Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KOUNELIS v. SHERRER

September 19, 2005.

MICHAEL KOUNELIS, Petitioner,
v.
LYDELL B. SHERRER, et al., Respondents.



The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge

OPINION

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.