The opinion of the court was delivered by: JOHN LIFLAND, Senior District Judge
Leonardo Garcia filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254(a) challenging a conviction for
murder in the Superior Court of New Jersey, Hudson County.
Respondents filed an Answer seeking dismissal of the Petition on
several grounds, including the statute of limitations,
28 U.S.C. § 2244(d). Petitioner filed a Traverse to the Answer. 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, Hudson County, on July 7, 1986,
after a jury found him guilty of murder, aggravated assault, and
unlawful possession of a handgun. The Law Division sentenced
Petitioner to concurrent prison terms of 30 to 50 years for the
murder, nine months for the aggravated assault, and four years
for the handgun charge. Petitioner appealed, and on June 21,
1988, the Superior Court of New Jersey, Appellate Division,
affirmed the conviction, but modified the concurrent prison term
imposed for the aggravated assault to 18 months without parole.
The New Jersey Supreme Court denied Petitioner's petition for
certification on September 28, 1988.
Petitioner filed a state petition for post-conviction relief in
November 1988. The Law Division of the Superior Court of New
Jersey denied relief on April 3, 1989. In an opinion filed
February 22, 1991, the Superior Court, Appellate Division,
affirmed the order denying post conviction relief on the ground
that Petitioner raised or could have raised his arguments in the
direct appeal. The Supreme Court of New Jersey denied his
petition for certification on June 28, 1991.
On May 6, 1993, Petitioner filed a motion to correct an illegal
sentence, which the Law Division denied on the same date. The
Appellate Division denied Petitioner's appeal on October 20,
1994, and the Supreme Court of New Jersey denied certification on
March 29, 1995.
On December 2, 1995, Petitioner executed his first Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("First
Petition"). See Garcia v. Morton, Civil No. 96-78 (JWB)
(D.N.J. filed Jan. 12, 1996). The Clerk received it on January
12, 1996. Respondents filed an Answer. On July 29, 1996, Hon. John W. Bissell dismissed the
Petition without prejudice as a mixed petition because it
contained exhausted and unexhausted claims. Id.
On November 14, 1997, Petitioner executed a notice of motion
for post conviction relief, which was filed in the Superior Court
of New Jersey, Law Division, Hudson County. The Law Division
denied relief on February 10, 1999, without conducting an
evidentiary hearing. Petitioner appealed and the Appellate
Division affirmed the order denying post conviction relief on
February 16, 2001. The Supreme Court of New Jersey denied
certification on November 5, 2001.
On June 11, 2002, Petitioner executed his second § 2254
Petition, which is now before this Court. The Clerk received it
on June 18, 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. The
grounds are set forth below verbatim:
Ground One: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
CONTRARY TO THE SIXTH AMENDMENT OF THE UNITED STATES
Ground Two: THE TRIAL COURT ERRED IN ADMITTING
DEFENDANT'S STATEMENT INTO EVIDENCE PURSUANT TO RULE
8(3) HEARING BECAUSE THE DEFENDANT DID NOT
VOLUNTARILY AND KNOWINGLY WAIVE HIS MIRANDA RIGHTS.
Ground Three: DEFENDANT WAS DENIED DUE PROCESS
GUARANTEED UNDER THE CONSTITUTION BECAUSE HIS
ADMISSION WAS INVOLUNTARILY MADE. Ground Four: THE DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL.
(Pet. ¶ 12.A.-12.D.)
Respondents filed an Answer, arguing, inter alia, that the
Petition should be dismissed as time-barred. Petitioner filed a
Traverse opposing dismissal of the Petition.
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). 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 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 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 ...