United States District Court, D. New Jersey
August 31, 2005.
GREGORY RAVENELL, Petitioner,
ROY L. HENDRICKS, et al., Respondents.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
This matter is before the Court on Petitioner Gregory
Ravenell's petition for habeas corpus relief under
28 U.S.C. § 2254. For reasons discussed below, the petition for habeas corpus
relief will be dismissed as time-barred, pursuant to
28 U.S.C. § 2244 (d). I. BACKGROUND
Petitioner, Gregory Ravenell ("Ravenell"), filed a petition for
habeas corpus relief on or about September 15, 2003.*fn1 On
August 13, 2004,*fn2 the Court directed respondents to
answer the petition, and the respondents filed an answer, with
affirmative defenses, and pertinent part of the state court
record. The respondents answered the petition on October 18,
2004, raising an affirmative defense that the petition is
time-barred pursuant to 28 U.S.C. § 2244 (d). Ravenell filed a
brief in reply on November 12, 2004.
The following facts are taken from the petition and traverse,
the respondents' answer, and the state court record.
Ravenell pled guilty to felony murder on November 5, 1992, but
later filed a motion to withdraw his plea and to be relieved of assigned counsel from the Public Defender's Office. On
December 18, 1992, the Honorable Patricia Costello, J.S.C. denied
Ravenell's requests and sentenced him to a thirty year prison
term without parole.
Ravenell filed a notice of appeal on March 1, 1993. On June 24,
1993, the New Jersey Appellate Division affirmed the denial of
petitioner's motion to withdraw his guilty plea as well as the
sentence imposed. Ravenell filed a petition for certification
with the Supreme Court of New Jersey, which was dismissed for
lack of prosecution on November 3, 1993. On November 11, 1993,
Ravenell filed a motion for reconsideration of the petition for
certification, which was again dismissed by the Supreme Court of
New Jersey for lack of prosecution on May 26, 1994.
On June 16, 1994, Ravenell filed a motion for post-conviction
relief ("PCR") with the state court. He was assigned counsel and
received a seven-day evidentiary hearing before the Honorable
Severiano Lisboa, III, J.S.C. By letter opinion dated May 30,
1996, the state PCR court denied Ravenell's PCR petition on the
merits.*fn3 (Ra 200-228).*fn4 Ravenell's appointed
counsel filed a notice of appeal, and the Appellate Division
affirmed the PCR denial on February 16, 1999. The N.J. Supreme Court denied
certification on April 29, 1999.
Ravenell filed a second state PCR petition on January 14, 2000.
The Honorable Lawrence P. DeBello, J.S.C. denied relief, pursuant
to New Jersey Court Rule 3:22-5, because the same issues raised
in the second PCR petition had been adjudicated on the merits on
direct appeal. (Ra 419-424). On February 28, 2001, Ravenell
appealed from denial of his second PCR petition. The Appellate
Division affirmed the trial court's denial of Ravenell's second
PCR petition, on May 14, 2002, finding the petition barred under
New Jersey Court Rules 3:22-5 and 3:22-12. (Ra 505-506). The New
Jersey Supreme Court denied certification on September 23, 2002.
Ravenell filed this federal habeas petition on September 15,
II. 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.ed 552, 555 (3d Cir. 1969), cert. denied,
399 U.S. 912 (1970).
III. 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 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 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. Burn, 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,"*fn5 during the period between a lower state court's decision and the filing of a notice of
appeal to 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 v. Meyers,
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. District 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 Dept. of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998).*fn6 However,
the one-year limitations period in § 2244 (d) (1) an only be
equitable tolled when a petitioner has "exercised reasonable
diligence in investigating and bringing the claims." Miller,
145 F.3d at 618. Excusable neglect id 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
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 538 U.S. 1022 (2003); Fahy,
240 F.3d at 244.
Among other things, the Court of Appeals for the Third Circuit
ha 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, Ravenell was convicted in December 1992, but his judgment
of conviction did not become final, pursuant to 28 U.S.C. § 2244
(d) (1), at the latest until August 26, 1994, 90 days after
denial of certification on direct appeal before the New Jersey
Supreme Court (i.e., the expiration of the 90-day period for
filing a petition for writ of certiorari in the United States
Supreme Court) on May 26, 1994. See Swartz, 204 F.3d at 419;
Morris, 187 F.3d at 337 n. 1; U.S. Sup. Ct. R. 13. Thus,
Ravenell's state court conviction now under attack became final
well before the enactment of AEDPA on April 24, 1996 and the
one-year grace period. Ravenell had one year from April 24, 1996,
or until April 24, 1997, to bring his federal habeas petition under
However, the Court finds that there was statutory tolling of
the limitations period under § 2244(d) (2) before April 24, 1997
because Ravenell had filed his first state PCR petition on about
June 16, 1994, which remained pending in state court until April
29, 1999, when the New Jersey Supreme Court denied certification
from the Appellate Division's denial of Ravenell's first state
PCR petition. Thus, Ravenell's limitation period began to run
from April 29, 1999 until January 14, 2000 (for exactly 260 days)
when Ravenell filed his second state PCR petition, which again
started to toll the limitations period under § 2244(d)(2). The
limitations period did not begin to run again until September 23,
2002, when the New Jersey Supreme Court denied certification on
Ravenell's appeal from denial of his second state PCR petition.
Ravenell had only 105 days (i.e., one year or 365 days minus the
260 days which had already run) from September 23, 2002, or until
January 6, 2003, to file his federal § 2254 petition. See
Stokes, 247 F.3d at 542 (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)"). Ravenell did not file his § 2254 habeas petition until September 15, 2003, more than nine months
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)). Consequently, Ravenell's
federal habeas petition is time-barred. Moreover, Ravenell offers no excuses, extraordinary or
otherwise, for equitable tolling.*fn7 At best, it appears
that Ravenell may have miscalculated the statutory period when he
failed to count the time his limitations period began to run
after denial of his first state PCR petition became final and
before he filed his second state PCR petition, which again tolled
the limitations period. Miscalculation of the statutory period
does not constitute extraordinary circumstances to permit
equitable tolling. Fahey, 240 F.3d at 244. Ravenell also may
have been ignorant of the fact that the limitations period began
to run again at the conclusion of his first state PCR petition.
However, 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 loathe 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, 195 F.3d at 159-60. Accordingly, Ravenell does
not demonstrate any extraordinary circumstances that would permit
the equitable tolling of the one-year statute of limitations. Therefore, because Ravenell failed to file a timely petition
and demonstrates no extraordinary circumstances that would allow
equitable tolling, the Court is precluded from reviewing this
petition for habeas corpus relief under § 2254. Since the § 2254
petition is time-barred under § 2244(d) (1), it will be
IV. EXHAUSTION ANALYSIS
Respondents also argue that several of Ravenell's habeas claims
are unexhausted, or procedurally defaulted. Ravenell disputes
this contention in his traverse.
A state prisoner applying for a writ of habeas corpus in
federal court must first "exhaust? the remedies available in the
courts of the State," unless "there is an absence of available
State corrective process? or . . . circumstances exist that
render such process ineffective. . . ." 28 U.S.C. § 2254 (b) (1).
See also Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert
v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert. denied,
532 U.S. 919 (2001) (finding that "Supreme Court precedent and
the AEDPA mandate that prior to determining the merits of [a]
petition, [a court] must consider whether [petitioner] is
required to present [his or her] unexhausted claims to the
A petitioner must exhaust state remedies by presenting his
federal constitutional claims to each level of the state courts
empowered to hear those claims, either on direct appeal or in collateral post-conviction proceedings. See, e.g.,
O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ("requiring state
prisoners [in order to fully exhaust their claims] to file
petitions for discretionary review when that review is part of
the ordinary appellate review procedure in the State"); Ross v.
Petsock, 868 F.2d 639 (3d Cir. 1989); 28 U.S.C. § 2254 ("An
applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to raise,
by any available procedure, the question presented.") Once a
petitioner's federal claims have been fairly presented to the
state's highest court, the exhaustion requirement is satisfied.
Picard v. Connor, 404 U.S. 270, 275 (1971); Castille v.
Peoples, 489 U.S. 346, 350 (1989).
Here, Ravenell contends that he raised all of his habeas claims
in his state court proceedings. It appears from review of the
record that each of the claims actually asserted by Ravenell
hereto, were in fact raised in his two state court PCR
proceedings.*fn8 On appeal from denial of post-conviction
relief, in both proceedings, the Appellate Division expressly found that
the claims were without merit. In particular, as to the first PCR
petition, the appellate court noted each claim, and found them to
be generally without merit. However, the court substantively
addressed only the ineffective assistance of counsel and
involuntary plea claims at length. (Ra 335-340). As to the second
PCR petition, again the Appellate Division listed each claim
raised by Ravenell, finding the ineffective assistance of counsel
and defective indictment claims to be procedurally barred under
New Jersey Court Rules 3:22-5 (having been raised and adjudicated
in earlier proceedings) and 3:22-12 (beyond the 5-year time bar
for filing PCR petitions). The Court, however, expressly found
the claims related to prosecutorial misconduct to be "clearly
without merit". (Ra 505-506).
Thus, it appears that all of petitioner's habeas claims were
presented and exhausted in state court. Even if state remedies
with respect to a particular claim have been exhausted, a federal
court still may refuse to consider that claim if it has been
procedurally barred in a state judicial proceeding under the
doctrine of procedural default. See Harris v. Reed,
489 U.S. 255 (1989); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir.
2004); Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992).
However, any procedural default must rest on "adequate and
independent" state law grounds. Harris, 489 U.S. at 262;
Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). This means that the state court must have
explicitly rested its decision to bar specific claims on a
particular state procedural rule. See Vasquez v. Morton, 1997
WL 452296, *3 (D.N.J. July 17, 1997).
A procedural default occurs when a prisoner's federal
claim is barred from consideration in the state
courts by an "independent and adequate" state
procedural rule. See, e.g., Doctor [v. Walters,
96 F.3d 675, 683 (3d Cir. 1996)]. Federal courts may
not consider the merits of a procedurally defaulted
claim unless the applicant establishes "cause" to
excuse the default and actual "prejudice" as a result
of the alleged violation of the federal law or unless
the applicant demonstrates that failure to consider
the claim will result in a fundamental "miscarriage
of justice." Coleman v. Thompson, 501 U.S. 722,
750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Carpenter v. Vaughn, 296 F.3d 138
, 146 (3d Cir. 2002). To
establish cause, a petitioner must demonstrate some objective
factor external to the defense that prevented compliance with the
state's procedural requirements. Coleman v. Thompson,
501 U.S. at 753. To establish a fundamental miscarriage of justice, a
petitioner must demonstrate that he is actually innocent of the
crime, McCleskey v. Zant, 499 U.S. 467
, 494 (1991), typically
by presenting new evidence of innocence, Schlup v. Delo,
513 U.S. 298, 316 (1995). See also O'Sullivan v. Boerckel,
526 U.S. at 854. In order to demonstrate actual innocence, Ravenell
must present new, clear and convincing evidence of his innocence.
Schlup, 513 U.S. at 316-17. Here, Ravenell has failed to make any showing of cause,
prejudice, or actual innocence to excuse a procedural default.
Thus, his habeas claims would be dismissible under the doctrine
of procedural default. Nevertheless, to the extent that the state
PCR courts found each of these claims to be without substance or
merit, and not solely barred under the procedural Rules 3:22-5
and 3:22-12, as mentioned above, this Court concludes that the
claims were indeed exhausted, but nonetheless are dismissed as
time-barred, for the reasons set forth in this Opinion, supra.
V. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253©, unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue "only if the applicant
has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c) (2). "A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further." Miller-El v.
Cockrell, 573 U.S. 322, 327 (2003). "When the district court
denies a habeas petition on procedural grounds without reaching
the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at leas, that jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling." Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Here, jurists of reason would not find it debatable that the
Petition is time-barred under 28 U.S.C. § 2244(d).
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 pursuant to
28 U.S.C. § 2253(c) (2). An appropriate order follows.
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