UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

________________________________

:

JAMES JEAN-LOUIS, :

: Civil Action No. 11-1922 (CCC)

Petitioner, :

:

v. : MEMORANDUM OPINION

:

GREG BARTOWSKI, : AND ORDER

:

and :

:

PAULA T. DOW, :

 :

Respondents. :

________________________________:

IT APPEARING THAT:

1. Petitioner James Jean-Louis (“Petitioner”), currently

confined at the New Jersey State Prison, Trenton, New

Jersey, filed a pro se petition (“Petition”) seeking a Writ

of Habeas Corpus, pursuant to 28 U.S.C. § 2254, and

submitted the required filing fee. See Docket Entry No. 1. 

The Petition was executed on March 29, 2011. See id. at 25. 

2. In his Petition, Petitioner challenges his state court

conviction for murder, felony murder, aggravated assault,

robbery, and weapons charges. See State v. Louis (“Louis”),

2010 WL 2557181 (N.J. Sup. Ct. App. Div. June 25, 2010).

3. Petitioner asserts that:

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a. His judgment of conviction was entered on May 24,

1996. See id. at 2.

b. The Superior Court of New Jersey, Appellate

Division, denied his direct appeal on August 19,

1999. See id.

c. The Supreme Court of New Jersey denied

Petitioner’s certification on November 17, 1999,

and no certiorari was sought by him from the

United States Supreme Court. See id. at 2-3.

d. The Petition also asserts that Petitioner filed an

application for post-conviction relief (“PCR”)

with the Superior Court of New Jersey. See id. at

3. However, the Petition does not state when this

PCR application was filed. Rather, the Petition

merely notes that PCR was denied on July 17, 2007

(that is, almost eight years after the Supreme

Court of New Jersey denied Petitioner

certification as to his direct appeal), without

specifying the grounds for such denial. See id. 

The Petition is silent as to what became of

Petitioner’s PCR application on appeal. See

generally, Docket Entry No. 1.

4. This Court’s own research has revealed the information

omitted from the Petition. See Louis, 2010 WL 2557181. 

2

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Specifically, the Appellate Division detailed the relevant

developments as follows:

. . . James Jean Louis appeals from the

denial of his application for. . . PCR -

filed ten years after his conviction . . . . 

In 1996, defendant was convicted by a jury of

[various offenses]. On May 24, 1996, the Law

Division imposed an aggregate sentence of

sixty years incarceration with thirty-five

years of parole ineligibility. Along with

his three co-defendants, [defendant] pursued

an appeal to this court from that conviction. 

In a consolidated opinion we affirmed as to

all defendants, and the Supreme Court

thereafter denied certification [in 1999]. 

On May 26, 2000, almost exactly four years

after the entry of the judgment of

conviction, defendant filed his first pro se

PCR application. On March 19, 2002, after

counsel was assigned to represent defendant,

the Law Division entered an order dismissing

defendant's PCR application without

prejudice, upon defendant's request. Thus,

instead of pursuing the then-pending PCR

application to its natural conclusion,

defendant was advised by his appointed PCR

counsel to move for a new trial in the Law

Division on the ground of newly discovered

evidence. In March 2002, PCR counsel wrote

defendant advising him of the “withdraw[al]”

of the PCR application, and explained that an

attorney in the Union County Office of the

Public Defender would contact defendant

“within the next few weeks.” The letter also

expressly stated, “[p]lease contact me if you

have further questions or concerns or if you

do not hear from the Union [Region] Public

Defender's Office after [three] weeks or so.” 

True to PCR counsel's letter, . . . an

Assistant Deputy Public Defender assigned to

the Union Region contacted defendant on May

23, 2002, by mail. The public defender's

letter of that date explicitly stated that

after an investigation and consultation with

defendant, “[defense counsel] cannot file a

motion for a new trial based upon newly

3

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discovered evidence” . . . . The letter

[also stated that defendant’s] “PCR counsel

advised [the author of the letter] that

[defendant] must refile [his] post-conviction

relief petition.” Another four years elapsed

before a PCR application on defendant's

behalf was actually filed in the Law Division

[on] December 14, 2006 . . . . On July 17,

2007, . . . Judge Stuart L. Peim entered an

order denying defendant's application for PCR

“on the grounds that all claims in this PCR

are time-barred by Rule 3:22-12.” This

appeal ensued. . . . Although the initial

[PCR] application in 2000 was indubitably

timely in light of Rule 3:22-12(a)'s

five-year mandate, once defendant voluntarily

changed the course of his litigation to

instead pursue a motion for a new trial - an

event that would be beyond the five-year bar

- he became exposed anew to the running of

the limitations period. By the time he got

around to finally filing the 2006 PCR

application, more than a decade had passed

since the original judgment of conviction was

entered against him. In this posture,

defendant was obligated to explain the delay

and allege facts showing excusable neglect

[under the State’s Rule] 3:22-12(a). “The

concept of excusable neglect encompasses more

than simply providing a plausible explanation

for a failure to file a timely PCR petition.” 

State v. Norman, 405 N.J. Super. 149, 159

([N.J. Super. Ct.] App. Div.2009). Defendant

in this case did neither, and Judge Peim was

correct in his assessment of defendant's

timeliness problem for the current PCR

application. . . . [W]e have considered

whether the time bar should be relaxed

because the public defender should have

promptly moved to reinstate the first PCR

application or designated counsel on the

second PCR application should have argued

that application was timely filed because

defendant never had adequate representation

on the first when it was recommended for

dismissal and the basis for the

recommendation proved to be unwarranted. See

State v. Rue, 175 N.J. 1 (2002). . . . We do

4

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not [find a basis for relaxation of the time

bar] because defendant waited more than four

years to file his 2006 PCR application after

being advised by the public defender to file

another PCR, following being told that the

motion for new trial could not be filed.

Id. at *1-5 (original brackets and emphases removed), 

certif. denied, State v. Louis, 205 N.J. 15 (Nov. 4,

2010).

5. Prior to examining Petitioner’s habeas application on the

merits, the Court must determine whether the Petition is

time-barred. See Long v. Wilson, 393 F.3d 390, 402-03 (3d

Cir. 2004) (stating that a court may examine an application

for a writ of habeas corpus sua sponte and citing Hill v.

Braxton, 277 F.3d 701, 706 (4th Cir. 2002); Herbst v. Cook,

260 F.3d 1039, 1042 & n.3 (9th Cir. 2001); Acosta v. Artuz,

221 F.3d 117, 123 (2d Cir. 2000); Kiser v. Johnson, 163 F.3d

326, 328-29 (5th Cir. 1999)).

6. On April 24, 1996, Congress enacted the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”), which provides that

“[a] 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.” 28

U.S.C. § 2244(d)(1). The limitations period runs from “the

date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1). A state-court criminal

5

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judgment becomes “final” within the meaning of §2244(d)(1)

upon 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. Therefore,

Petitioner’s conviction became final 90 days after November

17, 1999 (that is, 90 days after the date when the Supreme

Court of New Jersey denied Petitioner certification as to

his direct appeal), i.e., on February 16, 2000, hence

triggering Petitioner’s 1-year period of limitations.

7. The statute of limitations under § 2244(d) is subject to

tolling exception(s), that is, statutory and equitable

tolling. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.

2003); Miller v. N.J. State Dep’t of Corr., 145 F.3d 616,

617-18 (3d Cir. 1998). 

8. Section 2244(d)(2) requires statutory tolling for “[t]he

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.” 28 U.S.C. §

2244(d)(2). 

9. Here, Petitioner’s period of limitations began running on

February 16, 2000. Petitioner’s first (later abandoned) PCR

6

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proceedings were commenced on May 26, 2000. These PCR

proceedings statutorily tolled Petitioner’s AEDPA-based 1-

year period of limitations until March 19, 2002, that is,

the date of Petitioner’s withdrawal of his first PCR

application. On that date, i.e., on March 19, 2002, what

was left of Petitioner’s AEDPA period of limitations

restarted running. Because Petitioner “used up” just three

months and ten days of his 1-year limitations period by the

time he filed his first PCR application, Petitioner had

eight months and twenty one days of his AEDPA period left to

file a federal habeas petition after he withdrew his PCR

application. In other words, Petitioner had until December

11, 2002, to file the Petition at bar. Petitioner, however,

failed to so file: he waited until March 29, 2011. 

10. Notably, the fact that Petitioner eventually filed his

second PCR application is wholly irrelevant to this Court’s

analysis of statutory tolling. This is so because

Petitioner’s 1-year AEDPA-based limitations period had

already long run by the that second application was filed

(i.e., by December 14, 2006). See Long v. Wilson, 393 F.3d 1

 Moreover, because Petitioner’s second PCR application was 1

dismissed by the state courts as untimely, it could not have

statutorily tolled Petitioner’s AEDPA limitations period because

a filing of a procedurally barred – here, untimely – PCR

application cannot meet the statutory tolling requirement for an

application being properly filed. See Pace v. DiGuglielmo, 544

U.S. 408 (2005) (state PCR petition rejected as untimely under

7

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390, 394-95 (3d Cir. 2004); Schlueter v. Varner, 384 F.3d

69, 78-79 (3d Cir. 2004); see also Forman v. Cathel, Civ.

Action No. 04-5309 (JLL) (D.N.J.), Docket Entry No. 24

(dismissing § 2254 petition as untimely under a virtually

identical scenario), aff’d, id., Docket Entry No. 30

(stating that “Appellant’s habeas corpus petition is time

barred and there are no grounds for applying the statutory

tolling provision, 28 U.S.C. § 2244(d)(2), or for equitably

tolling the limitations period for the entire period it took

appellant to file his § 2254 petition” and citing Jones v.

Morton, 195 F.3d 159, 160 (3d Cir. 1999)).

11. The foregoing analysis leaves this Court only with the issue 

of whether equitable tolling should apply to the Petition,

covering the entire period from December 11, 2002 (that is,

the date when Petitioner’s AEDPA-based 1-year period of

limitations expired) to March 29, 2011 (that is, the date

when Petitioner executed the Petition at bar) - a period

exceeding eight years.

2

state statute of limitations was not “properly filed” for the

purposes of habeas statutory tolling).

 Under the “prisoner mailbox rule,” the litigant’s 2

submission is deemed filed as of the date when the prisoner hand

delivered the submission to prison officials for mailing to the

district court, that is, provided that such mailing is eventually

received by the district court. See Burns v. Morton, 134 F.3d

109, 112 (3d Cir. 1998). Because it is self-evident that

8

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12. Relevant to this Court’s equitable tolling analysis, federal

law – unlike the state provisions addressing the issue of

untimeliness of PCR applications – poses a higher bar,

because the concept of “excusable neglect” allowing

relaxation of state statute of limitations is inapplicable

to federal habeas actions. See LaCava v. Kyler, 398 F.3d

271, 275-276 (3d Cir. 2005). The Third Circuit instructs

that equitable tolling could be appropriate only “when a

state prisoner faces extraordinary circumstances that

prevent him from filing a timely habeas petition and the

prisoner has exercised reasonable diligence in attempting to

investigate and bring his claims.” Id.; see also Merritt 3

v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003); Jones v.

Morton, 195 F.3d 153, 159 (3d Cir. 1999). For instance,

extraordinary circumstances have been found where (a) the

defendant has actively misled the plaintiff, (b) the

plaintiff has in some extraordinary way been prevented from

asserting his rights, (c) the plaintiff has timely asserted

Petitioner could not have delivered his Petition to his prison

officials prior to the date of its execution, the Court –

construing the known facts in the light most favorable to

Petitioner for the purposes of the instant Memorandum Opinion and

Order – presumes that the Petition was “filed” on March 29, 2011,

although it is indeed plausible that such filing actually took

place on a later date.

 Bare claims of “ineffective assistance of counsel” do not 3

provide basis for equitable tolling. See Pace v. DiGuglielmo,

544 U.S. 408 (2005).

9

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his rights mistakenly in the wrong forum, see Jones, 195

F.3d at 159, or (d) the court itself has misled a party

regarding the steps that the party needs to take to preserve

a claim. See Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir.

2005). Moreover, even where extraordinary circumstances do

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 broken, and the extraordinary circumstances

therefore did not prevent timely filing.” Brown v. Shannon,

322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v.

Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). 

4

13. Here, Petitioner has already litigated the equitable tolling

issue during the trial-level and appellate proceedings

 Recently, the Supreme Court provided guidance on this 4

issue in Holland v. Florida, 130 S. Ct. 2549 (2010). In Holland,

the record revealed that petitioner's appointed attorney failed

to file a timely federal petition, despite petitioner's many

letters emphasizing the importance of doing so; that the attorney

did not do the research necessary to find out the proper filing

date, despite petitioner identifying the applicable legal rules

for him; that the attorney failed to inform petitioner in a

timely manner that the State Supreme Court had decided his case,

despite petitioner's many pleas for that information; that the

attorney failed to communicate with petitioner over a period of

years, despite petitioner's pleas for responses to his letters;

and that petitioner repeatedly requested the state courts to

remove the attorney from his case. In light of these and other

facts, the Supreme Court found that such totality of

circumstances may – but not must - warrant equitable tolling. 

See Holland, 130 S. Ct. 2549.

10

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associated with his second PCR application. The state

courts invariably found Petitioner’s position wholly without

merit, pointing out that Petitioner was unable to meet even

the relaxed “excusable neglect” requirement under state law. 

Moreover, being aware of this crucial procedural deficiency

of his Petition, Petitioner failed to include in his 25-page

Petition any discussion of circumstances suggesting the

applicability of equitable tolling to the Petition. 

Consequently, this Court is constrained to deem the Petition

untimely and to dismiss it accordingly. 

5

 Although the Petition at hand is facially time barred, 5

this Court is mindful of Petitioner’s pro se litigant status and

cannot rule out the possibility that Petitioner: (a) has valid

grounds to seek equitable tolling; but (b) somehow omitted to

address this vital issue in the instant application and to raise

it before the Law Division, the Appellate Division and the

Supreme Court of New Jersey. Therefore, out of an abundance of

caution, the Court finds it warranted to inform Petitioner that,

in the event Petitioner has a basis to make a bona fide argument

that his Petition is timely, Petitioner should seek

reconsideration of the instant Memorandum Opinion and Order. The

Court notes that Petitioner’s motion for reconsideration need not

be a formal submission, and a mere written statement of pertinent

facts would suffice (although Petitioner’s discussion of these

facts must be detailed and shall address the entirety of the

period at issue, i.e., from December 11, 2002 (that is, the date

when Petitioner’s AEDPA-based 1-year period of limitations

expired), until March 29, 2011 (that is, the date when Petitioner

executed the Petition at bar)). In the event Petitioner timely

submits such a motion for reconsideration, see Local Civil Rule

7.1(i) (providing that a motion for reconsideration “shall be

served and filed within 14 days after the entry of the order or

judgment”), this Court will direct the Clerk to reopen the

instant matter and will examine the facts detailed in

Petitioner’s motion. 

11

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14. Finally, the Court shall determine whether a certificate of

appealability (“COA”) shall issue as to this matter. 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 COA 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. The Court

denies a certificate of appealability pursuant to 28 U.S.C.

§ 2253(c) because jurists of reason would not find it

debatable that dismissal of the Petition (as drafted and

read in light of the publicly-available record of the state

courts’ determinations made with regard to Petitioner’s PCR

proceedings) as untimely is correct. 

12

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IT IS, therefore, on this 22 day of November, 2011, nd

ORDERED that Petitioner’s application to proceed in this

matter in forma pauperis is granted; and it is further

ORDERED that the Petition is dismissed, as untimely,

pursuant to 28 U.S.C. § 2254; and it is further

ORDERED that the Court retain jurisdiction over this matter

for a period of thirty days from the date of entry of this

Memorandum Opinion and Order in order to entertain any motion for

reconsideration Petitioner may file, if such motion is timely

submitted; and it is further

ORDERED that the Court denies Petitioner a certificate of

appealability, pursuant to 28 U.S.C. § 2253(c); and it is finally

ORDERED that the Clerk shall serve this Memorandum Opinion

and Order upon Petitioner by regular U.S. mail and close the file

in this matter.

s/Claire C. Cecchi 

CLAIRE C. CECCHI

United States District Judge

13

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