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Zarinsky v. Ricci

May 15, 2008

ROBERT ZARINSKY, PETITIONER,
v.
MICHELLE R. RICCI, ET. AL., RESPONDENTS.



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

OPINION

This matter is before the Court on petitioner Robert Zarinsky'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 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

Petitioner, Robert Zarinsky ("Zarinsky"), filed a petition for habeas corpus relief on or about April 30, 2008.*fn1 According to the allegations contained in his petition, Zarinsky was convicted by jury trial in the Superior Court of New Jersey, Monmouth County, on or about April 23, 1975, for first degree murder. He was sentenced to mandatory life imprisonment pursuant to N.J.S.A. 2A:113-4. (Petition at ¶¶ 1-6).

Zarinsky filed a direct appeal from his judgment of conviction before the Superior Court of New Jersey, Appellate Division. On June 20, 1976, the Appellate Division affirmed the judgment of conviction. State v. Zarinsky, 143 N.J. Super. 35, 362 A.2d 611 (App. Div. 1976). The Supreme Court of New Jersey granted certification on appeal on the limited issue of whether Zarinsky's prosecution was barred by the statute of limitations. In a decision rendered on November 17, 1977, the New Jersey Supreme Court held that there was no statute of limitations for murder in the State of New Jersey and therefore, affirmed Zarinsky's conviction. State v. Zarinsky, 75 N.J. 101, 380 A.2d 685 (1977). Zarinsky then filed a petition for certiorari with the United States Supreme Court, which was denied on April 23, 1979. (Petition at ¶¶ 8-9).

In March 1980, Zarinsky filed his first state court petition for post-conviction relief ("PCR") in the Superior Court of New Jersey, Law Division, Monmouth County. The petition was denied on October 16, 1980. Zarinsky filed his second state PCR petition on April 19, 1986. This second petition was denied on July 11, 1986. (Petition at ¶¶ 11(a), 11(b)).

Zarinsky also filed three petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of New Jersey before the instant petition.*fn2 See State v. Zarinsky, 2007 WL 1346933 *1 (N.J. Super. A.D., May 9, 2007).

On September 15, 2004, Zarinsky filed his third state PCR petition. The petition was denied on April 11, 2005, and petitioner filed an appeal. The New Jersey Appellate Division summarily remanded the matter to the state trial court for reconsideration in light of two New Jersey Supreme Court decisions, State v. Natale, 184 N.J. 458 (2005)(Natale II) and State v. Abdullah, 184 N.J. 497 (2005). In October 2005, Zarinsky filed a fourth or amended PCR petition, claiming actual innocence and ineffective assistance of counsel. On July 18, 2006, the state trial judge denied the amended petition filed in October 2005 and the remanded petition. Zarinsky appealed the decision and the Appellate Division affirmed the trial court in an unreported opinion, State v. Zarinsky, 2007 WL 1346933 (N.J. Super. A.D., May 9, 2007). The New Jersey Supreme Court denied certification on July 16, 2007.

Zarinsky then filed this federal habeas petition on or about April 30, 2008.

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 Zarinsky's 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); 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 ...


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