The opinion of the court was delivered by: JOSE LINARES, District Judge
Petitioner Shahadin Abdullah Muhammad ("Muhammad"), also known
as Leroy Black, filed this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On March 28, 2005,
the Court issued an Order to Show cause to the petitioner,
directing him to show cause in writing, on or before April 10,
2005, why the petition should not be dismissed as time-barred
pursuant to 28 U.S.C. § 2244(d). Petitioner did not respond to
the Court's Order. Therefore, it appearing from the face of the petition that the case is time-barred under 28 U.S.C. § 2244(d),
the petition will be dismissed.*fn1
Muhammad is presently confined at the Northern State Prison in
Newark, New Jersey, serving a 30-year prison term with a 15 year
minimum/maximum for two counts of first degree robbery and one
count of possession of a weapon for an unlawful purpose. He was
convicted by jury trial and a judgment of conviction was entered
on April 13, 1983. (Petition, ¶¶ 2-6). Following his conviction, on or about May 19, 1983, Muhammad
filed an appeal with the New Jersey Appellate Division. The
Appellate Division affirmed the conviction on January 12, 1987.
Muhammad filed a petition for certification with the Supreme
Court of New Jersey, which was denied. Muhammad does not provide
the date on which the petition for certification was denied.
(Pet., ¶¶ 8,9; Muhammad's Certification at ¶¶ 8, 9). Thereafter,
on or about April 16, 2001, Muhammad alleges that he filed a
petition for post-conviction relief ("PCR") with the sentencing
court, raising claims of an illegal sentence and merger. The
state PCR petition was denied on or about July 7, 2003, and
Muhammad states that he did not file an appeal from that
decision. (Pet., ¶¶ 10, 11; Certif. At ¶¶ 11, 12).
Muhammad's petition for federal habeas relief under
28 U.S.C. § 2254 was received for filing by the Clerk's Office on or about
January 20, 2005. The petition is signed and dated by Muhammad on
January 18, 2005.*fn2 II. CLAIMS PRESENTED
Muhammad raises two grounds for habeas relief:
Ground One: The sentences for robbery and possession of a
weapon for an unlawful purpose should have been merged because
there was no evidence that defendant possessed the weapon for any
other purpose than the substantive offense.
Ground Two: The possession charge should have merged with the
robbery offense unless the jury found in a special verdict that
the possession was for a broader purpose. In the absence of such
proof, the sentences on each charge should have run concurrently.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970). IV. STATUTE OF LIMITATIONS ANALYSIS
The limitation period for a § 2254 habeas petition is set forth
in 28 U.S.C. § 2244(d), which provides in pertinent part:
(1) A 1-year period of limitations shall apply to an
application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
The limitation period shall run from . . .
(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; . . .
(2) The 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 section.
Section 2244(d) became effective on April 24, 1996 when the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
was signed into law. See Burns v. Morton, 134 F.3d 109, 111
(3d Cir. 1998); Duarte v. Herschberger, 947 F. Supp. 146, 147
(D.N.J. 1996). The Third Circuit has ruled that state prisoners
whose convictions became final before the April 24, 1996
enactment of AEDPA are permitted one year, until April 23, 1997,
in which to file a federal habeas petition under § 2254. See
Burns, 134 F.3d at 111; see also Lindh v. Murphy,
521 U.S. 320, 326-27 (1997) ("[t]he statute reveals Congress' intent
to apply the amendments to chapter 153 only to such cases as were
filed after the statute's enactment").
Thus, pursuant to § 2244(d), evaluation of the timeliness of a
§ 2254 petition requires a determination of, first, when the pertinent judgment became "final," and, second, the period of
time during which an application for state post-conviction relief
was "properly filed" and "pending."
A state-court criminal judgment becomes "final" within the
meaning of § 2244(d)(1) by the conclusion of direct review or by
the expiration of time for seeking such review, including the
90-day period for filing a petition for writ of certiorari in the
United States Supreme Court. See Swartz v. Meyers,
204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n. 1
(3d Cir. 1999); U.S. Sup. Ct. R. 13.
As noted above, where a conviction became final prior to April
24, 1996, the effective date of § 2244(d), a state prisoner has a
one-year grace period after that effective date to file a § 2254
petition. Burns, 134 F.3d at 111. However, that limitations
period is tolled during the time a properly filed application for
state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2).
An application for state post-conviction relief is considered
"pending" within the meaning of § 2244(d)(2), and the limitations
period is statutorily tolled, from the time it is "properly
filed,"*fn3 during the period between a lower state court's decision and the filing of a notice of
appeal to a higher court, Carey v. Saffold, 536 U.S. 214
(2002), and through the time in which an appeal could be filed,
even if the appeal is never filed, Swartz, 204 F.3d at 420-24.
Nevertheless, "the time during which a state prisoner may file a
petition for writ of certiorari in the United States Supreme