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BURNS v. MORTON

July 18, 1997

DONALD BURNS, Petitioner,
v.
WILLIS E. MORTON, Superintendent, and PETER VERNIERO, ATTORNEY GENERAL OF NEW JERSEY, Respondents.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Petitioner, Donald Burns ("Burns"), who is currently incarcerated at the New Jersey State Prison at Trenton, New Jersey, has moved for the appointment of counsel to represent him in connection with a petition for a writ of habeas corpus filed pursuant to § 2254. Respondents have filed a Motion to Dismiss that Petition.

 Respondents contend that Burns's petition is time-barred under the one-year statute of limitations included in the recent Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214. See 28 U.S.C. § 2244. Burns concedes, as he must, that his petition was filed by the clerk of this court more than one year after the enactment of the statute of limitations contained in § 2244. Nevertheless, Burns argues that he should benefit from the "mailbox rule," which, in other circumstances, deems submissions by pro se prisoners "filed" as of the date those papers are delivered to the prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988); Fed. R. App. P. 4(c). The question for this court's resolution is whether the rule of Houston v. Lack, which was fashioned to allow some latitude to prisoners attempting to meet a relatively short, thirty-day deadline for filing an appeal, should be extended to cover habeas corpus petitions. Because I conclude that the rationale of Houston does not apply with equal force in these circumstances, and because this court has not been instructed by the Third Circuit to expand the scope of Houston, I will decline to apply the "mailbox rule" to these facts. Accordingly, the motion of Respondents to dismiss the petition will be granted and petitioner's motion for the appointment of counsel will be dismissed as moot.

 I. Procedural History

 Donald Burns entered a plea of guilty to a multiple count indictment, charging robbery, aggravated assault, weapons possession and conspiracy. On September 10, 1987, Burns was sentenced to 100 years in prison with fifty (50) years of parole ineligibility. Burns appealed his conviction and sentence to the Superior Court of New Jersey, Appellate Division, which affirmed the trial court. The Supreme Court of New Jersey denied Burns's petition for certification.

 Subsequently, Burns filed a pro se petition for post-conviction relief in the Law Division of the Superior Court. This petition was denied, but the Appellate Division reversed and remanded with an order for the appointment of counsel. On May 3, 1993, the Law Division denied Burns's petition for post-conviction relief. Burns appealed, and the Appellate Division once again affirmed his conviction and sentence. On June 29, 1995, Burns filed a petition for certification with the Supreme Court of New Jersey. On September 21, 1995, the Supreme Court denied Burns's petition.

 Burns's petition for a writ of habeas corpus pursuant to § 2254, and accompanying application to proceed in forma pauperis, were received by the Clerk of this court on April 28, 1997. On May 5, 1997, Burns's application to proceed in forma pauperis was approved and the Clerk duly filed his § 2254 petition as of that date.

 II. Discussion

 The Anti-Terrorism and Effective Death Penalty Act of 1996, which was signed by the President on April 24, 1996, amended the habeas corpus statute to include a limitations period. Persons in custody pursuant to the judgment of a State court are now required to file any petition for habeas relief in federal court within one year of:

 
(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;
 
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
 
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
 
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...

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