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DOZIER v. HENDRICKS

November 7, 2005.

DARNELL DOZIER, Petitioner,
v.
ROY L. HENDRICKS, et al., Respondents.



The opinion of the court was delivered by: WILLIAM WALLS, District Judge

OPINION

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, 2004.

  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Appellate Division on or about May 2, 1995, and the Appellate Division affirmed the conviction on June 19, 1996 in an unpublished opinion.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 Court.

  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, 2003.

  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, ...


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