                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-2002

Johnson v. Hendricks
Precedential or Non-Precedential: Precedential

Docket No. 00-3633




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Johnson v. Hendricks" (2002). 2002 Decisions. Paper 808.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/808


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

          Filed December 30, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3633

WADE JOHNSON,
      Appellant

v.

ROY L. HENDRICKS;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 00-cv-01526)
District Judge: Hon. John W. Bissell

Submitted Under Third Circuit LAR 34.1(a)
October 31, 2002

Before: SLOVITER, FUENTES, Circuit Judges
and FULLAM,* District Judge

(Filed December 30, 2002)

Annette Verdesco
Pope, Bergrin & Verdesco
Newark, N.J. 07105

 Attorney for Appellant
_________________________________________________________________

* The Hon. John P. Fullam, Senior Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
          Michael J. Williams
          Office of Attorney General
          of New Jersey
          Department of Law & Public Safety
          Division of Criminal Justice
          Trenton, N.J. 08625

          Attorney for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge:

This appeal raises the issue whether the statute of
limitations applicable to a habeas petition should be
equitably tolled where a prisoner relies on the erroneous
advice of counsel as to when his petition is due. We join the
other courts of appeals that have addressed this issue and
hold that in these circumstances equitable tolling is not
available.

I.

BACKGROUND

In 1993, Appellant Wade Johnson was convicted
following a jury trial in New Jersey state court of murder
and related offenses in connection with a drug-related
shooting and was sentenced to life in prison. The New
Jersey Superior Court, Appellate Division, affirmed his
conviction and sentence. The New Jersey Supreme Court
denied Johnson's petition for certification on May 23, 1996.
On April 1, 1997, Johnson filed a petition for post-
conviction relief in state court, which was denied. The New
Jersey Superior Court affirmed the denial of relief and the
New Jersey Supreme Court denied Johnson's petition for
certification on March 30, 1999. Johnson's counsel notified
him by letter that he had one year from this date to file a
habeas petition in federal court. This information was
erroneous.

                    2
On March 28, 2000, Johnson filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the United
States District Court for the District of New Jersey.1 The
State moved to dismiss the petition because it was filed
beyond the one-year time limitation provided in 28 U.S.C.
§ 2244(d)(1). The District Court found Johnson's habeas
petition to be untimely and granted the motion to dismiss.
It rejected Johnson's claim that the statute of limitations
should be equitably tolled because counsel incorrectly told
him when his habeas petition was due.

We granted Johnson's application for a certificate of
appealability to address the following question:"May a
miscalculation of the statute of limitations by petitioner's
attorney be grounds for equitable tolling of the statute of
limitations provided in 28 U.S.C. § 2244(d)(1)?"

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.
§ 2254. This court has jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. The standard of review over the decision
to dismiss a case as time-barred is plenary. See Nara v.
Frank, 264 F.3d 310, 314 (3d Cir. 2001).

III.

DISCUSSION

It is undisputed that Johnson's habeas petition is time-
barred absent the application of the equitable tolling
doctrine. Briefly, Johnson had one year to file his petition
after his conviction became final on August 21, 1996, when
the time to petition the United States Supreme Court for a
_________________________________________________________________

1. Johnson signed his petition on March 28, 2000 and it was filed with
the court on April 4, 2000. For purposes of this appeal, we need not
determine the exact date of filing. See Houston v. Lack, 487 U.S. 266,
275-76 (1988) (prisoner's notice of appeal is filed at time of delivery to
prison authorities for filing with the court).

                    3
writ of certiorari expired. The relevant statute, 28 U.S.C.
§ 2244(d)(1), provides that a § 2254 petition must be filed
within one year of the latest of four events, the one relevant
here being "(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." See also Kapral v. United
States, 166 F.3d 565, 570 (3d Cir. 1999) (if a defendant
does not file a certiorari petition, a judgment of conviction
does not become "final" until time for seeking certiorari
review expires).

The statute of limitations for Johnson's filing of a habeas
petition ran for 222 days until Johnson filed a petition for
post-conviction relief in state court on April 1, 1997. At that
time, the time for filing his habeas petition was tolled
pursuant to 28 U.S.C. § 2244(d)(2) which provides that "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." The statute remained tolled until March 30,
1999, when the New Jersey Supreme Court denied
Johnson's petition for certification. See Stokes v. District
Attorney, 247 F.3d 539, 543 (3d Cir.) (time during which a
prisoner may file a certiorari petition from the denial of his
state post-conviction petition does not toll the limitations
period), cert. denied, 122 S. Ct. 364 (2001). As of that day,
Johnson had 143 days remaining, or until August 20,
1999, to file his habeas petition. See Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir.) (§ 2244(d)(2)'s tolling provision
excludes time during which a properly filed state post-
conviction is pending but does not reset the date from
which the one-year limitations period begins to run), cert.
denied, 531 U.S. 840 (2000). He filed his petition, however,
on March 28, 2000.

Johnson argues that the statute of limitations should be
equitably tolled based upon a letter that he received from
the Assistant Deputy Public Defender, Diane Toscano,
dated March 31, 1999, after the New Jersey Supreme Court
denied his petition for certification with respect to the
denial of post-conviction relief. In this letter, Toscano
informed Johnson that the office was terminating its
representation, and stated

                    4
           If you decide to file a pro se Petition for Habeas
          Corpus with the United States District Court, you can
          request the clerk of that court to send you habeas
          corpus forms to fill out. Once you have completed these
          forms and have shown that you are indigent, the
          federal court may appoint a lawyer for you. This
          petition must be filed within one year of the date on the
          enclosed order of the New Jersey Supreme Court, or, if
          you first filed a Petition of Certiorari, within one year
          from the date the United States Supreme Court denies
          or otherwise rules on that petition.

Da at 24 (emphasis in original). A copy of the order of the
New Jersey Supreme Court dated March 30, 1999 was
enclosed with the letter. As noted above, the statement as
to the time the habeas petition was due was erroneous,
which is the fact that gives rise to Johnson's equitable
tolling contention.

As Johnson argues, and as the State concedes, the one
year filing deadline in 28 U.S.C. § 2244(d)(1) is subject to
equitable tolling. See Fahy v. Horn, 240 F.3d 239, 244 (3d
Cir.), cert. denied, 122 S. Ct. 323 (2001); Miller v. New
Jersey Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998).
However, " `equitable tolling is proper only when the
principles of equity would make the rigid application of a
limitation period unfair.' " Nara, 264 F.3d at 319 (quoting
Miller, 145 F.3d at 618). Equitable tolling is permitted if "(1)
the defendant has actively misled the plaintiff, (2) the
plaintiff has in some extraordinary way been prevented
from asserting his rights, or (3) the plaintiff has timely
asserted his rights mistakenly in the wrong forum." Fahy,
240 F.3d at 244 (quoting Jones, 195 F.3d at 159).

Johnson concedes, sub silentio, that the State did not
actively mislead him as he relies only on the second basis
for equitable tolling. He contends that he has been
prevented in an extraordinary way from asserting his
rights, and he finds this "extraordinary" prevention in his
counsel's error. The District Court rejected this ground as
a basis for equitable tolling, relying on the decisions from
the Courts of Appeals for the Fourth Circuit in Harris v.
Hutchinson, 209 F.3d 325 (4th Cir. 2000), and the Seventh
Circuit in Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999).

                    5
In Harris, 209 F.3d at 330, the Court of Appeals for the
Fourth Circuit explained that there must be circumstances
beyond the prisoner's control that prevented him from
complying with the statute.

Johnson seeks to distinguish his situation from those
cases by arguing his counsel's error was external to his
conduct and that he detrimentally relied on counsel's
advice. He asserts that the extraordinary circumstances
consist of his reliance on his attorney's erroneous advice
and contends that he exercised reasonable diligence in
following counsel's advice and that, absent the application
of equitable tolling, he will be denied federal review based
upon the conduct of a third party. He proffers the
attorney's letter as proof of his attorney's erroneous advice.

Recently, other courts of appeals have considered this
issue, and have consistently rejected the argument that an
attorney's mistake in determining the date a habeas
petition is due constitutes extraordinary circumstances for
purposes of equitable tolling. See, e.g. , Miranda v. Castro,
292 F.3d 1063, 1068 (9th Cir. 2002), petition for cert. filed,
71 U.S.L.W. 3178 (U.S. Sep. 6, 2002); Helton v. Sec'y for the
Dep't of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001), cert.
denied, 122 S. Ct. 1965 (2002); Smaldone v. Senkowski,
273 F.3d 133, 138-39 (2d Cir. 2001), cert. denied, 122 S.
Ct. 1606 (2002); Kreutzer v. Bowersox, 231 F.3d 460, 463
(8th Cir. 2000), cert. denied, 122 S. Ct. 145 (2001).
Johnson has offered no other reason to warrant equitable
tolling. See Nara, 264 F.3d at 320; Taliani, 189 F.3d at 598.
In addition, this court in Fahy recognized that in non-
capital cases, attorney error has not been found to rise to
the extraordinary circumstances required for equitable
tolling. 240 F.3d at 244.2

We agree with the District Court that Johnson has not
shown extraordinary circumstances to warrant equitable
tolling of the AEDPA statute of limitations. Although he
received erroneous advice, Johnson was not prevented in
an extraordinary way from asserting his rights.
_________________________________________________________________

2. Because Fahy was a capital case, we applied equitable tolling there.
See id. at 245.

                    6
IV.

CONCLUSION

For the reasons set forth, we will affirm the order of the
District Court dismissing Johnson's petition for a writ of
habeas corpus as time-barred.

A True Copy:
Teste:

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

                    7
