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Cotto v. Dow

October 21, 2010

NATHAN COTTO, PETITIONER,
v.
PAULA T. DOW, ESQ. ET AL., RESPONDENTS.



The opinion of the court was delivered by: Noel L. Hillman United States District Judge

MEMORANDUM OPINION AND ORDER

IT APPEARING THAT:

1. On July 12, 2010, Nathan Cotto ("Petitioner"), an inmate confined at the South Woods State Prison, Bridgeton, New Jersey, executed a pro se Petition seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and, on September 9, 2010, submitted his filing fee.

2. The Petition asserts that, on April 16, 2002, Petitioner was sentenced to a prison term of fifty years (with seventeen years of parole ineligibility) on a variety of charges. See Docket Entry No. 1, ¶3.

3. According to the Petition:

a. Petitioner appealed his conviction and sentence; and

b. on November 20, 2003, the Superior Court of New Jersey, Appellate Division, affirmed Petitioner's conviction and sentence. See id., ¶9.

4. Petitioner sought certification from the Supreme Court of New Jersey which was denied on February 1, 2005. See id.

5. The Petition further alleges that Petitioner sought post-conviction relief ("PCR") on September 18, 2006, see id., ¶10, which was denied by the Superior Court of New Jersey, Law Division, on March 28, 2007. See id. Although the Petition is silent as to any appellate proceedings related to Petitioner's PRC, the Court's own research reveals that Petitioner presented his challenges to the Appellate Division (which affirmed the trial court's decision on November 7, 2008, see State v. Cotto, 2008 WL 4820822 (N.J. Super. App. Div. Nov. 7, 2008)), and the Supreme Court of New Jersey which denied Petitioner certification as to his PCR on July 20, 2009. See State v. Cotto, 200 N.J. 208 (2009).

6. Almost a year later, that is, on July 12, 2010, Petitioner executed the Petition at bar.*fn1 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 1, 2005 (that is, on April 30, 2005), and expired one year later, that is, on May 1, 2006, about four and a half months prior to Petitioner's filing of his PRC (which was, according to the Petition, filed on September 18, 2006).

8. The statute of limitations under § 2244(d) is subject to tolling exception(s), that is, statutory tolling and 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).

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 months after his period of limitations expired. See Long v. Wilson, 393 F.3d 390, 394-95 (3d ...


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