United States District Court, D. New Jersey
November 7, 2005.
TREVOR PURKETT, Petitioner,
ROY L. HENDRICKS, et al., Respondents.
The opinion of the court was delivered by: JOEL PISANO, District Judge
Petitioner Trevor Purkett, a prisoner currently confined at New
Jersey State Prison, has submitted a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are
Warden Roy L. Hendricks and the Attorney General of the State of
For the reasons stated herein, the Petition must be dismissed
with prejudice as untimely. I. BACKGROUND
A. Factual Background
The relevant facts are set forth in the opinion of the Superior
Court of New Jersey, Appellate Division.*fn1
The State's case showed that on the night of February
18, 1994, defendant entered Muller's Star Liquor
Store in Irvington and demanded money. He threatened
to shoot someone if there was no money. Present in
the store at the time were Dinesh Patel, his brother
Bhavesh, and customers, Irene Giles and Durron
McNeil. Defendant grabbed Bhavesh from behind and
pointed the gun at his head. Dinesh walked toward
defendant with his hands up and told Bhavesh in his
Indian dialect to give defendant the money. Defendant
pointed the gun at Dinesh and shot him in the head.
Defendant fled the store, and Bhavesh called the
(Answer, Ex. F.)
Tried by a jury, [in the Superior Court of New
Jersey, Law Division, Essex County,] defendant was
found guilty of aggravated manslaughter as a lesser
included offense of murder, felony murder, aggravated
assault, robbery, possession of a weapon without a
permit, and possession of a weapon for an unlawful
purpose. Other related charges had been severed or
dismissed by the judge. The judge merged the counts
of aggravated manslaughter, robbery, and possession
of a weapon for an unlawful purpose into the felony
murder count and imposed a life term with a
thirty-year parole disqualifier. He imposed a
concurrent eighteen-month term with an eighteen-month
parole disqualifier on the aggravated assault count
and a concurrent five-year term with a two-and-a-half
year parole disqualifier on the remaining weapons counts. The appropriate
penalties were assessed.
(Answer, Ex. F.)
B. Procedural History
Petitioner appealed his conviction and sentence. On May 21,
1997, the Superior Court of New Jersey, Appellate Division, filed
its Opinion affirming the conviction and sentence. By Order filed
September 8, 1997, the Supreme Court of New Jersey denied
certification. Petitioner did not petition the Supreme Court of
the United States for a writ of certiorari.
On July 14, 1998, Petitioner filed his first state court
petition for post-conviction relief. (Answer, Ex. J at 4.) The
trial court denied relief in an Order entered July 14, 2000.
(Answer, Ex. I.) Petitioner appealed, and the Appellate Division
affirmed the denial of relief by Opinion filed May 7, 2002.
(Answer, Ex. L.) The Supreme Court of New Jersey denied
certification by Order filed October 3, 2002.
On March 25, 2003, this Court received Petitioner's Petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
Petition is dated March 18, 2003.
II. 28 U.S.C. § 2254
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.
With respect to any claim adjudicated on the merits in state
court proceedings, the writ shall not issue unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determinated by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d).
A state court decision is "contrary to" Supreme Court precedent
"if the state court applies a rule that contradicts the governing
law set forth in [Supreme Court] cases," or "if the state court
confronts a set of facts that are materially indistinguishable
from a decision of th[e] Court and nevertheless arrives at a
result different from [the Court's] precedent." Williams v.
Taylor, 529 U.S. 362, 405-06 (2000) (O'Connor, J., for the
Court, Part II). A state court decision "involve[s] an
unreasonable application" of federal law "if the state court
identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular state prisoner's case," and may involve an "unreasonable application" of federal law "if the state court
either unreasonably extends a legal principle from [the Supreme
Court's] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply," (although the Supreme Court expressly
declined to decide the latter). Id. at 407-09. To be an
"unreasonable application" of clearly established federal law,
the state court's application must be objectively unreasonable.
Id. at 409. In determining whether the state court's
application of Supreme Court precedent was objectively
unreasonable, a habeas court may consider the decisions of
inferior federal courts. Matteo v. Superintendent,
171 F.3d 877, 890 (3d Cir. 1999).
Even a summary adjudication by the state court on the merits of
a claim is entitled to § 2254(d) deference. Chadwick v.
Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (citing Weeks v.
Angelone, 528 U.S. 225, 237 (2000)). With respect to claims
presented to, but unadjudicated by, the state courts, however, a
federal court may exercise pre-AEDPA independent judgment. See
Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000),
cert. denied, 532 U.S. 924 (2001); Purnell v. Hendricks, 2000
WL 1523144, *6 n. 4 (D.N.J. 2000). See also Schoenberger v.
Russell, 290 F.3d 831, 842 (6th Cir. 2002) (Moore, J.,
concurring) (and cases discussed therein). The deference required by § 2254 (d) applies without regard to
whether the state court cites to Supreme Court or other federal
caselaw, "as long as the reasoning of the state court does not
contradict relevant Supreme Court precedent." Priester v.
Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (citing Early v.
Packer, 537 U.S. 3 (2002); Woodford v. Visciotti, 537 U.S. 19
Although a petition for writ of habeas corpus may not be
granted if the Petitioner has failed to exhaust his remedies in
state court, a petition may be denied on the merits
notwithstanding the petitioner's failure to exhaust his state
court remedies. See 28 U.S.C. § 2254(b) (2); Lambert v.
Blackwell, 387 F.3d 210, 260 n. 42 (3d Cir. 2004); Lewis v.
Pinchak, 348 F.3d 355, 357 (3d Cir. 2003).
Finally, 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.3d 714, 721-22 (3d Cir.
1989); United States v. Brierley, 414 F.3d 552, 555 (3d Cir.
1969), cert. denied, 399 U.S. 912 (1970).] III. ANALYSIS
In their Answer, Respondents assert, inter alia, that this
Court should dismiss the Petition as untimely.
The limitations 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, when the pertinent judgment became
"final," and, second, the period of time during which an
application for state post-conviction relief was "properly filed"
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. Here, Petitioner's conviction became final on December 7, 1997,
ninety days after the denial of certification on September 8,
1997. Thus, absent tolling, Petitioner had until December 7, 1998
to file his federal habeas petition.
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," 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, 122 S.Ct. 2134 (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. However, "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, 122 S.Ct. 364 (2001).
Here, Petitioner filed his state court application for habeas
relief on July 14, 1998, 219 days into his one-year limitations
period, leaving 146 days remaining. The Supreme Court of New
Jersey denied certification on October 3, 2002. Petitioner's
federal habeas petition is deemed filed no earlier than March 18, 2003,*fn2 165 days after October 3, 2002, and
19 days after the end of the limitations period.
Petitioner asserts in his traverse, however, that the time
should be equitably tolled for two reasons: (1) he did not
receive notice of the denial of certification until November 20,
2002, and (2) his state PCR lawyer incorrectly advised him that
he had one year from the denial of certification on his state PCR
application to file a federal habeas application.
The limitations period of § 2244 (d) is 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). Equitable tolling
only when the principles 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.
Miller, 145 F.3d at 618-19 (citations omitted). 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").
It is of no help to Petitioner that he did not receive notice
of the denial of certification on his PCR application until
November 20, 2002. At that time, he still had 98 days in which to
file his federal habeas petition. Moreover, in circumstances
indistinguishable from those presented here, the Court of Appeals
for the Third Circuit has held that erroneous legal advice as to
the filing deadline does not constitute extraordinary
circumstances justifying equitable tolling. Johnson v.
Hendricks, 314 F.3d 159 (3d Cir. 2002), cert. denied,
538 U.S. 1022 (2003). Accordingly, Petitioner is not entitled to equitable
tolling, and the Petition must be dismissed with prejudice as
untimely. IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue "only if the applicant
has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
"When the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional
claim, a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Here, Petitioner cannot establish that jurists of reason would
find it debatable whether this Court is correct in its ruling on
the statute of limitations. Accordingly, no certificate of
appealability will issue. V. CONCLUSION
For the reasons set forth above, the Petition must be dismissed
with prejudice. An appropriate order follows.
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