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August 23, 2005.

THOMAS FIGUEROA, Pro se, Plaintiff,
KATHRYN E. MacFARLAND, Attorney General of New Jersey, et. al., Respondents.

The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION

Petitioner Thomas Figueroa ("Figueroa" or "Petitioner"), an inmate at South Woods State Prison in Bridgeton, New Jersey, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For reasons discussed below, the petition for habeas corpus relief is dismissed as time barred, pursuant to 28 U.S.C. §§ 2243 and 2244(d).


  Procedural and Factual Review

  A Passaic County indictment charged Petitioner with the April 23, 1994, armed robbery of Wilfredo LaFontaine in a Paterson, New Jersey mini-mall parking lot. Petr. Br. at 1, 5. The specific charges included first-degree armed robbery under N.J.S.A. 2C: 15-1 (Count One) and possession of a weapon for an unlawful purpose, a second-degree violation of N.J.S.A. 2C: 39-4 (Count Two). Id. at 1. On April 30, 1996, after a four-day trial before the Honorable Marilyn C. Clark, New Jersey Superior Court, Passaic County, the jury convicted Smith on both counts. Id. On June 14, 1996, Petitioner was sentenced to an extended term of thirty-years with a fifteen-year period of parole ineligibility. Id. The court also denied Petitioner's motion for a new trial. Pet. for Writ of Habeas Corpus at 4.

  Figueroa then filed his direct appeal with the Superior Court of New Jersey, Appellate Division ("Appellate Division"). Id. at 3. Petitioner sought the reversal of his conviction on four grounds: (1) the admission into evidence of a discolored mug shot; (2) the trial court's informing the jury of Petitioner's arrest on outstanding warrants and the court's failure to instruct the jury on the use of this evidence; (3) the trial court's error in denying Petitioner's motion for a new trial; and (4) Petitioner's excessive sentence, particularly given the imposition of an extended term of imprisonment. Id. at 3.1, ¶ 9(d). In a supplemental pro se brief, Figueroa also claimed that the State's evidence was legally insufficient to sustain his conviction and that he received ineffective assistance of counsel. Id. On February 27, 1998, the Appellate Division affirmed Figueroa's conviction on both counts. Id. at 3; State v. Figueroa, A-101-96T4. Figueroa then filed a petition for certification with the New Jersey Supreme Court, which was denied on May 20, 1998. Id.; State v. Figueroa, 45-674. Figueroa did not file a petition for a writ of certiorari with the United States Supreme Court. Id. In his final appeal before submission to this Court, Figueroa filed a petition for post-conviction relief with the trial court on June 18, 2001. Id. The Petitioner again raised the issue of ineffective representation and additionally asserted that he was denied due process as a result of prosecutorial misconduct. Id. at 3.2, ¶ 11(a)(3). After a hearing on November 9, 2001,*fn1 the Superior Court of New Jersey denied the application for relief. Petr. Br. at 2. Petitioner filed a notice of appeal on February 28, 2002 and the Appellate Division affirmed the denial of post-conviction relief in an opinion dated October 29, 2003. Id.; State v. Figueroa, A-3159-01T4. He then filed a petition for certification in the Supreme Court of New Jersey on February 3, 2004, although the record is unclear as to the result of this petition. Id. On May 25, 2004, Figueroa filed a writ of habeas corpus in the United States District Court, which was dismissed without prejudice on August 9, 2004 at the Petitioner's request. Id.; State v. Figueroa, 04-2452. He then filed this application for a writ of habeas corpus on September 27, 2004 and was granted permission by this Court to proceed in forma pauperis on October 6, 2004. Id. A memorandum in support of the petition was also filed on or about February 9, 2005. Petr. Memo at 64.


  A. Standard for Review under 28 U.S.C. § 2254.

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective April 26, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254 (2004). Courts are required to apply the amended AEDPA for petitions filed after the statute's effective date. See Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000) (citing Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997)). Under 28 U.S.C. § 2254(a) (2001), a federal court is required to consider only petitions filed on behalf of individuals in custody pursuant to a state court judgment that are grounded on a violation of the Constitution or the laws or treaties of the United States. Moreover, the petitioner must "exhaust" all of his claims in the state court before petitioning the federal court. See 28 U.S.C. § 2254(b) (2004).

  The AEDPA increased the deference federal courts must give to factual findings and legal determinations of the state courts. See Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Under the Supreme Court's decision in Williams v. Taylor, 120 S. Ct. 1495 (2000), federal corpus relief is denied to any claim which was adjudicated on the merits in a state court proceeding, unless such application:
(1) resulted in a decision that was contrary to, or involved in an unreasonable application of, clearly established federal law, as determined by the Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Id., 28 U.S.C. § 2254(d)(1), (2).

  Under the first prong of the test, a court must make separate findings for the "contrary to" and "unreasonable interpretation" clauses. Williams, 120 S. Ct. 1519. The federal habeas court must first determine whether the state court decision was "contrary to" Supreme Court precedent. See Keller v. Larkins, 251 F.3d 408, 417-418 (3d Cir. 2001). In the absence of such a showing, the federal habeas court must then ask whether the state court decision represents an "unreasonable application" of the Supreme Court precedent. Id. The appropriate inquiry to be made under the "unreasonable application of" standard is "whether the state court's application of clearly federal law was objectively reasonable; an incorrect application alone does not warrant relief." Williams, 120 S. Ct. at 1521-22. A state court decision can involve an "unreasonable application" of Supreme Court precedent if the state court identifies the correct legal rule, but unreasonably applies it to the facts of the particular state prisoner's case. Id. There is a presumption of correctness imposed on the factual findings of the state court and the findings are rebuttable only through clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1). Clear and convincing evidence is "so clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy." U.S Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306, 309 (3d Cir. 1985).

  The second prong of the Williams test affords habeas relief if the petitioner can show that the state court decision was based on an unreasonable determination of facts in light of the evidence presented at trial or at a hearing. Williams, 120 S. Ct. at 1523. However, factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)). B. Analysis

  1. Statute of Limitations

  On March 31, 2004, the Respondents filed a Motion to Dismiss the Petition for Habeas Corpus submitting that Figueroa's petition is time-barred pursuant to the statute of limitations set forth in § 2244(d) of the AEDPA. ...

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