UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
February 2, 2011
KAREN BALICKI, RESPONDENT.
The opinion of the court was delivered by: Irenas , District Judge
NOT FOR PUBLICATION
This matter is before the Court on Petitioner Steven Geiger's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he is challenging his 1992 New Jersey state court conviction and sentence. For reasons discussed below, it appears from review of the petition papers provided by petitioner that his § 2254 habeas petition may be subject to dismissal as time-barred under 28 U.S.C. §2244(d). *fn1
I. PROCEDURAL BACKGROUND
Petitioner, Steven P. Geiger("Petitioner"), filed a petition for habeas corpus relief on or about October 14, 2010. *fn2
According to the allegations contained in his petition, Petitioner was convicted by jury trial on or about October 1, 1992, in the Superior Court of New Jersey, Gloucester County on a count of murder and multiple counts of aggravated assault and weapons charges. On November 6, 1992, Petitioner was sentenced to thirty years without the possibility of parole pursuant to N.J.S.A. 2C:11-3(b).
Petitioner filed a direct appeal from his conviction and sentence to the Superior Court of New Jersey, Appellate Division. On April 10, 1995, the Appellate Division affirmed the conviction. The Supreme Court of New Jersey denied certification on June 7, 1995. Petitioner did not file a petition for a writ of certiorari with the Supreme Court of the United States.
On January 9, 2004, Petitioner filed a petition for post-conviction relief ("PCR"), pro se, in the Superior Court of New Jersey, Law Division, Gloucester County. On December 15, 2006, the Superior Court denied the petition. On September 25, 2009, the Appellate Division affirmed the Superior Court's denial of PCR. On January 14, 2010, the New Jersey Supreme Court denied certification.
As stated above, Petitioner filed this federal habeas petition on October 14, 2010.
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 limitation period shall run from
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(2) The 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 shall not be counted toward any period of limitation under this section.
Section 2244(d) became effective on April 24, 1996 when the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Duarte v. Herschberger, 947 F.Supp. 146, 147 (D.N.J. 1996). The Third Circuit has ruled that state prisoners whose convictions became final before the April 24, 1996 enactment of AEDPA are permitted one year, until April 23, 1997, in which to file a federal habeas petition under § 2254. See Burns, 134 F.3d at 111; see also Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) ("[t]he statute reveals Congress' intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment").
Thus, pursuant to § 2244(d), evaluation of the timeliness of a § 2254 petition requires a determination of, first, when the pertinent judgment became "final," and, second, the period of time during which an application for state post-conviction relief was "properly filed" and "pending."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.
As noted above, where a conviction became final prior to April 24, 1996, the effective date of § 2244(d), a state prisoner has a one-year grace period after that effective date to file a § 2254 petition. Burns, 134 F.3d at 111. However, that limitations period is tolled during the time a properly filed application for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2). An application for state post-conviction relief is considered "pending" within the meaning of § 2244(d)(2), and the limitations period is statutorily tolled, from the time it is "properly filed," *fn3 during the period between a lower state court's decision and the filing of a notice of appeal to a higher court, Carey v. Saffold, 536 U.S. 214 (2002), and through the time in which an appeal could be filed, even if the appeal is never filed. Swartz, 204 F.3d at 420-24. Nevertheless, "the time during which a state prisoner may file a petition for writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d)(2)." Stokes v. Dist. Attorney of the County of Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).
Here, Petitioner was convicted in 1992 and that state court conviction became final in 1995, before the enactment of AEDPA on April 24, 1996. Therefore, Petitioner had until April 23, 1997 to bring his federal habeas petition under § 2254. To permit tolling of the one-year limitations period under 28 U.S.C. §2244(d)(2), Petitioner would have had to file his state PCR petition before the one-year period had expired, or before April 23, 1997. Otherwise, the state PCR petition would not serve to toll the statute of limitations. In this case, Petitioner filed his state PCR petition on January 9, 2004, approximately seven years after the statutory period had run pursuant to 28 U.S.C. § 2244(d)(1), without any tolling as permitted under § 2244(d)(2). Petitioner did not file the instant habeas petition until October 14, 2010, approximately thirteen years after the one year period had expired. Therefore, it would appear from the face of the petition that this habeas action is now time-barred under 28 U.S.C. § 2244(d).
Before the Court can dismiss this action as time-barred, it is
appropriate that the parties be given the opportunity to address the
issue of timeliness. See Day v. McDonough, 547 U.S. 198
(2006)(district courts are permitted to consider sua sponte
the timeliness of a state inmate's habeas petition, but must
accord the parties fair notice and an opportunity to present their
Petitioner may be able to overcome this statutory time bar if he can show that the limitations period did not expire as determined by this Court, or if he can show a basis for equitable tolling. See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001);
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999); Miller v. New
Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
"Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his
way." Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005). The Third
Circuit instructs that equitable tolling is appropriate when
"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, 275-76 (3d Cir. 2005). Mere excusable neglect
is not sufficient. Id.; Miller, 145 F.3d at 618-19; Jones, 195 F.3d at
Extraordinary circumstances permitting equitable tolling have been
found where: (1) the petitioner has been actively misled; (2) the
petitioner has been prevented from asserting his rights in some
extraordinary way; (3) the petitioner timely asserted his rights in
the wrong forum, see Jones, 195 F.3d at 159, or (4) the court 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). *fn4
Even where extraordinary circumstances exist, however,
"[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.)(quoting Valverde v. Stinson, 224
F.3d 129, 134 (2d Cir. 2000)), cert. denied, 539 U.S. 948 (2003).
Therefore, before this Court can dismiss this petition, an Order will be issued directing Petitioner to show cause why his petition should not be dismissed as time-barred.
For the foregoing reasons, because this Court finds that the petition for a writ of habeas corpus under 28 U.S.C. § 2254 may be subject to dismissal as time-barred under 28 U.S.C. § 2244(d), the Court will order Petitioner to show cause in writing why his
petition should not be dismissed as untimely. An appropriate order follows.
JOSEPH E. IRENAS Senior United States District Judge