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Michael Darren Darby v. Michelle Ricci

December 13, 2010

MICHAEL DARREN DARBY, PETITIONER,
v.
MICHELLE RICCI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hon. Noel L. Hillman

OPINION

HILLMAN, District Judge

Michael Darren Darby filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a conviction entered in the Superior Court of New Jersey, Cumberland County, on December 9, 1991. By Order entered April 28, 2009, this Court dismissed the Petition as untimely, denied a certificate of appealability, permitted Petitioner to file (within 30 days) a statement arguing that the Petition is not time barred, and administratively terminated the case, subject to reopening. On May 12, 2009, Petitioner submitted a motion to reopen the case, together with a 24-page statement, and an appendix. On May 20, 2009, this Court considered Petitioner's arguments that the Petition should not be dismissed as time barred, dismissed the Petition as untimely, and denied a certificate of appealability.

Before this Court is Petitioner's "Motion for Stay and Abeyance on Mixed Petition Pending Exhaustion on Rule 60(b) Motion Made in the Court Wherein Plea Was Entered." (Docket Entry #10.) For the reasons expressed below and pursuant to Rule 78 of the Federal Rules of Civil Procedure, this Court will deny the motion and a certificate of appealability.

I. BACKGROUND

The Petition challenged a judgment of conviction entered in the Superior Court of New Jersey, Law Division, Cumberland County, on December 9, 1991, based on Petitioner's plea of guilty to murder and four armed robberies. (Pet. ¶¶ 1-2.) The Law Division denied Petitioner's motion to withdraw the plea and imposed a life sentence, with a 30-year period of parole ineligibility, for murder, and a consecutive 15-year term, with five years of parole ineligibility, for the armed robberies. (Pet. ¶ 3.) See also State v. Darby, 2008 WL 2121748 at *1 (N.J. Super., App. Div., May 20, 2008). Petitioner asserts that, while he asked counsel to appeal, no direct appeal was taken. (Pet. ¶ 8.) See also Darby at *1.

Petitioner filed a state petition for post-conviction relief in October 2005, and the Law Division denied relief on February 14, 2007. Petitioner appealed. See Darby at *1. The Appellate Division affirmed the order denying post-conviction relief in an opinion filed May 20, 2008. Id. at *2-*3. On September 9, 2008, the New Jersey Supreme Court denied certification. See State v. Darby, 196 N.J. 464 (2008) (table); (Pet. ¶ 11(b)(8).)

Petitioner executed his § 2254 Petition on October 3, 2008. By Order and accompanying Opinion entered April 28, 2009, this Court dismissed the Petition as untimely, pursuant to Habeas Rule 4, see 28 U.S.C. § 2254 Rule 4, and denied a certificate of appealability. This Court reasoned that, although Petitioner's conviction became final in 1992, the one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A), began on April 24, 1996, and expired 365 days later on April 23, 1997. This Court found that statutory tolling was unavailable because Petitioner did not file his state petition for post-conviction relief until October 2005, after the limitations period expired, and that equitable tolling was not warranted because Petitioner was not prevented from asserting his claims by extraordinary circumstances and he did not exercise reasonable diligence. However, this Court permitted Petitioner to submit a statement arguing that the Petition is not time barred, and to account for the period from April 23, 1997 (when the statute of limitations expired) and October 2005 (when he filed his state petition for post-conviction relief), as well as the period from September 9, 2008 (when the New Jersey Supreme Court denied post conviction relief) and October 3, 2008 (when he filed this Petition).

Petitioner thereafter filed a motion to reopen the proceeding to consider his argument that the Petition should not be dismissed as time barred. Petitioner filed a 24-page memorandum in which he argued: (1) the Petition is not untimely;

(2) extraordinary circumstances prevented Petitioner from asserting his claims and he exercised due diligence; and (3) the interest of justice would be better served by consideration of the merits of the Petition, given that the Superior Court lacked jurisdiction to accept his guilty plea in the absence of a murder indictment.*fn1

By Order and accompanying Opinion entered May 21, 2009, this Court reopened the case, considered Petitioner's arguments that the Petition should not be dismissed as untimely, dismissed the Petition with prejudice as untimely, and denied a certificate of appealability. (Docket Entry Nos. 8, 9.) This Court rejected Petitioner's arguments, reasoning that the interest of justice would not be better served by addressing the merits of his claims, the Petition was untimely, and Petitioner failed to show reasonable diligence and that he was prevented from asserting his claims in a timely fashion by extraordinary circumstances.

On March 22, 2010, Petitioner filed the following documents: "Motion for Stay and Abeyance on Mixed Petition Pending Exhaustion on Rule 60(b) Motion Made in the Court Wherein Plea Was Entered" and "Memorandum of Law in Support of Stay on Rule 60(b) Motion," together with an appendix containing a November 9, 2009, opinion issued by the Superior Court of New Jersey, Law Division, denying Petitioner's second state petition for post-conviction relief, see State v. Darby, Accusation No. 91-10-1018-A & Indictment No. 91-08-825, slip op. (N.J. Super., Law Div., Nov. 9, 2009), various letters from the Office of the Public Defender, a Presentence Report, search warrant, accusation, and brief in support of Petitioner's second state post-conviction relief petition.

II. DISCUSSION

A. Motion for Stay and Abeyance Petitioner labeled the present motion ...


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