                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-26-1998

Miller v. NJ Dept Corr
Precedential or Non-Precedential:

Docket 97-5611




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Recommended Citation
"Miller v. NJ Dept Corr" (1998). 1998 Decisions. Paper 120.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/120


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Filed May 26, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-5611

FRANK T. MILLER,
       Appellant

v.

NEW JERSEY STATE DEPARTMENT OF CORRECTIONS;
DONALD E. LEWIS, WARDEN/ADMINISTRATOR;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 97-cv-2844)

Submitted by the Clerk for a certificate of
appealability pursuant to 28 U.S.C. S 2253
Jan. 8, 1998

Before: BECKER,* NYGAARD, and ROTH,
Circuit Judges.
(MOTIONS PANEL A)

(Filed: May 26, 1998)



_________________________________________________________________

*Honorable Edward R. Becker, United States Circuit Judge for the
Third Circuit, assumed Chief Judge status on February 1, 1998.
       FRANK T. MILLER #58406
       Riverfront State Prison
       P.O. Box 9104
       Camden, NJ 08101

        Pro se

OPINION OF THE COURT

BECKER, Chief Circuit Judge.

This appeal of the district court's denial of Miller's motion
for an extension of time to file a petition for a writ of habeas
corpus, submitted as an application for a certificate of
appealability, 28 U.S.C. S 2253(c)(1), presents the question
whether the period of limitation set forth in 28 U.S.C.
S 2244(d)(1) is subject to equitable tolling. We conclude that
it is, and thus we will grant the certificate of appealability,
vacate the order of the district court dismissing Miller's
motion, and remand for further consideration.

I.

In 1994, the New Jersey Department of Corrections found
inmate Frank Miller guilty of conspiring to introduce
narcotics into prison. Miller appealed the administrative
decision through the state courts. The New Jersey Superior
Court, Appellate Division, affirmed the Department of
Corrections, and the New Jersey Supreme Court denied
Miller's petition for certification. Miller then moved in the
district court for an extension of time to file a habeas
petition. The district court denied the motion,finding that
it was filed more than one year after the one year limitation
period of S 2244(d)(1) became effective under the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), and thus was untimely. Miller filed a timely
appeal which we construe as a request for a certificate of
appealability pursuant to S 2253(c)(1).

II.

Section 2244(d)(1) provides:

                                 2
       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;

       (B) the date on which the impediment to filing a n
       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.

Miller's conviction became final in June, 1995, when the
New Jersey Supreme Court denied his petition for
certification. Because this was prior to April 24, 1996, the
effective date of AEDPA, Miller had until April 23, 1997 to
file his S 2254 petition. See Burns v. Morton, 134 F.3d 109,
111 (3d Cir. 1998). Accordingly, the district court properly
found that Miller's motion for an extension of time to file a
S 2254 petition, filed on June 4, 1997, was not filed within
the requisite time period.

Miller argues, however, that this time period should be
equitably tolled. He claims that he was delayed infiling his
petition because he was in transit between various
institutions and did not have access to his legal documents
until April 2, 1997, and because he did not learn of the new
limitation period until April 10, 1997. The Ninth Circuit,
the only court of appeals to address the issue, held that
S 2244(d)(1) is a statute of limitations subject to equitable
tolling. See Calderon v. United States Dist. Court, 128 F.3d
1283, 1289 (9th Cir. 1997), cert. denied, 118 S.Ct. 899

                               3
(1998). Judge Kozinski's strong opinion in Calderon has
been adopted by Parker v. Bowersox, 975 F. Supp. 1251,
1252 (W.D. Mo. 1997) and United States v. Gould, No.
97-3090, 1997 WL 535821 (E.D. Pa. July 29, 1997). For the
following reasons, we agree with Calderon.

III.

Time limitations analogous to a statue of limitations are
subject to equitable modifications such as tolling, see
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1387 (3d Cir. 1994), which "stops the running of the
statute of limitations in light of established equitable
considerations," New Castle County v. Halliburton NUS
Corp., 111 F.3d 1116, 1125 (3d Cir. 1997). On the other
hand, when a time limitation is considered jurisdictional, it
cannot be modified and non-compliance is an absolute bar.
See Oshiver, 38 F.3d at 1387. In determining whether a
specific time limitation should be viewed as a statute of
limitations or a jurisdictional bar, we look to congressional
intent by considering the language of the statute, legislative
history, and statutory purpose. See Shendock v. Director,
Office of Workers' Compensation Programs, 893 F.2d 1458,
1462-64 (3d Cir. 1990) (in banc).

As the Ninth Circuit recognized, the language of AEDPA
clearly indicates that the one year period is a statute of
limitations and not a jurisdictional bar. See Calderon, 128
F.3d at 1288. First, S 2244(d)(1) refers to the one year as a
"period of limitation" and a "limitation period", and does not
use the term "jurisdiction". See Shendock, 893 F.2d at 1462
(giving "considerable weight" to Congress' use of term
"jurisdiction" in filing provision). Moreover, the statute
affirmatively separates the time limitation provision from
the section that deals with jurisdiction. Section 2244(d)(1),
the limitation provision, only speaks in terms of a one year
filing period and does not purport to limit the jurisdiction
of the district courts in any way. Similarly, S 2241, the
provision in which Congress explictly grants jurisdiction to
the district courts, does not reference the timelyfiling
requirement. See Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393-94 (1982) (considering the absence of any
reference to jurisdiction in Title VII filing requirement

                               4
provision and the absence of any reference to timelyfiling
in jurisdiction provision).

Furthermore, S 2244(d)(1) contains "its own version of a
`discovery rule' in paragraph [D], and a provision similar to
the common law rule of fraudulent concealment in
paragraph [B], suggest[ing] that the drafters envisioned the
provision to function as a typical statute of limitations,
rather than a jurisdictional limitation." Gould, 1997 WL
535821, at *3.

The legislative history reinforces this conclusion. The
congressional conference report does not refer to
jurisdiction, see H.R. Conf. Rep. No. 104-518, at 111
(1996), reprinted in 1996 U.S.C.C.A.N. 944, and statements
by various members of Congress refer to the period as a
statute of limitations, see, e.g., 142 Cong. Rec. S3472 (daily
ed. Apr. 17, 1996) (statement of Sen. Specter) ("I introduced
legislation . . . to impose a statute of limitations on the filing
of habeas corpus petitions"); 142 Cong. Rec. H3606 (daily
ed. Apr. 18, 1996) (statement of Rep. Hyde) ("Now, we have
a 1-year statute of limitations in habeas."); 141 Cong. Rec.
S7597 (daily ed. May 26, 1995) (statement of Sen. Hatch)
(the bill will "have 1-year statute of limitations").

Such an interpretation is also consistent with the
statutory purpose of AEDPA. The statute was enacted, in
relevant part, to curb the abuse of the writ of habeas
corpus. H.R. Conf. Rep. No. 104-518, at 111 (1996),
reprinted in 1996 U.S.C.C.A.N. 944. ConstruingS 2244(d)(1)
as a statute of limitation clearly serves this purpose. It
provides a one year limitation period that will considerably
speed up the habeas process while retaining judicial
discretion to equitably toll in extraordinary circumstances.
We add that this interpretation is also consistent with the
construction we gave to S 2244(d)(1) in Burns, 134 F.3d at
111-13 (holding that (1) S 2244(d)(1) does n ot bar petitions
filed within a year of AEDPA's effective date, and (2) pro se
prisoner's habeas petition is deemed filed upon delivery to
prison officials for mailing).

                                5
IV.

In view of our conclusion that Congress intended the one
year period of limitation to function as a statute of
limitation, and thus be subject to equitable tolling, we will
grant the certificate of appealability, vacate the order of the
district court dismissing Miller's motion, and remand for
consideration of the equitable tolling issue. For the
guidance of the district court, we observe that equitable
tolling is proper only when the "principles of equity would
make [the] rigid application [of a limitation period] unfair."
Shendock, 893 F.2d at 1462. Generally, this will occur
when the petitioner has "in some extraordinary way . . .
been prevented from asserting his or her rights." Oshiver,
38 F.3d 1380. The petitioner must show that he or she
"exercised reasonable diligence in investigating and
bringing [the] claims." New Castle County, 111 F.3d at
1126. Mere excusable neglect is not sufficient. See Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct.
453, 458 (1990); New Castle County, 111 F.3d at 1126.1

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

1. The advent of AEDPA has given rise to a considerable number of
technical legal questions dealing with limitations, of which this case
presents but one example. In order to provide guidance to the district
courts, and hence facilitate the orderly administration of justice in
these
cases, we have followed the practice, whenever we decide an AEDPA
issue that arises under S 2254 and the same holding would analytically
be required in a case arising under S 2255, or vice versa, of so informing
the district courts. See Burns, 134 F.3d at 112 (holding that resolution
of issue arising under S 2254 also applies toS 2255 cases); Santana v.
United States, 98 F.3d 752, 756 (3d Cir. 1996) (holding that resolution
of issue arising under S 2255 also applies toS 2254 cases). We do
likewise here, and rule that the one year period of limitation for S 2255
cases is also subject to equitable tolling.

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