Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frederick Simmons v. Michelle R. Ricci

December 22, 2010

FREDERICK SIMMONS,
PETITIONER,
v.
MICHELLE R. RICCI, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Renee Marie Bumb United States District Judge

MEMORANDUM OPINION & ORDER

IT APPEARING THAT:

1. This matter was initiated on January 15, 2010, upon Petitioner's filing of his Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. See Docket Entry No. 1.

2. This Court duly provided Petitioner with notice, pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). See Docket Entry No. 3. Petitioner elected not to respond to the Mason notice, hence ripening his Petition, as drafted, for this Court's review. See generally, Docket.

3. In light of Petitioner's election, this Court issued an order directing Respondents to answer the Petition. See Docket Entry No. 4.

4. The Court's order directing Respondents' answer mandated, inter alia, as follows:

Respondents shall electronically file a full and complete answer to said Petition within 45 days of the entry of this Order, see Ukawabutu v. Morton, 997 F. Supp. 605 (D.N.J. 1998); and . . . Respondents' answer shall address the allegations of the Petition by each paragraph and subparagraph, and shall adhere to the requirements of 28 U.S.C. § 2254 Rule 5; and . . . the answer shall address the merits of each claim raised in the Petition, see 28 U.S.C. § 2254(b)(2) . . . . Id. at 1-2.

5. In response to the Court's directive, Respondents --represented by J. Vincent Molitor, Assistant Prosecutor at the Office of Cape May County Prosecutor -- submitted their answer. See Docket Entry No. 7. The entire answer consisted of a mere two pages, substantively, as follows:

Respondent, the State of New Jersey, by way of Answer to Petition for Writ of Habeas Corpus in this matter, admitting petitioner is in State custody, states: 1. The allegation in Ground One is denied. 2. The allegation in Ground Two is denied. 3. The allegation in Ground Three is denied. 4. The allegation in Ground Four is denied. 5. The allegation in Ground Five is denied. 6. The allegation in Ground Six is denied. 7. The allegation in Ground Seven is denied. 8. The allegation in Ground Eight is denied. 9. The allegation in Ground Nine is denied. 10. The allegation in Ground Ten is denied. 11. The allegation in Ground Eleven is denied. 12. The allegation in Ground Twelve is denied. 13. The allegation in Ground Thirteen is denied. 14. The allegation in Ground Fourteen is denied. 15. The allegation in Ground Fifteen is denied. 16. The allegation in Ground Sixteen is denied. 17. The allegation in Ground Seventeen is denied. Petitioner's petition for a writ of habeas corpus is barred by 28 U.S.C. § 2244(d) . Petitioner's conviction was final on October 19, 2000. [Ra10]. Petitioner filed his petition for post-conviction relief on August 28, 2001. [Ra11]. The Supreme Court of New Jersey denied Petitioner's request to review the Appellate Division's decision to affirm the trial court's denial of Petition's petition for post-conviction relief on September 11, 2009. [Ra18]. Petitioner filed his petition for a writ of habeas corpus on January 15, 2010. Therefore, Petitioner's petition for a writ of habeas corpus is procedurally barred. 28 U.S.C. § 2244(d). Moreover, all of Petitioner's claims have been adjudicated on the merits in the courts of the State of New Jersey, and none of those State court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d).

Id. at 1-3 (citations to "RaXX" designations in original).

6. The answer submitted by Respondents is patently deficient in numerous respects.

7. To start, the Respondents' position that the Petition is untimely is an error of law. As one of Respondents' exhibits demonstrates, Petitioner was denied certification by the Supreme Court of New Jersey, with regard to his direct appeal, on October 19, 2000. Therefore, Petitioner's judgment of conviction -- contrary to Respondents' assertion -- could not have become "final" on that very date. Indeed, it is axiomatic that:

a. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") 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. Thus, 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 October 19, 2000, that is, on January 17, 2001.

b. Hence, if Petitioner filed his PCR application on August 28, 2001, then Petitioner used only seven months and eleven days of his one-year period of limitations and then statutorily tolled it until the date of the Supreme Court of New Jersey denial of certification with regard to his PCR application, i.e., until September 11, 2009. Starting from September 12, 2009, Petitioner's limitation period was running again, until Petitioner's date of filing of the Petition at bar, that is, until January 15, 2010. During this second stretch, Petitioner used four months and three days of his one-year period of limitations. Because only ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.