NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DARNELL DIXON,

Civil Action No. 11-3213 (DMC)

Petitioner,

v. : OPINION

GREG BARTKOWSKI, et al.,

Respondents.

APPEARANCES:

DARNELL DIXON, Petitioner pro se

# 291129/487146-B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

STEPHEN A. POGANY, ESQ.

ESSEX COUNTY PROSECUTOR’S OFFICE

50 West Market Street

Newark, New Jersey 07102

Counsel for Respondents

CAVANAUGH, District Judge

Petitioner Darnell Dixon (“Petitioner” or “Dixon”), a

convicted state prisoner presently confined at the New Jersey

State Prison in Trenton, New Jersey, has submitted a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

challenging his 1998 New Jersey state court judgment of

conviction. For the reasons stated herein, the Petition is

dismissed as time-barred under 28 U.S.C. § 2244(d).
n C) ‘d

E

a

a

o

M in cv cv CD

0 Hi LJ.

<

o ti

C CD CD CD Fj

o ui b’ tI’ )< th CD

C

C

0 CD CD P1

m

m cv Hi

H

1<

H

C to tI P1 P1 in in P1

1<

H

t Ij

H tI CD to

H i o CD ft tr ‘. in

o

o CD

m

a CD CD

a

o to ‘< P1 to to

0 P1 CD C) CD to 11 CD CD

0 1 C) CD 11 CD C) CD to cv

H cv CD Ci Ii to CD cv

w

a Ha CD

0 P1

B

C CD

H

Z

0

C

C

H H- P1

0

a Hi * C4 11 CD cv pj Hi C) HC C) to CD ‘<

a cv

cv

a CD to to CD cv

a

o

Hi to

0

cv in Hi CD CD H- P1

cv

tJ CD

H CD Hi

U CD

0

H C)

X to ‘C

H

H

0

B

o C) at CD • H

0

0

0 CD P1 ti CD P1

0

0

0 P1 CD

P tI ti C) cv

a

H

o 1-h 11 Hi ti

C

0 to

n

a

0 CD Hi HC P1 to ‘-‘

a

C H- to * U

0 cv I P1 ti

a CD C) L’J ‘C

H

H

M in I cv )< CD CD Dl ti

U

C

a

H

a

H cv .

to P1

n CD 11 CD to I P1

0

B CD cv

t P1

0 in

a

0 , in ‘xj

a in

0

a CD CD

a ti to ti CD P1

U

H

C

in H- H0 CD CD CD

H CD to ‘< ti

H

H CD

H in “C

to

H

0

U CD

H

a

0

0 tI

H cv P1 Ci CD

to

C

0

H CD * in P1 cv in

t to CD

H

C CD Hi

0

tI CD P1

H

C

B in

0

H to CD

H

C

Z P1 CD

0

H to .E’

H

H- cv

0

t Hi P1

H ti

t CD cv

H

0 11 ti’ Hi

0

H P1

a

o to

a

H tI

0

CD CD

a CD to

H “C

C H- to CD ‘El CD

0

0 cv ti

0 * H CD ‘C

U H- C) P1 to

0

H C) to ‘El

0 cv

H

W H- CD H- P1 cv

0

W

0 C) CD

C b3 CD cv CD P1 to

U

W i C) C)

H

U HH HU * to

C ‘ B to

H to H- in

0 H- CD cv in

H CD

X P1 CD to CD ‘i CD to P1 CD

H Hi ab 1 ts

a H- CD

H CD to

0

H P1 HH • Ii H- cv to

a H- I M CD

0

o to to ti in ‘El

0 “C

H cv

0 CD to I H

H * H ‘ CD

0 ti H- CD cv “C to

B in to

in

Z ti

H Ha to

0 P1

in HZ “C

0

m cv ‘ to

;i in ‘ in in cv

0 CD CD

Hi HH

a a’, H- 10 H- H- P1

C cv

a

C

H

H0

C

o P1 CD

0

0

0

cv to I-’ Hi “C H- H- CD CD to CD s-’ cv P1 hI’ - tI

0 CD CD

H cv CD

w P1

a Hi CD in

a

H

0

H

H- 1 P1 “C Hi P1 P1

U

H 52 HH

0 H0

C H- * ‘C CD in

a

o P1

C CD ti C) cv CD

H CD P1 CD in

0

H C) CD P1 6) Ui P1 cv ti CD cv

cv ‘-I- H- I j CD * H

0 CD “C

H

H

a

U Hi to

0 P1

0 cv cv ii ‘El CD

C

H I-’ in

a CD P1

H

U

a

0 cv H- CD

H ‘U CD cv I ‘C

0

a

H CD

0 CD P1 * 0 P1 tI

0 C)

a CD CD

H

U

a H- ti “C to I H cv ‘U Hi

C

H

C

cv cv • CD CD

0 P1 in

0

U

0

C

C in “C cv P1

B

0 H- H- in cv Hi to

H

m

C P1 11

H CD CD

CD ‘U ti ti CD H- CD CD

a

H P1 cv - Hit

U CD

0 Ii cv

H

H CD

0 to CD Ci - to cv to

H cv to

H

0 to CD

C

C Ci) to

0

0 P1 H- CD H- ti to ‘U P1

H

H - in to

0 in CD CD

B CD cv

B to to to in

0

0

C HH

H

C

H CD -

P1

H to Hi tJ

CD CD CD Hi to

H ti • cv

C

H to

C

a

C

0 to

0 H- CD P1 H- H- cv Ha

o

P1

a - to

0

H >‘l ‘C cv ‘C

H

0 11 CD

H H- ti to P1 CD 43 CD H- C)

H • P1

H

C ‘ 0

a cv r) CD cv P1

H *

rn4cv”Cti HtiI

0

a

0

a

C Hi H- H- P1

0

0 ai

0 CD

H

C

H P1 Hi Hi cv Hi I a CD

H cv

H P1

C “C

“C

H P1
assault charge to be served consecutive to the reckless

manslaughter conviction and the sentence on Indictment No. 2287-

6-95. Judge Giles also sentenced Petitioner to concurrent tens

as follows: a prison ten of 10 years with five years parole

ineligibility on the conviction for unlawful possession of a

weapon; a prison ten of 20 years with a 10-year parole

disqualifier on possession of a weapon for an unlawful purpose;

and a prison ten of five years on possession of a dangerous

weapon by a convicted felon.

Dixon appealed his conviction and sentence to the Superior

Court of New Jersey, Appellate Division. On June 1, 2000, the

Appellate Division affined Dixon’s conviction, but remanded the

matter for resentencing. Dixon filed a petition for

certification with the Supreme Court of New Jersey on June 22,

2000. The New Jersey Supreme Court denied certification on

November 7, 2002.

On October 31, 2000, Judge Giles re-sentenced Petitioner in

accordance with the remand. Specifically, on Indictment No.

3394-10-96, Dixon was sentenced to an extended ten of 20 years

in prison with a 10-year parole disqualifier on Count One, the

reckless manslaughter charge, to be served consecutive to the

sentence on Indictment No. 2287-6-95, and a prison ten of 10

years with five years parole ineligibility on Count Four, the

3
aggravated assault charge, to be served consecutive to the

reckless manslaughter charge and to the sentence on Indictment

No. 2287-6-95. Dixon also was sentenced to a prison term of

five years on the unlawful possession of a weapon charge to be

served concurrently with Counts One and Four, but consecutive to

the sentence on Indictment No. 2287-6-95. Count Six, possession

of a weapon for an unlawful purpose, was merged with Count One,

reckless manslaughter. On Indictment No. 3395-10-96, possession

of a dangerous weapon by a convicted felon, Dixon was sentenced

to 7 years in prison to be served consecutive to Indictment Nos.

3394-10-96 and 2287-6-95. In short, Petitioner was sentenced to

an aggregate term of 37 years in prison with 15 years parole

ineligibility.

Petitioner appealed his resentencing to the Appellate

Division, On October 15, 2001, the Appellate Division affirmed

the resentencing. On November 7, 2002, the New Jersey Supreme

Court denied certification.

On January 22, 2003, Dixon filed his first pro se petition

for post-conviction relief (“PCR”). This petition was

subsequently withdrawn by Dixon due to problems with counsel.

(Respondents’ Exhibit N - November 2, 2007 PCR Motion Transcript

at 6:6-15.) Petitioner thereafter filed a second state PCR

petition on September 19, 2006. PCR counsel was assigned and

4
filed a supporting brief on March 27, 2Q07. On November 1,

2007, Dixon filed a motion for withdrawal of his PCR counsel.

On November 2, 2007, the Honorable Michael J. Nelson, J.S,C.

filed an Order denying the PCR petition.

On February 28, 2008, Petitioner filed an appeal from

denial of his PCR petition. Later, on August 20, 2008,

Petitioner filed a motion for summary reversal of the Order

denying the PCP. petition, arguing that the PCR court had not

filed a written opinion referenced in the Order denying postconviction relief. On September 19, 2008, the Appellate

Division filed an order denying the motion for summary reversal,

but temporarily remanding the matter to Judge Nelson for

development of the record concerning the timeliness of the PCR

petition, and for findings of fact and conclusions of law

regarding both timeliness and merits of the petition. The

Appellate Division retained jurisdiction over the case, noting

that there was confusion between a 2002 PCR petition relating to

Indictment No. 2287-6-95 and the 2003 PCR petition relating to

Indictment Nos. 3394-10-96 and 3395-10-96.

On March 5, 2009, Judge Nelson filed a written opinion with

the Appellate Division denying the PCR petition. The Appellate

Division affirmed denial of the PCR petition on June 29, 2010.

The New Jersey Supreme Court denied certification on January 7,

5
2011. Dixon filed this habeas petition on or about May 27,

2011.

On September 14, 2011, this Court issued an Opinion and

Order directing Petitioner to show cause in writing why his

petition should not be dismissed as time-barred under 28 U.S.C.

§ 2244(d). (Dkt, ## 4, 5.) Petitioner responded on October 26,

2011, (Dkt. # 7.) On February 3, 2012, Petitioner filed a

motion to stay his habeas proceedings. (Dkt. # 8.) He withdrew

his motion on May 30, 2012, after this Court had issued a Notice

and Order pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir.

2000) . (Dkt. # 11.) Petitioner then filed a supplemental

petition on June 5, 2012. (Dkt. # 13.) On October 9, 2012, the

Court issued an Order directing Respondents to answer the

petition. (Dkt, # 16.)

Respondents filed an answer to the petition, with the

relevant record on December 26, 2012. (Dkt. 4*# 23, 24.) On

January 14, 2013, Petitioner filed this motion seeking a stay

and abeyance of his federal habeas petition while he returned to

state court to exhaust additional claims of ineffective

assistance of counsel. (Dkt. # 25.)

This Court denied Petitioner’s motion for a stay and

abeyance in an Opinion and Order filed on September 25, 2013.

(Dkt. ## 26, 27.)

6
II. DISCUSSION

The State asserts that this habeas petition is time-barred

under 28 U.S.C. § 2244(d), which states in relevant part:

(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to a 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;

(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

subsection.

Therefore, pursuant to the applicable statute of

limitations provision, evaluating the timeliness of the instant

petition first requires a determination of when petitioner’s

state court judgment became final. The judgment is determined

to be final by the conclusion of direct review, or the

expiration of time for seeking such review, including the

ninety-day period for filing a petition for writ of certiorari

in the United States Supreme Court. See Gonzalez v. Thaler,

U.S. ----, 132 S. Ct. 641, 653-54, 181 L.Ed.2d 619 (2012)

However, the statute of limitations may be statutorily

tolled during the time in which properly filed state post

7
conviction relief petition is pending. See 28 U.S.C. §

2244(d) (2). The Third Circuit has explained that:

A prisoner’s application for state collateral review is

“‘properly filed’ when its delivery and acceptance are in

compliance with the applicable laws and rules governing

filings[j” Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct.

361, 148 L.Ed.2d 213 (2000) (emphasis omitted), including

“time limits, no matter their form,” Pace v. DiGuglielmo,

544 U.S. 408, 417, 125 S. Ct. 1807, 161 L.Ed.2d 669 (2005)

Thus, if a state court determines that an application is

untimely, “‘that [is) the end of the matter’ for purposes

of statutory tolling of AEDPA’s limitation period, id. at

414 (quoting Carey v. Saffold, 536 U.S. 214, 226, 122 5.

Ct. 2134, 153 L.Ed.2d 260 (2002)), “regardless of whether

it also addressed the merits of the claim, or whether its

timeliness ruling was ‘entangled’ with the merits[j”

Carey, 536 U.S. at 226. But if a state court fails to rule

clearly on the timeliness of an application, a federal

court “must . .. determine what the state courts would have

held in respect to timeliness.” Evans v. Chavis, 546 U.S.

189, 198, 126 S. Ct. 846, 163 L.Ed.2d 684 (2006) .‘

Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85-

86 (3d Cir, 2013). Furthermore, the 90-day time period 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). Lawrence

v. Florida, 549 U.S. 327, 332 (2007)

1 In Evans, the Supreme Court also held that the time between

denial of post-conviction relief and the filing of an appeal

from that decision was not tolled where the appeal was untimely,

even where the state court considered the untimely appeal on the

merits. Evans, 546 U.S. at 191.

8
In this case, the State argues that Petitioner’s first PCR

petition was filed on September 19, 2006, long after

Petitioner’s judgment of conviction became final under 28 U.S.C.

§ 2244 Cd) (1), and thus, the PCR petition did not serve to toll

the limitations period under § 2244 Cd) (2). Specifically, more

than 44 months had elapsed between February 7, 2003 (when the

90-day period for seeking a writ of certiorari to the U.S.

Supreme Court expired) and September 19, 2006 (when Dixon filed

his first state PCR motion). Dixon cannot rely on his initial

flR motion submitted in state court on January 22, 2003, because

he voluntarily withdrew that application, and did not re-file

his petition until September 19, 2006. Moreover, the state PCR

court ruled that the state PCR petition was untimely pursuant to

N.J.Ct.R. 3:22-12, because it was filed on September 19, 2006,

834 years after Dixon was sentenced on May 20, 1998, or 334 years

after the five-year limitations under Rule 3:22-12 had expired,

and Dixon had provided no explanation for this untimeliness.

CDkt. $t 23-18, RE X at 7, 11.) Consequently, the Court

concludes that the tolling provision under § 2244 Cd) (2) does not

apply because the one-year limitations period had expired well

before September 19, 2006, and the state court had determined

that the PCR petition was time-barred. See Jenkins, 705 F.3d at

85-86.

9
Because the statutory tolling provision does not apply

here, Dixon had until February 7, 2004 to file his federal

habeas petition. He did not file this habeas petition until May

27, 2011, more than seven years beyond the limitations period.

Accordingly, this federal habeas petition is time-barred unless

Petitioner can demonstrate extraordinary circumstances to

justify equitable tolling of the limitations period.

In Holland v. Florida, the Supreme Court held that AEDPA’s

one-year limitations period is subject to equitable tolling in

appropriate cases, on a case-by-case basis. 560 U.S. 631, 130

S. Ct, 2549, 2554, 2560, 177 L.Ed.2d 130 (2010) ; Ross v. Varano,

712 F.3d 784, 798 (3d Cir. 2013) . 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, 560 U.S.

at ----, 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005)); see also Jenkins, 705 F.3d at 89.

The diligence required for equitable tolling is reasonable

diligence, not maximum, extreme, or exceptional diligence.

Holland, 130 S. Ct. at 2565. “This obligation does not pertain

solely to the filing of the federal habeas petition, rather it

is an obligation that exists during the period appellant is

exhausting state court remedies as well.” LaCava v. Kyler, 398

10
F.3d 271, 277 (3d Cir. 2005) (citing Jones, 195 F.3d at 160)

Reasonable diligence is examined under a subjective test, and it

must be considered in light of the particular circumstances of

the case. See Ross, 712 F.3d at 799; Schlueter v, Varner, 384

F.3d 69, 74 (3d Cir. 2004) (“Due diligence does not require the

maximum feasible diligence, but it does require diligence in the

circumstances.”) (internal quotation marks and citations

omitted)

The court also must determine whether extraordinary

circumstances exist to warrant equitable tolling. “[GJarden

variety claim[s) of excusable neglect” by a petitioner’s

attorney do not generally present an extraordinary circumstance

meriting equitable tolling. Holland, 130 S. Ct. at 2564

(citations omitted); see also Merritt v. Blame, 326 F,3d 157,

168 (3d Cir. 2003) . Rather, equitable tolling could be

triggered only when “the principles of equity would make the

rigid application of a limitation period unfair, such as 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.” LaCava, 398 F.3d at 275-276; see also

Holland, 130 5. Ct. at 25 62 (relying on Pace, 544 U.S. at 418)

11
Indeed, extraordinary circumstances have been found only

where: (a) the respondent has actively misled the plaintiff, (b)

the petitioner has in some extraordinary way been prevented from

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

rights mistakenly in the wrong forum, see Jones, 195 F.3d at

159, or Cd) 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).

Nevertheless, it must be restated that, even where

extraordinary circumstances do exist, “if 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)).

There are no bright lines in determining whether equitable

tolling is warranted. See Pabon v. Mahanoy, 654 F.3d 385, 399

(3d Cir. 2011). In determining whether equitable tolling is

appropriate, “the particular circumstances of each petitioner

must be taken into account,” see id., and each decision made a

case-by-case basis. See Holland, 130 S. Ct. at 2563. The Third

12
Circuit has explained, consistent with Supreme Court holdings in

Holland, 130 S. Ct, at 2562 and Pace, 544 U.S. at 418, that

“equitable tolling is appropriate when principles of equity

would make rigid application of a limitation period unfair, but

that a court should be sparing in its use of the doctrine.”

Ross, 712 F.3d at 799 (citing Pabon, 654 F.3d at 399); see also

Jenkins, 705 F.3d at 89; Urcinoli v. Cathal, 546 F.3d 269, 278

(3d Cir. 2008)

In this case, Petitioner appears to contend that equitable

tolling should apply due to misconduct by a court official and

his attorneys, and not simply a miscalculation of the

limitations period. 2 To support this claim in response to this

Court’s September 14, 2011 Order to Show Cause (Dkt. ## 4, 5),

Dixon submitted letters he exchanged with the public defender

concerning the status of his state PCP. petitions on his 1995

conviction and his 1996 petition. The letters indicate that

a general rule, miscalculation of the remaining time on a

limitations period does not constitute extraordinary

circumstances to permit equitable tolling. Fahy v. Horn, 240

F.3d 239, 244 (3d Cir.), cert. denied, 534 U.S. 944 (2001); see

also Johnson v. Hendricks, 314 F.3d 159, 161, 163 (3d Cir.

2002), cert. denied, 538 U.S. 1022 (2003). Moreover, in a noncapital case such as this, “attorney error is not a sufficient

basis for equitable tolling of the AEDPA’s one-year period of

limitation.” Schlueter, 384 F.3d at 76. See also Lawrence, 549

U.S. at 336—37 (“Attorney miscalculation is simply not

sufficient to warrant equitable tolling, particularly in the

postconviction context where prisoners have no constitutional

right to counsel”).

13
Petitioner communicated with the Office of the Public Defender

several times about the status of his state PCR petition

challenging the convictions on the 1996 indictments, that

Petitioner was led to believe that his PCR petition was filed in

2003, that the case was assigned to attorney Sheri Woliver for

handling on February 4, 2004, and that on June 14, 2004, Ms.

Woliver informed Petitioner that his PCR petition had not been

filed. The first letters attached by Plaintiff to public

defender attorneys regarding his PCR petition are dated March 3,

2005. Petitioner also wrote to Ms. Woliver, of the Somerset

Region PCR Unit, on March 3, 2005, asking her to raise certain

issues in his PCR case. That letter indicates that Dixon wrote

to Ms. Woliver for the first time in December 24, 2004. (Dkt. 4

7, P.App.l-5.) Dixon also alleges that he has had problems with

Darryl Vartabedian of the Essex County Criminal Division

Manager’s Office regarding the filing of his PCR petition, and

that PCR petitions had been disposed in the trash can, (Dkt. 4

7 at 7-8.) There appears to be no documentary support for

Petitioner’s allegations about Mr. Vartabedian and the disposal

of PCR petitions by Mr. Vartabedian’s office.

Petitioner’s argument for equitable tolling tries to track,

although to a lesser degree, the factual circumstances in

Holland, supra. In Holland, the Supreme Court remanded a

14
habeas proceeding to the Court of Appeals for the Eleventh

Circuit to determine whether the attorney’s conduct in not

timely filing a habeas petition and not communicating with

petitioner for a period of years rose to the level of

“extraordinary circumstances” to permit equitable tolling of the

one-year statute. Holland, 130 S. Ct. at 2564-65. The Court

expressly noted that Holland “not only wrote his attorney

numerous letters seeking crucial information and providing

direction; he also repeatedly contacted the state courts, their

clerks, and the Florida State Bar Association in an effort to

have [counsell—the central impediment to the pursuit of his

legal remedy—removed from his case. And, the very day that

Holland discovered that his AEDPA clock had expired due to

[counsel’s) failings, Holland prepared his own habeas petition

pro se and promptly filed it with the District Court.” Id. at

2565 (emphasis in original)

On a related issue, the Supreme Court addressed an

attorney’s abandonment in handling a petitioner’s state PCR

application. Maple v. Thomas, ---U.S. ----, 132 5. Ct. 912,

181 L.Ed. 807 (Jan. 18, 2012) . In Maples, petitioner’s PCR

application was prepared by two New York attorneys associated

with a certain New York-based law firm. While that PCR

application was pending before the trial court, petitioner’s New

15
York attorneys left their firm for other employ without

notifying either the petitioner or the trial court about their

inability to continue the petitioner ts representation. When the

petitioner’s PCR application was denied, notices of the same

were sent to the attorneys at their former firm’s address and

returned to the trial court undelivered and unopened. The trial

court clerk attempted no further mailing, hence leaving the

petitioner without notice that his time to appeal was triggered.

Having no such notice, the petitioner procedurally defaulted on

his PCR appeal, and that procedural default barred him from

raising his claims in his federal habeas petition. Id., 132 S.

Ct. at 916—17, 919—21.

Performing an analysis substantively analogous to that

conducted in Holland, the Supreme Court found that petitioner

had shown “cause” for the purposes of overcoming the procedural

default bar on the grounds of attorney abandonment, which took

away not only the petitioner’s ability to timely raise his

appellate PCR challenges but also the petitioner’s ability to

raise his federal habeas claims. Maples, 132 5. Ct. at 923-24,

927-28; compare Schlueter, 384 F.3d at 77-78 (where attorney had

allegedly represented that he would file a PCR application, but

the prisoner had not taken “affirmative steps to ensure the

16
timely filing” of such PCR application, equitable tolling was

unwarranted)

Following the instruction in Holland, this Court here has

carefully reviewed the factual circumstances as submitted by

Petitioner on the issue of equitable tolling. The Court finds

that the circumstances in this case do not rise to an

extraordinary level to warrant equitable tolling. First, there

is no indication of attorney misconduct or abandonment as

displayed in Holland and Maple, supra. The facts, as determined

on PCR review, show that Dixon voluntarily withdrew his PCR

petition, which he initially filed in January 2003.

(Respondents’ Ex. N -Nov. 2, 2007 PCR Motion Transcript at 6:6-

15.) Dixon did not write to the public defender or Ms. Woliver

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 Ms. Woliver, that date still post-dates the

expiration date 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 1996

conviction under review here. Understandably, there was

confusion by counsel and Dixon regarding the PCR petitions to be

17
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 Mr. Vartabedian is not supported by any documentary

evidence or proof. The Court also observes that the issue of

timeliness as to the filing of the PCR petition was litigated in

state court, and the allegation of Mr. Vartabedian’s malfeasance

was not raised at that time when it would have been appropriate

to do so if such alleged malfeasance had in fact occurred.

Moreover, equitable tolling must be balanced against any

clear indication of Petitioner’s dilatoriness in pursuing PCR

review. Holland does not change the law regarding equitable

tolling, which requires that a petitioner must demonstrate (1)

that he has been pursuing his rights diligently, and (2) that

some “extraordinary circumstances stood in his way and prevented

timely filing.” 130 S. Ct. at 2562. This Court finds that the

facts in this case do not establish that Petitioner exercised

reasonable diligence in pursuing his rights. First, the state

PCR court ruled that Dixon’s PCR petition was untimely under

N.J.Ct.R. 3:22-12, because it was filed on September 19, 2006,

8 years after Dixon was sentenced on May 20, 1998, or 3 years

18
after the five-year limitations under Rule 3:22-l2 had expired.

(Dkt. 4* 23-18, RE X at 7.) The court further remarked that

Dixon failed to offer any explanation for this untimeliness.

Dixon failed to assert excusable neglect or allege fundamental

injustice as an exceptional circumstance, (Id., RE X at 11,)

Second, Dixon’s letters to counsel concerning his state PCR

petition do not overcome the fact, as determined by the state

PCR courts, that Petitioner withdrew his January 2003 PCR

petition, and did not file a new PCR petition until September

19, 2006. Significantly, the letters post-date the expiration

of the one-year limitations period. Dixon’s one-year AEDPA

statute of limitations expired on February 7, 2004, and the

letters attached by Petitioner to counsel were dated March 3,

2005, one year beyond expiration of the limitations period.

Even Dixon’s reference to his first letter to Ms. Woliver in

December 2004 post-dates the February 7, 2004 expiration date by

10 months. Thus, even if counsel had filed a PCR petition at

that time, it still would not have tolled the statutory period

and does not serve to excuse Petitioner’s tardiness in asking

about the status of his PCR petition. Thus, this Court finds

3This Court notes that Dixon was resentenced on remand on October

31, 2000. Using the later re-sentencing date for purposes of

determining the timeliness of Dixon’s PCR petition, the petition

was filed ll months after the limitations period expired.

Thus, the petition was still time-barred under Rule 3:22-12.

19
that Petitioner has not exhibited diligence in pursuing his PCR

claims. Dixon filed his first state PCR petition in January

2003, which was timely, but he withdrew it to pursue a grievance

against his first PCR counsel. Dixon then waited for a year

after the expiration of the statutory period to inquire about

his state PCR petition, and more than three years later, on

September 19, 2006, to file his amended PCR petition (raising

substantially the same claims as originally filed).

Third, the fact that a petitioner is proceeding pro se does

not insulate him from the “reasonable diligence” inquiry and his

lack of legal knowledge or legal training does not alone justify

equitable tolling. See Ross, 712 F.3d at 800 (citing Brown v,

Shannon, 322 F.3d 768, 774 (3d Cir. 2003) (holding that

equitable tolling not justified where petitioner had one month

left in limitations period in which he could have “fil[ed) at

least a basic pro se habeas petition” at the time that

petitioner’s attorney informed him that he would not file an

appeal in state court on his behalf and could no longer

adequately represent him) . Indeed, as observed above, “garden

variety claim[sj of excusable neglect” do not constitute

extraordinary circumstances for purposes of equitable tolling.

Holland, 130 5, Ct. at 2564.

20
Finally, even if Dixon claims that his PCR counsel rendered

ineffective assistance of counsel, such claim does not provide a

basis for equitable tolling of the AEDPA one—year limitations

period. See Garcia v. Warren, Civ. No. 12-7680 (JAP), 2013 WL

3221306, *4 (D.N.J. Jun. 25, 2013) (finding that general

allegations of ineffective assistance of PCR counsel, along with

a reliance on Martinez 4,did not show extraordinary circumstance

prevented petitioner from timely filing his federal habeas

petition) ; Silfies v. Walsh, No. 02—1777, 2013 WL 3049096, at *3

(M.D.Pa. June 17, 2013) (“Martinez did not provide that postconviction counsel’s ineffectiveness could establish an

exception to or equitable tolling of AEDPA’s one-year statute of

limitations for filing a federal habeas corpus petition.”)

(citations omitted); Saunders v. Lamas, No. 12-1123, 2013 WL

943351, at *6 (E.D.Pa. Feb.13, 2013) (“The Supreme Court does

not state in Martinez that a blanket allegation of

ineffectiveness of PCRA counsel can constitute a basis for

equitable tolling of the habeas statute of limitations. The

Martinez decision did not allow for equitable tolling of the

AEDPA deadlines.”) (citations omitted), report and

4Martinez v. Ryan, ---U.S. ----, 132 5. Ct, 1309, 182 L.Ed.2d

272 (2012), In Martinez, the Supreme Court held that inadequate

assistance of counsel at initial state PCR proceedings may

establish cause for a prisoner’s procedural default of a claim

of ineffective assistance at trial. 132 5. Ct. at 1317-18.

21
recommendation adopted by, 2013 WL 943356 (E.D.Pa. Mar.11,

2013); Terry v. Cathel, No. 12—5263, 2012 WL 4504590, at *4

(D.N.J, Sept.27, 2012) (“No aspect of the Martinez decision

implicated, addressed or even reflected on the issue of

untimeliness of the litigant’s federal habeas petition.”>; see

also Scaife v. Falk, No. 12—2530, 2013 WL 1444236, at *5

(D.Colo. Apr. 9, 2013) (“[A]lthough Martinez might be relevant

if Mr. Scaife were seeking to overcome a procedural default in

the context of exhaustion of state court remedies, nothing in

Martinez demonstrates the existence of any extraordinary

circumstances to justify equitable tolling of the one-year

limitation period.”).

Therefore, this Court concludes that equitable tolling does

not apply in this case and the habeas petition is now timebarred. Further, there is no basis to conduct an evidentiary

hearing to determine whether Petitioner’s unsupported

allegations of misconduct by counsel and a court official

constitute extraordinary circumstances for equitable tolling

because this Court has determined that Petitioner’s letters to

counsel post-dated the expiration of the AEDPA one-year

limitations period and the record shows no attorney malfeasance

that would rise above garden-variety neglect. Accordingly,

the petition is dismissed with prejudice.

22
IV. CERTIFICATE OF APPEALABILITY

This Court next must determine whether a certificate of

appealability should issue. See Third Circuit Local Appellate

Rule 22.2. The Court may issue a certificate of appealability

only if the petitioner “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c) (2).

When a court denies a habeas petition on procedural grounds

without reaching the underlying constitutional claim, the

prisoner must demonstrate that jurists of reason would find it

debatable: (1) whether the petition states a valid claim of the

denial of a constitutional right; and (2) whether the court was

correct in its procedural ruling. Slack v. McDaniel, 529 U.S.

473, 484 (2000), “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the

case, a reasonable jurist could not conclude either that the

district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id. For the

reasons discussed above, this § 2254 habeas petition is time

barred. The Court also is persuaded that reasonable jurists

would not debate the correctness of this conclusion,

Consequently, a certificate of appealability will not be issued.

23
V. CONCLUSION

For the above reasons, this Court finds that the § 2254

habeas petition must be dismissed as time-barred, and that a

certificate of appealability will not issue. An appropriate

Order follows.

DENNI S M. CAVNAUG}-{

United State District J ge

24