UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
August 24, 2010
MARTEL JOHNSON, PETITIONER,
DONALD MEE, JR., RESPONDENT.
The opinion of the court was delivered by: Joseph E. Irenas Senior United States District Judge
MEMORANDUM OPINION AND ORDER
IT APPEARING THAT:
1. On July 2, 2010, Martel Johnson ("Petitioner"),*fn1 an inmate confined at the East Jersey State Prison, Rahway, New Jersey, executed a pro se Petition seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and, on August 13, 2010, submitted his duly executed application to proceed in this matter in forma pauperis. See Docket Entries Nos. 1 and 2.
2. The Petition asserts that, on July 30, 1998, Petitioner was convicted on a panoply of different state charges; the prison term of eighteen years was imposed on the basis of these charges.*fn2 See Docket Entry No. 1, at 3.
3. According to the Petition:
a. Petitioner appealed his conviction and sentence; and
b. on October 7, 1999, the Superior Court of New Jersey, Appellate Division, affirmed Petitioner's conviction but remanded Petitioner's matter for resentencing. See id.
4. Apparently unsatisfied with the Appellate Division's determination, Petitioner sought certification from the Supreme Court of New Jersey, which initially denied certification but, on March 8, 2000, granted certification and addressed Petitioner's challenges. See id. at 4. The Supreme Court of New Jersey modified the Appellate Division's decision as to the NERA issue and affirmed the trial court and Appellate Division's findings in all other respects; that decision was entered on February 28, 2001. See State v. Johnson, 1666 N.J. 523 (2001).
5. The Petition clarifies that Petitioner sought post-conviction relief ("PCR"), the application for which was filed sometime in "May 2003," see Docket Entry No. 1, at 4, and which was denied by the Superior Court of New Jersey, Law Division, on June 7, 2007. See id. at 55. The Appellate Division affirmed the trial court's decision on March 27, 2009, see Johnson App. II, and the Supreme Court of New Jersey denied Petitioner certification as to his PCR on July 20, 2009. See State v. Johnson, 200 N.J. 209 (2009).
6. Almost a year later, that is, on July 2, 2010, Petitioner executed the Petition at bar.*fn3 See Docket Entry No. 1, at 1.
7. 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). For the purposes of Petitioner's Application, 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. Here, Petitioner's AEDPA period of limitations began to run 90 days after the Supreme Court of New Jersey issued its decision as to his direct appeal, i.e., 90 days after February 28, 2001 (that is, on May 29, 2001), and expired one year later, that is, on May 28, 2002, about a year prior to Petitioner's filing of his PRC (which was, according to the Petition, filed sometime in May 2003).
8. The statute of limitations under § 2244(d) is subject to tolling exception(s), that is, statutory tolling and, perhaps, equitable tolling.*fn4 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).
9. 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.
10. Here, however, no statutory tolling associated with Petitioner's filing of his PCR is applicable to the Court's analysis, since Petitioner filed his PCR about a year after his period of limitations expired.*fn5 See Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004); Schlueter v. Varner, 384 F.3d 69, 78-79 (3d Cir. 2004).
11. Presuming that the AEDPA statute of limitations is subject to equitable tolling, 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. 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 respondent has actively misled the plaintiff, (b) the petitioner has in some extraordinary way been prevented from asserting his rights, (c) the petitioner 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)).
12. Since the Petition, as it stands now, is entirely silent as to any circumstances that might prompt this Court to consider equitable tolling applicable to the entirety of the period from May 28, 2002, to July 2, 2010, or even to any part thereof, this Court finds the Petition untimely and will dismiss it accordingly, without reaching the issue of due exhaustion of Petitioner's current claims or the merits of these claims.
THEREFORE IT IS on this 24th day of August, 2010,
ORDERED that Petitioner's application to proceed in this matter in forma pauperis is granted; and it is further
ORDERED that Petition is dismiss, as untimely, pursuant to 28 U.S.C. § 2254; and it is further
ORDERED that the Court denies Petitioner a certificate of appealability, pursuant to 28 U.S.C. § 2253(c);*fn6 and it is finally
ORDERED that the Clerk shall serve this Order upon Petitioner by regular U.S. mail and close the file in this matter.