UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
April 22, 2009
RAYMOND P. BIRT, PETITIONER,
MICHELLE RICCI, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Joel A. Pisano United States District Judge
IT APPEARING THAT:
1. On January 19, 2009 Petitioner RAYMOND P. BIRT ("Petitioner"), currently confined at the New Jersey State Prison, Trenton, New Jersey, filed a pro se petition seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"), see Docket Entry No. 1; the Clerk received the Petition on January 27, 2009.
2. Petitioner challenges his 2001 state court conviction and the resulting term of imprisonment rendered by the Superior Court of New Jersey, Law Division, Monmouth County. See Docket Entry No. 1, ¶¶ 1-2.
3. According to the Petition, the Superior Court of New Jersey, Appellate Division, affirmed the conviction in its decision issued on July 11, 2003, see id. ¶ 9; Petitioner also asserts that the Supreme Court of New Jersey denied him certification on October 29, 2003. See id., ¶¶ 9-9A.
4. The Petition also indicates that Petitioner filed an application for post-conviction relief, see id. ¶ 11; Petitioner alleges that the Superior Court of New Jersey, Law Division, denied his application on April 22, 2005, see id., that the decision was affirmed by the Appellate Division, and that the Supreme Court of New Jersey denied Petitioner certification with respect to that application for post-conviction relief on October 17, 2006, that is, more than two years prior to Petitioner's execution of the instant Petition. See id.
5. On April 24, 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), which provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1). 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. "If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired." Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999).
6. The statute of limitations under § 2244(d) is subject to tolling exception(s), that is, statutory tolling and, perhaps, equitable tolling. See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003); Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 617-18 (3d Cir. 1998). Section 2244(d)(2) requires statutory tolling for "[t]he 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," 28 U.S.C. § 2244(d)(2), provided that the application to the state court seeking collateral review was filed during the period of limitations.
7. Presuming that the AEDPA statute of limitations is subject to equitable tolling,*fn1 see Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998), "a litigant seeking equitable tolling [would] bear the burden of establishing two elements: (a) that he has been pursuing his rights diligently, and (b) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 125 S.Ct. 1807, 1814 (2005). The Third Circuit instructs that equitable tolling could be appropriate only when "the 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, 275-276 (3d Cir. 2005). Mere excusable neglect is not sufficient.*fn2 See id.; see also Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003); Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). Extraordinary circumstances have been found where (a) the defendant has actively misled the plaintiff, (b) the plaintiff has in some extraordinary way been prevented from asserting his rights, (c) the plaintiff has timely asserted his rights mistakenly in the wrong forum, see Jones, 195 F.3d at 159, or (d) the court itself 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). Moreover, even where extraordinary circumstances do exist, "[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)).
8. Here, Petitioner's one-year period of limitations began to run ninety days after the Supreme Court of New Jersey denied Petitioner certification with respect to his direct appeal, i.e., on January 27, 2004, but became statutorily tolled two weeks later, on February 10, 2004, when Petitioner filed his application for post-conviction relief. See State v. Birt, 2006 WL 2009036, at *2 (N.J. Super. App. Div. July 20, 2006) (stating the date of Petitioner's filing of his application for post-conviction relief). The period of limitations remained tolled until October 17, 2006, when the Supreme Court of New Jersey denied Petitioner certification with respect to his post-conviction relief application, it re-started on October 18, 2006, and expired fifty weeks later, i.e., at the beginning of October 2007, about fifteen and a half months prior to Petitioner's execution of his instant Petition. The Petition is silent as to any grounds for equitable tolling.
THEREFORE IT IS on this 22nd day of April, 2009, ORDERED that Petition is dismiss, as untimely, pursuant to 28 U.S.C. § 2254;*fn3 and it is further
ORDERED that the Court denies Petitioner a certificate of appealability, pursuant to 28 U.S.C. § 2253(c);*fn4 and it is finally
ORDERED that the Clerk shall serve this Order upon Petitioner by regular U.S. mail and close the file on this matter.