United States District Court, D. New Jersey
October 20, 2005.
MICHAEL JONES, Petitioner,
TERRANCE MOORE, et al., Respondents.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
Michael Jones ("Jones"), currently confined at East Jersey
State Prison in Rahway, New Jersey, filed a Petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254(a), raising several
grounds for relief. The State filed an Answer opposing the
Petition, accompanied by relevant portions of the State court proceedings. For the reasons
expressed below, the Court will dismiss the Petition as untimely
and decline to issue a certificate of appealability.
On April 21, 1980, after a guilty plea, Petitioner was
sentenced to a life term for first degree murder (N.J.S.A. 2A:
113-1, 2); a concurrent one to five year term for murder while
armed (2A: 151-5); three to twelve years consecutive to the life
term for assault with intent to kill (2A: 90-4(a), 2A: 90-2); and
five years concurrent with the life term for armed robbery (2A:
141-1,151-5). (Answer, ¶¶ 3,4.) Petitioner appealed, and the New
Jersey Appellate Division affirmed on April 2, 1981. (Id., ¶
9.) Petitioner did not file a petition for certification to the
New Jersey Supreme Court. (Id.) Petitioner sometime later filed
a Petition for Post-Conviction relief in state court, which was
denied on October 20, 1997; his appeal was denied as untimely on
June 14, 2001. (Id., ¶ 11.) His motion for reconsideration was
denied by the Appellate Division on July 23, 2001. (Id.) The
Supreme Court of New Jersey denied certification on October 30,
On January 9, 1997, while his post-conviction application was
pending in state court, Petitioner twice applied for federal
habeas corpus relief pursuant to 28 U.S.C. § 2254; one
application was dismissed by the District Court on April 14, 1998
for failure to exhaust state remedies, the second filed September
8, 1998 and dismissed August 2, 1999. (Id.) Petitioner
apparently applied for a certificate of appealability on the
first habeas Petition, which was denied by the District Court on
August 24, 1999; Petitioner's motion for reconsideration was
denied on January 27, 2000. (Id.) On or about October 18, 2000, United
States Court of Appeals for the Third Circuit denied Petitioner's
application for a certificate of appealability. (Id.)
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 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 applicable limitations period in Petitioner's case is
28 U.S.C. § 2244 (d) (1) (A). Petitioner was convicted on April 21,
1980, after a guilty plea. (Ans., ¶ 2.) The trial court's
conviction and sentence were affirmed by the New Jersey Appellate
Division on April 2, 1981. (Ans., ¶ 9.) Petitioner did not apply for certification, or filed
for a Writ of Certiorari to the United States Supreme Court.
As Petitioner's route of direct appeal ended before the
effective date of the AEDPA on April 24, 1996, Jones' Petition
for a writ of habeas corpus had to be filed with the Clerk of
this Court by April 24, 1997 in order to be timely under §
2244(d), unless the limitations period was statutorily and/or
equitably tolled. See Miller v. Dragovich, 311 F.3d 574, 576
(3d Cir. 2002); Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
1998) (in cases in which a prisoner's conviction had become final
before April 24, 1996, there would be a one-year grace period
following the effective date of the AEDPA in which to file a
petition for habeas corpus relief). Pursuant to the grace period
applicable to convictions becoming final before the effective
date of the AEDPA, Petitioner had one year, or until April 24,
1997, in which to file a Petition for a Writ of Habeas Corpus.
Petitioner submitted an application for state post-conviction
relief, which was denied on October 20, 1997, and his motion to
file an appeal out of time was denied on June 4, 2001. Petitioner
did not submit the present application until March 18, 2002. His
latest habeas filing occurred after two previous Petitions, the
first filed January 9, 1997 and dismissed on April 14, 1998, the
second filed September 8, 1998 and dismissed August 2, 1999.
The AEDPA provides that the statute of limitations is tolled
during the time that a state prisoner is attempting to exhaust
his claims in state court. See 28 U.S.C. § 2244 (d) (2).*fn1
Petitioner's limitations period began running one day after his
conviction became final on April 23, 1996, due to the one year
grace period for convictions becoming final prior to the
effective date of the AEDPA on April 24, 1996, noted above.
Absent statutory or equitable tolling, the limitations period
expired on or about April 24, 1997.
The statute of limitations under 28 U.S.C. § 2244 (d) is
subject to two tolling exceptions: statutory tolling and
equitable tolling. Merritt v. Blaine, 326 F.3d 157, 161 93d
Cir.), cert. denied, 124 S.Ct 317 (2003) (limitations period is
statutorily tolled during the time a "properly filed" application
for state post-conviction review is pending in state court;
equitable tolling is a judicially crafted exception, citing
Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999)). The record
indicates that Petitioner's state post-conviction application was
pending in the state trial court on April 24, 1996, and was not
denied until October 20, 1997. Reconsideration was denied on
April 8, 1998. (Ans., Ex. 13.) Petitioner then had 45 days to
appeal under N.J. Ct. R. 2:4-1(a); however he failed to file the
relevant state court appeal until May 1, 2001. (Ans., Ex. 37.)
This attempt to appeal nunc pro tunc was denied on June 14,
2001; a motion for reconsideration was denied on July 23, 2001.
(Ans., ¶ 11, Ex. 39 and 41.) Petitioner thus had one year to file
a habeas petition from May 23, 1998 (the last day he could appeal
the denial of post-conviction relief). However, he did not submit the current Petition until March 18,
2002, well beyond the limitations period. Moreover, Petitioner's
two previous habeas Petitions, the first filed January 9, 1997
and dismissed on April 14, 1998, the second filed September 8,
1998 and dismissed August 2, 1999, did not toll the applicable
limitations period under federal law. See Duncan v. Walker,
533 U.S. 167 (2001) (AEDPA tolling does not apply to the period
of time taken by Petitioner's previous application for federal
habeas corpus). Under these facts, the AEDPA's statutory tolling
provisions do not prevent this Petition being dismissed as
time-barred, as it was filed well after the statute of
limitations had expired.
As noted above, the AEDPA statute of limitations is also
subject to equitable tolling. Merritt, supra; Miller v. N.J.
State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
Such tolling is applicable
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. [Id.]
Equitable tolling "may be appropriate if (1) the defendant has
actively misled the plaintiff, (2) if the plaintiff has `in some
extraordinary way' been prevented from asserting his rights, or
(3) if the plaintiff has timely asserted his rights mistakenly in
the wrong forum." Jones, supra, 195 F.3d at 159 (quoting
United States v. Midgley, 142 F.3d 174
, 179 (3d Cir. 1998)).
Petitioner has not demonstrated that he, in some extraordinary
way, was prevented from asserting his rights, mistakenly asserted
his rights in the wrong forum, or was misled. Moreover, after
independent review of the record, the Court and can discern no extraordinary
circumstances warranting equitable tolling.
Certificate of Appealability
Finally, the Court must determine whether a certificate of
appealability should issue. See Third Circuit Local Appellate
Rule 22.2. The Court may issue a certificate of appealability
only if Petitioner "has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253 (c) (2).
When a federal court dismisses a habeas petition on procedural
grounds without reaching the underlying constitutional claims,
the petitioner must demonstrate that jurists of reason would find
it debatable: (1) whether the petition states a valid claim of
the denial of a constitutional right; and (2) whether the court
was correct in its procedural ruling. Slack v. McDaniel,
529 U.S. 473, 484 (2000). "Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further. In such a
circumstance, no appeal would be warranted." Id.
As explained above, the Court has concluded that this
Petitioner's application is time barred, and that neither the
statutory tolling provision nor the doctrine of equitable tolling
renders his Petition timely. The Court is persuaded that
reasonable jurists would not debate the correctness of these
conclusions. Therefore, Petitioner has failed to make a
substantial showing of the denial of a constitutional right, and
no certificate of appealability will issue pursuant to
28 U.S.C. § 2253(c). See Fed.R.App.P. 22(b)(1); 3d Cir. L.A.R. 22.2. III. CONCLUSION
For the foregoing reasons, the Court dismisses the Petition for
Habeas Corpus Relief, and declines to issue a Certificate of
Appealability pursuant to 28 U.S.C. § 2253 (c).
An appropriate Order accompanies this Opinion.
© 1992-2005 VersusLaw Inc.