                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-16-2009

Saleem v. Roy Hendricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4695




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 05-4695
                                     ____________

                               ABDUL WALI SALEEM
                               a/k/a MARK ANTHONY,
                                                Appellants

                                             v.

                 ROY L. HENDRICKS; PETER C. HARVEY,
          THE 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. 04-cv-00928)
                      District Judge: Honorable Robert B. Kugler
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 9, 2009

   Before: CHAGARES and HARDIMAN, Circuit Judges and ELLIS,* District Judge

                                 Filed: January 16, 2009
                                     ____________

                              OPINION OF THE COURT
                                   ____________



      *
        The Honorable Thomas Selby Ellis, III, Senior District Judge for the United States
District Court for the Eastern District of Virginia, sitting by designation.
HARDIMAN, Circuit Judge.

       Abdul Wali Saleem appeals the denial of his writ of habeas corpus as untimely.

We will affirm.

                                             I.

       As we write exclusively for the parties, who are familiar with the procedural

context and factual history of the case, we recount only those facts necessary to our

decision.

       A New Jersey jury convicted Saleem of first-degree murder and related weapons

charges. Saleem unsuccessfully appealed his conviction to the Appellate Division of the

Superior Court, and the Supreme Court of New Jersey denied his petition for certification

on May 12, 1992. Three days later, Saleem petitioned for post-conviction relief pursuant

to New Jersey Court Rule 3:22-2. After a hearing before a different Superior Court judge

than the one who presided over his trial, Saleem’s post-conviction petition was denied.

The Appellate Division affirmed the decision of the Superior Court, and the New Jersey

Supreme Court denied his petition for certification on September 16, 1997.

       On November 12, 1997, Saleem filed his first petition for a writ of habeas corpus

in the United States District Court for the District of New Jersey, raising four grounds for

relief. Finding Saleem’s petition mixed under Rose v. Lundy, 455 U.S. 509 (1982), the

District Court dismissed it without prejudice on August 10, 1998, so that Saleem could

bring his unexhausted claims in state court. The State concedes that because of a problem



                                             2
with the prison mail system, Saleem did not receive a copy of the District Court’s order

until July 7, 1999.

       The record indicates that Saleem waited until March 12, 2001 to file his post-

conviction petition and then filed an additional petition on August 16, 2001. The

Superior Court denied relief on September 6, 2001. On appeal, the Appellate Division

found that Saleem’s post-conviction petition was time-barred and that the issues raised

therein should have been raised on direct appeal. The New Jersey Supreme Court denied

Saleem’s petition for certification on November 18, 2003.

       On February 23, 2004, Saleem returned to federal court to file the habeas petition

at issue in this case. Recognizing that his petition was untimely, Saleem sought equitable

tolling, but the District Court denied Saleem’s motion and dismissed his habeas petition.

                                             II.

       We have jurisdiction to review the denial of a writ of habeas corpus as untimely

pursuant to 28 U.S.C. §§ 1291 and 2253, and our review is plenary. See McAleese v.

Brennan, 483 F.3d 206, 212 (3d Cir. 2007).

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a

one-year statute of limitations for filing a petition for writ of habeas corpus challenging a

state court action. 28 U.S.C. § 2244. Relevant to this appeal, the one-year statute of

limitations begins to run on “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.” 28



                                              3
U.S.C. § 2244(d)(1)(A). However, the limitations period is tolled for “the time during

which a properly filed application for State post-conviction or other collateral review . . .

is pending.” 28 U.S.C. § 2244(d)(2). As a result, Saleem’s one-year period did not start

running until the New Jersey Supreme Court denied his petition for certification on his

post-conviction relief claim on September 16, 1997.

       In addition to statutory tolling, the statute of limitations is also subject to equitable

tolling. See Miller v. N.J. State Dep’t of Corrs., 145 F.3d 616, 618-19 (3d Cir. 1998).

Such tolling is appropriate “only in the rare situation where equitable tolling is demanded

by sound legal principles as well as the interests of justice.” Jones v. Morton, 195 F.3d

153, 159 (3d Cir. 1999). We look to see whether the party “has in some extraordinary

way been prevented from asserting his or her rights.” Brown v. Shannon, 322 F.3d 768,

773 (3d Cir. 2003). One such potentially extraordinary situation is where a court has

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

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984). For instance, we

have held that where a petitioner’s first petition was dismissed because the District Court

erroneously believed he could return to exhaust his claims in state court, the petitioner is

entitled to equitable tolling. See Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).

       Nevertheless, to invoke equitable tolling, a petitioner must show that he exercised

reasonable diligence in investigating and bringing his claims. New Castle County v.

Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997). “This obligation does not



                                               4
pertain solely to the filing of the federal habeas petition, rather it is an obligation that

exists during the period appellant is exhausting state court remedies as well.” LaCava v.

Kyler, 398 F.3d 271, 277 (3d Cir. 2005). “Mere excusable neglect is not sufficient.”

Miller, 145 F.3d at 619 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).

       Here, Saleem waited almost two years from the date on which he learned that his

first petition was dismissed without prejudice (July 7, 1999) to file for post-conviction

relief in state court (March 12, 2001). This lapse of time did not constitute reasonable

diligence. Cf. Merritt v. Blaine, 326 F.3d 157, 170 (3d Cir. 2003) (rejecting equitable

tolling for lack of diligence where petitioner waited two years to file habeas petition after

state relief was no longer viable). Though Saleem claims he filed a pro se post-

conviction petition in October 1999, there is nothing in the record to support that

assertion.1 The burden lies on the petitioner to prove that he has been reasonably diligent

in pursuing his petition, see Urcinoli v. Cathel, 546 F.3d 269, 277 (3d Cir. 2008), and

Saleem has presented no evidence that would indicate that he was reasonably diligent

because unsupported allegations do not constitute sufficient evidence. See Morse v.


       1
        Saleem’s appellate brief does not allege that he filed a petition in October 1999.
Rather, the State’s brief alludes to such a filing and the District Court’s opinion below
discussed the factual dispute regarding the October 1999 petition. To its credit, the State
acknowledges Saleem’s contention at the District Court that he filed a pro se post-
conviction petition on October 1, 1999. No documents relating to this alleged filing are
in the record and none were found by the State. However, there is a letter, dated July 17,
2000, from the Office of the Public Defender to the New Jersey state court that indicates
that Saleem filed a pro se petition on an unspecified date. The State correctly argues that
this record is insufficient to show that Saleem actually filed a petition in 1999.

                                                5
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, after his final

request for post-conviction relief was rejected by the New Jersey Supreme Court, Saleem

waited over two months to return to the District Court with his second habeas petition.

       Saleem argues at length that his first habeas petition was dismissed in error. Even

assuming, arguendo, that Saleem is correct, it is immaterial to the question of whether he

exercised reasonable diligence in bringing both his state post-conviction petition and this

habeas petition. Because Saleem did not pursue his claim with reasonable diligence, the

District Court did not err in denying his request for equitable tolling. Accordingly, we

will affirm the District Court’s dismissal of Saleem’s petition as untimely.




                                             6
