UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

JOSEPH ABBOTT, :

:

Petitioner, :

:

v. :

:

STATE OF NEW JERSEY, et al., :

:

Respondents. :

 :

Hon. Jerome B. Simandle

Civil Action No. 11-2406 (JBS)

OPINION

APPEARANCES:

JOSEPH ABBOTT, #782228A

South Woods State Prison

215 Burlington Rd. South

Bridgeton, New Jersey 08302

Petitioner Pro Se 

SIMANDLE, Chief Judge:

Joseph Abbott filed a Petition for a Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254(a) challenging a judgment of

conviction entered in the Superior Court of New Jersey, Cape May

County, on December 14, 2000. By Order entered July 28, 2011,

this Court dismissed the Petition as untimely, denied a

certificate of appealability, permitted Petitioner to file a

statement showing that the Petition is not time barred, and

administratively terminated the case, subject to reopening. On

August 23, 2011, Petitioner filed a statement with various

attachments in which he argues that the Petition should not be

considered untimely. For the reasons expressed below, this Court

will reconsider whether the Petition is time barred, dismiss the

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Petition as untimely after reconsideration, and deny a

certificate of appealability.

I. BACKGROUND

Petitioner challenges a judgment of conviction entered in

the Superior Court of New Jersey, Law Division, Cape May County,

on December 14, 2000, after a jury found him guilty of attempted

aggravated sexual assault, attempted burglary, possession of a

razor knife with the purpose to use it unlawfully, and unlawful

possession of a knife. The Law Division imposed an aggregate

sentence of 20 years, with a parole ineligibility period of 10

years. See State v. Abbott, Docket No. A-3331-00T4 sl. opinion

(N.J. Super., App. Div., Nov. 21, 2002) (Dkt. 1 at 18.). 

Petitioner appealed, and on November 21, 2002, the New Jersey

Superior Court, Appellate Division, affirmed the conviction and

sentence. Id. The New Jersey Supreme Court denied certification

on March 28, 2003. State v. Abbott, 176 N.J. 74 (2003) (table). 

Petitioner filed his first state petition for postconviction relief (“PCR”) on December 1, 2003. (Dkt. 1 at 4.) 

By order filed March 23, 2004, the Law Division denied the

petition. (Dkt. 1 at 39.) Petitioner did not appeal.

Abbott states that he handed his second PCR to prison

officials for mailing to the Law Division on November 7, 2005.1

 The Superior Court, Appellate Division, states that the 1

second petition was filed in June 2006. (Dkt. 1 at 45). 

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(Dkt. 4-1 at 5, 18, 20) (Dkt. 1 at 45). He resent the second

petition for post-conviction relief on May 31, 2006. The Law

Division denied relief, and Abbott appealed. On February 23,

2010, the Appellate Division affirmed the order denying postconviction relief but remanded for correction of the judgment of

conviction to show that attempt is a second-degree, not a firstdegree, crime. See State v. Abbott, Docket No. A-5370-07T4 sl.

opinion (N.J. Super. Ct., App. Div., Feb. 23, 2010) (Dkt. 1 at

48.) The corrected judgment of conviction was filed in the Law

Division on March 8, 2010. (Dkt. 1 at 50.) The New Jersey

Supreme Court denied certification on July 12, 2010. See State

v. Abbott, 203 N.J. 95 (2010) (table).

Petitioner executed the § 2254 Petition, and presumably

handed it to prison officials for mailing to this Court, on April

15, 2011. The Petition raises five grounds:

Ground One: THE VERDICT WAS AGAINST THE

WEIGHT OF EVIDENCE.

Ground Two: THE EVIDENCE OF OTHER CRIMES WAS

IMPROPERLY ADMITTED. 

Ground Three: THE JUDGE[’]S CHARGE TO THE

JURY WAS IMPROPER.

Ground Four: UNDER THE TEST DEVELOPED IN

STRICKLAND/FRITZ THE DEFENDANT, WAS DENIED

EFFECTIVE ASSISTANCE OF COUNSEL.

Ground Five: THE SENTENCE WAS MANIFESTLY

EXCESSIVE.

(Dkt. 1 at 6, 7, 8, 10, 11.)

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By Order and accompanying Opinion filed July 27, 2011, this

Court dismissed the Petition as untimely and denied a certificate

of appealability. This Court reasoned that Abbott’s judgment of

conviction became final on June 26, 2003, when the time to file a

petition for certiorari expired. See 28 U.S.C. § 2244(d)(1)(A);

Wali v. Kholi, 131 S. Ct. 1278, 1282 (2011). The 365-day

limitations period began the next day on June 27, 2003, and ran

for 157 days until it was statutorily tolled when Abbott filed

his first state PCR on December 1, 2003. This Court found that 

the limitations period picked up on March 24, 2004, the day after

the Law Division denied Petitioner’s first PCR and, in the

absence of equitable tolling, it ran for 208 days until it

expired at day 365 on October 18, 2004. This Court explained

that, in the absence of equitable tolling, the second state PCR

did not statutorily toll the limitations period because the

second petition was filed after the limitations period expired. 

See Long, 393 F.3d at 394-95 (state post conviction review

petition had no effect on tolling because the limitations period

had already run when it was filed); Schlueter v. Varner, 384 F.3d

69, 78-79 (3d Cir. 2004) (same). This Court noted that, although

the Petition asked Abbott to explain why the Petition was not

time barred under 28 U.S.C. § 2244(d), and included the text of §

2244(d), Abbott provided no explanation for the late filing. 

Since nothing in Petitioner’s submissions insinuated that he was

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either prevented from asserting his claims by extraordinary

circumstances, or that he exercised reasonable diligence in

pursuing his rights, this Court found no basis for equitable

tolling. This Court ruled that the interests of justice would

not be better served by addressing the merits of the grounds

raised in the § 2254 Petition, and dismissed the Petition as

untimely. See Day, 457 U.S. at 210. 

However, this Court permitted Abbott to submit a statement

showing that the Petition is not time barred. On August 23,

2011, the Clerk docketed Petitioner’s response. At this time,

this Court will reopen the file, vacate the dismissal of the

Petition, and consider whether it is timely. 

II. DISCUSSION

A. Statute of Limitations

 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 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 

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(D) the date on which the factual predicate

of the claim or claims presented could have

been discovered through the exercise of due

diligence . . . . 

28 U.S.C. § 2244(d)(1). 

In this case, the applicable limitations provision is §

2244(d)(1)(A). Abbott’s judgment of conviction became final on

June 26, 2003, when the time to file a petition for certiorari

from the New Jersey Supreme Court’s denial of certification on

direct review expired. See 28 U.S.C. § 2244(d)(1)(A); Gonzalez

v. Thaler, 132 S.Ct. 641, 653-54 (2012); Wali v. Kholi, 131 S.

Ct. 1278, 1282 (2011). The statute of limitations began to run

the next day on June 27, 2003.2

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). 

 Although Abbott’s public defender who represented him on 2

appeal from denial of his second state petition for postconviction relief advised him on July 22, 2010, that his § 2254

“petition must be filed within one year of the date on the

enclosed order of the New Jersey Supreme Court[, July 12, 2010,]

the attorney’s erroneous advice has no effect on the date on

which the statute of limitations began, June 27, 2003. This

Court will consider whether the public defender’s mistaken advice

warrants equitable tolling in section II(C) of this Opinion.

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An application is “filed” when “it is delivered to, and

accepted by, the appropriate court officer for placement into the

official record.” Artuz v. Bennett, 531 U.S. 4, 8 (2000)

(citations omitted). As the Supreme Court explained, 

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, 531 U.S. at 8-9 (citations omitted); see also Allen v.

Siebert, 552 U.S. 3 (2007) (petition for state post-conviction

relief that was rejected by the state courts as untimely is not

“properly filed” under § 2244(d)(2)).

Abbott maintains that he filed his first state petition for

post-conviction relief on December 1, 2003. If this Court were

to assume for the sake of argument that this petition were

“properly filed,” then the 365-day limitations period ran for 157

days or from June 27, 2003, until December 1, 2003, when

statutory tolling kicked in. The Law Division denied postconviction relief on March 23, 2004, and Abbott did not appeal. 

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Under these circumstances, the statute of limitations would have

picked up on March 24, 2004, (day 158) since on that date

Abbott’s petition for post-conviction relief was no longer

“pending” in the New Jersey courts, and ran from March 24, 2004,

until Abbott filed his second PCR petition in the Law Division.

Abbott stated in his Petition that he filed his second PCR

petition on December 1, 2006. (Dkt. 1 at 4.) The PCR Appellate

Division opinion states that the second PCR was filed in June

2006. See State v. Abbott, Dkt. No. A-5370-07T4 sl. opinion at 2

(N.J. Super. Ct., App. Div., Feb. 23, 2010) (Dkt. 1 at 45). In

its original Opinion, this Court used the date of June 1, 2006. 

In his response, Abbott asserts that he handed his second

PCR to prison officials for mailing to the Law Division on

November 7, 2005, but the Law Division never docketed the PCR. 

Abbott attached a mailing receipt dated November 5, 2005, as well

as a letter to the Criminal Case Manager dated May 14, 2006,

stating that the Law Division had “signed for” his PCR on

November 7, 2005. (Dkt. 4-1 at 18, 20.) Under these

circumstances, this Court will assume (without deciding) that

Abbott filed his second PCR on November 7, 2005. In that case,

the statute of limitations picked up at day 158 on March 24, 2004

(the day after the Law Division denied his first PCR), and ran

for 208 days until it expired on October 18, 2004, more than a

year, before he filed his second PCR on November 7, 2005. Thus,

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in the absence of equitable tolling, the 365-day limitations

period expired on October 18, 2004, before Abbott filed his

second PCR on November 7, 2005, and before he filed his § 2254

Petition on April 15, 2011. 

C. Equitable Tolling

Abbott makes two equitable tolling arguments. First, he

argues that, contrary to his desire, his first PCR attorney

improperly failed to appeal the Law Division’s March 23, 2004,

order denying his first PCR. He contends in effect that the

attorney in abandoned him when the firm dissolved in March 2004,

as his file was never returned to him or the Office of the Public

Defender and, despite his letter to the Law Division requesting

appeal, no appeal was effected. Second, Abbott argues that

equitable tolling is warranted because his public defender

erroneously advised him that he had one year from July 12, 2011

(the date on which the New Jersey Supreme Court denied

certification on the denial of his second PCR Petition). (Dkt. 4-

1 at 1.) He reasons that the Petition is timely because he

handed it to prison officials for mailing to this Court on April

15, 2011, within one year of July 12, 2010. 

The AEDPA statute of limitations is subject to equitable

tolling. See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010);

Urcinoli v. Cathel, 546 F. 3d 269, 272 (3d Cir. 2008); Miller,

145 F.3d at 618. “A statute of limitations ‘can be tolled when

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principles of equity would make [its] rigid application unfair.’” 

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 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.” Holland, 130 S. Ct. at 2562 (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)); see also LaCava v. Kyler,

398 F.3d 271, 275-276 (3d Cir. 2005). “There are no bright lines

in determining whether equitable tolling is warranted in a given

case. Rather, the particular circumstances of each petitioner

must be taken into account.” Pabon v. Mahanoy, 654 F.3d 385, 399

(3d Cir. 2011). 

Extraordinary circumstances have been found where “(1) the

defendant has actively misled the plaintiff; (2) if the 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). 

When a petitioner seeks equitable tolling on the basis of

attorney error, the Supreme Court has stated that “a garden

variety claim of excusable neglect, such as a simple

miscalculation that leads a lawyer to miss a filing deadline does

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not warrant equitable tolling.” Holland, 130 S. Ct. at 2564

(citations and internal quotation marks omitted). In Lawrence v.

Florida, 549 U.S. 327 (2007), the Supreme Court unequivocally

rejected 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. Attorney miscalculation is simply not sufficient to

warrant equitable tolling, particularly in the postconviction

context where prisoners have no constitutional right to counsel.” 

Id. at 336-37. 

On the other hand, in Holland v. Florida, 130 S.Ct. 2549,

the Supreme Court rejected the Eleventh Circuit’s rule that,

although an attorney may have been grossly negligent, an

attorney’s failure to satisfy professional standards of care can

never warrant equitable tolling absent “bad faith, dishonesty,

divided loyalty, mental impairment or so forth on the lawyer’s

part.” Id. at 2563 (quoting Holland v. Florida, 539 F.3d 1334,

1339 (11th Cir. 2008)). Holding that “an attorney’s failure to

satisfy professional standards of care” can warrant equitable

tolling where the attorney misconduct is egregious, see Holland,

130 S.Ct. at 2562, 2564, the Supreme Court remanded to the

Eleventh Circuit to determine whether the facts of record

entitled Holland to equitable tolling, or whether an evidentiary

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hearing was warranted, see id. at 2565. The Supreme Court

distinguished the attorney’s egregious professional misconduct in

Holland’s case from the garden variety negligent miscalculation

of the statute of limitations by Lawrence’s attorney:

We have previously held that “a garden variety claim of

excusable neglect,” Irwin, 498 U.S., at 96, such as

simple “miscalculation” that leads a lawyer to miss a

filing deadline, Lawrence, supra, at 336, does not

warrant equitable tolling. But the case before us does

not involve, and we are not considering, a “garden

variety claim” of attorney negligence. Rather, the

facts of this case present far more serious instances

of attorney misconduct. And, as we have said, although

the circumstances of a case must be “extraordinary”

before equitable tolling can be applied, we hold that

such circumstances are not limited to those that

satisfy the test that the Court of Appeals used in this

case.

The record facts . . . suggest that this case may well

be an “extraordinary” instance in which petitioner’s

attorney’s conduct constituted far more than “garden

variety” or excusable neglect.” To be sure, Collins

failed to file Holland’s petition on time and appears

to have been unaware of the date on which the

limitations period expired - two facts that, alone,

might suggest simple negligence. But, in these

circumstances, the record facts we have elucidated

suggest that the failure amounted to more: Here,

Collins failed to file Holland’s federal petition on

time despite Holland’s many letters that repeatedly

emphasized the importance of his doing so. Collins

apparently did not do the research necessary to find

out the proper filing date, despite Holland’s letters

that went so far as to identify the applicable legal

rules. Collins failed to inform Holland in a timely

manner about the crucial fact that the Florida Supreme

Court had decided his case, again despite Holland’s

many pleas for that information. And Collins failed to

communicate with his client for over a period of years,

despite various pleas from Holland that Collins respond

to his letters.

Holland, 130 S.Ct. at 2564 (some citations omitted).

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In rejecting the Eleventh Circuit’s rigid rule, the Supreme

Court cited several cases wherein courts of appeals found that

“unprofessional attorney conduct may, in certain circumstances,

prove ‘egregious’ and can be ‘extraordinary’ even though the

conduct in question may not satisfy the Eleventh Circuit’s rule.” 

Holland, 130 S.Ct. at 2564. For example, the Supreme Court cited

Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), where the Third

Circuit ordered an evidentiary hearing as to whether a client who

was “effectively abandoned” by his lawyer was entitled to

equitable tolling, and Spitsyn v. Moore, 345 F.3d 796, 800-802

(9th Cir. 2003), where the Ninth Circuit found that equitable

tolling was warranted where the lawyer denied client access to

files, failed to prepare a petition, and did not respond to

communications. 

This Court finds that the public defender’s erroneous advice

to Abbott that he had one year from July 12, 2010, to file his §

2254 Petition, was not an extraordinary circumstance but a garden

variety miscalculation of the limitations period. Accordingly,

Lawrence requires this Court to reject Abbott’s contention that

his Petition was timely because he filed it within 365 days of

July 12, 2010. 

On the other hand, the record indicates that Abbott’s first

PCR attorney effectively “abandoned” him, when she failed to file

a notice of appeal from the Law Division order, failed to return

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his file, and effectively disappeared upon the dissolution of her

firm in March 2004. This Court will equitably toll the statute

of limitations from March 23, 2003 (when the Law Division denied

Abbott’s first PCR) until November 7, 2005, when the second PCR

was filed and statutory tolling kicked in. 

Accordingly, the limitations period ran from June 27, 2003,

for 157 days, until it was statutorily tolled during the pendency

of the first PCR, from December 1, 2003, until April 23, 2004.

The limitations period was equitably tolled from March 23, 2004,

until November 6, 2005, and was statutorily tolled from November

7, 2005, until July 12, 2010, when the New Jersey Supreme Court

denied certification. The limitations period picked up again at

day 158 on July 13, 2010, and ran for 208 days until it expired

at day 365 on February 7, 2011. Because Abbott did not execute

his § 2254 Petition until April 15, 2011, 67 days after the

statute of limitations expired, the Petition is untimely, even

with equitable tolling. This Court finds that reaching the

merits is not in the interest of justice, and will dismiss the

Petition as time barred. Cf. Brown v. Shannon, 322 F.3d 768, 773

(3d Cir. 2003) (Even where extraordinary circumstances exist,

“[i]f the person seeking equitable tolling has not exercised

reasonable diligence in attempting to file after the

extraordinary circumstances began, the link of causation between

the extraordinary circumstances and the failure to file is

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broken, and the extraordinary circumstances therefore did not

prevent timely filing”) (quoting Valverde v. Stinson, 224 F.3d

129, 134 (2d Cir. 2000)). 

D. Discretion to Sua Sponte Raise Timeliness 

Finally, this Court will consider whether the Supreme

Court’s recent decision in Wood v. Milyard, 132 S.Ct. 1826

(2012), prevents this Court from sua sponte dismissing the

Petition as untimely. In Day v. McDonough, 547 U.S. 198, 209

(2006), the Supreme Court “h[e]ld that district courts are

permitted, but not obliged, to consider, sua sponte, the

timeliness of a state prisoner’s habeas petition.” In Wood, the

District Court did not consider timeliness and ruled on the

merits after the State had twice informed the District Court that

the State “‘will not challenge, but [is] not conceding’ the

timeliness of [the] petition.” Wood, 132 S.Ct. at 1834. The

Tenth Circuit nevertheless sua sponte raised the statute of

limitations on appeal and held that the petition was untimely. 

The Supreme Court found that the Tenth Circuit had abused its

discretion: “Although a court of appeals has discretion to

address, sua sponte, the timeliness of a habeas petition,

appellate courts should . . . abstain from entertaining issues

that have not been raised and preserved in the court of first

instance[, particularly] when the appellate court itself spots an

issue the parties did not air below, and therefore would not have

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anticipated in developing their arguments on appeal.” Wood, 132

S.Ct. at 1834. Citing Day, the Supreme Court nevertheless 3

confirmed that district courts “have the authority - though not

the obligation -” to sua sponte consider timeliness, even where

the State negligently conceded that the petition was timely,

provided the petitioner is accorded a fair opportunity to present

his position. Id. 

This Court has the discretion to sua sponte consider the

timeliness of Abbott’s Petition, see Day, 547 U.S. at 209 (“we

hold that district courts are permitted, but not obliged, to

consider, sua sponte, the timeliness of a state prisoner’s habeas

petition”); Kilgore v. Attorney General of Colorado, 519 F. 3d

1084, 1089 (10th Cir. 2008) (court may not sua sponte dismiss a §

2254 petition as time barred on the ground that it lacks

sufficient information to establish timeliness, but may do so

where untimeliness is clear from the face of the petition); Long

v. Wilson, 393 F. 3d 390, 402-03 (3d Cir. 2004) (court may

examine timeliness of petition for a writ of habeas corpus sua

sponte), and Wood v. Milyard does not limit this Court’s

discretion. See Johnston v. Chappell, 2012 WL 2501158 (N.D. Cal.

June 27, 2012) (holding that, after Wood v. Milyard, untimely

 “When a court of appeals raises a procedural impediment to 3

disposition on the merits, and disposes of the case on that

ground, the district court’s labor is discounted and the

appellate court acts not as a court of review but as one of first

view.” Wood, 132 S.Ct. at 1834.

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habeas petition may be dismissed sua sponte under Habeas Rule 4,

provided district court gives petitioner notice and opportunity

to respond); Sakellaridis v. Warden, Corcoran State Prison, 2012

WL 2374562 (C.D. Cal. June 22, 2012) (same).

E. 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 of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v.

McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme

Court held: “When the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying

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.” Id. This Court denies a certificate of

appealability because jurists of reason would not find it

debatable that dismissal of the Petition as untimely is correct.

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III. CONCLUSION

Based on the foregoing, the Court dismisses the Petition as

untimely and denies a certificate of appealability. 

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

Chief Judge

DATED: July 23 , 2012

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