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Joseph Cruz v. Greg Bartkowski et al

June 8, 2011

JOSEPH CRUZ, PETITIONER,
v.
GREG BARTKOWSKI ET AL., RESPONDENTS.



The opinion of the court was delivered by: William J. Martini, United States District Judge

MEMORANDUM OPINION AND ORDER

IT APPEARING THAT:

1. On July 12, 2010, Joseph Cruz ("Petitioner"), an inmate confined at New Jersey State Prison, Trenton, New Jersey, executed a pro se Petition seeking a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, and submitted his application to proceed in forma pauperis. The Court will grant Petitioner's application to proceed in forma pauperis and will dismiss his Petition as untimely.

2. The Petition asserts that, on April 20, 2001, Petitioner was sentenced on a panoply of different state charges; a life prison term (with, seemingly, thirty-five years of parole ineligibility) was imposed on the basis of these charges. See Docket Entry No. 1, ¶¶ 2 and 3.

3. According to the Petition:

a. Petitioner appealed his conviction and sentence; and

b. on February 6, 2003, the Superior Court of New Jersey, Appellate Division, affirmed Petitioner's conviction and sentence. See id., ¶9.

4. Apparently unsatisfied with the Appellate Division's determination, Petitioner sought certification from the Supreme Court of New Jersey, which denied him certification on May 20, 2003. See id.

5. The Petition clarifies that Petitioner sought post-conviction relief ("PCR"), the application for which was filed on March 17, 2006, see id., ¶10, and denied by the Superior Court of New Jersey, Law Division, on November 17, 2006. See id. Although the Petition is silent as to any appellate proceedings related to Petitioner's RCP, the Court's own research revealed that Petitioner presented his challenges to the Appellate Division (which affirmed the trial court's decision), and the Supreme Court of New Jersey denied Petitioner certification as to his PCR on July 30, 2010. See State v. Cruz, 203 N.J. 437 (2010).

6. Nine months later, that is, on May 2, 2011, Petitioner executed the Petition at bar.*fn1 See Docket Entry No. 1, at 19.

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 May 20, 2003, and expired one year later, that is, in August 2004, more than a year and a half prior to Petitioner's filing of hisPCR.

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


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