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Edwin Perez v. Paul Schultz

February 6, 2012

EDWIN PEREZ, PETITIONER,
v.
PAUL SCHULTZ, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Martini, District Judge

OPINION

Petitioner Edwin Perez, a convicted state prisoner who completed service of his New Jersey state sentence and is currently confined at the Federal Correctional Institution in Fairton, New Jersey ("FCI Fairton"), submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2001 New Jersey state court conviction and sentence. For the reasons stated herein, the Petition will be dismissed as time-barred.

I. PROCEDURAL BACKGROUND

Petitioner, Edwin Perez, filed a petition for habeas corpus relief on or about August 26, 2009.*fn1 According to the allegations contained in his petition, and the state court record provided by respondents, on June 28, 1999, Petitioner pled guilty before the Honorable Kevin G. Callahan in the Superior Court of New Jersey, Law Division, Hudson County, to an amended charge of conspiracy to distribute cocaine, in violation of N.J.S.A. 2c:5-2 AND 2c:35-5.*fn2 Before sentencing, however, Petitioner fled the state court's jurisdiction. On June 19, 2001, Petitioner was indicted on a single charge of bail jumping in violation of N.J.S.A. 2C:29-7. He pled guilty to that charge on July 19, 2001. Thereafter, Petitioner was sentenced on September 7, 2001, to a seven year prison term on the conspiracy to distribute cocaine charge, and a twelve month consecutive term for the bail jumping charge. (Ra4-11).

Petitioner did not file a direct appeal from his sentence. On February 7, 2002, Petitioner was paroled and was placed in the Intensive Supervision Program ("ISP"). On November 12, 2002, Petitioner was charged with a federal drug offense and was in federal custody pursuant to his eventual federal conviction at the time he filed this § 2254 habeas petition.

On August 12, 2004, while in federal custody, Petitioner filed a state petition for post-conviction relief ("PCR") in the Superior Court of New Jersey, Law Division, Hudson County. (Ra12). In his state PCR brief, Petitioner asserted claims of ineffective assistance of counsel based on (a) counsel's alleged failure to inform Petitioner of the fact that his guilty pleas could be used later as a federal sentencing enhancement, and (b) counsel's alleged failure to make an argument for less than the presumptive sentence as part of the plea agreement. (Ra14-25).

On December 1, 2005, Judge Callahan denied Petitioner's state PCR petition and his request for an evidentiary hearing. (Ra83 and 4T - transcript of December 1, 2005 PCR Motion hearing). Petitioner filed an appeal from denial of his state PCR petition before the Superior Court of New Jersey, Appellate Division. (Ra84-86). On September 27, 2007, the Appellate Division affirmed the sentencing court's denial of Petitioner's state PCR petition. (Ra158-165). Petitioner filed a petition for certification before the New Jersey Supreme Court, which was denied on April 18, 2008. (Ra223).

As stated above, this federal § 2254 habeas petition was filed on August 26, 2009. Petitioner asserts the following claims: (1) Ineffective assistance of counsel at guilty plea stage for failing to investigate the presumptive term sentencing before plea; (2) Ineffective assistance of counsel claim for failing to raise a double jeopardy violation, namely, trial counsel "failed to notice the drafting of the indictment, the indictment was for multiple punishment;" and (3) Ineffective assistance of counsel in failing to inform Petitioner of the maximum potential penalty during his guilty plea, rendering his guilty plea unknowing, involuntary and not intelligently made. (Petition).

The State answered the petition on January 14, 2010, providing the relevant state court record. (Docket entry no. 8). The State argues that Petitioner's claims lack merit, that his petition should be dismissed as time-barred and/or because Petitioner was not "in custody" at the time he filed his § 2254 habeas petition, as required under 28 U.S.C. § 2254(a). The State also contends that some of Petitioner's claims were not raised or fully exhausted in state court as required under 28 U.S.C. § 2254(b)(1)(A).

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). Because Petitioner is a pro se litigant, the Court will accord his petition the liberal construction intended for pro se petitioners.

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 ...


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