RONALD JONES, Aрpellant v. WILLIS MORTON, WARDEN OF TRENTON STATE PRISON; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
No. 98-5230
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
October 25, 1999
On Appeal from the United States District Court for the District of New Jersey D.C. Civil Action No. 97-cv-05606 (Honorable Joseph H. Rodriguez). Submitted Pursuant to Third Circuit LAR 34.1(a) July 27, 1999. Before: SCIRICA and STAPLETON, Circuit Judges, and GREEN, District Judge (The Honorable Clifford Scott Green, United States District Judge for the Eastern District of Pennsylvania, sitting by designation).
RICHARD J. GEIGER, ESQUIRE Office of County Counsel 146 West Broad Street P.O. Box 4440 Bridgeton, New Jersey 08302 Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Circuit Judge.
Ronald Jones appeals from the denial of his petition for a writ of habeas corpus
I.
A jury in Cumberland County, New Jersey, convicted Jones of first-degree kidnaping, four counts of first-degree aggravated sexual assault, and possession of a weapon for an unlawful purpose. On October 19, 1981, the trial court sentenced Jones to an aggregate term of 55 years of imprisonment with 25 years of parole ineligibility. Jones was represented at trial and sentencing by privately retained counsel.
Eight years after sentencing, Jones asked the Public Defender‘s Office to file a motion with the Aрpellate Division of the New Jersey Superior Court for leave to file a direct appeal nunc pro tunc. Jones alleged that trial counsel had ignored his request to file a timely notice of appeal. The Appellate Division remanded the matter for the trial court to make a factual determination as to whether Jones asked counsel to file a notice of appeal within 45 days following entry of the judgment of conviction, which is the time prescribed for an appeal under New Jersey Court Rule 2:4-1(a).
The trial court held hearings on the issue on September 6 and 19, 1990.1 Jones and his trial counsel testified on September 6. Jones‘s uncle, who apparently had retained Jones‘s trial counsel, testified on September 19. Counsel from the Public Defender‘s Office represented Jones at the hearings. Jones did not attend the hearing on September 19 due to the trial court‘s failure to issue a writ to secure his presence.
The trial court determined that Jones did not ask counsel to file a notice of appeal within 45 days of entry of the judgment. The Appellate Division reviewed the record, concluded that there was “an adequate basis to determine that [Jones] made no timely request to his attorney to file an appeal,” and on November 1, 1990, denied leave to appeal nunc pro tunc. On Aрril 30, 1992, the New Jersey Supreme Court denied Jones‘s petition for certification to review the issue.
On January 8, 1993, Jones filed a pro se habeas corpus petition pursuant to
On March 28, 1995, Jones filed a second pro se
Jones timely appealed and applied for a certificate of appealability. On January 13, 1997, we entered a summary order denying the request for a certificate of appealability “for failure to exhaust state court remedies.” See C.A. No. 96-5471. We denied Jones‘s timely petition for a panel rehearing on February 14, 1997.
Rather than present his claims to the state courts, Jones filed a third pro se
On April 9, 1998, the District Court denied the petition with prejudice as “successive” because Jones had presented the same three claims in his previous petition, and the District Court had denied that petition on the merits. The District Court also ruled that the petition was barred under the statute of limitations, finding that, “even if it was appropriate to begin the limitation period from the July 15, 1996, denial of his second petition (which it is not), petitioner is time barred.” Dist. Ct. Op. at 6. Assuming it could reach the merits, the District Court denied Jones‘s ineffective assistance of counsel claim in light of the state court‘s finding that Jones had not asked his attorney to file a timely notice of appeal. The District Court ruled that “petitioner‘s attorney‘s failure to file an appeal was not unreasonable given that petitioner did not make such a request. Furthermore, petitioner has not shown that his attorney‘s performance resulted in any prejudice-- he has not sufficiently shown that he would have had any success on appeal of either his conviction or sentence.” Id. at 7-8. The District Court also ruled that the state courts did not violate due process in denying Jones‘s request to appeal nunc pro tunc or in failing to issue a writ to secure his presence at the second day of the evidentiary hearing. The District Court denied a certificatе of appealability, and this timely appeal followed.
II.
The District Court had jurisdiction pursuant to
A state prisoner seeking habeas corpus relief pursuant to
(d)(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 the 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[.]
. . .
(d)(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.
Under
In Burns v. Morton, 134 F.3d 109 (3d Cir. 1998), we concluded that “applying
Jones‘s petition was signed and dated August 19, 1997, and his memorandum of law in support of the petition was signed and dated September 15, 1997. The petition was stamped “filed” by the District Court Clerk‘s Office on November 3, 1997. Although the record does not reflect the actual date on which he handed the petition to prison officials for mailing, it is clear that Jones mailed the petition after April 23, 1997, and Jones has not suggested otherwise. Thus, even if we assume that the earliest of the above dates, August 19, 1997, reflects the date of mailing, the petition was filed almost four months after the limitations period expired. As a result, the District Court properly granted the State‘s motion to dismiss unless Jones can establish a basis for tolling the limitations period. A petitioner can seek tolling in two ways: (i) statutory tolling under
(i) Statutory tolling
Section
Although Jones does not elaborate on this point in his brief, the validity of his tolling argument turns on how the language of
This issue appears to be one of first impression for our Court, but we see no need to dwell on it here, as we are persuaded by the analysis of the majority of Courts that havе considered the issue that the statute of limitations is not tolled under
As the District Court explained in Sperling v. White, Congress clearly intended that the word “State” would be read to modify both “post-conviction” and “other collateral,” so that tolling would be afforded under
(ii) Equitable tolling
In Miller v. New Jersey State Dep‘t of Corr., 145 F.3d 616 (3d Cir. 1998), we determined that AEDPA‘s one-year filing requirement is a statute of limitations, not a jurisdictional rule, and thus a habeas petition should not be dismissed as untimely filed if the petitioner can establish an equitable basis for tolling the limitations period. We observed in Miller that “equitable tolling is proper only when the ‘principles of equity would make the rigid application of a limitation period unfair.‘” Id. at 618 (quoting Shendock v. Director, Office of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (in banc)) (punctuation marks omitted). This “unfairness” generally occurs “when the petitioner has ‘in some extraordinary way ... been prevented from asserting his or her rights.‘” Id. (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994)). Finally, we noted that “‘the petitioner must show that he or she ‘exercised reasonable diligence in investigating and bringing [the] claims.‘... Mere excusable neglect is not sufficient.” Id. at 618-19 (citations omitted).
In other cases, we have explained that equitable tolling “may be appropriate if (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.” United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (quoting Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 753 (3d Cir. 1983)). In Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236 (3d Cir. 1999), we recently held that “equitable tolling may be appropriate [in a Title VII action] when a claimant received inadequate notice of her right to file suit, where a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that she had done everything required of her.” Id. at 240 (citing Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)). In the final analysis, however, “a statute of limitations should be tolled only in the rare situation where equitable tolling is demanded by sound legal principles as well as the interests of justice.” Midgley, 142 F.3d аt 179 (quotations marks and citation omitted); see also Seitzinger, 165 F.3d at 239 (“The law is clear that courts must be sparing in their use of equitable tolling.“).
Jones argues that, “[b]y filing three pro se petitions, [he has] demonstrated his intent to be heard in federal court. He, therefore, cannot be deemed guilty of willful and inexcusable neglect, or even unreasonable delay, such that laches applies.... Instead of ‘sitting on his hands,’ Petitioner moved, three separate times, in federal court, to vindicate his appellate rights, in state court. After these repeated efforts to be heard, it would be inequitable for Appellant to be time-barred.” Appellant‘s Br. at 15-16. Jones seems to misunderstand the exhaustion requirement. Before his claims can be heard in federal court, he must present them to the state courts for review, which he can do pursuant to the New Jersey post-conviction review statute. Jones has made no showing that he “exercised reasonable diligence” in satisfying the exhaustion requirement in order to present his claims in a timely federal habeas petition. Cf. New Castle Cty. v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) (stating that, to invoke equitable tolling, a party must show an exercise of reasonable diligence in bringing the claims). Instead, he has chosen on three occasions to file his claims in federal court without first pursuing state court remedies. Although it appears that Jones was simply mistaken in his belief that he could obtain review in federal court without having presented his claims to the state cоurts, his misunderstanding of the exhaustion requirement is insufficient to excuse his failure to comply with the statute of limitations.
In sum, Jones has established no basis for an equitable tolling of the time during which his second habeas petition was pending in federal court.
(iii) Relation back
The final argument that Jones seems to raise is that the filing date of his third petition should “relate back” to the filing date of his first or second petition, both of which were filed prior to AEDPA‘s enactment and were dismissed without prejudice for failure to exhaust state remedies. See Appellant‘s Br. at 17-18. If the filing date of the third petition relates back, it was improper to dismiss the petition as time-barred. We cannot agree with this argument.
The District Court dismissed Jones‘s first petition without prejudice for failure to exhaust state remedies, and his case was closed. On the second petition, this Court denied a certificate of appealability on exhaustion grounds. Our order did not lеave Jones‘s case open in federal court; rather, we dismissed the case without prejudice to Jones‘s ability to refile his claims after complying with the exhaustion requirement. Because the first and second petitions were dismissed, and the cases closed, there was nothing for Jones‘s third petition to relate back to. Traditionally, a statute of limitations is not tolled by the filing of a complaint that is subsequently dismissed without prejudice. As we explained in a recent habeas case, “[t]ypically, when a complaint (or habeas petition) is dismissed without prejudice, that complaint or petition is treated as if it never existed.” Hull v. Kyler, 190 F.3d 88, 1999 WL 636957, at *13 (3d Cir. Aug. 23, 1999) (citations omitted). Thus, courts have recognized that, if a petition is dismissed for failure to exhaust state remedies,
IV.
To summarize, Jones‘s petition was untimely filed, and he has failed to establish any basis for a tolling of the limitations period. Accordingly, we will affirm the District Court‘s order denying Jones‘s habeas petition on the ground that the petition was untimely filed under
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Teste:
Clerk of the United States Court of Apрeals for the Third Circuit