United States District Court, D. New Jersey
November 7, 2005.
DARNELL DOZIER, Petitioner,
ROY L. HENDRICKS, et al., Respondents.
The opinion of the court was delivered by: WILLIAM WALLS, District Judge
This matter is before the Court on Petitioner Darnell Dozier's
petition for habeas corpus relief under 28 U.S.C. § 2254. For
reasons discussed below, the petition for habeas corpus relief
will be dismissed as time-barred, pursuant to
28 U.S.C. § 2244(d). I. BACKGROUND
Petitioner, Darnell Dozier ("Dozier"), filed a petition for
habeas corpus relief on or about August 15, 2003.*fn1 On May
27, 2004, the Court directed respondents to answer the petition,
and the respondents filed an answer, with affirmative defenses,
and the pertinent state court record, on or about July 20, 2004.
Dozier filed a traverse to the respondents' answer on October 13,
The following facts are taken from the petition, the
respondents' answer, and the state court record.
On November 7, 1994, a jury found Dozier guilty of first degree
murder, first degree attempted murder, and second degree
possession of a handgun for an unlawful purpose. Dozier was
sentenced on January 20, 1995 to an aggregate term of life plus
twenty years in prison with a 40-year period of parole
ineligibility. Dozier filed an appeal of his conviction to the
New Jersey Appellate Division on or about May 2, 1995, and the Appellate Division affirmed the conviction on June 19, 1996 in an
unpublished opinion. Dozier then filed a petition for
certification with the New Jersey Supreme Court, on July 3, 1996,
which was denied on October 23, 1996. Dozier did not file a
petition for a writ of certiorari with the United States Supreme
On or about May 9, 1997, Dozier filed an application for
post-conviction relief ("PCR") with the Superior Court of New
Jersey, Law Division, Union County.*fn2 An evidentiary
hearing was conducted by the Honorable John S. Triarsi, J.S.C.,
on October 23, 1998, with respect to the claims of ineffective
assistance of trial counsel. Judge Triarsi denied Dozier's PCR
petition on May 1, 2000. Dozier appealed to the New Jersey
Appellate Division, which affirmed the denial of state PCR relief
on February 19, 2002. Dozier then filed a petition for
certification to the New Jersey Supreme Court. The New Jersey
Supreme Court denied certification on September 2, 2002.
Dozier filed this petition for habeas relief under § 2254 on
August 15, 2003. The respondents answered the petition alleging
that petitioner's grounds for habeas relief are without merit.
Respondents also raise the affirmative defense that Dozier's habeas petition is time-barred under
28 U.S.C. § 2244(d)(1).*fn3 Dozier filed a reply to the answer, arguing
that his petition was filed within the one-year statute of
limitations period. Dozier contends that the one-year grace
period afforded federal habeas petitioners after the enactment of
the Anti-Terrorism and Effective Death Penalty Act in 1996
extended the deadline for filing his petition to September 6,
II. STANDARD OF REVIEW
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
III. STATUTE OF LIMITATIONS ANALYSIS
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.
Section 2244(d) became effective on April 24, 1996 when the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")
was signed into law. See Burns v. Morton, 134 F.3d 109, 111
(3d Cir. 1998); Duarte v. Herschberger, 947 F. Supp. 146, 147
(D.N.J. 1996). The Third Circuit has ruled that state prisoners
whose convictions became final before the April 24, 1996
enactment of AEDPA are permitted one year, until April 23, 1997,
in which to file a federal habeas petition under § 2254. See
Burns, 134 F.3d at 111. See also Lindh v. Murphy,
521 U.S. 320, 326-27 (1997) ("[t]he statute reveals Congress' intent
to apply the amendments to chapter 153 only to such cases as were
filed after the statute's enactment").
Thus, pursuant to § 2244(d), evaluation of the timeliness of a
§ 2254 petition requires a determination of, first, when the
pertinent judgment became "final," and, second, the period of
time during which an application for state post-conviction relief
was "properly filed" and "pending." A state-court criminal judgment becomes "final" within the
meaning of § 2244(d)(1) by the conclusion of direct review or by
the expiration of time for seeking such review, including the
90-day period for filing a petition for writ of certiorari in the
United States Supreme Court. See Swartz v. Meyers,
204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n. 1
(3d Cir. 1999); U.S. Sup. Ct. R. 13.
As noted above, where a conviction became final prior to April
24, 1996, the effective date of § 2244(d), a state prisoner has a
one-year grace period after that effective date to file a § 2254
petition. Burns, 134 F.3d at 111. However, that limitations
period is tolled during the time a properly filed application for
state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2).
An application for state post-conviction relief is considered
"pending" within the meaning of § 2244(d)(2), and the limitations
period is statutorily tolled, from the time it is "properly
filed,"*fn4 during the period between a lower state court's decision and the filing of a notice of
appeal to a higher court, Carey v. Saffold, 536 U.S. 214
(2002), and through the time in which an appeal could be filed,
even if the appeal is never filed, Swartz v. Meyers,
204 F.3d at 420-24. Nevertheless, "the time during which a state prisoner
may file a petition for writ of certiorari in the United States
Supreme Court from the denial of his state post-conviction
petition does not toll the one year statute of limitations under
28 U.S.C. § 2244(d)(2)." Stokes v. District Attorney of the
County of Philadelphia, 247 F.3d 539, 542 (3d Cir.), cert.
denied, 534 U.S. 959 (2001).
The limitations period of § 2244(d) is also subject to
equitable tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.),
cert. denied, 122 S.Ct. 323 (2001); Jones v. Morton,
195 F.3d 153, 159 (3d Cir. 1999); Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998).*fn5 However,
the one-year limitations period in § 2244(d)(1) can only be
equitably tolled when a petitioner has "exercised reasonable diligence in
investigating and bringing the claims." Miller,
145 F.3d at 618. Excusable neglect is insufficient; rather, petitioner must
in some extraordinary way demonstrate that he was prevented from
asserting his rights. Id. There are three enumerated
circumstances that would permit equitable tolling in the instant
case: (1) the petitioner has been actively misled; (2) the
petitioner has been prevented from asserting his rights in some
extraordinary way; or (3) the petitioner timely asserted his
rights in the wrong forum. Jones, 195 F.3d at 159. The Third
Circuit has expressly held that, in non-capital cases, attorney
error, miscalculation, inadequate research, or other mistakes are
not the extraordinary circumstances necessary to establish
equitable tolling. Johnson v. Hendricks, 314 F.3d 159, 163 (3d
Cir. 2002), cert. denied 538 U.S. 1022 (2003); Fahy,
240 F.3d at 244.
Among other things, the Court of Appeals for the Third Circuit
has held that equitable tolling may be appropriate "if the
plaintiff has timely asserted his rights mistakenly in the wrong
forum," i.e., if a petitioner has filed a timely but unexhausted
federal habeas petition. Jones, 195 F.3d at 159. See also
Duncan v. Walker, 533 U.S. 167, 183 (2001) (Stevens, J., joined
by Souter, J., concurring in part) ("neither the Court's narrow
holding [that the limitations period is not statutorily tolled during the pendency of a premature federal habeas
petition], nor anything in the text or legislative history of
AEDPA, precludes a federal court from deeming the limitations
period tolled for such a petition as a matter of equity");
533 U.S. at 192 (Breyer, J., dissenting, joined by Ginsburg, J.)
(characterizing Justice Stevens's suggestion as "sound").
Here, a judgment of conviction was entered against Dozier on
January 20, 1995, and his judgment of conviction became final,
pursuant to 28 U.S.C. § 2244(d)(1), on January 22, 1997, or 90
days after the New Jersey Supreme Court denied certification on
direct appeal, which was October 23, 1996 (i.e., conviction
becomes final upon expiration of the 90-day period for filing a
petition for writ of certiorari in the United States Supreme
Court). See Swartz, 204 F.3d at 419; Morris,
187 F.3d at 337 n. 1; U.S. Sup. Ct. R. 13. Thus, Dozier' state court
conviction now under attack became final well after the enactment
of AEDPA on April 24, 1996. Consequently, Dozier had one year
from January 22, 1997, or until January 22, 1998 to bring his
federal habeas petition under § 2254.
Nevertheless, the Court also finds that there was statutory
tolling of the limitations period under § 2244(d)(2) before
January 22, 1998 because Dozier filed a state PCR application on
May 9, 1997, which remained pending in state court until
September 2, 2002, when the New Jersey Supreme Court denied certification from the Appellate Division's February 19, 2002
Opinion affirming the trial court's denial of post-conviction
relief. Thus, Dozier's limitation period began to run from
January 22, 1997 until May 9, 1997 (the date Dozier filed his
state PCR petition), for exactly 107 days. At that point, the
limitations period was tolled under § 2244(d)(2). The limitations
period did not begin to run again until September 2, 2002, when
the New Jersey Supreme Court denied certification on the appeal
from denial of Dozier's state PCR petition. Dozier had only 258
days (i.e., one year or 365 days minus the 107 days which had
already run) from September 2, 2002, or until March 18, 2003, to
file his federal § 2254 petition. See Stokes, 247 F.3d at 542
(the "time during which a state prisoner may file a petition for
writ of certiorari in the United States Supreme Court from the
denial of his state post-conviction petition does not toll the
one year statute of limitations under 28 U.S.C. § 2244 (d)(2)").
Dozier did not file his § 2254 habeas petition until August 15,
2003, almost five months after the statutory period had expired.
Section 2244(d)(1) clearly provides that a § 2254 petition must
be filed within one year of the latest of four events, the one
relevant here being "(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." See Johnson, 314 F.3d at 161. In Johnson, the Third Circuit, under similar
circumstances, affirmed the district court's dismissal of
Johnson's § 2254 petition as time-barred. The court found that
the statutory period ran for 222 days until Johnson had filed his
petition for post-conviction relief in state court. At that
point, the statutory period was tolled pursuant to
28 U.S.C. § 2244(d)(2), until the New Jersey Supreme Court denied Johnson's
petition for certification, and Johnson then had the remaining
143 days in which to timely file his federal habeas petition.
Johnson, 314 F.3d at 161. The Third Circuit noted that §
2244(d)(2)'s tolling provision excludes the time during which a
properly-filed state PCR petition is pending, but it does not
reset the date from which the one-year limitations period begins
to run. Id. at 162 (citing Smith v. McGinnis, 208 F.3d 13,
17 (2d Cir.), cert. denied, 531 U.S. 840 (2000)).
Consequently, Dozier's federal habeas petition is time-barred.
Moreover, Dozier offers no excuses, extraordinary or otherwise,
for equitable tolling. Rather, Dozier mistakenly argues that the
limitations period did not begin to run until April 27, 1997,
after expiration of the one-year grace period, which was afforded
petitioners whose convictions became final before the enactment
of AEDPA in April 1996. However, as stated above, Dozier's
judgment of conviction became final on January 22, 1997, after
the enactment of AEDPA, so the one-year grace period does not apply. At best, it appears that Dozier may have
miscalculated the statutory period by counting only the period of
time from April 27, 1997 to May 9, 1997 when he filed his state
PCR petition, which served to toll the limitations period under
28 U.S.C. § 2244(d)(2). Miscalculation of the statutory period
does not constitute extraordinary circumstances to permit
equitable tolling. Fahey, 240 F.3d at 244. Moreover, even if
Dozier was ignorant of the fact that the limitations period began
to run on January 22, 1997 when his conviction became final,
ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing. Fisher v.
Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied,
531 U.S. 1164 (2001). Courts have been loathe to excuse late
filings simply because a pro se prisoner misreads the law.
Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001); see
also Jones, 195 F.3d at 159-60. Accordingly, Dozier does not
demonstrate any extraordinary circumstances that would permit the
equitable tolling of the one-year statute of limitations.
Therefore, because Dozier failed to file a timely petition and
demonstrates no extraordinary circumstances that would allow
equitable tolling, the Court is precluded from reviewing this
petition for habeas corpus relief under § 2254. Since the § 2254
petition is time-barred under § 2244(d)(1), it will be dismissed. IV. CERTIFICATE OF APPEALABILITY
The Court next 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 the petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
When a court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claim, the
prisoner 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." Id.
For the reasons discussed above, Dozier' § 2254 habeas petition
is clearly time-barred. The Court also is persuaded that
reasonable jurists would not debate the correctness of this
conclusion. Consequently, a certificate of appealability will not
be issued. CONCLUSION
For the foregoing reasons, this Court finds that the petition
for a writ of habeas corpus under 28 U.S.C. § 2254 is time-barred
pursuant to 28 U.S.C. § 2244(d)(1); and the Court will dismiss
the petition accordingly.
No certificate of appealability will issue pursuant to
28 U.S.C. § 2253(c)(2). An appropriate order follows.
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