United States District Court, D. New Jersey
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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
(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
(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. (Respts.'s Brief at 1). The
section provides, in relevant part
(1) A 1-year period of limitation 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 the latest 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;
. . . . .
(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
28 U.S.C. § 2244(d). Under § 2244(d), an evaluation of the
timeliness of a § 2254 petition first requires a determination of
when the pertinent judgment became "final." A state court
criminal judgment becomes "final" and the statute of limitations
period begins to run, "at the conclusion of review in the United
States Supreme Court or when the time for seeking certiorari
Kapral v. U.S., 166 F.3d 565
(3d Cir. 1999); see also Swartz v. Meyers, 204 F.3d 417
419 (3d Cir. 2000), Morris v. Horn, 187 F.3d 333
, 337 (3d Cir.
Figueroa was convicted on June 16, 1996. The Appellate Court
affirmed this conviction in February of 1998 and the Supreme Court of New Jersey denied
his petition for certification on May 20, 1998. Upon the New
Jersey Supreme Court's denial of certification, Figueroa had
ninety days to seek a writ of certiorari from the United States
Supreme Court. Thus, the one-year statute of limitations on
Figueroa's application for writ of habeas corpus did not start to
run until the expiration of the ninety-day period on August 18,
1998, making Figueroa's September 27, 2004 habeas petition
untimely by more than five years.*fn3
2. Statutory Tolling
"The AEDPA's one-year period of limitation is not an absolute
limit." Schlueter v. Varner, 384 F.3d 69, 75 (3d Cir. 2004)
(quoting Douglas v. Horn, 359 F.3d 257, 261 (3d Cir. 2004)).
Rather it is subjected to two possible tolling exceptions. One
such exception is statutory tolling under § 2244(d)(2), which
provides that the one-year limitations period is tolled during
the time a properly filed application for post-conviction relief
is pending. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir.
2003), Jones, 195 F.3d at 158. An application for
post-conviction relief is considered "pending" within the meaning
of § 2244(d)(2) during the period between a lower state court's
ruling and the period a petitioner has to seek review of the
decision, whether or not the appeal was actually sought.
Swartz, 204 F.3d at 424. However, "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 state of limitations under 28 U.S.C. § 2244(d)(2)." Stokes v. D.A. of the
County of Phila., 247 F.3d 539, 542 (3d Cir. 2001).
Although Figueroa filed a petition for state collateral review,
this filing did not toll the one-year statute of limitations
under the AEDPA, because post-conviction relief petition that is
filed after the AEDPA statute of limitations has run does not
toll the statute. While the Third Circuit has not spoken directly
on this issue, other circuits have provided some guidance. See
eg. Schlueter, 384 F.3d at 25 (rejecting petitioner's claim
that a motion to restore appellate rights filed after the AEDPA
limitations period had expired would trigger statutory tolling).
In Webster v. Moore, the Eleventh Circuit held that since a
post-conviction petition must be "pending" in order to toll the
limitations period, a petition that is filed after the federal
limitations period "cannot toll that period because there is no
period remaining to be tolled." 199 F.3d 1256, 1259 (11th
Cir. 2000); see also Tinker v. Moore, 255 F.3d 1331
(11th Cir. 2001) (affirming that a state motion for
collateral review filed after the expiration of the federal
statue of limitations does not toll the statute). The Ninth
Circuit also addressed this issue in Jimenez v. Rice, where the
Court noted that only "a state habeas petition filed before the
AEDPA statute of limitations begins to run tolls the limitation
period." 276 F.3d 478, 482 (9th Cir. 2000) (emphasis added).
More recently, in Chhoeum v. Shannon, a court in this district
found the federal magistrate judge "correctly calculated the
applicable statue of limitations" when he determined that the
petitioner's state PCR petition filed after the expiration of the
AEDPA limitations period "had no impact on statutory tolling."
219 F. Supp. 2d 649, 652 (E.D.Pa. 2002). Figueroa would be entitled to statutory tolling had he filed
his state post-conviction petition before August 18, 1999.
However, Figueroa did not file his PCR petition until June 18,
2001, more than a year after the AEDPA statute of limitations had
expired. As such, Petitioner's request for state collateral
review did not toll the federal statue of limitations, rendering
his habeas petition time barred.
3. Equitable Tolling
The AEDPA's one-year period of limitations is also subject to
equitable tolling. See Fahy v. Horn, 240 F.3d 239, 244 (3d
Cir. 2001); Jones, F.3d at 159 (3d Cir. 1999); Miller v. N.J.
Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
Equitable tolling is proper "only when the principle of equality
would make the rigid application of a limitation period unfair."
Miller, 145 F.3d at 618. A petitioner "seeking equitable
tolling bears the burden of establishing two elements: (1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way." Pace v.
Diguglielmo, 125 S. Ct. 1807 (2005). The Third Circuit has
enumerated three such circumstances that would permit equitable
tolling: (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, but in the wrong forum. Jones, 195 F.3d at 159.
Attorney error, inadequate research, miscalculation, or any other
mistakes do not qualify in non-capital cases as the extraordinary
circumstances necessary to establish equitable tolling. Johnson
v. Hendricks, 314 F.3d 159, 163 (3d Cir. 2002); Fahy,
240 F.3d at 244. Figueroa submitted his habeas petition on September 27, 2004,
more than five years after the expiration of the federal statute
of limitations. As Figueroa did not respond to the government's
motion to dismiss, he offers no explanation extraordinary or
otherwise for equitable tolling.*fn4 If Figueroa
miscalculated the statutory period, miscalculation does not
constitute extraordinary circumstances to permit equitable
tolling. Fahey, 240 F.3d at 244. Moreover, ignorance of the
law, even for an incarcerated pro se petitioner, generally does
not excuse untimely filing. Jones, 195 F.3d at 159-60. As the
record, absent any evidence to the contrary, does not demonstrate
any extraordinary circumstances that would allow equitable
tolling, Figueroa has also failed to demonstrate requisite
diligence in his appeal. See Pace, 125 S. Ct at 1815 (noting
that as petitioner "waited years, without any valid
justification" to file his federal habeas petition, "[u]nder the
long-established principles, petitioner's lack of diligence
precludes equity's operation."). In addition, the Third Circuit
has held "that courts must be sparing in their use of equitable
tolling." Seitzinger v. Reading Hospital and Medical Center,
165 F.3d 236 (3d Cir. 1999). As such, the Petitioner is not
entitled to equitable tolling and his request for a writ of
habeas is time barred.
As the Petitioner filed his habeas petition beyond the federal
deadline and was not entitled to statutory or equitable tolling
for any of that period, his petition is barred by the AEDPA state
of limitations. Accordingly, Figueroa's § 2254 petition will be
dismissed as time-barred under § 2244(d)(1). CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253, a certificate of appealability may
issue "only if the applicant has made a substantial showing of
the denial of a constitutional right." § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473 (2000); United States v. Cepero,
224 F.3d 256, 262-64 (3d Cir. 2000) (en banc). This requires "a
demonstration that . . . includes showing that reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were `adequate to deserve encouragement to
proceed further.'" Slack, 529 U.S. at 483 (quoting Barefoot v.
Estelle, 463 U.S. 880, 894 (1983)) (internal quotation marks and
citation omitted). Where a court denies a habeas petition on
procedural grounds without reaching the underlying constitutional
claim "and the district court is correct to invoke [the
procedural bar] 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. at 484.
The Court finds that because Petitioner's habeas petition is
time-barred, a certificate of appealability shall not issue.
For the reasons states in the opinion, Petitioner's § 2254
habeas petition is time-barred. Respondents' motion is GRANTED
and a certificate of appealability shall not issue.
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