Georges v. Bartkowski

• Docket Number: Civil Action 10-6300
• Decision Date: 20 October 2021
• Parties: ASHLEY GEORGES, Petitioner, v. GREG BARTKOWSKI, et al., Respondents. v.
• Court: U.S. District Court — District of New Jersey

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ASHLEY GEORGES, Petitioner, v. GREG BARTKOWSKI, et al., Respondents.

Civil Action No. 10-6300

United States District Court, D. New Jersey

October 20, 2021

NOT FOR PUBLICATION

OPINION

CLAIRE C. CECCHI, U.S.D. J.

Before the Court aw pro se Petitioner Ashley Georges's first (ECF No. 58) and second (ECF No. 61) motions seeking reconsideration of this Court's dismissal of his amended petition for a writ of habeas corpus pursuant to Federal Rule of Civil Procedure 59(e). ECF No. 45. Respondents opposed the motions for reconsideration (ECF Nos, 59 and 62), and Petitioner replied (ECF Nos. 60 63, 65, 67). Petitioner also filed a motion reopening the time to file an appeal (ECF No 69) and a motion requesting entry of judgment (ECF No. 70). Respondents opposed these motions. ECF No. 76. For the reasons set forth below, Petitioner's motions (ECF Nos 58, 61, 69, and 70) are denied. Though this Court finds no basis to reconsider its earlier holdings, the Court also finds that Petitioner's substantive arguments do not merit habeas relief.

I. BACKGROUND

Petitioner was convicted of murder and weapons offenses after he shot and killed Kevin Jackson (the "victim") on December 4, 1999 in Newark, New Jersey. Prosecutors alleged that Petitioner murdered the victim in retaliation for the victim having shot Petitioner in the face and back five days earlier.^[1] ECF No. 53-8 at 3. Two witnesses testified at trial: Melvin Ward and Melanie Riddick. Id. at 3-5. Ward testified that he was directly across the street from the victim's car during the murder and that he saw a gray Honda with tinted windows and a license plate number of JJR-56R or JJR-56U, Id. at 4, Ward testified that he also saw that the shooter was a "dark man around six feet tall" wearing gray clothing. Id., at 3. Riddick, the second witness, was across the street in a second-floor apartment during the incident. Id. at 4. After hearing five or six shots, Riddick saw a man with a gun, "'brown skinned,' around six feet tall, wearing a 'skully hat, '" with "some kind of white mask that went across the nose and mouth area." Id. The "white mask" identified by Riddick (ECF No. 54-14 at 6) was consistent with the white gauze Petitioner had on the left side of his face after being shot days earlier.

Prior to trial, during the murder investigation, Daniel Baldwin, a prosecutor's office homicide investigator, went to University Hospital to determine whether anyone had sought treatment for facial injuries in the two weeks prior to the shooting, as Petitioner was alleged to have been shot days earlier. ECF No. 54-4 at 33. Baldwin learned that Petitioner had been treated there for gunshot wounds to the face just days earlier. Id. at 34. Baldwin thereafter presented a photo of Petitioner in a photo array to Riddick, and Riddick "distinctly remembered" Petitioner's "thick eyebrows." ECF No, 53-8 at 5. According to Mark Stolarz, another prosecutor's office homicide investigator, during the murder investigation Petitioner confirmed to him that on November 29, 1999, while Petitioner sat in his car in nearby Irvington, he was shot in the back and left side of his face, ECF No. 53-8 at 5; ECF No. 54-4 at 8-14, The Court notes that, at the murder trial, the trial judge determined that the relevant portion of Petitioner's statement to Stolarz was voluntary, based in part on the testimony of Petitioner's friend Eric Boating, ^[2] who drove him to the police station the day of the statement. ECF No. 53-24 at 105-08, The investigators also checked motor vehicle records and determined that Simeon Noel Jeune, Petitioner's cousin, had registered a gray Honda Accord with a license plate number of JJG-56R- just one letter away from one of the license plate numbers that Ward had provided to the police and identified at trial (JJR-56R). Id. at 6. Ward confirmed to the investigators that the Honda looked like the car at scene of the Jackson murder. Id. Jeune testified that although the Honda at issue was a gift from Petitioner, Petitioner was permitted to drive it and had access to the Honda on the day of the murder. Id.; ECF No. 54-6 at 74, As discussed below, Petitioner now argues that there are two alibi witnesses that could have testified to his whereabouts on the day and time of the murder: Ivory Downey, his daughter's mother, and Alfred Boateng. ECF No. 45 at 88 (citing ECF No. 45-2 at 54).

Petitioner was convicted by a jury of murder and weapons offenses and sentenced to life imprisonment with a thirty-year parole disqualifier. ECF No, 53-8 at 2-3. Petitioner appealed his February 8, 2002, judgment of conviction, which the New Jersey Appellate Division affirmed on September 29, 2003. ECF Nos. 53-5, 53-8. The New Jersey Supreme Court denied the petition for certification on June 4, 2004, ECF No. 53-9.

On July 29, 2005, Petitioner sought state post-conviction relief ("PCR") in the New Jersey Superior Court. ECF No. 53-10, That court denied Petitioner's first PCR petition on August 28, 2007 and filed an order to that effect on August 30, 2007. ECF No. 53-15. After communicating with the New Jersey Public Defender's office about filing an appeal on his behalf, the Public Defender ultimately filed a notice of appeal on January 9, 2008. ECF No. 55-12 at 13; ECF No. 53-16, The Appellate Division affirmed the first PCR denial on July 9, 2010, and the New Jersey Supreme Court denied certification on November 4, 2010. ECF Nos. 53-20, 52-21, and 53-22. Petitioner thereafter filed this habeas petition on December 1, 2010. ECF No. 1 at 52.

In its previous Opinion in this matter, this Court found that each of Petitioner's non-Brady claims were time-barred, explaining as follows:

Habeas petitions filed pursuant to 28 U.S.C. § 2254 are subject to a one year statute of limitations. See Ross v Varano, 712 F.3d 784, 798 (3d Cir. 2013); see also Jenkins v. Superintendent of Laurel Highlands, 705 F, 3d 80, 84 (3d Cir, 2013). In most instances, including this one, [] that one year period runs from the date on which the judgment of conviction became final by the conclusion of direct review or the expiration of the time for seeking such review, including the ninety-day period for filing a petition for a writ of certiorari in the United States Supreme Court. Ross, 712 F.3d at 798; Jenkins, 705 F.3d at 84.

In this matter, Petitioner's conviction became final on September 2, 2004, ninety days after his certification petition was denied. Petitioner's one-year limitations period began to run on that date. Three hundred and thirty (330) days of the one-year limitations period ran before Petitioner ultimately filed his PCR petition on July 29, 2005. Thus, at the time Petitioner filed his PCR petition, at most thirty-six[] (36) days of his one-year limitations period remained.

The one-year limitations period, however, is subject to statutory tolling which automatically stops the running of the limitations period while the petitioner has a properly filed petition for PCR "pending" in the state courts. Jenkins, 705 F.3d at 85. A petition or appeal therefrom is "properly filed" only where it is filed in accordance with all state "time limits, no matter their form," Id. (quoting Pace v. DiGugliehno, 544 U.S. 408, 417 (2005)). A properly filed PCR petition will continue to be "pending" in the state courts following an adverse determination by the PCR trial court until the time during which he could have filed a timely direct appeal in the state courts has run. See Swartz v. Meyers, 204 F.3d 417, 420-24, 423 n.6 (3d Cir. 2000). In New Jersey, a notice of appeal for the denial of a PCR petition is due within forty-five days of the date on which the PCR petition was denied. N.J. Ct. R. 2:4-1. Although the time during which a PCR petition remains "pending" for statutory tolling purposes includes the time between an adverse trial-level determination and the filing of a timely notice of appeal, where a petitioner fails to file a timely notice of appeal, his petition ceases to be pending after the expiration of the time during which he could have filed a timely notice of appeal and does not resume "pending" status until the point at which a late notice of appeal is filed and accepted. See Evans v. Chavis, 546 U.S. 189, 197 (2006); Swartz, 204 F.3d at 423 n.6; Thompson v. Admin. N.J. Stat Prison, 701 Fed.Appx.ll8, 121-123 (3d Cir. 2017). Thus, where a New Jersey prisoner fails to file a timely notice of appeal under New Jersey's forty-five (45) day rule, his petition remains pending for the forty-five (45) days during which he could have filed a timely appeal from the denial of his PCR petition, but is not "pending" for tolling purposes between the expiration of the forty-five day period and his filing of late notice of appeal. Thompson, 701 F, App'x at 122-23.

Here, Petitioner's PCR petition was denied through an order filed on August 30, 2007. Petitioner's time for filing a timely notice of appeal expired forty-five (45) days later on October 15, 2007. [] As Petitioner did not file a timely notice of appeal, his one year limitations period thus began to run on October 16, 2007, and was not again statutorily tolled until his late notice of appeal was filed on January 9, 2008. During this period, eighty-six (86) more days of the one-year limitations period expired. Petitioner's time for filing a habeas petition would thereafter have been tolled until certification was denied on November 4, 2010. Twenty-seven (27) further days thereafter expired before Petitioner filed his habeas petition on December 1, 2010. Thus, four hundred and forty-three (443) statutorily un-tolled days passed between the conclusion of direct review in this matter and Petitioner's filing of his habeas petition, Absent some basis for equitable tolling, then, Petitioner's

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