NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 18-1822 ____________

WILLIAM SEVERS, Appellant

v.

THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; ADMINISTRATOR NEW JERSEY STATE PRISON ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-15-cv-06421) District Judge: Honorable Noel L. Hillman ____________

Submitted under Third Circuit LAR 34.1(a) October 29, 2019

Before: SMITH, Chief Judge, HARDIMAN, and PHIPPS, Circuit Judges

(Filed: November 5, 2019)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

William Severs appeals an order of the District Court dismissing his untimely

petition for writ of habeas corpus under

. We agree with the District

Court that Severs had no right to equitable tolling, so we will affirm.

I1

On September 2, 2005, a New Jersey state court jury convicted Severs of murder

and other serious crimes and he was sentenced to 60 years in state prison. After

exhausting his direct appeal rights, Severs petitioned for post-conviction relief. The court

denied his petition at a post-conviction hearing on September 22, 2011. About two weeks

later, on October 4, 2011, the court filed a written opinion explaining the reasons for the

denial.

Severs stated his desire to appeal at the September 22 hearing and several other

times. He informed the Office of the Public Defender of his desire to appeal by letters

dated September 26 and October 3, 2011. And on October 20, 2011, Severs again

informed his counsel that he wished to appeal, and complained that as of that date,

counsel had communicated nothing further to him about filing it. Severs did not file his

post-conviction appeal until October 15, 2012.

1 The District Court had jurisdiction under

. We have jurisdiction under

and we review de novo the District Court’s determination that equitable tolling did not apply. See Munchinski v. Wilson,

(3d Cir. 2012).

2 Severs blames his former counsel and the Office of Public Defender for the one-

year delay in filing the appeal from the denial of his petition for post-conviction relief. In

support, Severs filed a document entitled “Certification,” a letter by his post-conviction

counsel stating that Severs asked counsel to appeal the denial of his petition. The letter

states that because counsel was in a severe car accident, he could not timely file Severs’s

post-conviction appeal. Yet the letter provides no specific facts about counsel’s inability

to file an appeal. Nor is there evidence in the record to show that Severs followed up with

his counsel after his October 20, 2011 letter complaining about the lack of information

regarding the filing of his post-conviction appeal. Although the “Certification” letter

states that counsel returned his client’s files in February 2012, the record does not

demonstrate that Severs contacted the Office of the Public Defender anytime afterwards

before that office finally filed a notice of appeal in October 2012. And following the New

Jersey Supreme Court’s denial of review of his appeal, Severs again waited nearly one

year before seeking federal habeas relief, and fails to explain this second delay.

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year

limitations period for § 2254 claims. There is no dispute that Severs’s petition was

untimely as he concedes he had until October 27, 2014 to file his petition but failed to do

so until August 21, 2015. The District Court accordingly dismissed Severs’s § 2254

petition, finding that Severs had not shown sufficient evidence to justify equitable tolling.

We agree.

3 II

AEDPA’s one-year limitations period may be equitably tolled only in

extraordinary cases. Holland v. Florida,

(2010). Here, Severs had

to establish: (1) he pursued his rights diligently, and (2) extraordinary circumstances

prevented a timely petition.

.

First, Severs failed to show he pursued his rights with reasonable diligence. See

; LaCava v. Kyler,

(3d Cir. 2005) (diligence requirement extends

to the federal habeas petition and all state court remedies). For some time, Severs acted

with reasonable diligence. The District Court observed that Severs appealed his

conviction, pursued post-conviction relief, and informed both his attorney and the Office

of the Public Defender of his intent to appeal the denial of his petition for post-conviction

relief. But he provided no evidence of any further attempt to file his appeal within the

limitations period or for a substantial period thereafter even though he expressed concern

that his appeal had not been filed as of October 20, 2011. When the New Jersey Appellate

Division affirmed the denial of his petition for post-conviction relief, Severs still had 35

days to file a timely federal habeas petition. Yet he waited 298 days beyond the

limitations period to do so. Thus, the District Court did not err when it held that Severs

did not show he pursued his rights with reasonable diligence.

Second, Severs failed to establish that extraordinary circumstances prevented him

from timely appealing the denial of his petition for post-conviction relief. Jenkins v.

Superintendent of Laurel Highlands,

(3d Cir. 2013). Equitable tolling

4 typically applies “when the petitioner has in some extraordinary way . . . been prevented

from asserting his or her rights.” Jones v. Morton,

(3d Cir. 1999)

(emphasis added) (citation and internal quotation marks omitted). Although Severs

provided the letter from his counsel about a car accident, the letter says nothing about

when the car accident occurred or to what extent or for how long the accident

incapacitated counsel. To the extent that the Office of the Public Defender eventually

acquired responsibility for Severs’ post-conviction appeal, its contribution to the filing

delay was evidently due to a backlog in its case management. App. 87. Assuming that is

true, this “garden variety” delay was nothing more than “excusable neglect,” which is

hardly extraordinary. Holland,

(citation and internal quotation marks

omitted). So the District Court did not err in determining Severs failed to show he was

prevented in an extraordinary way from asserting his rights.

In sum, because Severs has established neither reasonable diligence nor

extraordinary circumstances sufficient to justify equitable tolling, we will affirm the

District Court’s order holding his habeas petition untimely.

5