Selwin Martin v. Administrator New Jersey State Prison

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1918
___________
SELWIN MARTIN,
Appellant
v.
ADMINISTRATOR NEW JERSEY STATE PRISON;
ATTORNEY GENERAL NEW JERSEY
_________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-15-cv-07158)
District Judge: Honorable Jerome B. Simandle
_________________________________
Argued November 18, 2020
Before: JORDAN, KRAUSE, and RESTREPO,
Circuit Judges
(Opinion Filed: January 21, 2022)

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Benjamin R. Barnett
Micah Brown [ARGUED]
Dechert LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Counsel for Appellant
Maura M. Sullivan [ARGUED]
Camden County Office of Prosecutor
200 Federal Street
Camden, NJ 08103
Counsel for the Appellees
___________
OPINION OF THE COURT
___________
RESTREPO, Circuit Judge.
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) imposes a one-year statute of limitations on
state prisoners seeking federal habeas corpus relief. 28 U.S.C.
§ 2244(d)(1). The one-year clock begins to run, as relevant
here, when a state prisoner exhausts all options on direct appeal
thus rendering the state conviction “final.” Id. § 2244(d)(1)(A).
However, AEDPA also provides a tolling mechanism: under
28 U.S.C. § 2244(d)(2), the one-year clock pauses for “[t]he
time during which a properly filed application for State post-

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conviction or other collateral review with respect to the perti-
nent judgment or claim is pending.”
Appellant Selwin Martin’s state conviction became “fi-
nal” on April 10, 2002, triggering the limitations period. The
clock ran for 193 consecutive days, until October 21, 2002,
when Martin filed a petition for state post-conviction relief
(“PCR”). The one-year clock was paused until June 14,
2004—the last day on which Martin could have appealed (but
did not) the trial court’s denial of his PCR petition—and ex-
pired 172 days later, on December 3, 2004. On June 12, 2015,
almost eleven years following the lapse of the limitations pe-
riod, Martin filed a petition seeking federal habeas relief.
Martin appeals the District Court’s denial of his habeas
petition as untimely. The crux of Martin’s argument stems
from his April 6, 2012 filing in state appellate court of a motion
for leave to appeal “as within time” the trial court’s denial of
his PCR petition. Martin argues that the state appellate court’s
acceptance of his appeal “as within time” retroactively tolls the
one-year limitations period (retroactive in the sense that the
limitations period had expired more than seven years prior to
the time Martin moved for leave to appeal “as within time” the
trial court’s PCR decision). In essence, Martin asks us to hold
that a “properly filed” PCR petition is “pending” in accordance
with § 2244(d)(2) for the period between (1) the expiration of
time under state law in which a state prisoner could have timely
appealed (but did not) a trial court’s denial of a PCR petition,
and (2) a state prisoner’s submission of a motion for leave to
file a PCR appeal “as within time.” We disagree. Section

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2244(d)(2)’s tolling mechanism looks forward, not backward,
and a state court’s acceptance of an appeal “as within time”
does not rewind AEDPA’s one-year clock.
Because Martin is not entitled to statutory or equitable
tolling of § 2244(d)(1)’s limitations period, we hold that Mar-
tin’s petition fails on the grounds of timeliness. For the reasons
discussed below, we will affirm the District Court’s dismissal
of Martin’s habeas petition.
I.
A.
In October 1999, following a jury trial in the Superior
Court of New Jersey, Camden County, Martin was convicted
of multiple crimes including murder, felony murder, and first-
degree kidnapping. Martin received a sentence of, inter alia,
life imprisonment subject to thirty-five years of parole ineligi-
bility, to run consecutively to an unrelated federal sentence.
On September 21, 2001, the Superior Court of New Jersey, Ap-
pellate Division affirmed Martin’s conviction, and the New
Jersey Supreme Court denied Martin’s petition for certification
on January 10, 2002. The 90-day period in which Martin could
have sought certiorari from the United States Supreme Court,
but did not, expired on April 10, 2002.

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B.
On October 21, 2002, Martin filed a timely petition for
post-conviction relief. The trial court denied Martin’s PCR pe-
tition on April 30, 2004. Pursuant to N.J. Ct. R. 2:4-1(a), Mar-
tin had 45 days—i.e., until June 14, 2004—to appeal the trial
court’s denial of his PCR petition. That 45-day period lapsed
without Martin filing an appeal.
Nearly eight years later, on April 6, 2012, Martin filed
a pro se motion to appeal “as within time” the trial court’s April
30, 2004 denial of his PCR petition. J.A. 83. The Appellate
Division granted Martin’s request on June 27, 2012, without
providing the grounds upon which it based that decision. On
December 18, 2014, the Appellate Division affirmed the trial
court’s denial of Martin’s PCR petition, and the New Jersey
Supreme Court denied Martin’s petition for certification on
April 30, 2015.
C.
On June 12, 2015, Martin filed a petition for writ of ha-
beas corpus pursuant to § 2254 in the District of New Jersey.
The District Court ordered Martin to show cause as to why his
petition should not be dismissed on timeliness grounds.
In response, Martin—still acting pro se—filed a decla-
ration, dated December 4, 2015, in which he denied responsi-
bility for the nearly eight-year delay in appealing the trial
court’s denial of his PCR petition. J.A. 81-84. According to

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Martin, his counsel at the time of the trial court’s denial of the
PCR petition assured him immediately following the court’s
decision that an appeal would be filed. Beginning in January
2005, Martin claims that he attempted multiple times to ascer-
tain the status of his PCR appeal, to include contacting his then-
counsel and the Office of the Public Defender.1 See J.A. 190
1 In his declaration, Martin refers to “attached letters” as evi-
dence of the frequency with which he wrote his then-counsel
inquiring as to the status of his appeal. J.A. 83. However, no
letters were attached to his declaration, nor to any filing in sup-
port of his habeas petition. The District Court acknowledged
this discrepancy and assumed, for the purposes of deciding the
State’s motion to dismiss, that Martin’s “description of the let-
ters” was “accurate.” J.A. 10 n.4. Relatedly, it concluded that
no evidentiary hearing was necessary because “after even ac-
cepting the alleged contents of the letters as true, [Martin] did
not act with reasonable diligence.” J.A. 10 n.4.
“In preparing to respond to Martin’s appeal in this
Court, the State came across letters attached to Martin’s April
6, 2012 state court motion to file as within time and related
filings.” Appellee’s Br. 6 n.5. In addition to the letters, the
State acknowledged that the entirety of Martin’s April 6, 2012
filing, except for his notice of appeal, see J.A. 126, was not
included in the District Court’s record. The parties included
the missing documents in their joint appendix. See J.A. 185-
212. These documents provide additional facts pertaining to

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the delay that were not included in Martin’s December 2015
declaration; for example, Martin alleges that he wrote a letter,
dated March 8, 2012, to the trial court judge requesting a copy
of the order denying his PCR petition. See J.A. 190, 196. Ad-
ditionally, his April 6, 2012 filing does not reference his seek-
ing of assistance from a prison paralegal in December 2011.
See J.A. 189-96. Martin does not challenge the District Court’s
determination that an evidentiary hearing was unwarranted,
nor does he otherwise argue for remand based on the letters not
being in the District Court’s record. And neither party filed a
motion for leave to supplement the record on appeal, nor do
they ask that we take judicial notice of the missing filings.
Although “[t]his Court has said on numerous occasions
that it cannot consider material on appeal that is outside of the
district court record,” we may allow for an expansion of the
record under certain circumstances. In re Cap. Cities/ABC,
Inc.’s Application for Access to Sealed Transcripts, 913 F.2d
89, 96-97 (3d Cir. 1990); see also 2 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice & Procedure § 37.1
(7th ed.). However, we need not decide whether such an ex-
ception exists here, as we take judicial notice of the entirety of
the state court record. See U.S. ex rel. Geisler v. Walters, 510
F.2d 887, 890 n.4 (3d Cir. 1975) (taking judicial notice of
briefs and petitions filed in state court that had been missing at
the time of the district court’s decision so that the Court may
review “a full and proper record,” as the district court “could

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(Martin alleging that “all [his] efforts” to contact his then-
counsel as to the status of his appeal were “fruitless,” despite
his then-counsel having made him a “solemn promise” “[a]t
the conclusion of [his] hearing” to file an appeal). Martin al-
leges that he made “[n]umerous . . . unanswered” calls to this
then-counsel and wrote him “every six months” inquiring as to
his appeal. J.A. 83. According to Martin, it was not until De-
cember 2011 (following his transfer from a federal facility in
Virginia, where he had been serving an unrelated federal sen-
tence, to a state prison in New Jersey) that he was made aware
there was no pending PCR appeal. Explaining that he had no
legal training, was without “personal letters, law books[,] and
several legal files” that had gone missing during his transfer to
New Jersey, and otherwise “didn’t know what to do,” Martin
have done” if the documents had been found sooner); see also
Swanger v. Zimmerman, 750 F.2d 291, 297 (3d Cir. 1984) (tak-
ing judicial notice of state court documents that were provided
to the Court on appeal).
This is not to say that we view the letters filed by Martin
on April 6, 2012 as those that he intended to attach to his De-
cember 4, 2015 declaration—that inference is unsupported at
best. As relevant to our review of the District Court’s denial
of Martin’s petition on the grounds of timeliness, those letters
remain missing. We also see no reason to deviate from the
District Court’s determination that an evidentiary hearing was
unwarranted. See Robinson v. Johnson, 313 F.3d 128, 143 (3d
Cir. 2002).

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sought the assistance of a prison paralegal in filing a notice of
appeal and a motion for leave to file “as within time”—both of
which form the basis of his April 6, 2012 submission to the
Appellate Division. J.A. 83.
Following Martin’s response to the order to show cause,
the State moved to dismiss the petition as untimely. Martin did
not file a response. And on March 15, 2017, the District Court
dismissed the petition with prejudice. In a sound and thought-
ful opinion, the District Court concluded that Martin, although
eligible for a period of statutory tolling, failed to adhere to
§ 2244(d)(1)’s one-year statute of limitations. The District
Court reasoned that the one-year clock was tolled for certain
periods during the pendency of his PCR petition, but the clock
restarted—and never stopped—following the expiration of the
45-day period in which Martin could have, but did not, file an
appeal of the trial court’s denial of the PCR petition. Thus,
according to the District Court, the one-year statute of limita-
tions expired in December 2004. As to equitable tolling, the
District Court found that Martin failed to demonstrate that he
undertook reasonable diligence in pursuing an appeal of the
trial court’s denial of his PCR petition. Martin timely appeals.2
2 The District Court declined to issue Martin a certificate of
appealability. We granted him a certificate of appealability on
the issue of “whether the District Court properly dismissed his
petition as untimely,” to include “whether and to what extent
the state court’s decision to permit the filing of the appeal ‘as

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II.
The District Court had jurisdiction under 28 U.S.C.
§ 2254(a). We exercise jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. We review de novo a district court’s dis-
missal of a state prisoner’s habeas petition on statute of limita-
tions grounds. See Merritt v. Blaine, 326 F.3d 157, 161 (3d
Cir. 2003). Where, as here, the district court did not hold an
evidentiary hearing, our review of the district court’s refusal to
equitably toll § 2244(d)(1)’s limitations period is likewise de
novo. See LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir.
2005).
III.
Martin, as a state prisoner, is subject to a one-year lim-
itations period for seeking federal habeas relief. See 28 U.S.C.
§ 2244(d)(1) (“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
within time’ distinguishes this case from others addressing re-
quests to appeal out of time.” J.A. 16-17 (citations omitted).
We also appointed pro bono counsel for Martin pursu-
ant to 28 U.S.C. § 1915(e)(1). We recognize Benjamin R. Bar-
nett, Esq. and Micah Brown, Esq. of Dechert LLP—appointed
counsel—for their commitment to pro bono service as well as
their dedicated and high-quality representation of Martin in
this appeal.

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pursuant to the judgment of a State court.”). Martin’s one-year
clock began running on April 10, 2002, the date on which his
judgment became “final.”3 See id. § 2244(d)(1)(A) (“The lim-
itation period shall run from the latest of . . . the date on which
the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review[.]”).
Therefore, Martin’s habeas petition was due no later than April
9, 2003. Yet he did not seek habeas relief until June 12, 2015,
over twelve years later. Absent tolling of the one-year limita-
tions period, Martin’s petition was untimely.
We must determine whether the District Court erred in
finding that neither statutory nor equitable tolling saves Mar-
tin’s petition from dismissal. First, we ask: does Martin’s en-
titlement to tolling pursuant to § 2244(d)(2) remedy the un-
timeliness of his petition? Answering in the negative, we next
ask: did Martin act with the requisite due diligence to entitle
him to equitable tolling? Again, answering in the negative, we
hold that the District Court did not err in finding that neither
statutory nor equitable tolling applies to save Martin’s other-
wise untimely habeas petition. Based on the following analy-
sis, we will affirm the District Court’s order granting the
State’s motion to dismiss Martin’s petition on the grounds of
timeliness.
3 The parties do not dispute that § 2244(d)(1)(A) governs the
start of Martin’s limitations period, and we see no reason to
suggest that an alternative start date should apply. See 28
U.S.C. §§ 2244(d)(1)(B)-(D).

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A.
We first look to the extent to which Martin is eligible
for statutory tolling. AEDPA’s tolling mechanism provides
that “[t]he 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.” 28
U.S.C. § 2244(d)(2) (emphasis added); see Merritt, 326 F.3d at
162 (“[T]o fall within the AEDPA tolling provision, the peti-
tion for state post-conviction review must have been both
pending and ‘properly filed.’”) (citing Fahy v. Horn, 240 F.3d
239, 243 (3d Cir. 2001)). It is undisputed that Martin’s petition
was “properly filed.”4 Rather, at issue is whether Martin’s
PCR petition was “pending” such that it tolled the one-year
limitations period and thereby saved his otherwise untimely
habeas petition. A PCR petition is “pending” in accordance
with § 2244(d)(2) “as long as the ordinary state collateral re-
view process is ‘in continuance’—i.e., ‘until the completion of’
that process.” Carey v. Saffold, 536 U.S. 214, 219-20 (2002).
A PCR petition “by definition” remains “pending” “until the
application has achieved final resolution through the State’s
post-conviction procedures.” Id. at 220.
4 The District Court likewise recognized that Martin’s petition
was “properly filed” within the meaning of § 2244(d)(2). See
J.A. 76. Because we conclude that the petition was not “pend-
ing,” we need not consider whether it was “properly filed.”

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Keeping this standard in mind, we must look to three
distinct time periods to determine the extent to which Martin is
entitled to statutory tolling: (1) October 21, 2002 to April 30,
2004; (2) April 30, 2004 to June 14, 2004; and (3) June 14,
2004 to April 6, 2012. As detailed below, we hold that Martin
is undoubtedly entitled to some tolling of the limitations period
pursuant to § 2244(d)(2); however, the tolling that he is entitled
to is insufficient to rectify the untimeliness of his petition.
1.
To begin, Martin’s conviction became final pursuant to
§ 2244(d)(1)(A) on April 10, 2002, the last day that Martin
could have sought certiorari from the United States Supreme
Court. Martin’s one-year clock began running on April 11,
2002 and did not pause until Martin filed his PCR petition on
October 21, 2002—193 days later.5 As of October 21, 2002,
Martin had 172 days remaining on the clock.
5 To determine the number of days remaining on Martin’s one-
year clock, we count beginning the first day following the date
upon which the judgment became “final,” see Fed. R. Civ. P.
6(a)(1), and treat his PCR petition as “pending” from the date
of its filing, see Windland v. Quarterman, 578 F.3d 314, 315
(5th Cir. 2009) (“[A] state habeas petition is ‘pending’ for the
purposes of tolling under § 2244(d)(2) on the day it is filed
through (and including) the day it is decided.”); cf. United

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Martin’s PCR petition began “pending” pursuant to
§ 2244(d)(2) on October 21, 2002. See Saffold, 536 U.S. at
219-20 (stating that a petition is “pending” under § 2244(d)(2)
when it is “in continuance”). The parties do not dispute that
Martin’s PCR petition continued to be “pending” through April
30, 2004, when the trial court denied his PCR petition.
2.
Under New Jersey law, Martin had 45 days after the de-
nial of his PCR petition to file an appeal. See N.J. Ct. R. 2:4-
1(a). The parties do not dispute that Martin’s PCR petition re-
mained “pending” for 45 days following the trial court’s deci-
sion on April 30, 2004, i.e., until June 14, 2004. See Swartz v.
Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (“‘[P]ending’ in-
cludes the time for seeking discretionary review, whether or
not discretionary review is sought.”).
3.
Martin urges us to hold that his PCR petition was “pend-
ing” for the approximately eight-year period between June 14,
2004 (the last day on which he could have appealed, but did
not, the trial court’s denial of his PCR petition) and April 6,
States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006) (explain-
ing that the date of a motion’s filing is excluded for the pur-
poses of “calculating includable time” under the Speedy Trial
Act) (quoting United States v. Yunis, 723 F.2d 795, 797 (11th
Cir. 1984)).

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2012 (the day on which Martin moved to file his PCR appeal
“as within time”). But he misconstrues the meaning of “pend-
ing” under § 2244(d)(2).
In Swartz, we held that “the term ‘pending’ must in-
clude the time between a court’s ruling and the timely filing of
an appeal.” 204 F.3d at 420, 424 (emphasis added). Shortly
thereafter, the Supreme Court agreed with this interpretation of
“pending,” confirming that “pending” includes the period be-
tween a lower state court’s adverse finding and a petitioner’s
filing of a timely notice of appeal. Saffold, 536 U.S. at 217. In
2006, the Supreme Court, in Evans v. Chavis, once again con-
sidered the meaning of “pending” under § 2244(d)(2). 546
U.S. 189 (2006). In doing so, the Evans Court reaffirmed its
holding in Saffold that the one-year clock tolls for the period
“between (1) a lower court’s adverse determination, and (2) the
prisoner’s filing of a notice of appeal, provided that the filing
of the notice of appeal is timely under state law.” Id. at 191
(second emphasis added).
Martin capitalizes on “timely” as used in Swartz, Saf-
fold, and Evans to argue that a belatedly filed appeal that is
ultimately accepted “as within time” satisfies § 2244(d)(2)’s
“pending” requirement because it is “timely.” According to
Martin, “an appeal is properly pending so long as it was timely
filed.” Appellant’s Br. 22. Consistent with AEDPA’s princi-
ples of comity, finality, and federalism, Martin maintains that
resolving whether a petition is “timely” for the purposes of the
“pending” analysis “depends on the state courts’ determination

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of that issue.” Id. at 30; Reply Br. 2-3 (“[W]hether a state ap-
pellate petition is timely and properly filed—and therefore
‘pending’ for AEDPA purposes—is a determination to be
made by the courts of that state, and not by a later federal ha-
beas court.”) (citing Saffold, 536 U.S. at 226). So, he urges us
to accept the Appellate Division’s designation of Martin’s pe-
tition “as within time” as a “conclusive[] determin[ation] that
the appeal in question was timely filed” for the purposes of the
“pending” analysis. Appellant’s Br. 23, 30; see also id. at 16
(arguing that a state appellate court’s acceptance of an appeal
“as within time” is a “clear indication that [the] request for ap-
pellate review was timely”) (quoting Evans, 546 U.S. at 198).
And because his petition was “timely” filed, he argues that it
was “pending” for the nearly eight years between the last day
on which he could have appealed, but did not, the trial court’s
denial of his PCR petition and the day on which he moved to
file his PCR appeal “as within time.”
Martin’s reasoning gives Frankenstein-like characteris-
tics to § 2244(d)(2)’s tolling mechanism that threatens to write
§ 2244(d)(1)’s limitations period out of AEDPA. At the outset,
we agree with Martin that “timely” in the “pending” context,
as used in Swartz, Saffold, and Evans, indeed refers to a state’s
determination of an appeal’s timeliness. However, “timely”
here is not synonymous with a state appellate court’s ac-
ceptance of a belated appeal “as within time.” Rather “timely”
means an appeal filed in accordance with the state law deline-
ating the period in which a petitioner may appeal following a
lower court’s adverse determination, before the appeal would

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be considered belated. “Timely” does not encapsulate a be-
lated appeal that was ultimately accepted through the applica-
tion of a tolling mechanism or exception to the state law gov-
erning the period in which a petitioner may file an appeal.
For example, in Evans, the Supreme Court considered
the “pending” requirement in the context of whether § 2244’s
limitations period was tolled during the time in which a peti-
tioner in California could submit an “original petition.” Evans,
546 U.S. at 192. California, as opposed to a state like New
Jersey, has an “indeterminate” timeliness requirement that is
based on a finding of reasonableness. Id. at 192-93; see also
Saffold, 536 U.S. at 222 (“Other States . . . specify precise time
limits, such as 30 or 45 days, within which an appeal must be
taken, while California applies a general ‘reasonableness’
standard.”). The “timely” in Evans asks whether the petitioner
filed his “original petition” within a “reasonable” time; its in-
quiry does not extend to whether an exception, if any, to Cali-
fornia’s “reasonableness” requirement would turn an otherwise
unreasonable (and therefore untimely) petition suddenly rea-
sonable, and thereby resuscitate its “pending” status. Evans,
546 U.S. at 201.
An examination of Saffold and Swartz leads us to the
same conclusion. In Saffold, the Supreme Court focused on
whether a petition was “pending” during the period in which a
petitioner may appeal under California’s “reasonableness”
standard. Saffold, 536 U.S. at 219-21. It specifically recog-
nized that “pending” applies “as long as the ordinary state col-

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lateral review process is ‘in continuance.’” Id. at 219-20 (em-
phasis added); see also Evans, 546 U.S. at 192, 199-200 (“[I]n
Saffold, we held that timely filings in California (as elsewhere)
fell within the federal tolling provision on the assumption that
California law in this respect did not differ significantly from
the laws of other States, i.e., that California’s ‘reasonable time’
standard would not lead to filing delays substantially longer
than those in States with determinate timeliness rules,” which
are “typically just a few days.”) (emphasis omitted). Likewise
in Swartz, our examination focused on whether a petition was
“pending” during the period “between one appellate court’s
ruling and the deadline for filing a timely request for allowance
of appeal when a timely request for allowance of appeal is not
filed.” Swartz, 204 F.3d at 420. There, “timely request” refers
to the determinate period under Pennsylvania state law in
which Swartz could have, but did not, file a “timely” appeal.
See, e.g., id. at 419 (“Swartz did not file a timely petition for
allowance of appeal in the Pennsylvania Supreme Court. But,
on March 4, 1997, Swartz filed a ‘Motion for Permission to
File Petition for Allowance of Appeal Nunc Pro Tunc.’ On
May 2, 1997, the Pennsylvania Supreme Court denied his mo-
tion.”) (emphasis added).
So, it remains whether we are to accept Martin’s invita-
tion to expand the scope of “timely” beyond its meaning in
Swartz, Saffold, and Evans and hold that a “properly filed” pe-
tition is “pending” for the period between the expiration of time
in which a petitioner could have appealed, but did not, the trial
court’s denial of a PCR petition and the day on which the state

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appellate court grants his petition to appeal “as within time.”
We join our sister Courts of Appeals in declining to do so.
In Fernandez v. Sternes, the Seventh Circuit addressed
essentially an identical question to that on appeal here: “what
is the period ‘during which’ a petition was pending, when it
became ‘properly filed’ because the state court excused a de-
lay?” 227 F.3d 977, 978 (7th Cir. 2000). The petitioner in
Fernandez, much like Martin, failed to file his appeal in ac-
cordance with Illinois’s rules concerning the timeliness of an
appeal and instead, nearly a year after that deadline expired,
filed a motion to file a late petition for leave to appeal, which
the state court granted. Id. at 979. The Fernandez Court took
a common-sense approach, holding that “State processes ended
when the time to seek further review expired. They may be
revived, but the prospect of revival does not make a case ‘pend-
ing’ in the interim.” Id. at 980-81. Accordingly, it is “a make-
believe approach . . . [to view] petitions . . . [as] continuously
pending whenever a state court allows an untimely filing.” Id.
at 981. “[P]refer[ing] reality,” the Court held that “[a]n un-
timely petition is just that; it is filed when it is filed, and it was
not ‘pending’ long before its filing.’” Id.
We too prefer “reality.” Section 2244(d)(2)’s “pend-
ing” requirement looks forward, not backward. This sensible
construction of the statute comports with the fact that, at the
expiration of time in which to file a timely PCR appeal, a peti-
tioner’s PCR proceedings have concluded. In other words,
from the expiration of time in which to file a timely appeal and
the state court’s acceptance of the belated appeal, there is no

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PCR petition for the state court system to consider. Nor is there
a petition that could be appealed. The state review process is
done; it is not dormant, it is not latent, and it is not hibernating
in case a petitioner should choose at some point down the road
to request a state appellate court to review a belated appeal.
This amounts to the exhaustion of a petitioner’s state court
remedies, and thereby does not step on the toes of AEDPA’s
principles of comity, finality, and federalism. See Saffold, 536
U.S. at 220 (“A federal habeas petitioner must exhaust state
remedies before he can obtain federal habeas relief. . . . The
exhaustion requirement serves AEDPA’s goal of promoting
comity, finality, and federalism, by giving state courts the first
opportunity to review [the] claim, and to correct any constitu-
tional violation in the first instance. And AEDPA’s limitations
period—with its accompanying tolling provision—ensures the
achievement of this goal because it promotes the exhaustion of
state remedies while respecting the interest in the finality of
state court judgments.”) (internal citations and quotations
omitted).
While it is true that a state court’s acceptance of an un-
timely appeal breathes new life into the state PCR proceed-
ing—and may at that point trigger § 2244(d)(2)’s tolling mech-
anism (a determination that we need not reach today)—it does
not resuscitate the PCR petition for the period in which it was,
for all practical purposes, defunct. Any other reading would
essentially “sap the federal statute of limitations of much of its
effect,” Fernandez, 227 F.3d at 980, allowing a petitioner to sit
on his federal rights while waiting an indeterminate time to file

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a belated state appeal. This would give § 2244(d)(2)’s tolling
mechanism a “Cheshire-cat like quality, both there and not
there at the same time.” Id.; see also Streu v. Dormire, 557
F.3d 960, 966-67 (8th Cir. 2009) (holding that a PCR petition
was not “pending” between the expiration of time for an appeal
and the filing of a motion for leave to file a belated appeal be-
cause there was nothing “in continuance” or “not yet decided”
after the expiration of time in which the petitioner could have
filed a notice of appeal, even in light of the fact that the state
court later granted petitioner’s motion for leave to file an un-
timely appeal); Hoggro v. Boone, 150 F.3d 1223, 1226 n.4
(10th Cir. 1998) (noting in dicta that “[§] 2244(d)(2) requires
a court to subtract time only for the period when the peti-
tioner’s ‘properly filed’ post-conviction application is being
pursued”).6
6 Martin attempts to distinguish Fernandez, Streu, and Swartz
on the ground that none of these cases concern the acceptance
of a belated appeal “as within time.” See Appellant’s Br. 12-
15, 23-30. Rather they concern either a request to file a late
petition, a request to file a notice of appeal out of time, or a
nunc pro tunc motion. See Streu, 557 F.3d at 962; Swartz, 204
F.3d at 419; Fernandez, 227 F.3d at 979; see also Hoggro, 150
F.3d at 1226 n.4. The differences in nomenclature are cosmetic
and make no difference in our analysis. And, as relevant to
Martin’s case, the New Jersey Supreme Court has said that it
prefers “as within time” as the “contemporary descriptive” of

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* * * * *
We hold that Martin’s petition was not “pending” for
the nearly eight years between June 14, 2004 (the last day that
he could have timely appealed, but did not, the trial court’s de-
nial of his PCR petition) and April 6, 2012 (the day on which
Martin moved to file his PCR appeal “as within time”).7 Mar-
tin is ineligible for tolling under § 2244(d)(2) for the duration
of this period. Therefore, the one-year limitations period for
Martin to file his habeas petition expired on December 3, 2004,
i.e., 172 days following June 14, 2004.
“nunc pro tunc.” State v. Molina, 902 A.2d 200, 203 n.1 (N.J.
2006).
7 We need not make a determination as to Martin’s entitlement
to statutory tolling for the period beginning on April 6, 2012
(when he requested to appeal “as within time”) and running
through June 27, 2012 (when the Appellate Division accepted
his appeal “as within time”). But see Swartz, 204 F.3d at
423 n.6 (agreeing with the Tenth Circuit in Hoggro that “the
time during which [the petitioner’s] nunc pro tunc request for
allowance of appeal was pending does not toll the statute of
limitation”).

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B.
Given that Martin’s entitlement to statutory tolling does
not rectify the timeliness deficiency of his habeas petition, we
next turn to whether Martin is entitled to equitable tolling.
Section 2244(d)(1)’s limitations period is subject to eq-
uitable tolling, see Holland v. Florida, 560 U.S. 631, 645-49
(2010); however, we are “sparing” in our use of the doctrine
and do so “only in the rare situation where [it] is demanded by
sound legal principles as well as the interests of justice,”
LaCava v. Kyler, 398 F.3d 271, 275 (3d Cir. 2005) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998));
see also Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 89 (3d Cir. 2013) (“We extend the remedy of equitable
tolling . . . when principles of equity would make the rigid ap-
plication of a limitation period unfair[.]”) (internal quotations
and citations omitted). “The decision to equitably toll
§ 2244(d) ‘must be made on a case-by-case basis.’”
Munchinski v. Wilson, 694 F.3d 308, 329 (3d Cir. 2012) (quot-
ing Holland, 560 U.S. at 649-50). Recognizing that “specific
circumstances, often hard to predict in advance, could warrant
special treatment in an appropriate case,” we do not rely on
“bright lines” in deciding whether to exercise our equity pow-
ers. Id. (quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d
Cir. 2011)). Instead, our inquiry prioritizes “flexibility” over
“mechanical rules.” Id. (quoting Pabon, 654 F.3d at 399).

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With that framework in mind, we generally apply a two-
element test to determine whether a petition is entitled to equi-
table tolling of § 2244(d)(1)’s limitations period. See Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner bears
the burden of establishing: “‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland, 560
U.S. at 649 (quoting Pace, 544 U.S. at 418); accord
Munchinski, 694 F.3d at 329; see also Sistrunk v. Rozum, 674
F.3d 181, 190 (3d Cir. 2012) (“This conjunctive standard re-
quires showing both elements before we will permit tolling.”).
We begin, and end, our analysis of Martin’s equitable tolling
claim with an examination of the diligence prong. As detailed
below, we hold that Martin has not demonstrated the requisite
due diligence to entitle him to equitable tolling.
1.
To satisfy the diligence prong, a petitioner must demon-
strate that he has been pursuing his rights with “reasonable dil-
igence in the circumstances.” Wilson v. Beard, 426 F.3d 653,
660 (3d Cir. 2005) (quoting Schlueter v. Varner, 384 F.3d 69,
74 (3d Cir. 2004)); accord Holland, 560 U.S. at 653. Deter-
mining whether a petitioner has exercised “reasonable dili-
gence” is a “fact-specific” inquiry and, again, “depends on the
circumstances faced by the particular petitioner.” Munchinski,
694 F.3d at 331; see also Wilson, 426 F.3d at 661 (“The fact
that we require a petitioner in one situation to undertake certain
actions does not necessitate that we impose the same burden

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on all petitioners” because “whether a habeas petitioner has ex-
ercised due diligence is context-specific.”). A petitioner need
not have acted with “maximum feasible diligence,”
Munchinski, 694 F.3d at 331 (quoting Holland, 560 U.S. at
653), but he also cannot have been “sleeping on his rights,” id.
(quoting Mathis v. Thaler, 616 F.3d 461, 474 (5th Cir. 2010)).
This “reasonable diligence” requirement applies not only to a
petitioner’s filing for federal habeas relief, but it also extends
to the steps that the petitioner takes to exhaust available state
court remedies. See LaCava, 398 F.3d at 277. Although we
do not “expect Herculean efforts on the part of” a petitioner in
exercising “reasonable diligence,” a “lack of legal knowledge
or legal training does not alone justify equitable tolling.” Ross
v. Varano, 712 F.3d 784, 799-800, 802 (3d Cir. 2013); see Sch.
Dist. of Allentown v. Marshall, 657 F.2d 16, 21 (3d Cir. 1981)
(“[I]gnorance of the law is not enough to invoke equitable toll-
ing.”); see also Felder v. Johnson, 204 F.3d 168, 172 (5th Cir.
2000) (“[I]gnorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.”) (internal
quotations omitted).
2.
We agree with the District Court that Martin failed to
establish that he has pursued his rights with “reasonable dili-
gence.” On April 30, 2004 (at the conclusion of the hearing
during which the trial court denied his PCR petition), Martin’s
then-counsel made him a “solemn promise” that “he would file
a Notice of Appeal on [his] behalf.” J.A. 82, 190. Yet Martin
did not inquire into the “status” of his appeal until January

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2005, nearly nine months later (and nearly seven months fol-
lowing the lapse of the 45-day period under N.J. Ct. R. 2:4-1(a)
in which Martin could have timely appealed the trial court’s
denial). See J.A. 82-83 (“In January 2005 I began attempts to
contact [my then-counsel] and the Office of the Public De-
fender to ascertain the status of my appeal.”). There is nothing
in the record to suggest that Martin made any attempt over
those nine months to confirm with his then-counsel, the Office
of the Public Defender, the court, or any other entity that an
appeal had been filed.
What constitutes “reasonable diligence” may differ
when a petitioner’s counsel promises that an appeal will be
filed versus when a petitioner’s counsel promises that an ap-
peal has been filed. Compare, e.g., Schlueter, 384 F.3d at 76
(noting that the petitioner, who failed to follow up on counsel’s
promise to file a PCR petition within a certain time period,
“could have learned, as he did later, that [his counsel] had not
filed a PCR petition. . . . [And] [i]f he had done so he still would
have had a small window of time in which to file a pro se peti-
tion and save his [PCR] claims from dismissal as untimely”),
with Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236,
237-38, 242 (3d Cir. 1999) (concluding, in the context of an
untimely filing of a Title VII case, that equitable tolling was
warranted where “a diligent client persistently questioned the
lawyer as to whether he had filed the complaint in time, and he
affirmatively misrepresented to her that he had”).
We proffer no bright line rule as to how long is too long
to be considered “reasonable diligence” in following up on

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whether a state PCR appeal was filed. However, in Martin’s
case, waiting nine months to first inquire as to the status of his
appeal—after only having been “promise[d],” “at the conclu-
sion of [his] hearing,” J.A. 190, that an appeal would be filed
and never having reached out to any source, his then-counsel
or otherwise, during those nine months to confirm that an ap-
peal in fact had been filed—suggests that he was “sleeping on
his rights.” See Munchinski, 694 F.3d at 331. Furthermore,
although Martin’s unanswered calls and bi-annual letters to his
then-counsel as to the status of his appeal may suggest some
consistency, that alone does not amount to a showing of “rea-
sonable diligence” here, particularly given the substantial pe-
riod of time between letters and that Martin had never received
confirmation that an appeal in fact had been docketed.8
Finally, Martin learned in December 2011 that his ap-
peal of the trial court’s denial of his PCR petition was never
8 Martin makes no showing as to how the missing “personal
letters, law books[,] and several legal files,” J.A. 83, prevented
him from filing a habeas petition, nor why he could not have
filed a petition prior to those materials going missing. See, e.g.,
Barton v. Pliler, 65 F. App’x 108, 109-10 (9th Cir. 2003) (hold-
ing equitable tolling unwarranted when a petitioner who lost
his personal legal files for approximately 13 months did not
explain “why he had failed to file a petition before his materials
were lost” or “how the materials at issue prevented him from
filing a habeas petition without them”).

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28
submitted. Yet he waited approximately four months, until
April 6, 2012, to file a motion with the Appellate Division for
leave to appeal the denial “as within time.” There is nothing
in the record to explain why Martin waited nearly four months
to submit his “as within time” motion, and certainly nothing
suggesting that he exercised “reasonable diligence” during that
period. In Holland, the Supreme Court concluded that a peti-
tioner’s actions were reasonably diligent when, in addition to
writing his attorney “numerous” letters and “repeatedly” con-
tacting the courts, its clerks, and the relevant bar association,
he prepared his own habeas petition on the same day that he
found out that his AEDPA clock had expired and mailed it the
next day. 560 U.S. at 639, 653. A comparison to Holland is
thus fruitless for Martin. After learning that his appeal was
nearly eight years late, Martin’s decision to wait approximately
four months to file his “as within time” motion does not sup-
port a finding of reasonable diligence.9
9 Martin urges us to hold that he is entitled to equitable tolling
as a result of the Appellate Division’s acceptance of his appeal
“as within time.” He bases this argument on the ground that
the Appellate Division could have accepted his appeal “as
within time” only if it had conducted an equitable tolling anal-
ysis. See Appellant’s Br. 35 (citing State v. Molina, 902 A.2d
200 (N.J. 2006)). And applying the doctrine of comity, Martin
suggests that we must defer to New Jersey’s determination that
he is entitled to equitable tolling. See id. at 37-38. We disa-
gree. As an initial matter, and as Martin acknowledges, the

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* * * * *
Taking these circumstances together, we hold that Mar-
tin has failed to satisfy the diligence prong and is therefore not
entitled to equitable tolling. This is not to say that the record
fails to present a clear possibility of attorney abandonment.
We simply need not reach the “extraordinary circumstance”
prong of the analysis given Martin’s failure to exercise the req-
uisite diligence to entitle him to equitable tolling. See Menom-
inee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255-
56 (2016) (“[W]e have treated the two requirements as distinct
elements in practice . . . rejecting requests for equitable tolling
where a litigant failed to satisfy one without addressing
whether he satisfied the other.”).
IV.
For these reasons, we will affirm the order of the Dis-
trict Court dismissing Martin’s habeas petition as untimely.
Appellate Division did not give a reason for why it granted
Martin’s motion to appeal “as within time.” Second, whether
the state court found Martin entitled to equitable tolling as to
his state PCR appeal has no bearing on the equitable tolling
analysis in the federal habeas context. See Holland, 560 U.S.
at 650 (“Equitable tolling . . . asks whether federal courts may
excuse a petitioner’s failure to comply with federal timing
rules, an inquiry that does not implicate a state court’s inter-
pretation of state law.”) (second emphasis added).

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