The opinion of the court was delivered by: Martini, District Judge
Petitioner, Adolphus Downs, a prisoner confined at the East Jersey State Prison in Rahway, New Jersey, submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondents are Administrator Donald Mee and the Attorney General of New Jersey. Respondents have filed a motion to dismiss based on the limitations period. For the reasons stated herein, the motion to dismiss must be granted, and the petition must be dismissed.
Petitioner was convicted on January 23, 1998 in New Jersey state court for robbery and weapons charges. Except for one count which was reversed and remanded, Petitioner's convictions and sentences were affirmed by the Superior Court of New Jersey, Appellate Division ("Appellate Division") on January 19, 2000. Petitioner's petition for certification to the New Jersey Supreme Court was denied on April 28, 2000. Petitioner had until approximately July 28, 2000 to file a petition for certiorari with the United States Supreme Court.
On September 28, 2000, Petitioner filed his first post-conviction relief ("PCR") motion in the trial court. It was denied in April of 2001, with the denial being reversed by the Appellate Division on March 27, 2003. The Appellate Division ordered that the matter be remanded for an evidentiary hearing on Petitioner's claim of ineffective assistance of counsel. On October 30, 2003, after remand and evidentiary hearing, the petition was denied by the trial court. Petitioner appealed the October 30, 2003 denial, which was affirmed by the Appellate Division on April 29, 2005. Petitioner's petition for certification was denied on September 12, 2005.
On March 24, 2006, Petitioner filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in this Court. During the pendency of that habeas action, he filed a third PCR motion*fn1 on May 31, 2006, which was denied on August 2, 2006. Petitioner did not appeal the third PCR denial. On November 8, 2006, this Court issued an Opinion and Order dismissing Petitioner's first-filed habeas petition for failure to exhaust state court remedies. This Court informed Petitioner in the dismissal Opinion that once he filed his PCR motion to exhaust his claims, he would have ten months left on his limitations period to file a second, all-inclusive, exhausted habeas petition.
Approximately one month later, Petitioner filed a fourth PCR motion, presumably to exhaust his state court remedies, on December 11, 2006, which was denied as untimely under New Jersey law by the Appellate Division on September 22, 2008. Petitioner's petition for certification to the New Jersey Supreme Court was denied on February 11, 2009. Thereafter, however, Petitioner waited until June 21, 2010 to file this second habeas petition in this Court.
In his second petition, Petitioner asserts evidential insufficiency, prosecutorial misconduct, trial court error, and ineffective assistance of counsel as his grounds for habeas relief (Petition, ¶ 12).
In lieu of an Answer, Respondents have filed a motion to dismiss, asserting that this second petition is time-barred.
A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. See 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 ...