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Borden v. Heyman

April 22, 2009

ALBERT H. BORDEN, PETITIONER,
v.
GEORGE W. HEYMAN, ET. AL., RESPONDENTS.



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

OPINION

This matter is before the Court on petitioner Albert H. Borden's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Because petitioner is challenging his New Jersey conviction and sentence, his petition is more properly characterized as a petition for a writ of habeas corpus under 28 U.S.C. § 2254. For reasons discussed below, it appears from review of the petition papers provided by petitioner that his § 2254 habeas petition is subject to dismissal as time-barred under 28 U.S.C. § 2244(d).*fn1

I. PROCEDURAL BACKGROUND

Petitioner, Albert H. Borden ("Borden"), filed a petition for habeas corpus relief on or about March 31, 2009.*fn2 According to the allegations contained in his petition, Borden was convicted, on or about January 12, 2001, pursuant to a guilty plea to third degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a), in the Superior Court of New Jersey, Burlington County. On April 12, 2001, at the sentencing hearing, the sentencing court rejected the plea agreement between the State and Borden, which had recommended a sentence limited to no more than 364 days in jail with a concurrent sentence for a probation violation, and the court advised Borden that he had the right to withdraw his guilty plea and reinstate his not guilty plea and proceed to trial. The judge also advised Borden that an evaluation conducted by the Adult Diagnostic and Treatment Center ("ADTC") had determined that he qualified as a repetitive and compulsive sex offender under N.J.S.A. 2C:47-3. Borden told the sentencing court that he did not wish to change his plea or challenge the ADTC evaluation. Accordingly, the court sentenced Borden to four years in prison to be served at the ADTC, with a concurrent 18-month sentence for a probation violation. Borden was advised that he had the right to file an appeal within 45 days, but Borden elected not to do so. State v. Borden, 2007 WL 2780837 (N.J. Super. A.D., Sept. 26, 2007).

Thereafter, on December 11, 2003, the Supreme Court of New Jersey decided State v. Bellamy, 178 N.J. 127 (2003),*fn3 and six months later, on June 10, 2004, Borden filed a petition for post-conviction relief ("PCR") in state court. In his petition, Borden indicated that he had served his criminal sentence, and he was now involuntarily committed under the SVPA. Borden argued that his criminal conviction should be vacated because his trial attorney was ineffective and failed to advise him before he entered his guilty plea that the SVPA would apply to him. The state PCR court denied relief to Borden, expressly finding:

The holding in Bellamy was specifically given limited retroactive effect by our [c]court. This category of retroactivity applies only to cases pending direct review at the same [time] ... the Bellamy decision was handed down. [Defendant] never filed a direct appeal and therefore cannot be said to have a case pending at the time Bellamy was decided.

Borden, 2007 WL 2780837 *1.

Borden appealed, and the Appellate Division affirmed the state PCR court's denial of relief on September 26, 2007. Borden, 2007 WL 2780837 *2. The Supreme Court of New Jersey denied certification on April 1, 2008.

Borden filed this federal habeas petition on March 31, 2009. He claims that the state courts erred in denying post-conviction relief based on Bellamy's limited retroactive applicability to only those cases on direct review at the time it was decided.

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 ...


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