The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
This matter is before the Court on Petitioner Michael Kounelis'
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, Michael Kounelis ("Kounelis"), filed a petition for
habeas corpus relief on or about August 24, 2004.*fn1 On
December 21, 2004, 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, on or
about February 18, 2005, and an amended answer on April 8, 2005.
The following facts are taken from the petition, the
respondents' amended answer, and the state court record.
A judgment of conviction was entered against Kounelis on March
25, 1994, based on his conviction by jury trial for first degree
armed robbery, 3rd degree theft by unlawful taking, 2nd
degree burglary, 2nd degree kidnaping, 3rd degree
aggravated assault, 3rd degree possession of weapons (knife
and crowbars) for an unlawful purpose, and unlawful possession of
weapons (knife and crowbars). The trial court denied the State's
motion for an extended term and merged all counts into the
conviction on the first count of first degree armed robbery. Kounelis was
sentenced to a 20 year prison term with a 10-year parole
disqualifier, to be served consecutively to the sentence Kounelis
was then serving on different state court convictions in New
Jersey. Kounelis appealed his conviction to the New Jersey
Appellate Division, and the conviction was affirmed on June 14,
1996. He then filed a petition for certification with the New
Jersey Supreme Court, on June 24, 1996, which was denied on
October 23, 1996. Kounelis did not file a petition for a writ of
certiorari with the United States Supreme Court.
On or about September 15, 1997, Kounelis filed an application
for post-conviction relief ("PCR") with the Superior Court of New
Jersey, Law Division, Mercer County. (Respondents' Exhibit 37). A
hearing was held on April 26, 1999, and the state court denied
the PCR petition by Order entered the same date. Kounelis
appealed to the New Jersey Appellate Division, which affirmed the
denial of state PCR relief on May 21, 2002. Kounelis then filed a
petition for certification to the New Jersey Supreme Court. The
New Jersey Supreme Court granted the petition for certification
and remanded the matter for reconsideration in light of State v.
Rue, 811 A.2d 425 (2002).*fn2 On remand, the Appellate Division re-affirmed denial of
post-conviction relief by per curiam opinion filed April 22,
2003. The New Jersey Supreme Court denied certification on
September 8, 2003.
Kounelis filed this petition for habeas relief under § 2254 on
August 24, 2004. The respondents answered the petition alleging
that petitioner's grounds for habeas relief are without merit.
Respondents also raise the affirmative defense that Kounelis'
habeas petition is time-barred under 28 U.S.C. § 2244(d)(1).
Kounelis filed a reply to the answer, arguing that his petition
was filed within the one-year statute of limitations period.
Kounelis contends that the limitations period does not begin to
run until a petitioner has exhausted all his State remedies,
including post-conviction relief, and therefore, his conviction
became final on September 8, 2003.
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).
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. 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 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 ...