United States District Court, D. New Jersey
September 19, 2005.
MICHAEL KOUNELIS, Petitioner,
LYDELL B. SHERRER, et al., Respondents.
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.
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.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 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).*fn4
However, the one-year limitations period in § 2244(d)(1) can only
be equitably tolled when a petitioner has "exercised reasonable
diligence in investigating and bringing the claims." Miller,
145 F.3d at 618. Excusable neglect is 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
in 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
has 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, Kounelis was convicted on March 25, 1994, and his
judgment of conviction became final, pursuant to
28 U.S.C. § 2244(d)(1), on January 21, 1997, or 90 days after the New Jersey
Supreme Court denied certification on direct appeal, which was
October 23, 1996 (i.e., conviction becomes final upon
expiration of the 90-day period for filing a petition for writ of
certiorari in the United States Supreme Court). See Swartz,
204 F.3d at 419; Morris, 187 F.3d at 337 n. 1; U.S. Sup. Ct. R.
13. Thus, Kounelis' state court conviction now under attack became final
well after the enactment of AEDPA on April 24, 1996 and the
one-year grace period. Consequently, Kounelis had one year from
January 21, 1997, or until January 21, 1998 to bring his federal
habeas petition under § 2254.
Nevertheless, the Court also finds that there was statutory
tolling of the limitations period under § 2244(d)(2) before
January 21, 1998 because Kounelis filed a state PCR application
on September 15, 1997, which remained pending in state court
until September 8, 2003, when the New Jersey Supreme Court denied
certification from the Appellate Division's re-affirmance of the
trial court's denial of post-conviction relief. Thus, Kounelis'
limitation period began to run from January 21, 1997 until
September 15, 1997 (for exactly 237 days) when Kounelis filed his
state PCR petition, which started to toll the limitations period
under § 2244(d)(2). The limitations period did not begin to run
again until September 8, 2003, when the New Jersey Supreme Court
denied certification on the remanded appeal from denial of his
state PCR petition. Kounelis had only 128 days (i.e., one year
or 365 days minus the 237 days which had already run) from
September 8, 2003, or until January 14, 2004, 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)"). Kounelis did not
file his § 2254 habeas petition until August 24, 20043, more than
seven 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, Kounelis' federal
habeas petition is time-barred.
Moreover, Kounelis offers no excuses, extraordinary or
otherwise, for equitable tolling. Rather, Kounelis mistakenly
argues that the limitations period did not begin to run until
after he exhausted his state remedies, including the PCR
application, and thus, his conviction became final on September
8, 2003. At best, it appears that Kounelis may have miscalculated
the statutory period when he failed to count the time his
limitations period began to run after his conviction became final
on January 21, 1997 and before he filed his state PCR petition on
September 15, 1997, which served to toll the limitations period
under 28 U.S.C. § 2244(d)(2). Miscalculation of the statutory
period does not constitute extraordinary circumstances to permit
equitable tolling. Fahey, 240 F.3d at 244. Moreover, even if
Kounelis was ignorant of the fact that the limitations period
began to run on January 21, 1997 when his conviction became
final, 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, Kounelis does not demonstrate any extraordinary circumstances that would permit the
equitable tolling of the one-year statute of limitations.
Therefore, because Kounelis 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 dismissed.
IV. CERTIFICATE OF APPEALABILITY
The Court next must determine whether a certificate of
appealability should issue. See Third Circuit Local Appellate
Rule 22.2. The Court may issue a certificate of appealability
only if the petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
When a court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claim, the
prisoner must demonstrate that jurists of reason would find it
debatable: (1) whether the petition states a valid claim of the
denial of a constitutional right; and (2) whether the court was
correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484 (2000). "Where a plain procedural bar is present and the
district court is correct to invoke it 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. For the reasons discussed above, Kounelis' § 2254 habeas
petition is clearly time-barred. The Court also is persuaded that
reasonable jurists would not debate the correctness of this
conclusion. Consequently, a certificate of appealability will not
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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