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Frances v. Power

April 24, 2008

PATRICK FRANCES, PETITIONER,
v.
MIKE POWER, ET. AL., RESPONDENTS.



The opinion of the court was delivered by: Greenaway, Jr., District Judge

OPINION

This matter is before the Court on petitioner Patrick Frances' petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. For reasons discussed below, it appears from review of the petition and the accompanying documents that the petition for habeas corpus relief is subject to dismissal as time-barred, under 28 U.S.C. § 2244(d).

I. PROCEDURAL BACKGROUND

Petitioner, Patrick Frances ("Frances"), filed a petition seeking habeas corpus relief on or about February 13, 2008.*fn1

Based on his petition, Frances was convicted in the Superior Court of New Jersey, Passaic County, pursuant to a plea of guilty to aggravated assault. Frances was sentenced on June 12, 1998 to eight (8) years in prison with a 85% parole ineligibility term. (Petition at ¶¶ 1-6).

Frances did not file a direct appeal from his judgment of conviction; instead, he filed a petition for post-conviction relief ("PCR") in state court, claiming that his guilty plea should be set aside because he did not understand the full consequences of his plea and because his trial counsel was ineffective. (Petition at ¶¶ 8-11). Frances does not provide the date on which he filed his first and only state PCR petition. However, he indicates that the state PCR petition was denied on July 13, 2005. (Petition at ¶ 11(a)(6)). Petitioner further asserts that he filed an appeal from the denial of his state PCR petition to the Superior Court of New Jersey, Appellate Division and to the New Jersey Supreme Court. (Petition at ¶ 11(e)). Frances does not provide the date when these appeals were decided by the state court.*fn2

Thus, based on the allegations in the petition and the record provided by petitioner, this Court will issue an Order to Show Cause directing the parties to show cause, in writing, why Frances' habeas petition should not be dismissed as time-barred.*fn3

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).

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 ...


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