, 294 F.3d 506 (3d cir. 2002).

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Here, Plaintiff has alleged no facts suggesting that the

limitations period for any of his viable 8claims should be

measured from any date other than the date that his conviction

became final, under § 2244 Cd) (1) (A) . 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 postconviction 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

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.l (3d

Cir. 1999); U.S. Sup. Ct. R. 13. A state court’s grant of leave

to file an out-of-time direct appeal resets the date when the

conviction becomes final under § 2244 (d) (1) . Jimenez v.

Quartermain, 555 U.S. 113 (2009).

Here, Petitioner’s conviction became final on December 9,

2004, ninety days after the Supreme Court of New Jersey denied

certification on September 10, 2004. Thus, he had until December

B That the factual predicate of Petitioner’s claims related

to his post-conviction relief proceedings, or the performance of

counsel in those proceedings, did not arise until after the date

Petitioner’s conviction became final is not relevant, as those

claims do not provide a basis for federal habeas relief.

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9, 2005, to file his federal habeas petition, unless there is

some grounds to toll the limitations period.

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

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 post

conviction 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)

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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, More specifically,

“The time that an application for state post conviction review is

‘pending’ includes the period between (1) a lower court’s adverse

determination, and (2) the prisoner’s filing of a notice of

appeal, provided that the filing of the notice of appeal is

timely under state law.” Evans v. Chavis, 546 U.S. 189, 191

(2006) (finding that time between denial of post-conviction

relief and filing of appeal was not tolled where appeal was

untimely, even where state considered untimely appeal on its

merits) . 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

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County of Philadelphia, 247 E.3d 539, 542 (3d Cir,), cert.

denied, 534 U.S. 959 (2001)

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

equitable tolling. 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 E.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

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. 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

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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 filed his first, timely, state habeas

petition on January 3, 2005, 25 days after his conviction became

final. Accordingly, the limitations period was tolled until June

21, 2010, when the Supreme Court of New Jersey denied

certification with respect to that Petition. As of June 21,

2010, Petitioner had 340 days remaining on his one-year federal

limitations period, or until May 27, 2011, barring some other

basis for statutory or equitable tolling. More specifically,

barring some other basis for statutory or equitable tolling,

Petitioner had until May 27, 2011, a Friday, to place his federal

habeas petition into the prison mail system.

There does not appear to have been any further basis for

statutory or equitable tolling. The second and third state

habeas petitions were not timely filed under state law;

accordingly, they cannot toll the federal limitations period. As

to the issue of equitable tolling, Petitioner alleges in his

brief that he was advised by his public defender that he needed

to file a federal petition for writ of habeas corpus within one

year of July 9, 2010. Ineffective assistance of counsel is not

generally considered an extraordinary circumstance, justifying

The basis for the July 9 date is not clear.

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equitable tolling, where the ineffectiveness is due to counsel’s

negligence or mistake. e.g., Fahy, 240 F.3d at 244 (“In

non-capital cases, attorney error, miscalculation, inadequate

research, ore other mistakes have not been found to rise to the

‘extraordinary’ circumstances required for equitable tolling.”);

Johnson v. Hendricks, 314 F.3d 159 (3d Cir. 2002) (applying Fahy

rule where state PCR counsel provided erroneous advice as to

federal habeas filing deadline), cert. denied, 538 U.S. 1022

(2003) . Thus, any erroneous advice by Petitioner’s state PCR

counsel regarding the federal habeas filing deadline does not

provide a basis for equitable tolling.

Petitioner did not place his Petition into the prison mail

system until at least June 7, 2011, after receiving from prison

officials the necessary account certification for his application

to proceed in forma paiiperis. Thus, it appears that the Petition

is time-barred and this Court will order Petitioner to show cause

why the Petition should not be dismissed with prejudice.

B. “Mason” Notice

This Court is required by Mason v. Meyers, 208 F,3d 414 (3d

Cir. 2000), to notify Petitioner of certain consequences of

filing a § 2254 Petition under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) and to give Petitioner an opportunity

to file one all—inclusive § 2254 Petition.

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As noted above, under the AEDPA, prisoners challenging the

legality of their detention pursuant to the judgment of a State

court must marshal in one § 2254 Petition all the arguments they

have to collaterally attack the State judgment and, except in

extremely limited circumstances, file this one all-inclusive

Petition within one year of the date on which the judgment of

conviction becomes final by the conclusion of direct review or

the expiration of the time for seeking such review, 28

U.S.C. § 2244(d).

Should Petitioner contend that his Petition is timely, he

must notify the Court whether he wishes (a) to have the Petition

ruled upon as filed or (b) to withdraw the Petition and file one

all-inclusive petition within the limitations period. If

Petitioner chooses option (a) above, then Petitioner will lose

the ability to file a second or successive petition under § 2254,

absent certification by the Court of Appeals for the Third

Circuit and extraordinary circumstances. This Court makes no

finding as to whether any later-filed petition would be timely.

C. Application for Appointment of Counsel

Petitioner has asked this Court to appoint counsel to

represent him in this proceeding. In support of his application,

Petitioner asserts that he is indigent, that his case is complex,

and that “the obvious meritorious issues require effective

assistance of counsel.”

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There is no absolute constitutional right to appointed

counsel in a federal habeas corpus proceeding. Coleman v.

Thompson, 501 U.S. 722, 752 (1991); Reese v. Fulcomer, 946 F.2d

247, 263 (3d Cir. 1991), cert. denied, 503 U.S. 988 (1992),

superseded on other grounds by statute, 28 U.S.C. § 2254(d),

Pursuant to 18 U.S.C. § 3006A(a) (2) (B), however, this Court may

appoint counsel to represent an indigent habeas petitioner if it

determines “that the interests of justice so require.” See also

28 U.S.C. § 1915(e) (permitting appointment of counsel for

indigent civil litigants proceeding j forma pauperis).

In exercising its discretion under §3006A,

the district court must first decide if the petitioner

has presented a nonfrivolous claim and if the

appointment of counsel will benefit the petitioner and

the court. Factors influencing a court’s decision

include the complexity of the factual and legal issues

in the case, as well as the pro se petitioner’s ability

to investigate facts and present claims. Courts have

held, for example, that there was no abuse of a

district court’s discretion in failing to appoint

counsel when no evidentiary hearing was required and

the issues in the case had been narrowed, or the issues

were “straightforward and capable of resolution on the

record,” or the petitioner had “a good understanding of

the issues and the ability to present forcefully and

coherently his contentions.”

Reese, 946 F.2d at 263—4 (citations omitted)

This standard is essentially the same as that applied under

28 U.S.C. § 1915(e). See Parham v. Johnson, 126 F.3d 454, 456—57

(3d Cir. 1997) . In determining whether to appoint counsel to

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civil litigants proceeding forma pauperis, a court should

consider the following factors:

As a preliminary matter, the plaintiff’s claim must

have some merit in fact and law, ... If the district

court determines that the plaintiff’s claim has some

merit, then the district court should consider the

following factors:

(1) the plaintiff’s ability to present his or her

own case;

(2) the complexity of the legal issues;

(3) the degree to which factual investigation will

be necessary and the ability of the plaintiff to pursue

such investigation;

(4) the amount a case is likely to turn on

credibility determinations;

(5) whether the case will require the testimony of

expert witnesses;

(6) whether the plaintiff can attain and afford

counsel on his own behalf,

[Tabron v. Grace, 6 F.3d 147, 155-56, 157 n.5 (3d Cir.

1993), cert. denied, 510 U.S. 1196 (1994).] This list

of factors is not exhaustive, but instead should serve

as a guide post for the district courts.

Correspondingly, courts should exercise care in

appointing counsel because volunteer lawyer time is a

precious commodity and should not be wasted on

frivolous cases. Id. at 157.

Parham, 126 F.3d at 457-58.

Analysis of these factors reveals that appointment of

counsel is not appropriate at this time, As an initial matter,

it appears that the Petition is subject to dismissal as time

barred. In addition, it is clear that Petitioner has an

encyclopedic knowledge of the facts and law relevant to his

asserted grounds for relief. There will be no need to develop

any facts or hear from any expert witnesses; to the contrary, it

appears that the case will be capable of resolution based upon

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the state court record. For the foregoing reasons, the

application for appointment of counsel will be denied.

IV. CONCLUSION

For the reasons set forth above, Petitioner will be ordered

to show cause why the Petition should not be dismissed with

prejudice as untimely. An appropriate order follows.

Dennis N. Cavanaugh

United States Distri Judge

Dated:

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