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November 2, 2005.

TERRANCE MOORE, et al, Respondents.

The opinion of the court was delivered by: FAITH HOCHBERG, District Judge


Petitioner Remy Sainvallier, a prisoner currently confined at East Jersey State Prison, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Terrance Moore and the Attorney General of New Jersey.


  Following a jury trial in 1985 in the Superior Court of New Jersey, Law Division, Union County, a jury found Petitioner guilty of murder and other offenses. On April 16, 1985, the court sentenced Petitioner to a thirty-year term of imprisonment without eligibility for parole, to be served consecutively to a previously imposed sentence. On April 14, 1988, the Superior Court of New Jersey, Appellate Division, affirmed the conviction. The Supreme Court of New Jersey denied certification on June 23, 1988. (Answer, Exs. 8, 11.)

  Petitioner filed a petition for post-conviction relief in the trial court on May 4, 1992. (Answer, Exs. 12, 13, 14.) On July 20, 1992, the trial court entered an Order denying the PCR petition because it was time-barred under N.J. Ct.R. 3:22-12.*fn1 (Answer, Exs. 14, 15.) On appeal, by Opinion filed February 24, 1994, the Appellate Division reversed and remanded for a hearing to determine the applicability of the statutory bar. (Answer, Ex. 20.)

  On remand, the trial court appointed counsel to represent Petitioner and conducted a hearing on July 2, 1996, to determine whether the PCR petition was time-barred.*fn2 On July 9, 1996, the trial court found the PCR petition to be time-barred because Petitioner had failed to establish the "excusable neglect" necessary to permit consideration of his petition outside the five-year limit of Rule 3:22-12. (Answer, Ex. 51.) In reaching this result, the trial court found that there had been no error in the jury charge. (Answer, Ex. 51 at 7-8.)

  Petitioner filed his notice of appeal on or about November 20, 1996. (Answer, Ex. 23.) On November 24, 1997, the Appellate Division dismissed Petitioner's appeal for failure to submit a brief timely. (Answer, Ex. 24.) Petitioner asserts here that he did not receive notice of the dismissal and, in support of that assertion, has provided letters from his counsel dated July 31, 1998, and June 6, 1999, stating that counsel was working on the brief for the Appellate Division. (Traverse, Exs. P.Tr.9 and 10.) More than three years after the dismissal, on December 11, 2000, Petitioner moved pro se to reinstate his appeal. On January 29, 2001, the Appellate Division granted Petitioner's motion, vacated the prior dismissal order, and established a new scheduling order. (Answer, Ex. 26.)

  In his pro se brief before the Appellate Division, Petitioner challenged the trial court's finding of untimeliness and raised all the claims raised here, either by arguing them directly or by incorporating by reference the post-conviction brief submitted to the Law Division. (Answer, Ex. 27.) On September 24, 2001, following briefing, the Appellate Division affirmed the trial court's denial of post-conviction relief. We conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We only note that defendant's petition was filed more than two years after expiration of the five-year period for filing a petition for post-conviction relief allowed under Rule 3:22-12, and that the only reasons defendant offered for this delay were that he was not initially provided with a copy of the trial transcript containing the jury instructions and that, until he began working in the prison law library, he did not have the legal knowledge required to perceive the alleged error in that instruction upon which he now relies. The trial court correctly concluded that these reasons were insufficient to justify defendant's long delay in filing the petition. Moreover, we note that this court held in State v. Cupe, 289 N.J. Super. 1 (App.Div.), certif. denied, 144 N.J. 589 (1996), that the sequential jury instruction as to murder and passion/provocation manslaughter that the Supreme Court found to be improper in State v. Coyle, 119 N.J. 194 (1990) does not provide a basis for post-conviction relief with respect to a conviction that predated Coyle. We further note that in State v. Heslop, 135 N.J. 318, 325 (1994), the Court affirmed a conviction on direct appeal even though, as in this case, the trial court had failed "to point out specifically that the State bears the burden of proof with respect to a specific aspect of an element of purposeful and knowing murder, namely the absence of passion and provocation."

 (Answer, Ex. 29.) In his Petition for Certification, Petitioner relied upon all the arguments made in the Law Division.*fn3 (Answer, Ex. 30.) On January 24, 2002, the Supreme Court of New Jersey denied certification. (Answer, Ex. 32.)

  On January 15, 2003, this Court received this Petition, which is dated December 19, 2002. Petitioner asserts as grounds for relief (1) a defective jury instruction on passion/provocation manslaughter, (2) ineffective assistance of trial counsel, and (3) ineffective assistance of appellate counsel. Respondents have answered, asserting that the Petition is untimely because the PCR application was not "pending" during the period between its 1997 dismissal and its 2001 reinstatement by the Appellate Division. Thus, they argue, the state PCR application did not toll the federal limitations period, which expired while no state PCR petition was "pending," nor has Petitioner established grounds for equitable tolling. In addition, Respondents assert that Petitioner's claims are unexhausted, procedurally defaulted, and/or meritless. Petitioner has filed a Traverse in support of the Petition. Accordingly, this matter is now ready for determination.


  As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent part:

  (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. The limitation period for a § 2254 habeas petition is set forth in 28 U.S.C. § 2244(d), which provides in pertinent part:

(1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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; . . .
(2) 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 section.
Thus, evaluation of the timeliness of a § 2254 petition requires a determination of, first, ...

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