The opinion of the court was delivered by: Wolfson, District Judge
Petitioner Raymond B. Skelton, a convicted state prisoner currently confined at the New Jersey State Prison in Trenton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1996 New Jersey state court conviction and sentence. For the reasons stated herein, the Petition will be dismissed as time-barred.
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter arises out of the 1998 New Jersey state court conviction of petitioner Raymond B. Skelton ("Skelton") on three counts of aggravated sexual assault as well as other counts of lesser degree sexual offenses involving six young male victims, between the dates of 1986 and 1994, at several residences in which Skelton lived in Monmouth and Middlesex Counties, New Jersey.
On February 24, 1995, the Monmouth County Grand Jury indicted Skelton on the following 32 charges: five counts of first degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1); three counts of second degree attempted aggravated sexual assault, in violation of N.J.S.A. 2C:5-1 and 2C:14-2a(1); seven counts of second degree sexual assault, in violation of N.J.S.A. 2C:14-2b; one count of second degree sexual assault, in violation of N.J.S.A. 2C:14-2c(4); eight counts of second degree endangering the welfare of a minor, in violation of N.J.S.A. 2C:24-4a; two counts of third degree aggravated criminal sexual contact, in violation of N.J.S.A. 2C:12-3a; two counts of fourth degree forgery, in violation of N.J.S.A. 2C:21-1a; two counts of third degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b; and two counts of fourth degree unlawful disposition of a firearm, in violation of N.J.S.A. 2C:39-9d.
Before trial, the two forgery counts were severed, and from May 29 through June 7, 1996, Skelton was tried on the remaining counts before a jury and the Honorable John P. Arnone, J.S.C., in the Superior Court of New Jersey, Law Division, Monmouth County. Before submitting the case to the jury for deliberation, Judge Arnone dismissed six counts. The jury acquitted Skelton of two of the first degree aggravated sexual assault charges, but found him guilty of the remaining counts.
On December 17, 1996, Judge Arnone sentenced Skelton to an aggregate term of 60 years in prison with 30 years parole ineligibility.
On February 18, 1997, Skelton filed a direct appeal to the Superior Court of New Jersey, Appellate Division. On October 21, 1998, the Appellate Division affirmed the conviction and sentence. The Supreme Court of New Jersey denied certification on January 21, 1999. State v. R.S., 157 N.J. 646 (1999). Skelton did not file a petition for a writ of certiorari with the Supreme Court of the United States.
On December 17, 2001, the last date on which a petition could be filed under New Jersey Court Rules, a verified petition for post-conviction relief ("PCR") was filed in state court on Skelton's behalf. However, Skelton contends that he had prepared a pro se PCR petition, signed and notarized on February 24, 1999, which he mailed in a letter dated March 23, 1999, to the local Public Defender's Office for filing. (Petitioner's Appendix "Pa" at 1a-43a, Docket entry no. 4-1). In a series of letters to the Public Defender's Office for more than two years, Skelton contends that he continued to ask that his PCR petition be filed and complained that a number of attorneys had failed to contact him or take any action on his behalf. The PCR petition actually filed was not the PCR petition that he had prepared in February 1999.
Skelton was appointed counsel, and with the assistance of appointed counsel, Skelton filed an amended PCR petition on or about June 24, 2005. The PCR petition asserted various grounds of ineffective assistance of trial and appellate counsel.
On October 27, 2006, the Honorable Francis P. DeStefano, J.S.C., held a non-evidentiary hearing for oral argument on the claims asserted in the PCR petition. The court then issued a written decision denying the PCR petition.
On December 4, 2006, Skelton filed an appeal from denial of his state PCR petition. On June 20, 2008, the Appellate Division affirmed denial of the PCR petition. The Supreme Court of New Jersey denied certification on September 24, 2008.
On January 12, 2009,*fn1 Skelton filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He thereafter filed a Memorandum of Law in support of his petition on or about May 20, 2009. (Docket entry no. 4). Respondents filed their answer and amended answer to the petition, together with the relevant state court record, on November 23 and 24, 2009. Skelton filed a reply on January 21, 2010, and later filed a motion for an evidentiary hearing on September 1, 2010. Respondents opposed the motion by letter brief on September 20, 2010.
Skelton raises claims of ineffective assistance of trial and appellate counsel. He also submits that equitable tolling should apply in deeming his habeas petition timely filed because of alleged attorney misconduct in belatedly filing petitioner's state PCR petition.
The State argues that the habeas petition is untimely and should be dismissed as time-barred, or alternatively, that Skelton's petition should be denied for lack of substantive merit.
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). Because petitioner is a pro se litigant, the Court will accord his petition the liberal construction intended for pro se petitioners.
IV. 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 the latest of--
(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 ...