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Derek Bethea v. Mr. Christopher Holmes

May 3, 2012

DEREK BETHEA, PETITIONER,
v.
MR. CHRISTOPHER HOLMES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Simandle, Chief Judge

MEMORANDUM OPINION

Petitioner Derek Bethea, a prisoner confined at South Woods State Prison in Bridgeton, New Jersey, has filed a Petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his convictions in 2001 on various charges of swindling and cheating on games of chance.

On April 26, 2012, this Court entered its Notice and Order [2] advising Petitioner of the effects of filing such a Petition. In addition, upon further review of the Petition, certain additional issues have become apparent, which must be addressed.

Custody This is the second petition for writ of habeas corpus that Petitioner has filed with respect to these convictions. In the first, he challenged only the calculation of his release date.

See Bethea v. Brown, Civil No. 04-1492 (D.N.J.).*fn1 The previous Petition was deemed withdrawn by an Order [7] entered December 22, 2005, after it became apparent that Petitioner had been released from prison on these convictions. The copies of the Judgments of Conviction attached to this Petition do not suggest that Petitioner was sentenced to be under any continuing supervision after his release from prison. Accordingly, it is not clear that Petitioner is presently "in custody" under the challenged convictions.

Grounds for Relief

In addition, although the Petition is accompanied by dozens of pages of exhibits, including copies of various state court briefs and opinions and summaries of allegedly supportive case law, Petitioner fails entirely to answer Question 12 on the form Petition, which requires him to clearly set forth the grounds on which he claims that he is being held in violation of the Constitution, law, or treaties of the United States. Attachment of nearly two hundred pages of exhibits is no substitute for a clear statement of his grounds for relief.

Timeliness

In addition, it appears that the Petition is not timely. Accordingly to the attachments to the Petition, Petitioner was sentenced on August 17, 2001, to three consecutive 18-month terms of imprisonment, for an aggregate sentence of 54 months. He timely appealed; the Appellate Division affirmed the convictions on May 28, 2003, and the Supreme Court of New Jersey denied certification on October 8, 2003, see State v. Bethea, 178 N.J. 30 (2003). There is no suggestion that Petitioner petitioned the United States Supreme Court for a writ of certiorari. Petitioner alleges that he filed his state petition for post-conviction relief on December 20, 2005, that the trial court denied relief on or about April 24, 2008, that he timely appealed, that the Appellate Division affirmed the denial of relief on October 21, 2010, see 2010 WL 411 6894 (N.J.Super. App.Div. Oct. 21, 2010), and that the Supreme Court of New Jersey denied certification on April 14, 2011, see State v. Bethea, 205 N.J. 519 (2011). This Petition was received on April 13, 2012. Although it is dated March 29, 2012, it is clear that it was placed into the prison mail system no earlier than April 5, 2012, as Petitioner claims in his undated cover letter that he was awaiting copying of documents provided to the law librarian on that date.

The limitation period for a § 2254 habeas petition is set forth in 28 U.S.C. § 2244(d),*fn2 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;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(c) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...


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