The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Donald Henry filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254(a) challenging a judgment of
conviction in the Superior Court of New Jersey, Bergen County.
Respondents filed an Answer seeking dismissal of the Petition on
several grounds, including statute of limitations. For the
reasons expressed below, the Court dismisses the Petition as
untimely and declines to issue a certificate of appealability. I. BACKGROUND
Petitioner challenges a judgment of conviction entered in the
Superior Court of New Jersey, Bergen County, on September 29,
1989, after a jury found him guilty of knowing and purposeful
murder, murder while committing a kidnaping, murder while
committing a robbery, and two counts of possession of firearms
for an unlawful purpose. The trial court merged the weapons
violations and sentenced Petitioner to concurrent terms of life
imprisonment with a 30-year period of parole ineligibility on the
remaining convictions. Petitioner appealed, and on December 16,
1992, the Superior Court of New Jersey, Appellate Division,
affirmed the convictions, but merged the felony murder
convictions into the conviction for purposeful and knowing murder
conviction and vacated the sentences for the felony murder
convictions. State v. Henry, No. A-1705-89T4 slip op. (App.
Div. Dec. 16, 2992). The Supreme Court of New Jersey denied
certification on February 25, 1993.
According to the record, Petitioner filed a petition for
post-conviction relief dated December 10, 1996, in the Law
Division of the Superior Court of New Jersey. On May 18, 1998,
the Law Division denied relief without an evidentiary hearing. By
opinion filed January 8, 2001, the Appellate Division affirmed in
all respects. On April 3, 2001, the Supreme Court of New Jersey
denied certification. State v. Henry, 168 N.J. 290 (April 3,
2001) (table). Petitioner filed a second petition for post
conviction relief in the Law Division on February 28, 2002.
On March 4, 2002, Petitioner executed the § 2254 Petition which
is before this Court. The Clerk received the Petition on March 7,
2002. 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
2000). The Petition asserts four grounds, none of which raises a
right newly recognized by the United States Supreme Court:
Ground One: IT WAS ERROR TO DENY DEFENDANT'S MOTION
TO SUPPRESS EVIDENCE AS A RESULT OF AN UNLAWFUL
Ground Two: TRIAL COUNSEL WAS INEFFECTIVE IN NOT
OBJECTING TO EVIDENCE OF DEFENDANT'S PRIOR
Ground Three: JURY INSTRUCTION RESPECTING
RENUNCIATION OF CRIMINAL PURPOSE IMPERMISSIBLY
SHIFTED THE BURDEN OF PROOF TO DEFENDANT IN VIOLATION
OF THE FEDERAL AND STATE CONSTITUTIONS.
Ground Four: TRIAL COUNSEL WAS INEFFECTIVE IN NOT
OBJECTING TO THE GRAPHIC TESTIMONY OF DR. LANDHEIM, A
(Pet. ¶ 12.A., 12.B., 12.C., 12.D.)
Respondents filed an Answer, arguing that the Petition should
be dismissed as untimely and on the merits. Although the Court
granted Petitioner's request for an extension of time to file a
reply to the Answer, Petitioner did not file a reply.
A. Statute of Limitations
On April 24, 1996, Congress enacted the 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); see also Jones v. Morton, 195 F.3d 153
157 (3d Cir. 1999).
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).
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). The AEDPA statute of limitations is also 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
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.
2000)). Because Petitioner's direct appeal became final prior to the
AEDPA, he had a one-year grace period to file his § 2254 Petition
from April 24, 1996, through April 23, 1997. The limitations
period ran from April 24, 1996, until Petitioner filed his first
petition for post conviction relief on December 10, 1996, or for
230 days. It was tolled from December ...