BRIGGS v. NOGAN et al, No. 2:2015cv05727 - Document 10 (D.N.J. 2018)
Court Description: OPINION. Signed by Judge Madeline Cox Arleo on 5/16/2018. (ld, )
Download PDF
<![CDATA[
BRIGGS v. NOGAN et al Doc. 10 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY KEVIN BRIGGS, Civil Action No. l5-5727(MCA) Petitioner, v. OPINION : PATRICK NOGAN and THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, Respondents. MADELINE CCX ARLEO, I. District Judge INTRODUCTION This matter has been opened to the Court by the pro se Petition (ECF No. 1) of Kevin Briggs (“Petitioner”) writ of habeas corpus pursuant to 28 U.S.C. at 9.) § 2254. seeking a (ECF No. 1-1 Petitioner’s Reply also seeks an evidentiary hearing regarding alleged mental incompetence. For the reasons explained below, (ECF No. 8 at 7-9.) the Court will: deny the Petition without prejudice; deny the request for an evidentiary hearing without prejudice; and allow Petitioner leave to file evidence demonstrating his entitlement to statutory tolling and/or equitable tolling. At this time, the Court will also order Respondents to file a full and complete answer to the Petition. 1 Dockets.Justia.com II. FACTUAL BACKGROUND & PROCEDURAL HISTORY A. Factual Background This Court, affording the state court’s factual determinations the appropriate deference, see 28 U.S.C. § 2254(e) (1),’ relies upon the recitation of facts as set forth by the Appellate Division of the Superior Court of New Jersey (“Appellate Division”) (ECF No. 6-15 October 25, in its August 12, (“Briggs II”) .) The Briggs II court affirmed the 2011 order of the Law Division of the Superior Court of New Jersey (“Law Division”), which had denied Petitioner’s petition for post-conviction relief 4.) 2014 written opinion. (“PCR”) . (ECF No. 6-15 at 2- The Briggs II court discerned the following facts from the record on appeal, which this Court considers along with other parts of the record that are pertinent to this Opinion: On January 31, 2006, Petitioner pled guilty pursuant to a negotiated agreement to two counts of felony murder, Ann. § 2C:ll-3(a) (3). N.J. Stat. In the course of burglarizing a residence, Petitioner had shot and killed the two occupants. committed two separate homicides, Despite having the State agreed to recommend Pursuant to 28 U.S.C. § 2254(e) (1), “[un a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” ‘ 2 that Petitioner serve an aggregate term of thirty years without parole eligibility. Petitioner was (ECF No. 1-2.) 2006 to thirty years for two counts of sentenced on March 20, felony murder, 6-15 at plus a five year period of parole supervision ipon his release. (ECF No. 1-1 at 3; ECE Nos. 6-1 6-6.) - B. Procedural History Petitioner filed a notice of appeal of his conviction on April 27, 2007.2 (ECF No. 6-7.) Ne moved on June 1, leave to file that notice as within time. (ECF No. Appellate Division granted such leave on June 20, 6-9) . The 6-8.) 2007 (ECE No. Petitioner’s direct appeal challenged the excessiveness of his sentence. 6-15 at 2; (ECF No. On September 16, 2008, Petitioner’s sentence. App. 2007 for Div. Sept. 16, Petitioner did not 1-1 at 3.) the Appellate Division affirmed State v. 2008). ECF No. Briggs, (ECF No. No. A-005l63-06 (N.J. 6-10.) file a petition for certification in the New Jersey Supreme Court. (ECF No. 8 at 6.) Petitioner did not date his first petition for PCR relief (ECF No. 6-li at 4), and he has not provided this Court with the date he filed that PCR petition. (ECF No. 1 at 7; ECE No. 6-li at 2-5.) The 45-day period for Petitioner to file an appeal of his conviction had expired on May 4, 2006. 2 3 On October 25, 2011, In a memorandum opinion, December 21, 2011. On July 23, the PCR trial court heard arguments. the court denied the PCR petition on (ECF No. 6-15 at 3; ECF No. 6-13 at 1-6.) Petitioner filed his notice of appeal of 2012, the denial of PCR relief. (ECF No. 6-14; ECF No. 6-15 at 3-4,) Despite the untimeliness of Petitioner’s appeal, Appellate Division on August 12, denial of PCR relief. On February 17, (ECF No. 2015 2014 affirmed on the merits the 6-15.) (ECF No. 6-17), New Jersey denied Petitioner’s August 27, certification. (ECF No. the the Supreme Court of 2014 petition for 6-16.) Petitioner filed his Petition for habeas relief on July 20, 2015. (ECF No. 1 at 15; On August 27, Respondents to file Petition’s] ECF No. 2015, 1-2.) this Court entered an Order directing ‘a limited response on the issue of timeliness.” (ECE No. [the 2 at 2-3.) 2015, Respondents filed their Limited Answer with supporting exhibits, arguing that the Petition was untimely On November 6, under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d) (1). (ECF No. September 19, 2016, his 6 at 7; ECF Nos. 6-1 — Petitioner filed a Reply, 6-18.) On contending that “failure to file a habeas petition within time is subject to equitable tolling,” illness.” (ECF No. for which he “qualifies due to mental 8 at 9.) He also requests “an evidentiary 4 hearing to develop the record as i pertains to his mental stability throughout a ten year appellate pro, , ces 5 (Id.) I”. A. The Petit A 0 Under AEDPA ears Untimel , An The Present Record Congress prescribed a oney period of j n for the fili of 0 by federal habeas corpus peti l±mitatio state prisoners See Doug?as v. § 2244 (d) (1) 28 U.S C . Horn 359 .3d 257, 261 (2004. The limitation period rUrs from the latest of LT]he date on Which the Judgme became l by the conclusion of direct review or fina the expiration of the time for seeking such review; (B) LTjhe 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) LTjhe date on Which the constitutional i right asserted Was initially recogn by the Supreme Court if the right has been i 5 ewly recogfl by the Supreme Court and n made retroactive 1 applicable to cases on l review; or collatera () LTj date on which the factual predicate of the claim or claims preseIted could have been discovered through the g exercise of due dili (A) § 2244 (d) (1) 28 U.SC n circumeta . Thus, except in extremely limited a prisoner must file One alljflclusi petition Within One year of the date when jUdgmefl of conviction becomes 5 final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d). Under AEDPA’s statutory tolling provision of § 2244(d) (2), “{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 shall not be counted toward any period of limitation under this section statutory tolling exception, “ Under this AEDPA’s one-year limitation period is tolled during the time a properly filed application for state PCR relief is pending. (3dCir. denied, 2003); Horn v. Here, See Merritt v. Fahy v. Fahy, Horn, 534 U.S. Elaine, 240 F.3d 239, 944 326 F.3d 157, 243 (3d Cir.), cert. (200l). the New Jersey Appellate Division denied Petitioner’s direct appeal and affirmed his sentence on September 16, (ECF No. 161 6-10.) Petitioner did not file a petition for certification to the New Jersey Supreme Court. State courts’ 2008. criminal judgments become “final (ECF No. 8 at 6.) for AEDPA purposes by the conclusion of direct review or by the expiration including the 90-day period for of time for seeking such review, An application for post-conviction relief is considered “pending” within the meaning of § 2244(d) (2) during the period between a lower state court’s ruling and the period a petitioner has to seek review of the decision, whether or not the appeal was actually sought. Swartz v. Meyers, 204 F.3d 417, 424 (3d Cir. 2000) 6 filing a petition for writ of certiorari in the United States Supreme Court. Swartz v. 2000); Morris v. Horn, Meyers, 204 F.3d 417, 187 F.3d 333, 337 n.1 419 (3d Cir. (3d Cir. 1999). Petitioner had 20 days to seek direct review of the New Jersey * Appellate Division’s September 16 affirmance of his sentence. 4 However, where, as in this case, a litigant like Petitioner did not seek certification from the Supreme Court of New Jersey as to his direct appeal, final, his judgment of conviction became and his AEDPA period of limitations began to run, when his time to file such petition for certification expired, 1 twenty days after the Appellate Division enters decision. See Kaprai v. United States, 166 F.3d 565, Jersey Rule of Court 2:4-1(a). Thus, 577 (3d Cir. 1999) ; 20 days after September 16, New Petitioner’s judgment of conviction became final for AEDPA purposes on October 6, (i.e., e 2008). 2008 The oneyear limitations period of the AEDPA began to run on October 7, and it expired one year later. Petitioner did not file his habeas Petition until July 23, 2015, 2008, making it untimely unless saved by statutory or equitable tolling. “If certification is sought to review a final judgment of the Appellate Division, the petitioner shall, within 20 days after its entry, serve a copy of a notice petition for certification upon all parties and shall file the original notice with the Clerk of the Supreme Court[.]” New Jersey Rule of Court 2:12-3. . .. 7 The record suggests that statutory tolling does not, remedy the Petition’s untimeliness. Petitioner has not provided the date he filed his first PCR. (ECF No. Respondents’ 1 at 7.) However, supplements to the record suggest that Petitioner filed that PCR petition on March 2, 2010 (ECF No 6-12 Assuming Petitioner in fact filed his first PCR petition on March 2, 2010, untimeliness. that filing would not cure the Petition’s The PCR application would have been Petitioner’s first action that might have statutorily tolled the running of AEDPA’s one-year limitations period However, had already passed between the October 6, 2008 AEDPA-final judgment of conviction date and the March 2, filing date. In other words, more than one year 2010 PCR petition AEDPA’s one-year period had already run by the time Petitioner took any action that might have tolled that limitations period. When the Petition was filed on 5 July 20, 2015, it missed the October 2009 AEDPA filing deadline Under facts presently of record, the Petition is not saved by statutory tolling because over one year’s worth of time had already lapsed by the time of the first PCR petition. • See Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005) (habeas limitations period is statutorily tolled while a properly filed state collateral relief petition is pending); Figueroa v. Buechele, No. 15-1200, 2015 WL 1403829, at *2 (D.N.J. Mar. 25, 2015) (statute of limitations is statutorily tolled while a • petitioner has a properly filed PCR petition pending before the state courts) (citing Swartz, 204 F.3d at 419 and Morris, 187 F.3d at 337 n.l) 8 In light of Petitioner’s pro se status, this Court will also consider equitable tolling. B Petitioner Has Not Demonstrated Entitlement To Equitable Tolling When, as here, statutory tolling is unavailable, AEDPA’s statute of limitations may be equitably tolled in certain extraordinary circumstances 165, 174 (3d Cir 2013) United States v Thomas, 713 F 3d Equitable tolling should be granted sparingly and only when the principles of equity would make the rigid application of a limitation period unfair F.3d at 174 2011)). (citing Pabon v. Mahanoy, 399 713 (3d Cir. Id. a habeas petitioner must show: that he faced “extraordinary circumstances” that stood in (1) the way of timely filing, diligence” tolled .63 654 F.3d 385, Mere excusable neglect is insufficient, To claim equitable tolling, See Thomas, Cir. 2014) (2) that he exercised “reasonable in pursuing his rights throughout the period to be Holland v (2010); and Florida, United States v. (quoting Pabon, 560 U S 631, 130 S Ct Johnson, 590 F. App’x 176, 654 F.3d at 399) . 2549, 179 2562W (3d To establish extraordinary circumstances for equitable tolling, a petitioner must show either that he has been actively misled, that he was prevented from asserting his rights in some extraordinary way, that he timely asserted his rights in the wrong forum, or that the court misled him regarding the steps he needed to take to 9 preserve his claim. Cir 1999) Cir.), See Jones v. Morton, see also Brinson v , cert. 546 U.S. denied, Vaughn, 957 159 195 F.3d 153, 230 398 F 3d 225, (3d (3d “There are no bright (2005). lines in determining whether equitable tolling is warranted in a given case.” Pabon, permit it 654 F.3d at 399. The courts should only “in the rare situation where it is demanded by sound legal principles as well as the interests of justice Kyler, 398 F.3d 271, 275 (3d Cir. LaCava v “ 2005) Petitioner has failed to demonstrate that this case Here, is one of those “rare situation[s] First, .“ LaCava, “extraordinary Petitioner has not shown the circumstances” prong. “qualifies for He contends that he (ECF No. equitable tolling due to mental illness” in support he relies upon: (1) 398 F.3d at 275. two “letters [that] 8 at 3), were written five and four years prior to the incident that led to indictment” (ECF No. 8 at 3 and 6): (a) [my] 1999 the November 11, letter of psychiatrist Jocelynda Udasco, M.D., and diagnosing ?etitioner with “Major Depressive Disorder with psychotic features” (ECE No. 8-1 at 1 and 9; ECF No. 8 at 3 and 6 (“[Dr.] Udasco states that petitioner has been hospitalized five times for his mental illness from the ages of 4 Udasco’s August 2, - 22”)); and (2) a Dr. 2000 psychiatric report as to Petitioner’s diagnosis of “schizoaffective disorder depressed type” 11), (b) “sticky note attached to 10 (id. at [Petitioner’s presentencing intake form] counsel[,] [that] evaluated’” stat[ing] (id.). from someone named John, states (ECF No. written to trial ‘we need to hire an expert to have him 8 at 5); that Petitioner has and “the presentence report (3) ‘significant mental issues’”) Petitioner argues that “an individual with the mental health history described by Dr. Udasco [in 1999 and 2000] couldn’t possibly continually assert his rights over an appeal process that has spanned ten years.” (ECF No. 8 at 4.) Mental illness is not a per se reason to toll the statute of limitations for habeas petitions. 310, See Nara v. Frank, 264 F.3d overruled in part on other grounds, 320 (3d Cir, 2001), Carey v. Saffold, 536 U.S. 214. “the a1eged mental Rather, incompetence must have affected the petitioners ability to file a timely habeas petition.” of Corr., 469 F. App’x 113, F.3d at 320). Champney v. 117 Sec’y Pennsylvania Dep’t (3d Cir.2012) (citing Nara, 264 The petitioner bears the burden of establishing his mental incompetence and how that illness affected his ability to file a timely habeas action. Champney, 469 F. App’x at 117. A mental condition which burdens but does not prevent a petitioner from meeting timely filing requirements does not constitute “extraordinary circumstances” equitable tolling. for the purposes of “District Courts within our Circuit take a totality of the circumstances approach when presented with an equitable tolling argument premised on the petitioners mental 11 incompetency. A non-exclusive list of factors to consider includes: and, (1) if so, [whether] petitioner [was] adjudicated incompetent when did the adjudication occur in relation to the habeas statutory period; (2) [whether] the petitioner institutionalized for his mental impairment; (3) [was] [whether] the petitioner handled or assisted in other legal matters which required action during the federal limitations period; [whether] and (4) the petitioner supported his allegations of impairment with extrinsic evidence such as evaluations and/or medications.” Champney, 469 F. App’x at 118. As to these factors in this case: (1) Petitioner does not state that he has ever been adjudicated incompetent or institutionalized for his alleged mental impairments at 5 (Petitioner’s Reply Brief: (ECF No. 8 “Petitioner could not have possibly been adjudicated incompetent...”)) ; and (2) Petitioner has presented no “extrinsic evidence such as evaluations and/or medications” (Champney, 469 at 118) that he suffered any mental health changes after Dr. Udasco’s August 2000 letter in which she had stated that Petitioner “is relatively stable.” 8-1 at 11.) Notably, (BCE No. the record contains no evidence indicating that any mental impairments or deterioration occurred during the period October 2008 period began to run) (i.e., when AEDPA’s one-year limitations and October 2009 statute of limitations period expired) 12 (i.e., when AEPPA’s (referred to herein as the “Relevant Time Period”) that would have affected his abilaty to make timely filings. Although Petitioner repeatedly refers to his “mental health problems” “medication change” (id. (ECF No. at 7), 8 at 3 and 12) he has not identified or substantiated any medications allegedly taken, diagnoses, and any specific or any health deterioration during the Relevant Time Period. He has not provided any medical records to this Court. Petitioner has only alleged a nonspecific “mental Rather, illness” that he contends rendered him incapable of comprehending legal matters “throughout the appellate process.” (ECF No. 8 at 6.) This unsupported assertion lacks the necessary specificity and fails to draw a causal connection between the alleged mental impairment and the failure to timely file. short, In Petitioner has not shown how alleged mental health issues prevented him from timely seeking PCR or habeas relief. The Third Circuit has not “held that problems,’ an undefined and expansive category, basis for equitable tolling” Harris, ‘mental health 268 F, Supp.2d 500, in and of itself. 506 (E.D. Pa. 2003) constitutes a United States v. (noting that equitable tolling requires “an inability to pursue ones legal rights” and “a nexus between the petitioner’s mental condition and inability to file a timely petition”; determining that “a mental condition that burdens but does not prevent a prisoner from tiling a timely petition does not constitute 13 ‘extraordinary circumstances justifying equitable tolling”) Petitioners . cannot simply allege that mental impairment prevented timely filing. Rather, they must show that disability actually hindered filing of a timely petition. (3d Cir. 2013) (“court[s] [equitable tolling] Ross v. Varano, 712 F.3d 784, 803 should be sparing in use of the doctrine”) . Petitioner here has not done so. Viewing the facts in the light most favorable to Petitioner, the Court finds that he has not carried his burden of demonstrating that he suffered from a mental health condition sufficiently “extraordinary” to warrant equitable tolling of AEDPA’s statute of limitations. To the contrary, Petitioner’s own habeas submissions suggest that he was capable of participating in the activities required to file a legal claim, such as communicating to other persons the details of his situation. (ECF No. 8 at 6, Petitioner’s pro se status does 13.) not alter this analysis. Second, Petitioner has not demonstrated the “reasonable diligence” prong for warranting equitable tolling. Circuit, pro se status does not necessarily justify tolling, even in combination with “mental incompetence the level of insanity.” Hedges v. 753 In the Third (3d Cir. 2005) pro se status, . United States, (holding that depression, . . rising to 404 F,3d 744, in combination with was not sufficient basis for equitable tolling) That Petitioner proceeded pro se and has limited knowledge of 14 the law does not merit eguita tolling “The fact that a petitioner is proceeding pro se does not insulate him from the ge ‘reasonable dili nguiry 1 and his lack of legal knowledge or legal training does not alone lUstify eguita tolljg” Ross, 768, 712 F.3d at 99-8O 774 (3d Cir. 2003)). e 5 reasonable dilig (citing Bro v. Shannon 322 F.3d Petitioner failed to exercise in that he, inter alia, Passively declined o file a petition for certification with the New Jersey Supreme Court and failed to file a PCR petition until after the one-year AEDpA limitations period began to run. Moreover, the claims asserted in Petitioner, habeas Petition were all available to 5 him before the AEDPA limitatjon period expired; his claims are not based, evidence for instance (ECF No. on newly and recently discovered l.)6 Pursuant to Federal Rule of Civil Procedure 17 (c) (2), a court to protect a minor or “must appoint a guard ad litem t person who is ted in an action’ The Third incompeten unrepresen cuit has held, however, that courts need not order a Cir psychiarj evaluation to determine whether an unrepresented person is mentally incompetent unless “there is some , evidence of incompetenc, such as “verifiable evidence from a al demonstratino that the Party is being mental health profession or has been treated for mental illness of the type that would , render him legally incompetent, Powell V. Symons, 680 F,3d 301, 307 (3d Cir. 012) Although Petitioner has raised claims of 5 tolling, his mental incompetence in Support of egujt (ECF No. arguments relate to his mental health in 1999 and 20Q hiajc reports, 8-1 at 1-2.) He has presented no medical or psyc nor any other “verifiable evidence from a mental health l,, demonstrating his lack of competence at past professiona ly there relevant time periods or at the present time. According s for this Court to conduct a sua sponte inquiry into is no basi 6 . . 15 . In light of Petitioner’s pro se status and his underlying this Court will deny the arguments of mental incompetence, Petition without prejudice. Under the facts currently of record with this Court, the Petition appears time-barred and is not saved by either statutory or equitable tolling. Over one year had already passed when Petitioner filed his first PCR petition, and so statutory tolling is unavailable. Further, Petitioner has not met his burden to establish a basis for equitable tolling of the limitations period because he has demonstrated neither that “extraordinary circumstances” prevented him from filing on time nor that he acted with “reasonable diligence” to file as soon as he could. The Court will allow Petitioner leave to file materials as described that demonstrate entitlement to statutory tolling, above in this Opinion. Specifically, if he chooses, Petitioner may submit evidence that he filed his first PCR petition prior to March 2, to do so, 2010 (referred to as “PCR Evidence”) . If he chooses Petitioner must file this PCR Evidence within 30 days of the date of this Opinion. The Court will also allow Petitioner leave to file materials that support his claim of equitable tolling. Petitioner’s competency or to order a medical evaluation. However, Petitioner’s future filings in this case, if any, alter the Court’s decision in this regard. 16 may Specifically, demonstrating if he chooses, (1) Petitioner may submit evidence his medical condition(s) that would have prevented him from timely seeking PCR relief and from timely filing the Petition, and (2) his exercise of reasonable diligence in pursuing PCR and habeas relief referred to as do so, “Equitable Tolling Evidence”) (items (1) and (2) If he chooses to Petitioner must file his Equitable Tolling Evidence within 30 days of the date of this Opinion In the event Petitioner does not file any PCR Evidence or any Equitable Tolling Evidence within 30 days of the date of this Opinion, prejudice. this Court shall dismiss the Petition with However, in the event Petitioner does timely file any such PCR Evidence or Equitable Tolling Evidence, Respondents may respond to such evidence within 30 days after Petitioner files the evidence. At this time, and given the age of this case and the possibility that Petitioner might establish a basis for tolling, the Court will also direct Respondents to file a full and • complete answer to the Petition within 45 days of the date of this Opinion if petitioner files any PCR or equitable tolling evidence * Respondents’ answer shall respond to the factual and legal allegations of the Petition by each paragraph and subparagraph. Respondents shall raise any appropriate defenses that they wish to have the Court consider. 17 The Court will deny Petitioner’s demand for an evidentiary hearing. Petitioner having failed to make the threshold proffer necessary for equitable tolling, his hearing request does not merit further written discussion and is denied at this time. Zettlemoyer v. Fulconier, 923 F.2d 284, 298 n.2 (3d Cir. See 1991) (petitioner not entitled to evidentiary hearing based on “bald assertions and conclusory allegations”) . However, in the event Petitioner elects to submit additional materials regarding tolling in accordance with this Opinion, he may renew his request for an evidentiary hearing at that time if he chooses. IV. CONCLUSION For all of these reasons, the Petition appears untimely. The record does not support statutory or equitable tolling. Therefore, the Petition and the request for evidentiary hearing will be denied without prejudice. An appropriate Order follows. Dated: I , 2018 /t/ Mde1ine Cox Arleo United States District Judge 18
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
