UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
January 9, 2008
CHARLES C. HELMLINGER, PETITIONER,
ADULT DIAGNOSTIC & TREATMENT CENTER, ET. AL., RESPONDENTS.
The opinion of the court was delivered by: Pisano, District Judge
This matter is before the Court on pro se petitioner Charles C. Helmlinger's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For reasons discussed below, it appears from review of the state court record and petition papers provided by petitioner that the petition for habeas corpus relief is subject to dismissal as time-barred under 28 U.S.C. § 2244(d).
I. PROCEDURAL BACKGROUND
Pro se petitioner, Charles C. Helmlinger ("Helmlinger"), filed a petition for habeas corpus relief on or about June 28, 2007.*fn1 According to the allegations contained in his petition, Helmlinger was convicted on January 7, 1997, and was sentenced to an aggregate term of 40 years in prison. (Petition, Docket Entry 1 at page 4). This Court refers to the petitioner's brief submitted on appeal from a final order denying post-conviction relief ("PCR") of the Superior Court of New Jersey for the procedural history of this matter.*fn2 Helmlinger was charged in a Warren County Indictment on numerous counts of aggravated sexual assault, sexual assault and endangering the welfare of a minor child with respect to five young victims. Before trial, petitioner's counsel moved to dismiss the indictment, which apparently was not successful. Trial was held from April 22, 1996 through June 13, 1996, before the Honorable John F. Kingfield, J.S.C. and a jury. Helmlinger was convicted on all but two counts of the indictment. On January 3, 1997, Judge Kingfield sentenced Helmlinger to an aggregate term of forty years in prison, with consecutive terms imposed on Counts One and Nine. Petitioner is subject to lifetime community supervision in accordance with Megan's Law.
Helmlinger promptly filed a direct appeal before the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed the sentence and conviction in an opinion dated May 10, 1999. The New Jersey Supreme Court denied certification on July 16, 1999.
On January 19, 2001, petitioner filed his state PCR petition. (41T 6:17).*fn3 The PCR petition was argued in a hearing conducted before the Honorable John H. Pursel, J.S.C. on December 16, 2002. Judge Pursel denied the PCR petition by Order entered on December 20, 2002. Helmlinger filed a Notice of Appeal from that Order on January 26, 2004. The Appellate Division affirmed denial of the PCR petition in an opinion entered on April 7, 2006. The New Jersey Supreme Court denied certification on June 13, 2006.
Helmlinger filed this habeas petition on June 28, 2007.*fn4 (See this Opinion at fn. 1).
Based on the allegations in the petition and the record provided by petitioner, this Court will issue an Order to Show Cause directing petitioner Helmlinger to show cause in writing why his § 2254 habeas petition should not be dismissed as time-barred.*fn5
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, 134 F.3d at 111; 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 ninety-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); 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,"*fn6 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, 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. Dist. Attorney of the County of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001), 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. 2001), cert. denied, 534 U.S. 944 (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). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005). The Third Circuit instructs that equitable tolling is appropriate when "principles of equity would make the rigid application of a limitation period unfair, such as when a state prisoner faces extraordinary circumstances that prevent him from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims." LaCava v. Kyler, 398 F.3d 271, 275-76 (3d Cir. 2005). Mere excusable neglect is not sufficient. Id.; Miller, 145 F.3d at 618-19; Jones, 195 F.3d at 159.
Extraordinary circumstances permitting equitable tolling have been found where: (1) the petitioner has been actively misled; (2) the petitioner has been prevented from asserting his rights in some extraordinary way; (3) the petitioner timely asserted his rights in the wrong forum, see Jones, 195 F.3d at 159, or (4) the court has misled a party regarding the steps that the party needs to take to preserve a claim, see Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005), cert. denied, 126 S.Ct. 473 (2005).*fn7 Even where extraordinary circumstances exist, however, "[i]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing." Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003)(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)), cert. denied, 539 U.S. 948 (2003).
Here, Helmlinger's judgment of conviction became final after the enactment of AEDPA. Direct review of his sentence and conviction did not conclude until July 16, 1999, when the New Jersey Supreme Court denied certification. Consequently, the judgment of conviction became final on or about October 16, 1999, upon expiration of the ninety-day period for filing a petition for writ of certiorari in the United States Supreme Court. See Swartz, 204 F.3d at 419. Helmlinger then had one year from October 16, 1999, or until October 16, 2000, to bring his federal habeas petition under § 2254.
It appears from the documents submitted by Helmlinger that he filed a petition for PCR in state court, on or about January 19, 2001, three months beyond the expiration of his one-year statute of limitations. Thus, the state PCR petition did not serve to toll the statute of limitations under 28 U.S.C. § 2244(d)(2), because the limitations period had expired before the state PCR petition was filed.
A PCR hearing was conducted on December 16, 2002, and the PCR court denied relief in an Order entered on December 20, 2002. Helmlinger appealed from the denial of his state PCR motion. The Appellate Division affirmed the denial of post-conviction relief on April 7, 2006. The New Jersey Supreme Court denied certification on June 13, 2006. Helmlinger filed this federal habeas petition on June 28, 2007, more than one-year after the New Jersey Supreme Court denied certification on his appeal from denial of PCR, and more than six years after the one-year statutory limitations period had expired on October 16, 2000.
Under the Supreme Court's ruling in Day v. McDonough, 547 U.S. 198 (2006), district courts are permitted to consider sua sponte the timeliness of a state inmate's habeas petition, but must accord the parties fair notice and an opportunity to present their positions.
It would appear that Helmlinger disregarded or miscalculated the statutory limitations period when he failed to count the time his limitations period began to run after his conviction became final and before he filed his state PCR petition. Miscalculation of the remaining time on a limitations period does not constitute extraordinary circumstances to permit equitable tolling. Fahey, 240 F.3d at 244; see also Johnson, 314 F.3d at 161, 163. Moreover, even if Helmlinger was ignorant of the fact that the limitations period began to run on October 16, 1999, when his conviction became final under AEDPA, 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.
Nevertheless, before the Court can dismiss this action as time-barred, it is appropriate that the parties be given the opportunity to address the issue of timeliness. See Day, 547 U.S. 198.
Therefore, because this Court finds that the petition for a writ of habeas corpus under 28 U.S.C. § 2254 may be subject to dismissal as time-barred under 28 U.S.C. § 2244(d), the Court will order petitioner Helmlinger to show cause in writing why this petition should not be dismissed as untimely.
An appropriate order follows.
JOEL A. PISANO United States District Judge