NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

AGUSTIN GARCIA, 

Petitioner,

 v.

GREG BARTKOWSKI,

Respondents.

Civil Action No. 11-3689 (DRD)

OPINION

APPEARANCES:

AGUSTIN GARCIA, #822642B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625

Petitioner Pro Se

ANNMARIE COZZI, ASSISTANT PROSECUTOR

BERGEN COUNTY PROSECUTOR

10 Main Street

Hackensack, New Jersey 07601

Attorneys for Respondents

Debevoise, Senior U.S. District Judge

Agustin Garcia filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. ' 2254

challenging a judgment of conviction filed in the Superior Court of New Jersey, Bergen County,

on February 1, 2002, and amended on May 13, 2004, after a jury found him guilty of the murder 

of Gladys Ricart, his former girlfriend, and related charges. The State filed an Answer limited to 

the statute of limitations and Garcia filed several documents in opposition. After carefully 

reviewing the arguments of the parties and the state court record, this Court will deny habeas relief 

as time barred and decline to issue a certificate of appealability.

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I. BACKGROUND

A. The Crime

The Appellate Division of the Superior Court of New Jersey outlined the facts as follows:

The convictions arose out of an incident in which defendant appeared at his former 

girlfriend’s wedding as an uninvited guest and shot and killed her at close range in 

the presence of witnesses, including children. The shooting was captured by the 

wedding videographer on high resolution video tape, which was copied exactly by 

Ridgefield Police Lieutenant David Cassirer to a VHS tape for viewing in court. 

Contrary to what the tape revealed, defendant testified that after he entered the 

bride’s house where the wedding was being held, her brother and others attacked 

him, he reached for his gun to protect himself, and at some point during the struggle 

he blacked out and learned that the bride had been killed. Defendant also claimed 

that upon learning of the bride’s death, he stated he wanted to kill himself. After 

the final shot, defendant was restrained when he attempted to reload the gun.

State v. Garcia, 2009 WL 3808269 at *1 (N.J. Super. Ct., App. Div., Nov. 6, 2009).

B. The State Court Proceedings

On February 1, 2002, the trial judge sentenced Garcia to life in prison, with 30 years of 

parole ineligibility for murder, a consecutive four-year term for third-degree unlawful possession 

of a weapon, and two concurrent four-year terms for endangering the welfare of a child. Garcia 

appealed. On May 11, 2001, the Appellate Division affirmed the convictions and sentences

imposed on the murder and weapons offenses, but reversed the convictions for endangering the 

welfare of a child. (ECF No. 23-2.) On May 13, 2004, the trial court filed an amended judgment 

of conviction. The New Jersey Supreme Court denied certification on September 10, 2004. See

State v. Garcia, 181 N.J. 545 (2004). 

The parties dispute the date on which Garcia filed his first petition for post-conviction relief 

in the trial court. Garcia maintains that he filed it on January 3, 2005, the date on his cover letter 

addressed to the trial court. (ECF No. 23-6 at 1.) Respondent contends that the filing date is 

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May 13, 2005, the date of the trial court’s date stamp on the cover letter and on the first page of 

the post-conviction relief petition. (ECF No. 23-6 at 1, 2.) On May 4, 2007, the trial court denied 

the first petition for post-conviction relief on the merits, without conducting an evidentiary hearing. 

See State v. Garcia, 2009 WL 3808269 at *1 (N.J. Super. Ct., App. Div., Nov. 6, 2009). Garcia 

appealed, and on November 6, 2009, the Appellate Division affirmed. Id. On June 21, 2010, the 

New Jersey Supreme Court denied certification. See State v. Garcia, 202 N.J. 348 (2010). 

Garcia filed his second petition for post-conviction relief (“PCR”) on April 15, 2008. See

State v. Garcia, 2011 WL 3516933 (N.J. Super. Ct., App. Div., Aug. 12, 2011). On February 17, 

2010, the trial court denied relief without conducting an evidentiary hearing. On August 12, 2011, 

the Appellate Division affirmed on the ground that the second PCR application was untimely under 

New Jersey Court Rules. Id. The New Jersey Supreme Court denied certification on March 9, 

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

Garcia filed his third PCR petition on November 10, 2010. (ECF No. 23 at 11.) The trial 

court denied it without an evidentiary hearing on December 15, 2010. See State v. Garcia, 2013 

WL 2096208 (N.J. Super. Ct., App. Div., May 16, 2013). Garcia appealed, and on May 16, 2013, 

the Appellate Division affirmed, finding that the claims were procedurally barred because it did 

not rely on a new rule of constitutional law, assert that the factual predicate for the relief sought 

could not have been discovered earlier, or present a prima facie case of ineffective assistance of 

PCR counsel, as required by New Jersey Court rule 3:22-4(b)(2)(A) - (C). The New Jersey 

Supreme Court denied certification on February 4, 2014. See State v. Garcia, 209 N.J. 284 

(2014).

C. Procedural History of § 2254 Petition

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Garcia filed the § 2254 Petition on June 7, 2011, the date on which he signed his application 

to proceed in forma pauperis. (ECF No. 2 at 5.) The Clerk received it on June 20, 2011. The 

Petition raises the following 15 grounds, which are set forth below verbatim:

Ground One: THE DEFENDANT WAS DENIED HIS RIGHT TO THE 

EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH 

AMENDMENT OF THE UNITED STATES CONSTITUTION[.]

Ground Two: THE STATE COURT[’]S ORDERS DENYING DEFENDANT’S 

PETITIONS MUST BE REVERSED SINCE THE PROSECUTOR TAMPERED 

WITH AND WITHHELD EVIDENCE. MOREOVER, THE PROSECUTOR 

CONSCIOUSLY USED A NEVER ENDING PARADE OF PERJURY 

TESTIMONIES. ALL IN VIOLATION OF BRADY V. MARYLAND . . . , 

NAPUE V. ILLINOIS . . . , GIGLIO V. UNITED STATES[.]

Ground Three: THE PROSECUTION FAILED TO DISCLOSE TO THE 

DEFENSE IMPEACHMENT EVIDENCE MATERIAL TO PETITIONER’S 

DEFENSE (BLATANT OBSTRUCTION OF JUSTICE)[.]

Ground Four: DEFENDANT WAS DENIED THE CONSTITUTIONALLY 

PROTECTED RIGHT TO BE TRIED BY FAIR AND IMPARTIAL JURY, 

GUARANTEE[D] BY THE SIXTH AMENDMENT OF THE UNITED STATES 

CONSTITUTION: (A) THE COURT REFUSED TO ASK SUFFICIENT 

QUESTIONS OF JURORS TO ALLOW DEFENSE TO ESTABLISH JUROR’S 

BIAS, PARTICULARLY, CONFRONTED WITH THE FOLLOWING: (1) THE 

PRESENCE OF 50 PERCENT OF JURY POOL ADMITTING BEFORE TRIAL 

IN CONTEMPT OF COURT, THAT BASE[D] ON PRETRIAL PUBLICITY 

THEY HAD ALREADY FORMED THE OPINION THAT DEFENDANT WAS 

GUILTY; 13T 113-12 TO 113-19; (2) “THEY FORMED THEIR OPINION 

BASED ON THE PRESS ACCOUNT AND WHATNOT, AND IN ALL OF 

THEM BY AND LARGE OPINIONS, THE LATTER WHO WERE 

REHABILITATED BY THE COURT. THE OPINION WAS HE WAS 

GUILTY. NOBODY HAS COME IN TO EXPRESS THAT HE’S INNOCENT 

OR WRONGLY ACCUSED.” 10T 199-22 TO 200-5; (3) EVEN PROSECUTOR 

AFFIRMED OPPOSING MOTION FOR CHANGE OF VENUE: “IF YOU 

SAW THE TELEVISION HE’S BEING BROUGHT IN THE COURTROOM IN 

THE BERGEN COUNTY JAIL UNIFORM WITH SHACKLES.” 13t 107-14 TO 

107-19[.]

Ground Five: THE TRIAL COURT’S CHARGE OF 

PASSION/PROVOCATION MANSLAUGHTER WAS ERRONEOUS[.]

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Ground Six: THE TRIAL COURT DENIED DEFENDANT DUE PROCESS OF 

LAW AND A FAIR TRIAL BY RESTRICTING HIS COUNSEL’S 

SUMMATION.

Ground Seven: THE TRIAL COURT ERRED BY RULING THAT THE 

“WEDDING VIDEOTAPE” WAS [ ] ADMISSIBLE.

Ground Eight: THE TRIAL COURT ERRED BY FAILING TO SUPPRESS 

DEFENDANT’S ORAL STATEMENT [WHICH] SHOULD HAVE BEEN 

SUPPRESSED BECAUSE DEFENDANT’S FEDERAL FIFTH, EIGHTH AND 

FOURTEENTH AMENDMENT[] RIGHT[S] . . . WERE EGREGIOUSLY 

VIOLATED WHEN STATE’S WITNESS ROBERT ANZILOTTI AFTER 

FLAGRANTLY VIOLATING DEFENDANT[’S] MIRANDA RIGHTS, ALSO 

VIOLATED FEDERAL JENCKS STATUTE, BY DESTROYING HIS HANDWRITTEN NOTES TOGETHER WITH CONCEALMENT OF 

INTERROGATION VIDEO TAPE, ALLOWED THE STATE TO CONCEAL 

THE FACTS THAT ALLEGED CONFESSION WAS COMPLETELY 

FABRICATED AND THAT DEFENDANT WAS IN FACT SUBJECTED TO 

ILLEGAL PSYCHOLOGICAL TORTURE FOR MORE THAN 10 

CONSECUTIVE HOURS. THEREAFTER, STATE WITNESS ROBERT 

ANZILOTTI REPEATEDLY COMMITTED PERJURY WHILE TESTIFYING 

AT MIRANDA HEARING CONCERNING DEFENDANT’S ALLEGED 

STATEMENT.

Ground Nine: THE DEFENDANT’S SENTENCE WAS EXCESSIVE.

Ground Ten: DEFENDANT’S CONSTITUTIONAL PROCEDURAL DUE 

PROCESS OF LAW RIGHT, GUARANTEED TO HIM BY THE FIFTH AND 

FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION, WAS 

FLAGRALNTLY VIOLATED WHEN PCR COURT ARBITRARILY DENIED 

HIS DISCOVERY MOTIONS FOR PRODUCTION BY THE STATE OF 

CRITICAL DISCOVERY ESSENTIAL AND/OR INDISPENSABLE TO A 

FAIR, ROUNDED DEVELOPMENT OF MATERIAL FACTS AND/OR 

DEFENDANT’S MERITORIOUS ISSUES.

Ground Eleven: THE LOWER COURT ORDER DENYING THE PETITION 

MUST BE REVERSE[D] SINCE DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF APPELLATE COUNSEL WHO PROVIDED ASSISTANCE 

WITH EGREGIOUS REPRESENTATION WHEN HE FAILED TO RAISE THE 

OBVIOUS MERITORIOUS ISSUES RAISED ON THIS PETITION.

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Ground Twelve: THE LOWER COURT ORDER DENYING THE PETITION 

MUST BE REVERSE[D] SINCE THE PROSECUTOR TAMPERED WITH AND 

WITHHELD MATERIAL AND RELEVANT EXCULPATORY EVIDENCE.

Ground Thirteen: THE LOWER COURT ERRED IN NOT GRANTING 

DEFENDANT’S REQUEST FOR AN EVIDENTIARY HEARING AND TYHE 

LOWER COURT MUST THEREFORE BE REVERSED.

Ground Fourteen: THE LOWER COURT ERRED WHEN IT ARBITRARILY 

DENIED WITHOUT RULING ON THE MERIT OF FOLLOWING TIMELY 

AND PROPERLY FILED DEFENDANT’S MOTIONS: (1) MOTION TO 

COMPEL PAYMENT FOR THE SERVICES OF AN AUDIBILITY EXPERT TO 

TEST THE WEDDING VIDEO TAPE . . . ; (2) MOTION TO COMPEL 

PAYMENT FOR THE SERVICES OF A DNA EXPERT TO TEST “THE 

SHEETS OF HIS BED FROM WHICH HE MAINTAINED WOUD CONTAIN 

THE DNA MATERIAL BELONG[ING] TO MS. RICART. DEFENDANT 

MAINTAINS THAT THE SHEETS, HAD THEY BEEN TESTED, WOULD 

HAVE PROVED THAT DEFENDANT AND MS. RICART HAD HAD SEXUAL 

RELATIONSHIP DURING THE MORNING HOURS BEFORE THE 

WEDDING, THEREBY SUPPORTING DEFENDANT’S VERSION OF 

EVENTS AND CONTRADICTING THE STATE’S THEORY OF THE CASE . . 

. ; (3) MOTION TO COMPEL PRODUCTION OF TYHE ORIGINAL VIDEO 

TAPES . . . ; (4) MOTION TO DISQUALIFY F.S. AS THE PROSECUTOR . . . ; 

(5) MOTION TO DISQUALIFY JUDGE MEEHAN FROM HANDLING THE 

CASE . . . . THE MOTION IS BASED ON STATEMENTS MADE BY JUDGE 

MEEHAN DURING PRE-TRIAL PROCEEDINGS, JURY SELECTION AND 

SENTENCING PROCEEDINGS. DEFENDANT SUBMITS THAT THESE 

STATEMENTS “EVIDENCED A PREDISPOSITION AS TO THE 

DEFENDANT’S GUILT PRIOR TO TRIAL . . .” 

Ground Fifteen: THIS MATTER SHOULD BE REVERSED AND/OR 

REMANDED BECAUSE IT PRESENTS A CLEAR ACTUAL INNO[CE]NCE 

CASE. WHEREAS COURT’S CONSTITUTIONAL ERRORS CAUSED 

ERRONEOUS MURDER GUILTY CONVICTION INSTEAD OF 

PASSION/PROVOCATION MANSLAUGHTER CONVICTION.

(ECF No. 1 at 21, 30, 33, 38, 43, 48, 52, 56, 58, 60, 62, 65, 67, 70, 74.)

Prior to ordering an answer, Judge Cavanaugh ordered Garcia to show cause in writing 

why the Petition should not be dismissed as barred by the one year statute of limitations set forth 

in 28 U.S.C. § 2244(d). (ECF No. 3.) In an Opinion accompanying the Order, Judge Cavanaugh 

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observed that the statute of limitations appeared to have begun on December 9, 2004, when the 

time to file a petition for certiorari expired. (ECF No. 2 at 9.) Judge Cavanaugh observed that 

the limitations period apparently ran for 25 days until it was statutorily tolled, pursuant to 28 U.S.C. 

§ 2244(d)(2), by Garcia’s filing of his first PCR petition on January 3, 2005, and that tolling 

continued until June 21, 2010, the date on which the New Jersey Supreme Court denied 

certification with respect to that petition. (ECF No. 2 at 13.) Judge Cavanaugh noted that the 

limitations period picked up at day 26 on June 22, 2010, and expired 340 days later on Friday, 

May 27, 2011. Judge Cavanaugh determined that the one year limitations period was not 

statutorily tolled, pursuant to § 2244(d)(2), during the pendency of Garcia’s second and third PCR 

petitions because those petitions were untimely under New Jersey law and, therefore, were not 

“properly filed” within the meaning of § 2244(d)(2). Because the statute of limitations expired 

on May 27, 2011, and Garcia did not hand his § 2254 Petition to prison officials for mailing to the

Clerk of this Court until June 6, 2011, at the earliest, the Petition appeared to be 10 days late. 

Judge Cavanaugh rejected Garcia’s contention that he was entitled to equitable tolling where 

Garcia alleged that his post-conviction relief counsel told him that his federal petition would be 

timely if he filed it on or before July 9, 2011. Id. at 13-14. Judge Cavanaugh directed Garcia to 

show cause in writing why his § 2254 Petition should not be dismissed as time barred. 

Garcia filed 12 responses to the Order to Show Cause, generally arguing that the Petition 

was timely and that equitable tolling was warranted. (ECF Nos. 6-17.) On April 22, 2014, the 

Court ordered service of the Petition, directed Respondent to file an answer and record limited to 

the timeliness of the Petition, and allowed Garcia to file a reply. (ECF No. 19.) On July 18, 

2014, Respondent filed an Answer, arguing that this Court should dismiss the Petition as time 

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barred. (ECF Nos. 23, 26.) Garcia filed five documents in response to the Answer. (ECF Nos. 

28-31.) 

II. DISCUSSION

A. Statute of Limitations

The Anti-Terrorism and Effective Death Penalty Act’s 365-day statute of limitations begins 

on the latest of the following dates:

(A) the date on which the judgment became final by the conclusion of direct review 

or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action 

in violation of the Constitution or laws of the United States is removed, if the 

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by 

the Supreme Court, if the right has been newly recognized by the Supreme Court 

and made retroactively applicable to cases on collateral review; or 

(D) the date on which the factual predicate of the claim or claims presented could 

have been discovered through the exercise of due diligence . . . . 

28 U.S.C. § 2244(d)(1). 

Section 2244(d)(2) 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). 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). 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 

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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)).

In this case, the statute of limitations is governed by § 2244(d)(1)(A). The New Jersey 

Supreme Court denied certification on direct review on September 10, 2004, and the time to file a 

petition for certiorari in the United States Supreme Court expired 90 days later on December 9, 

2004. See Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012); Wali v. Kholi, 131 S. Ct. 1278, 

1282 (2011); Lawrence v. Florida, 549 U.S. 327, 332-333 (2007); Merritt v. Blaine, 326 F.3d 157, 

161 (3d Cir. 2003). The limitations period began the next day, on December 10, 2004, and ran 

until the date on which Garcia filed his first PCR petition in the trial court. Because nothing 

indicates that this first post-conviction relief petition was not properly filed, the filing date 

triggered statutory tolling under 28 U.S.C. § 2244(d)(2).

The parties dispute the date of filing of Garcia’s first PCR petition. Garcia contends that, 

because he signed his first petition for post-conviction relief on January 3, 2005, and the cover 

letter is dated January 3, 2005, under the mailbox rule, this Court should consider it to have been 

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filed on that date.1 See Houston v. Lack, 487 U.S. 266 (1988). Respondent argues that the filing 

date is May 13, 2005, insofar as the New Jersey Superior Court date stamped the cover letter and 

the first page of the petition on that date. This Court notes that the parties acknowledge the 

existence of a New Jersey State Prison postage remit signed by Garcia on January 22, 2005. (ECF 

No. 28.3.) The postage remit is date stamped January 24, 2005, and it reflects an $8.00 charge on 

that date to send certified mail to the Superior Court of New Jersey in Bergen County. Id. The 

parties also acknowledge that on January 26, 2005, someone signed a certified mail return receipt 

addressed to that court. Id. 

The Supreme Court held in Artuz that the question of the proper filing of a state postconviction relief application is a matter of state procedural law governing post-conviction filings. 

See Artuz, 531 U.S. at 8 (“And an application is ‘properly filed’ when its delivery and acceptance

are in compliance with the applicable laws and rules governing filings.”) (emphasis in original); 

see also Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction relief petition 

is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)”) (internal 

quotation marks and citation omitted). Thus, Garcia’s statute of limitations tolled on the date, 

under New Jersey law, that his first petition for post conviction relief was “filed.” See Jenkins v. 

Superintendent of Laurel Highlands, 705 F.3d 80, 83 n.1 (3d Cir. 2013) (“Pursuant to the 

Pennsylvania prisoner mailbox rule, the date of delivery of the PCRA petition by the defendant to 

 

1 Garcia states that he “actually filed his first PCR on May 30, 2004,”, and that he sent an amended 

petition to the court on December 14, 2004. (ECF No. 28 at 2.) This Court rejects these

contentions because the record provides no support for these dates and Garcia has provided nothing 

to substantiate his assertion. 

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the proper prison authority or to a prison mailbox is considered the date of filing of the petition”) 

(citation and internal quotation marks omitted); Douglas v. Horn, 359 F.3d 257, 262 (3d Cir. 2004) 

(court “must look to state law governing when a petition for collateral relief is properly filed.”) 

(quoting Fahy v. Horn, 240 F.3d 239, 243 (3d Cir. 2001)).2 

This Court’s research indicates that the New Jersey Supreme Court has not squarely 

considered whether the prisoner mailbox rule applies to a prisoner’s filing a post-conviction relief 

petition. This Court found only one New Jersey court opinion, an unpublished Appellate Division 

opinion, considering the prisoner mailbox rule and citing Houston v. Lack, 487 U.S. 266 (1988). 

See Oliver v. Lee, 2012 WL 1414081 (N.J. Super. Ct., App. Div., April 25, 2012). In that case, 

the Appellate Division declined to decide whether the mailbox rule applied to a prisoner’s request 

to extend the time to file a claim under the New Jersey Tort Claims Act because the prisoner 

provided no evidence of the date on which he handed the document to prison officials. However, 

in State v. Culley, 250 N.J. Super. 558 (App. Div. 1991), without citing Houston or discussing the 

prisoner mailbox rule, the Appellate Division held that Culley’s post-conviction relief petition, 

which was dated November 1, 1989, and stamped by a judge’s chambers as “received” on 

 

2 See also Orpiada v. McDaniel, 750 F.3d 1086 (9th Cir. 2014) (applying Nevada law to determine 

that mailbox rule did not govern the filing of a state post-conviction relief application with respect 

to § 2244(d)(2)); Ray v. Clements, 700 F.3d 993, 995 (7th Cir. 2012) (holding that “the prisoner 

mailbox rule governs whether a state post-conviction document is ‘properly filed’ under the 

AEDPA limitations period unless the state has clearly rejected it.”); Fernandez v. Artuz, 402 F.3d 

111 (2d Cir. 2005) (because New York law set no time limit for filing of a coram nobis petition 

and the state courts had not considered whether the prisoner mailbox rule governed the filing date 

of such a petition, the Ninth Circuit held that the coram nobis petition was filed when prisoner 

handed it to prison officials for mailing to state court); Garcia v. Shanks, 351 F.3d 468 (10th Cir. 

2003) (holding that, where New Mexico’s rules required receipt by the clerk, New Mexico 

prisoner’s state post-conviction relief petition was filed on date the state court clerk received it).

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November 15, 1989, was untimely because it was filed on November 15, 1989, which was six days 

after the five-year statute of limitations expired on November 9, 1989 (five years after he was 

sentenced on November 9, 1984). 

The postage remit Garcia presented to this Court shows that he handed his first PCR

petition to prison officials, with a request for deducting the cost of postage from his prisoner 

account, on January 22, 2005, even though he signed the petition itself on January 3, 2005. The 

return receipt addressed to the Superior Court Criminal Division indicates that the court received 

the petition on January 26, 2005. The record shows, therefore, that Garcia handed his petition to 

prison officials for mailing with postage on January 22, 2005, and that the court received it on 

January 26, 2005. Applying the mailbox rule, this Court finds that 44 days ran on the statute of 

limitations, or from December 10, 2004, see State v. Garcia, 181 N.J. 545 (2004), until January 

22, 2005 (date on which Garcia handed first PCR to prison officials for mailing) when tolling 

began. The statute of limitations picked up again at day 45 on June 21, 2010, when the New 

Jersey Supreme Court denied certification on the first PCR petition, see State v. Garcia, 202 N.J. 

348 (2010), and ran for the next 321 days until it expired on Monday, May 9, 2011.3 Because 

Garcia did not sign his affidavit filed with his § 2254 Petition until June 7, 2011, the Petition was 

filed 30 days late, absent additional statutory or equitable tolling. 

Alternatively, even if this Court were to assume that January 3, 2005, was the date on which 

Garcia’s first post-conviction relief petition was filed, then Garcia’s § 2254 Petition was 

 

3 Because the 321st day is Sunday, May 8, 2011, this Court will use the following work day as the 

expiration date.

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nevertheless filed 11 days after the 365-day statute of limitations expired. In that case, the 365-

day statute of limitations began to run on December 10, 2004, as in the prior calculation. If

Garcia’s first petition for post-conviction relief was filed on January 3, 2005, then 25 days elapsed 

on the 365-day limitations period by the time it was statutorily tolled on January 3, 2005; tolling 

continued until June 21, 2010, the date on which the New Jersey Supreme Court denied 

certification. In the absence of further statutory or equitable tolling, the statute of limitations 

picked up on June 22, 2010, at day 26 and it expired 340 days later on Friday, May 27, 2011. As 

Garcia handed his § 2254 Petition to prison officials on June 7, 2011, the Petition was out of time 

by 11 days, absent additional statutory or equitable tolling.

Statutory tolling is not available for Garcia’s second PCR petition because it was not 

properly filed within the meaning of § 2244(d)(2). Although Garcia filed his second state PCR

petition on April 15, 2008, see State v. Garcia, 2011 WL 3516933 (N.J. Super. Ct., App. Div., 

Aug. 12, 2011), and the New Jersey Supreme Court denied certification on March 9, 2012, see

State v. Garcia, 209 N.J. 596 (2012), the Appellate Division found that the second PCR petition 

was time barred under New Jersey Court Rule 3:22-12 because it was filed more than five years 

after the date the judgment of conviction was entered. See Garcia, 2011 WL 3516933 at *4 (“We 

have considered defendant’s argument that there is sufficient evidence supporting excusable 

neglect to warrant a waiver of the time bar imposed by Rule 3:22-12(a) and are not persuaded.”) 

Because the second PCR petition was time barred pursuant to N.J. Court Rule 3:22-12(a),4it was 

 

4 N.J. Court Rule 3:22-12(a)(1) provides that “no petition shall be filed pursuant to this rule more 

than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is 

being challenged unless it alleges facts showing that the delay beyond said time was due to 

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not “properly filed” and it did not statutorily toll the 365-day statute of limitations under § 

2244(d)(2). See Pace, 544 U.S. at 414 (“When a postconviction petition is untimely under state 

law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2)”) (quoting Carey v. Saffold, 536 

U.S. 214, 226 (2002); see also Allen v. Siebert, 552 U.S. 3, 7 (2007) (“Because Siebert’s petition 

for state postconviction relief was rejected as untimely by the Alabama courts, it was not ‘properly 

filed’ under § 2244(d)(2).”).

Similarly, the limitations period was not statutorily tolled by Garcia’s third PCR petition, 

which he filed on November 10, 2010, two years after he filed his untimely second PCR petition. 

The Appellate Division affirmed the dismissal of the third PCR petition on the ground that Garcia 

failed to assert a basis for relief pursuant to N.J. Court Rule 3:22-4(b)(2), which provides that a 

second or subsequent PCR petition “shall be dismissed unless” it relies on a new rule of 

 

defendant’s excusable neglect and that there is a reasonable probability that if the defendant’s 

factual assertions were found to be true enforcement of the time bar would result in a fundamental 

injustice.” Rule 3:22-12(a)(2) extends the statute of limitations for an additional year after the 

latest of three dates, i.e., the date on which the constitutional right asserted was initially recognized 

by the United States Supreme Court of New Jersey Supreme Court if that right was newly 

recognized and made retroactive, or the date on which the factual predicate for the relief sought 

was discovered, or the date of the denial of the first or subsequent petition for post-conviction 

relief where ineffective assistance of counsel that represented the defendant on the first or 

subsequent PCR petition is being alleged. The Appellate Division explained in State v. Brewster, 

429 N.J. Super. 387, 398 (App. Div. 2013), that Rule 3:22-12(a)(1) sets a five-year time limitation 

for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing 

. . . . By its subsection (a)(2), Rule 3:22-12 allows an additional one-year limitation period if the 

courts recognize a new constitutional right or defendant discovers a previously unknown factual 

predicate justifying relief from the conviction.” The court applied subsections (a)(1) and (a)(2) to 

Brewster’s first PCR petition, even though subsection (a)(2) refers to a second or subsequent 

petition because “[t]he amended rule would be anomalous if it deemed timely a second or third 

PCR petition based on a new constitutional right or a factual predicate newly-discovered but did 

not afford the same time period for a first PCR petition raising the same ground for relief.” 

Brewster, 429 N.J. Super. at 399 n.4. 

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constitutional law, or it relies on a factual predicate that could not have been discovered earlier, or 

it alleges ineffective assistance of prior PCR counsel. See State v. Garcia, 2013 WL 2096208 

(N.J. Super. Ct., App. Div., May 16, 2013). The third PCR petition did not trigger statutory tolling 

under § 2244(d)(2) because, like the second PCR petition, the third PCR petition was also time 

barred under N.J. Court Rule 3:22-12(a). 

This Court notes that the Appellate Division did not expressly find that the third PCR 

petition was time barred. In the absence of a “clear indication” by the state courts that an 

application is untimely, the federal court “must itself examine the delay in each case and determine 

what the state courts would have held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189, 

198 (2006); accord Jenkins, 705 F.3d at 85-86 (“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.’”) (quoting Evans, 546 U.S. at 198)). In this case, the New Jersey 

courts did not reach the merits of Garcia’s third PCR petition or consider timeliness, but found that 

it was barred by N.J. Court Rule 3:22-4(b). However, there is no doubt that, had they considered 

timeliness, the New Jersey courts would have found that Garcia’s third PCR petition, which was 

filed two years after his untimely second PCR petition, was also untimely under N.J. Court Rule 

3:22-12(a)(1), since it was filed more than five years after the judgment of conviction. The third 

PCR petition was also untimely under N.J. Court Rule 3:22-12(a)(2) because, while Garcia 

claimed in in the third PCR petition that counsel representing him in his first PCR petition was 

ineffective, the Appellate Division’s opinion affirming the denial of the third PCR petition found 

that Garcia “ha[d] not alleged a prima facie case of ineffective assistance of PCR counsel.” 

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Garcia, 2013 WL 2096208 at*3. Accordingly, the third PCR petition was untimely, it was not 

properly filed, and it did not trigger statutory tolling under § 2244(d)(2). 

B. Equitable Tolling

Garcia argues that equitable tolling is warranted because he filed his § 2254 Petition within 

one year of the New Jersey Supreme Court’s order of June 21, 2010, denying certification of the 

Appellate Division opinion’s affirming the denial of his first PCR petition relief, in accordance 

with the advice of his PCR counsel.5 The one year statute of limitations is subject to equitable 

tolling. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013); Holland v. Florida, 560 U.S. 

631, 645 (2010); Ross v. Varano, 712 F.3d 784, 798-800 (3d Cir. 2013). A court extends the 

remedy of equitable tolling “only sparingly,” “when principles of equity would make the rigid 

application of a limitation period unfair.” Jenkins, 705 F.3d at 89 (citations and internal quotation 

marks omitted). A habeas “’petitioner is entitled to equitable tolling only if he shows (1) that he 

has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 

way and prevented timely filing.’” McQuiggin, 133 S.Ct. at 1931 (quoting Holland, 560 U.S. at 

649) (internal quotation marks omitted). A court must “exercise judgment in light of prior 

precedent, but with awareness of the fact that specific circumstances, often hard to predict in 

advance, could warrant special treatment in an appropriate case.” Holland, 560 U.S. at 650. 

Although “a garden variety claim of excusable neglect, such as a simple miscalculation 

that leads a lawyer to miss a filing deadline, does not warrant equitable tolling,” Holland, 569 

U.S. at 652 (citations and internal quotation marks omitted), extraordinary circumstances may be 

 

5 Garcia filed numerous repetitive certifications, primarily concerning the merits of his claims.

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found where unprofessional attorney conduct is egregious or where a client is effectively 

abandoned by his lawyer. Id. at 651. Other potentially extraordinary situations may be found on 

the basis of “inability to read or understand English, combined with denial of access to translation 

or legal assistance,” Pabon v. Mahanoy, 654 F.3d 385, 400 (3d Cir. 2011), and “where a court has 

misled a party regarding the steps that the party needs to take to preserve a claim.” Munchinski 

v. Wilson, 694 F.3d 308, 329-330 (3d Cir. 2012) (quoting Brinson v. Vaughn, 398 F.3d 225, 230 

(3d Cir. 2005)). 

In this case, Garcia first claims that his attorney incorrectly told him that his federal habeas 

petition would be timely if he filed it by June 21, 2011 (one year after the New Jersey Supreme 

Court denied certification on his first PCR petition). This Court agrees with Judge Cavanaugh 

that Garcia’s attorney error claim is the sort of “garden variety” claim that does not warrant 

equitable tolling. See Holland, 569 U.S. at 652; LaCava v. Kyler, 398 F.3d 271276 (3d Cir. 2005). 

To summarize, Garcia handed his § 2254 Petition to prison officials for mailing to the Clerk 

of this Court after the 365-day statute of limitations expired. Because he is not entitled to statutory 

tolling regarding his second and third PCR petitions and he has not shown that extraordinary

circumstances prevented him from timely filing his Petition, this Court finds that the Petition is 

time barred. 

III. 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). This Court denies a certificate of appealability because jurists of reason would not find it 

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debatable that dismissal of the Petition as time barred is correct. See Slack v. McDaniel, 529 U.S. 

473, 484 (2000). 

IV. CONCLUSION

This Court dismisses the Amended Petition with prejudice and denies a certificate of 

appealability.

 s/Dickinson R. Debevoise 

DICKINSON R. DEBEVOISE

U.S.S.D.J.

Dated: February 27, 2015

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