United States District Court, D. New Jersey
September 21, 2005.
TARIQ MURAD, a/k/a DERRICK CALLOWAY, Petitioner,
ROY HENDRICKS, ET AL., Respondents.
The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
Petitioner, Tariq Murad ("Petitioner"), a/k/a Derrick Calloway,
a state prisoner proceeding pro se, files this petition seeking a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the
reasons set forth in this Opinion, Petitioner's request for
habeas corpus relief is denied.
At approximately 11:10 p.m. on the evening of April 18, 1985,
Eva Brown picked up her fiancé, Darius Williams, as he was
leaving work. Eva, driving the vehicle, told Williams that she
wanted to buy some marijuana and pulled the vehicle to the side
of the road at the intersection of Prince and Spruce Streets in
Newark. Williams exited from the automobile, crossed Prince
Street and approached a group of people sitting outside of 234
Prince Street. He asked for marijuana, but was told by a member
of the group, Angela Dortch, that they had none. Someone then
told him to try further down the street.
Williams crossed over Spruce Street and proceeded to walk down
Prince Street when a group of at least three men approached him.
An argument ensued and one of the men pulled out a gun and shot
Williams apparently because he refused to surrender the money Eva
had given him. Kenneth Dortch identified the Petitioner, Derrick
Calloway, as the individual with the weapon, while his sister,
Angela Dortch, identified Arthur King as the man who fired the shot.
Although wounded, Williams ran back to his automobile and asked
Eva for his gun. After Eva informed Williams that she did not
have the gun, he tried to enter the vehicle from the passenger
side. The Petitioner and his two co-defendants grabbed and pulled
at Williams as he attempted to enter the vehicle. Eva eventually
pulled Williams into the car, shut the door and locked it.
Petitioner Murad then took his gun, reached into the vehicle, and
fired at Williams.
Eva drove Williams to the hospital where he died from his
injuries. The medical examiner testified that the cause of death
was internal hemorrhaging caused by three gunshot wounds.
A. Procedural History
Tried to a jury, Petitioner was found guilty of felony murder
under N.J.S.A. 2C:11-3a(3), first degree armed robbery,
N.J.S.A. 2C:15-1, possession of handgun without the requisite
permit, N.J.S.A. 2C:39-5b, and possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4a. State v. Calloway,
Indictment No. 4027-11-85. On his conviction for felony murder
Petitioner was sentenced to forty years in New Jersey State
Prison, with a thirty-year period of parole ineligibility. A
five-year concurrent sentence was imposed on his conviction for
the unlawful possession of a weapon. The trial court vacated the jury's verdict on the first-degree robbery and possession of a
weapon for an unlawful purpose based upon the doctrine of merger.
A second indictment charged Petitioner with second degree
robbery. Petitioner entered a retraxit plea of guilty to that
charge and was sentenced to a custodial term of five years. The
trial court ordered that the sentence on the robbery conviction
run concurrently with the custodial terms imposed on the felony
murder and weapons offenses.
Petitioner directly appealed the judgment of conviction, on
grounds that the trial court improperly denied his motion for a
severance and erroneously admitted autopsy photographs into
evidence. State v. Calloway, A-3297-86T4 (App. Div. 1988).
Petitioner also claimed that his guilty plea for second degree
robbery was not supported by an adequate factual basis. The
Superior Court of New Jersey, Appellate Division, finding that
all of Petitioner's arguments were "clearly without merit,"
affirmed on June 7, 1988. State v. Calloway, supra, (App.
Div. 1988). The Supreme Court of New Jersey denied certification
of Petitioner's direct appeal on September 28, 1988. State v.
Calloway, 113 N.J. 351, 550 A.2d 462 (1988).
Petitioner then sought post-conviction relief ("PCR") alleging
ineffective assistance of appellate counsel. The Petitioner's PCR
was denied by the Honorable Michael J. Degnan, J.S.C., on March
26, 1993. After a remand ordered by the Superior Court of New Jersey, Appellate Division, the trial court
again denied Petitioner's PCR on December 7, 1994. See State
v. Calloway, 275 N.J. Super. 13, 645 A.2d 150 (App. Div. 1994).
The Appellate Division affirmed the trial court in denying the
petition for post-conviction relief on June 19, 1997. The Supreme
Court of New Jersey denied Petitioner's motion to file a petition
for certification as within time, and dismissed the notice of
petition for certification as moot on January 23, 2002.
Petitioner filed this application for federal habeas relief on or
about February 11, 2003.
B. Statute of Limitations
Respondents assert that Murad's petition was filed outside of
the one-year statute of limitations period for filing habeas
petitions. On April 24, 1996, the Anti-Terrorism and Effective
Death Penalty Act ("AEDPA") took effect, which provides that "[a]
1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court." 28 U.S.C. § 2244(d)(1). In this
instance, the limitations period runs from the date on which the
judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.
28 U.S.C. § 2244(d)(1)(A).
Petitioner's judgment of conviction became final on December
27, 1988, the final date Petitioner could properly file a petition for a writ of certiorari with the Supreme Court of the
United States. Kapral v. United States, 166 F.3d 565, 575 (3d
Cir. 1999) ("[p]rior to the expiration of the time for certiorari
review, a conviction is simply not `final'"); Jones v. Morton,
195 F.3d 153, 157 (3d Cir. 1999). Petitioner's avenue of direct
appeal from his conviction came to an end ninety days after the
New Jersey Supreme Court denied certification. See
28 U.S.C. § 2101(d); Sup. Ct. R. 13 ("a petition for a writ of certiorari to
review a judgment of any case, civil or criminal, entered by a
state court of last resort . . . is timely filed . . . within
ninety days after entry of the judgment"). The New Jersey Supreme
Court denied certification on September 28, 1988. Therefore,
direct review of Petitioner's conviction concluded ninety days
later on December 27, 1988.
Because Petitioner's state court conviction became final before
April 24, 1996, the effective date of the AEDPA of 1996, the
one-year statute of limitations would run for a full year from
that date and thus would require a Petitioner to file his habeas
petition by April 23, 1997. Nara v. Frank, 264 F.3d 310, 315
(3d Cir. 2001) (holding that in cases where a prisoner's
conviction became final before April 24, 1996, the prisoner has a
one-year grace period following the effective date of the AEDPA
in which to file an application for habeas corpus relief).
Pursuant to the grace period applicable to convictions finalized before the effective date of the AEDPA, Petitioner had until
April 23, 1997, to file a petition for a writ of habeas corpus.
See Burns v. Morten, 134 F.3d 109, 111 (3d Cir. 1988)
("[H]abeas petitions filed on or before April 23, 1997, may not
be dismissed for failure to comply with § 2244(d)(1)'s time
However, the AEDPA provides that the one-year statute of
limitations tolls during the time that "a properly filed
application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending."
28 U.S.C. § 2244(d)(2). Respondents concede that Petitioner properly
filed for post-conviction relief which was twice denied and twice
appealed to the Superior Court, Appellate Division, before that
court affirmed the denial of the PCR petition on June 19, 1997.
Pursuant to New Jersey Court Rule 2:12-7(b), Petitioner had 30
days, or until July 19, 1997, to file a petition for
certification to the New Jersey Supreme Court. Because Petitioner
did not file within 30 days his PCR proceedings were finally
concluded on July 19, 1997.
The 365-day limitations period resumed at the expiration of
Petitioner's time to file a petition for certification to the New
Jersey Supreme Court. Petitioner thus had until July 18, 1998, to
file a timely habeas corpus petition pursuant to the AEDPA.
Because Petitioner did not submit this application for habeas
relief until February 11, 2003, more than four and one-half years after the limitations period had expired, the Court finds that
this petition is therefore time-barred by statute.
C. Equitable Tolling
The Court may equitably toll the AEDPA statute of limitations
when a state prisoner faces exceptional circumstances that
prevent him from filing a timely habeas petition. See Fahy v.
Horn, 240 F.3d 239, 244-45 (3d Cir. 2000); Miller v. New Jersey
State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In
Miller, the Court of Appeals for the Third Circuit held that
the one-year statute of limitations is subject to equitable
tolling, and is not a jurisdictional bar. Id. In order to toll
the one-year limitations period the petitioner must show "that he
or she exercised reasonable diligence in investigating and
bringing the claims." Miller, at 618-19. Mere excusable neglect
is not sufficient. Id. Petitioner must show that he has been
prevented from asserting his or her rights in some extraordinary
way. Id. Equitable tolling may also be appropriate if the
Petitioner has been actively misled or timely asserted his rights
in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir.
1999). However, the Court of Appeals for the Third Circuit has
emphasized that the federal courts use equitable tolling "only
sparingly." Seitzinger v. Reading Hosp. & Med. Ctr.,
165 F.3d 236, 239 (3d Cir. 1999) (quoting Irwin v. Dep't of Veteran
Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990)); see United States v. Midgley,
142 F.3d 174, 179 (3d Cir. 1998) ("[A] statute of limitations should be
tolled only in the rare situation where equitable tolling is
demanded by sound legal principles as well as the interests of
justice." (citation and quotation marks omitted)). Because
Petitioner has not demonstrated that he was prevented from
asserting his rights in some extraordinary way the Court can
discern no exceptional circumstances warranting equitable
Petitioner claims that he was prevented from asserting his
rights in an extraordinary way because after being transferred to
New Jersey State Prison he discovered that some of his legal
documents went missing and prison authorities were unable to
assist him in retrieving the documents. This argument fails as an
attempt to support equitable tolling.
At the outset, the Court notes that Petitioner had ultimately
received sufficient materials in order to reconstruct his legal
record as he was able to file a motion with the New Jersey
Supreme Court to file a petition for certification nunc pro
tunc. That court denied this motion for leave to file a notice
of petition for certification as within time.*fn1
Additionally, Petitioner's property became temporarily
unavailable to him following his transfer to New Jersey State Prison on or about October 28, 1998. This transfer occurred over
three months past the expiration of Petitioner's original window
to file a timely petition for habeas relief. Therefore,
Petitioner has not demonstrated that he has faced exceptional
circumstances that prevent him from filing a timely habeas
In Payne v. Digulielmo, 2004 WL 868221, *3 (E.D.Pa. April 21,
2004), the petitioner claimed that equitable tolling applied
because the paralegal who possessed his legal records was
transferred to another institution. Although the paralegal
possessed his records, the petitioner did not identify any reason
why he could not file a timely habeas petition and amend it later
after obtaining the records. Id. Equitable tolling was denied.
Id. Similarly, in this case, Petitioner does not put forward
any reason why his transfer between prisons, and subsequent delay
in the return of his legal documents, manifested exceptional
circumstances that prevented timely filing of his application for
habeas relief. See Robinson v. Johnson, 313 F.3d 128, 143 (3d
Cir. 2002) (holding that the petitioner did not exercise
reasonable diligence to justify equitable tolling, noting that
the petitioner "did not seek to file a timely petition and then
clarify it once he had access to his materials.").
Finally, nothing in the record demonstrates that Petitioner was
actively misled by the State or that he mistakenly asserted his rights in the wrong forum.
After independent review of the record, the Court concludes
that because no extraordinary circumstances have been shown to
warrant equitable tolling of the period of limitations,
Petitioner's application is time-barred.
For the foregoing reasons, the Court finds the petition for
habeas corpus relief is time-barred and ineligible for equitable
tolling and is therefore denied.
An appropriate order accompanies this Opinion.
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