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MUHAMMAD v. SHERRER

June 13, 2005.

SHAHADIN ABDULLAH MUHAMMAD, a/k/a LEROY BLACK, Petitioner,
v.
LYDELL B. SHERRER, et al., Respondents.



The opinion of the court was delivered by: JOSE LINARES, District Judge

OPINION

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

  I. BACKGROUND

  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 ...


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