*NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

DARNELL DIXON, :

: Civil Action No. 11-3213 (SDW)

Petitioner, :

:

v. : OPINION

:

GREG BARTKOWSKI, et al., :

:

Respondents. :

:

WIGENTON, District Judge:

Presently before the Court is Petitioner Darnell Dixon’s application for relief from a 

judgment or order pursuant to Rule 60(b). (ECF No. 34). For the following reasons, this Court 

will deny Petitioner’s Rule 60(b) motion. 

I. BACKGROUND

Because Judge Cavanaugh recounted the facts underlying Petitioner’s petition for a writ of 

habeas corpus in his written decision dated October 18, 2013, only a brief recitation of that decision 

and the subsequent history of Petitioner’s case is necessary here. On October 18, 2013, this Court 

denied Petitioner’s habeas petition as time barred. (ECF No. 28 at 7-24). Specifically, this Court 

found that Petitioner was originally sentenced on May 20, 1998. (Id. at 2). Petitioner appealed, 

and the matter was remanded for resentencing, with Petitioner being resentenced on October 31, 

2000. (Id. at 3). Petitioner once again appealed, and the New Jersey Appellate Division affirmed 

on October 15, 2001. (Id. at 4). Petitioner thereafter petitioned for certification to the New 

Jersey Supreme Court, which was denied on November 7, 2002. (Id.). Petitioner filed his initial 

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post-conviction relief application on January 22, 2003. (Id.). Petitioner, however, withdrew that 

application at some point in 2003. (Id.; Exhibit N attached as Document 8 to ECF No. 23 at 6). 

Petitioner didn’t refile his PCR application until September 19, 2006. (ECF No. 28 at 4). The 

PCR court ultimately denied that application and found the 2006 PCR petition to be time-barred. 

(Id. at 9). This Court therefore found that as more than a year had elapsed between the withdrawal 

of the first PCR petition and the filing of the second, untimely petition, and because the second 

PCR petition was filed more than a year after the time to petition for certiorari on Petitioner’s 

direct appeal expired on February 7, 2004, petitioner’s § 2254 petition was untimely filed. (Id. at 

9-10). 

Because statutory tolling was unavailable to Petitioner as he filed his second PCR more 

than one year after the withdrawal of his initial petition had passed, this Court then considered 

whether Petitioner had shown exceptional circumstances and reasonable diligence sufficient to 

benefit from equitable tolling. (Id. at 10-13). As to exceptional circumstances, this Court

rejected Petitioner’s argument that alleged attorney error or unsupported allegations of misconduct 

by court staff sufficed to meet Petitioner’s burden. (Id. at 13-14). Specifically, this Court held 

that

[f]irst, there is no indication of attorney misconduct or abandonment 

[here]. The facts, as determined on PCR review, show that Dixon 

voluntarily withdrew his PCR petition, which he initially filed in 

January 2003. Dixon did not write to the public defender or 

[counsel] regarding his PCR petition until March 3, 2005, well after 

the limitations period had expired. Even if the Court were to 

acknowledge the December 2004 date referenced in the March 3,

2005[,] letter to [counsel], that date still post-dates the expiration of 

Dixon’s one-year AEDPA period. In addition, Petitioner’s case has 

a convoluted history because it is intertwined with another criminal 

conviction preceding [the instant conviction]. Understandably, 

there was confusion by counsel and Dixon regarding the PCR 

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petitions to be filed in both matters, which does not tend to support 

a claim of attorney abandonment or malfeasance.

Further, Dixon’s bald allegation of malfeasance by court 

official[s] is not supported by any documentary evidence or proof. 

(Id. at 17-18). This Court also rejected Petitioner’s contention that he had diligently pursued his 

rights given the lengthy period between the withdrawal of Petitioner’s first PCR petition in 2003 

and his contacting counsel in 2005, let alone his filing of his 2006 PCR. (Id. at 19-20). This 

Court therefore found no basis for equitable tolling and dismissed Petitioner’s habeas petition as 

untimely.

After this Court’s order and opinion were entered, Petitioner filed a notice of appeal on 

November 22, 2013. (ECF No. 30). The Third Circuit construed the notice of appeal as also 

making a request for a certificate of appealability, and ultimately denied Petitioner a certificate of 

appealability on May 19, 2014. (ECF No. 32). In so doing the Third Circuit made the following 

ruling:

[Petitioner’s] application for a certificate of appealability is denied. 

Even if reasonable jurists might debate the District Court’s ruling 

that [Petitioner’s] habeas petition was untimely (including the 

District Court’s reliance on the Post Conviction Relief (“PCR”) 

court’s conclusion that appellant withdrew a PCR petition that he 

filed in 2003), reasonable jurists would not debate whether appellant 

has stated a valid claim of the denial of a constitutional right. See 

28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 

(2000). In particular, reasonable jurists would not debate whether 

the state courts’ rejection of the four claims [Petitioner] asserted in 

his habeas petition is contrary to or an unreasonable application of 

clearly established federal law, primarily for the reasons the state 

courts explained. See 28 U.S.C. § 2254(d)(1). Reasonable jurists 

also would not debate the merits of the six claims that [Petitioner]

asserted in his “supplement.” In addition, even if [Petitioner’s]

initial habeas petition were deemed timely, the claims he asserted in 

his supplement do not relate back to that petition and are untimely 

because [Petitioner] filed his supplement well more than one year 

after the latest date on which the statute of limitations could be 

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deemed to have begun running. See United States v. Thomas, 221 

F.3d 430, 436 (3d Cir. 2000). For these reasons, appellant’s claims 

do not deserve “encouragement to proceed further.” Slack, 529 

U.S. at 484 (quotation marks omitted).

(ECF No. 32 at 1).

II. PETITIONER’S RULE 60(b) MOTION

A. Legal Standard

“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of 

his case, under a limited set of circumstances including fraud, mistake, and newly discovered 

evidence.” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). “The remedy provided by Rule 60(b) 

is extraordinary, and special circumstances must justify granting relief under it.” Jones v. 

Citigroup, Inc., Civil Action No. 14-6547, 2015 WL 3385938, at *3 (D.N.J. May 26, 2015) 

(quoting Moolenaar v. Gov’t of the Virgin Islands, 822 F.3d 1342, 1346 (3d Cir. 1987). A Rule 

60(b) motion “may not be used as a substitute for appeal, and that legal error, without more cannot 

justify granting a Rule 60(b) motion.” Holland v. Holt, 409 F. App’x 494, 497 (3d Cir. 2010) 

(quoting Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988)). A motion under Rule 60(b) may not 

be granted where the moving party could have raised the same legal argument by means of a direct 

appeal. Id.

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B. Analysis

In his Rule 60(b) motion, Petitioner argues at length that this Court should excuse his 

procedural default and permit him to litigate his habeas petition on the merits.1 To the extent that 

Petitioner attempts to argue that Martinez v. Ryan, 132 S. Ct. 1309 (2012), would permit him to 

excuse his timeliness problems by showing inadequate assistance of counsel during his first PCR, 

this Court has already addressed that argument and rejected it. (ECF No. 28 at 21-22). 

Regardless of Petitioner’s arguments as to procedural default, Petitioner has failed to present any 

meritorious argument as to the timeliness of his petition, and therefore has provided no basis for 

relief from this Court’s prior order. 

Petitions brought pursuant to 28 U.S.C. § 2254 are subject to a one year statute of 

limitations which begins to run on the “date on which the judgment became final by the conclusion 

of direct review or the expiration of the 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 Figueroa v. 

Buechele, No. 15-1200, 2015 WL 1403829, at *2 (D.N.J. Mar. 25, 2015). The New Jersey 

Supreme Court denied Petitioner’s petition for certification on November 7, 2002. The 90 days 

for filing a petition for certiorari on that appeal therefore had run as of February 7, 2003. Thus, 

absent tolling, Petitioner’s habeas petition would be untimely if not filed by February 7, 2004.

Normally, a properly filed PCR application will statutorily toll the AEDPA limitations 

period. Id. Although Petitioner filed a PCR application in 2003, he withdrew that application in 

 1 Petitioner is unclear as to whether he’s seeking to reopen this Court’s opinion and order or the 

judgment of the Third Circuit. As this Court lacks the jurisdiction or authority to do the latter, 

this Court will assume for the purposes of this opinion that Petitioner seeks relief from this 

Court’s final order and opinion.

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that same year. Petitioner did not file another PCR application until September 19, 2006, long 

after the one year period had run from the withdrawal of Petitioner’s first PCR application in 2003. 

As such, even had the 2006 PCR application been timely and sufficient to toll the limitations 

period, it would have been of no benefit to Petitioner as the one-year AEDPA limitations period 

had already run. Thus, this petition is time barred absent equitable tolling. 

Equitable tolling “is a remedy which should be invoked ‘only sparingly.’” United States 

v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 

179 (3d Cir. 1998)). To merit equitable tolling, a petition must show “(1) that he faced 

‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that he exercised 

reasonable diligence.” United States v. Johnson, 590 F. App’x 176, 179 (3d Cir. 2014) (quoting 

Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). In non-capital cases such as this one, an 

attorney’s “malfeasance or non-feasance is typically not an ‘extraordinary circumstance which 

justifies equitable tolling of a [habeas petition].” Bass, 268 F. App’x at 199; see also Schlueter v. 

Varner, 384 F.3d 69, 76 (3d Cir. 2004). The exception to this general rule applies only in that 

small group of cases where the attorney’s malfeasance comes in the form of an affirmative 

misrepresentation to the petitioner and is coupled with extreme diligence on the part of the 

petitioner. See Schlueter, 384 F.3d at 76; see also Seitzinger v. Reading Hosp. & Med. Ctr., 165 

F.3d 236, 239-42 (3d Cir. 1999).

As this Court found in its October 2013 opinion, Petitioner has failed to show either 

extraordinary circumstances or reasonable diligence. As to the circumstances, Petitioner argues 

ineffective assistance of counsel, effectively attorney nonfeasance or malfeasance, and that certain 

court officials acted improperly. Neither argument is availing to Petitioner as there is no evidence 

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in the record to support the latter assertion, and the former in and of itself is patently insufficient 

to establish extraordinary circumstances to warrant tolling. See Bass, 268 F. App’x at 199;

Schlueter, 384 F.3d at 76. (See also ECF No. 28 at 17-20). Likewise, this Court’s prior opinion 

was entirely correct that Petitioner’s failure to take any action in regards to his PCR between 

withdrawing the first Petition in 2003 and writing to the PD’s office in 2005 indicates that 

Petitioner failed to show that he was reasonably diligent in pursuing his PCR and habeas rights. 

As such, even were Petitioner able to show extraordinary circumstances, he would not be entitled 

to equitable tolling. His petition was therefore properly dismissed as time barred, and Petitioner’s 

arguments provide no basis for the granting of relief from this Court’s October 2013 order.

Aside from the lack of a basis for tolling, Petitioner’s 60(b) motion faces an additional 

hurdle in so much as he has already appealed this Court’s order and had his request for a certificate 

of appealability denied. Although the Third Circuit did not decide the timeliness question as to 

all of Petitioner’s claims in its order denying the certificate, the Court of Appeals did hold that

reasonable jurists would not debate whether appellant has 

stated a valid claim of the denial of a constitutional right. See 28 

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

In particular, reasonable jurists would not debate whether the state 

courts’ rejection of the four claims [Petitioner] asserted in his habeas 

petition is contrary to or an unreasonable application of clearly 

established federal law, primarily for the reasons the state courts 

explained. See 28 U.S.C. § 2254(d)(1). Reasonable jurists also 

would not debate the merits of the six claims that [Petitioner] 

asserted in his “supplement.” In addition, even if [Petitioner’s] 

initial habeas petition were deemed timely, the claims he asserted in

his supplement do not relate back to that petition and are untimely 

because [Petitioner] filed his supplement well more than one year 

after the latest date on which the statute of limitations could be 

deemed to have begun running.

(ECF No. 32 at 1). The Third Circuit has therefore rejected Petitioner’s habeas arguments in its 

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order denying a certificate of appealability. As Petitioner had the opportunity to raise these 

arguments in his request for a certificate of appealability before the Third Circuit, and as the Third 

Circuit rejected the merits of his habeas claims in denying his request, there is no basis for granting 

Petitioner’s motion. See Holland, 409 F. App’x at 497 (motion cannot be used to litigate issues 

that could have been raised on appeal).

IV. CONCLUSION

For the reasons stated above, Petitioner’s Rule 60(b) motion is DENIED. An appropriate 

order follows. 

Dated: July 14, 2015 _s/ Susan D. Wigenton_______

Hon. Susan D. Wigenton, 

United States District Judge

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