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RAVENELL v. HENDRICKS

August 31, 2005.

GREGORY RAVENELL, Petitioner,
v.
ROY L. HENDRICKS, et al., Respondents.



The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge

OPINION

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, 2003.

  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 ...


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