United States District Court, D. New Jersey
June 13, 2005.
SHAHADIN ABDULLAH MUHAMMAD, a/k/a LEROY BLACK, Petitioner,
LYDELL B. SHERRER, et al., Respondents.
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.
III. STANDARD OF REVIEW
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
Court from the denial of his state post-conviction petition does
not toll the one year statute of limitations under
28 U.S.C. § 2244(d)(2)." Stokes v. Dist. Attorney of the County of
Philadelphia, 247 F.3d 539, 542 (3d Cir.), cert. denied,
534 U.S. 959 (2001).
The limitations period of § 2244(d) is also subject to
equitable tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.),
cert. denied, 122 S.Ct. 323 (2001); Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999); Miller v. New Jersey State Dep't of
Corr., 145 F.3d 616, 618 (3d Cir. 1998).*fn4 However, the
one-year limitations period in § 2244(d)(1) can only be equitably tolled
when a petitioner has "exercised reasonable diligence in
investigating and bringing the claims." Miller,
145 F.3d at 618. Excusable neglect is insufficient; rather, petitioner must
in some extraordinary way demonstrate that he was prevented from
asserting his rights. Id. There are three enumerated
circumstances that would permit equitable tolling in the instant
case: (1) the petitioner has been actively misled; (2) the
petitioner has been prevented from asserting his rights in some
extraordinary way; or (3) the petitioner timely asserted his
rights in the wrong forum. Jones, 195 F.3d at 159. The Third
Circuit has expressly held that, in non-capital cases, attorney
error, miscalculation, inadequate research, or other mistakes are
not the extraordinary circumstances necessary to establish
equitable tolling. Johnson v. Hendricks, 314 F.3d 159, 163 (3d
Cir. 2002), cert. denied 123 S.Ct. 1950 (2003); Fahy,
240 F.3d at 244.
Among other things, the Court of Appeals for the Third Circuit
has held that equitable tolling may be appropriate "if the
plaintiff has timely asserted his rights mistakenly in the wrong
forum," i.e., if a petitioner has filed a timely but unexhausted federal habeas petition. Jones, 195 F.3d at 159.
See also Duncan v. Walker, 533 U.S. 167, 183 (2001) (Stevens,
J., joined by Souter, J., concurring in part) ("neither the
Court's narrow holding [that the limitations period is not
statutorily tolled during the pendency of a premature federal
habeas petition], nor anything in the text or legislative history
of AEDPA, precludes a federal court from deeming the limitations
period tolled for such a petition as a matter of equity");
533 U.S. at 192 (Breyer, J., dissenting, joined by Ginsburg, J.)
(characterizing Justice Stevens's suggestion as "sound").
Here, Muhammad was convicted in 1983 and it is clear that the
state court conviction now under attack became final before the
enactment of AEDPA on April 24, 1996. Therefore, Muhammad had
until April 23, 1997 to bring his federal habeas petition under §
2254. Further, the Court finds that there was no statutory
tolling of the limitations period under § 2244(d)(2) before April
23, 1997. Muhammad did not file his state PCR petition until
April 16, 2001, almost four years after the statutory period had
run pursuant to 28 U.S.C. § 2244(d)(1), without any tolling as
permitted under § 2244(d)(2). Muhammad filed the instant petition
on or about January 18, 2005, almost eight years after the
statutory period had expired.
Section 2244(d)(1) clearly provides that a § 2254 petition must
be filed within one year of the latest of four events, the one relevant here being "(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." See Johnson,
314 F.3d at 161. In Johnson, the Third Circuit, under similar
circumstances, affirmed the district court's dismissal of
Johnson's § 2254 petition as time-barred. The court found that
the statutory period ran for 222 days until Johnson had filed his
petition for post-conviction relief in state court. At that
point, the statutory period was tolled pursuant to
28 U.S.C. § 2244(d)(2), until the New Jersey Supreme Court denied Johnson's
petition for certification, and Johnson then had the remaining
143 days in which to timely file his federal habeas petition.
Johnson, 314 F.3d at 161. The Third Circuit noted that §
2244(d)(2)'s tolling provision excludes the time during which a
properly-filed state PCR petition is pending, but it does not
reset the date from which the one-year limitations period begins
to run. Id. at 162 (citing Smith v. McGinnis, 208 F.3d 13,
17 (2d Cir.), cert. denied, 531 U.S. 840 (2000)).
Therefore, this Court finds that Muhammad's federal habeas
petition is statutorily time-barred.*fn5 Moreover, not
having responded to this Court's Order to Show Cause, as directed,
Muhammad can show no excuse, extraordinary or otherwise, for
equitable tolling. At best, it appears that Muhammad
miscalculated the statutory period. Miscalculation of the
statutory period does not constitute extraordinary circumstances
to permit equitable tolling. Fahy, 240 F.3d at 244. And
ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing. Fisher v.
Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied,
531 U.S. 1164 (2001). Courts have been loath to excuse late
filings simply because a pro se prisoner misreads the law.
Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001); see
also Jones v. Morton, 195 F.3d at 159-60. Thus, Muhammad does
not demonstrate any extraordinary circumstances that would permit
the equitable tolling of the one-year statute of limitations.
Accordingly, because Muhammad failed to file a timely petition
and demonstrates no extraordinary circumstances that would allow
equitable tolling, the Court is precluded from reviewing the
instant petition for habeas corpus relief under § 2254. Since the § 2254 petition is time-barred under §
2244(d)(1), it will be dismissed.
IV. CERTIFICATE OF APPEALABILITY
The Court next must determine whether a certificate of
appealability should issue. See Third Circuit Local Appellate
Rule 22.2. The Court may issue a certificate of appealability
only if the petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
When a court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claim, the
prisoner must demonstrate that jurists of reason would find it
debatable: (1) whether the petition states a valid claim of the
denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484 (2000). "Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner
should be allowed to proceed further." Id.
For the reasons discussed above, Muhammad's § 2254 habeas
petition is clearly time-barred. The Court also is persuaded that
reasonable jurists would not debate the correctness of this conclusion. Consequently, a certificate of appealability will not
For the foregoing reasons, this Court finds that the petition
for a writ of habeas corpus under 28 U.S.C. § 2254 is time-barred
pursuant to 28 U.S.C. § 2244(d)(1); and the Court will dismiss
the petition accordingly.
No certificate of appealability will issue, insofar as
petitioner has failed to make a substantial showing of the denial
of a federal constitutional right pursuant to
28 U.S.C. § 2253(c)(2). An appropriate order follows.