United States District Court, D. New Jersey
October 5, 2005.
ANDRE HERD, Petitioner,
ROY L. HENDRICKS, et al., Respondents.
The opinion of the court was delivered by: JOSE LINARES, District Judge
Andre Herd, serving an aggregate life sentence for two counts
of murder, filed a Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254(a) challenging a conviction in the Superior
Court of New Jersey, Essex County, on October 10, 1986.
Respondents filed an Answer seeking dismissal of the Petition on
several grounds, including the statute of limitations,
28 U.S.C. § 2244(d). For the reasons expressed below, the Court dismisses
the Petition as untimely and denies a certificate of
appealability. I. BACKGROUND
Petitioner challenges a judgment of conviction entered in the
Superior Court of New Jersey, Essex County, on October 10, 1986,
after a jury found him guilty of two counts of felony murder,
first degree robbery, conspiracy, and possession of a weapon for
an unlawful purpose. The Law Division sentenced Petitioner to an
aggregate term of two consecutive life sentences, with a
sixty-year period of parole ineligibility. Petitioner appealed,
and the Superior Court of New Jersey, Appellate Division,
affirmed the conviction and remanded for resentencing. On
September 23, 1988, the Law Division re-sentenced Petitioner, and
on January 10, 1989, the Appellate Division affirmed the
sentence. The New Jersey Supreme Court denied Petitioner's
petition for certification on May 4, 1989. Petitioner did not
file a petition for certiorari in the United States Supreme
Petitioner filed a state petition for post-conviction relief
sometime in November 1993. After conducting an evidentiary
hearing, the Law Division of the Superior Court of New Jersey
denied relief on November 12, 1993. The Superior Court, Appellate
Division, affirmed the order denying PCR in February 1996. The
Supreme Court of New Jersey denied his petition for certification
on May 23, 1996.
Petitioner filed a motion in the Law Division to compel the
production of records, which Superior Court Judge R. Benjamin
Cohen denied on July 9, 1998. Petitioner appealed and on October
31, 2000, the Appellate Division affirmed.
On August 20, 2001, Petitioner executed the § 2254 Petition
which is now before this Court. The Clerk received it on August
29, 2001, with an application to proceed in forma pauperis.
The Court notified Petitioner of the consequences of filing such
a Petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA") and gave
him an opportunity to withdraw the Petition and file one
all-inclusive Petition, pursuant to Mason v. Meyers,
208 F.3d 414 (3d Cir. 2000). The Petition asserts seven grounds, none of
which raises a right newly recognized by the United States
Supreme Court. Respondents filed an Answer, with relevant
portions of the state court record, arguing that the Petition
should be dismissed as time-barred, unexhausted, and on the
A. Statute of Limitations
On April 24, 1996, Congress enacted the Anti-Terrorism and
Effective Death Penalty Act ("AEDPA"), 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). The
limitations period runs 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;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence. . . .
28 U.S.C. § 2244(d)(1). In this case, the applicable limitations provision is §
2244(d)(1)(A). Because Petitioner's conviction became final prior
to the effective date of the AEDPA on April 24, 1996, his
one-year limitations period began on April 24, 1996. See
Merritt v. Blaine, 326 F.3d 157
, 161 (3d Cir. 2003); Nara v.
Frank, 264 F.3d 310
, 315 (3d Cir. 2001); Burns v. Morton,
134 F.3d 109, 111 (3d Cir. 1998). Absent statutory or equitable
tolling, the limitations period expired on April 23, 1997. Id.
The statute of limitations under § 2244(d) is subject to two
tolling exceptions: statutory tolling and equitable tolling.
Merritt, 326 F.3d at 161; Miller v. N.J. State Dep't of
Corr., 145 F.3d 616, 617-18 (3d Cir. 1998). Section 2244(d)(2)
requires statutory tolling under certain circumstances: "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 subsection."
28 U.S.C. § 2244(d)(2). Because Petitioner's first PCR petition was pending
before the New Jersey courts on April 24, 1996, the limitations
period was statutorily tolled from April 24, 1996, until the
Supreme Court of New Jersey denied Petitioner's petition for
certification by order filed May 23, 1996. See Stokes v. Dist.
Attorney of County of Phila., 247 F.3d 539, 541 (3d Cir. 2001).
Absent equitable tolling, the one-year statute of limitations
expired on May 22, 1997. Id. at 542.
The AEDPA statute of limitations is subject to equitable
tolling. Miller, 145 F.3d at 618. The one-year limitations
period is subject to equitable tolling "only in the rare
situation where equitable tolling is demanded by sound legal
principles as well as the interests of justice." Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999). Equitable tolling is
appropriate only when the principle of equity would make the
rigid application of a limitation period unfair.
Generally, this will occur when the petitioner has in
some extraordinary way been prevented from asserting
his or her rights. The petitioner must show that he
or she exercised reasonable diligence in
investigating and bringing [the] claims. Mere
excusable neglect is not sufficient.
Miller, 145 F.3d at 618-19 (internal citations and alterations
omitted); see also Merritt, 326 F.3d at 168.
Extraordinary circumstances have been found where (1) the
defendant has actively misled the plaintiff, (2) the plaintiff
has in some extraordinary way been prevented from asserting his
rights, (3) the plaintiff has timely asserted his rights
mistakenly in the wrong forum, see Jones, 195 F.3d at 159, or
(4) the court has misled a party regarding the steps that the
party needs to take to preserve a claim, see Brinson v.
Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). Even where
extraordinary circumstances exist, however, "[i]f the person
seeking equitable tolling has not exercised reasonable diligence
in attempting to file after the extraordinary circumstances
began, the link of causation between the extraordinary
circumstances and the failure to file is broken, and the
extraordinary circumstances therefore did not prevent timely
filing." Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003)
(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.
Although Respondents raised the statute of limitations as an
affirmative defense in the Answer, Petitioner has not argued that
the limitations period should be equitably tolled. The Court has
reviewed the submissions of the parties and discerns no
extraordinary circumstances warranting equitable tolling. Because
Petitioner's direct appeal became final in 1989, he had a
one-year grace period to file his § 2254 Petition from April 24,
1996, through April 23, 1997. Insofar as Petitioner's first petition for PCR was pending on
April 24, 1996, the statute of limitations was statutorily tolled
and did not begin to run until the New Jersey Supreme Court
denied certification on May 23, 1996. The one-year statute of
limitations expired on May 22, 1997. Because the statute of
limitations expired on May 22, 1997, the limitations period was
not statutorily tolled by Petitioner's subsequent filing of a
motion to compel in the Law Division. Petitioner did not execute
the § 2254 Petition until August 20, 2001, and because there are
no extraordinary circumstances warranting equitable tolling, the
Court holds that the instant § 2254 Petition is barred by the
one-year statute of limitations. Accordingly, the Court dismisses
the Petition as untimely. 28 U.S.C. § 2244(d)(1).
B. Certificate of Appealability
The AEDPA provides that an appeal may not be taken to the court
of appeals from a final order in a § 2254 proceeding unless a
judge issues a certificate of appealability on the ground that
"the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v.
McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme
Court held: "When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling." Id.
The Court denies a certificate of appealability pursuant to
28 U.S.C. § 2253(c) because jurists of reason would not find it
debatable that dismissal of the Petition as untimely is correct. III. CONCLUSION
Based on the foregoing, the Court dismisses the Petition for a
Writ of Habeas Corpus as untimely and denies a certificate of
appealability. An appropriate Order accompanies this Opinion.
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