The opinion of the court was delivered by: Hon. Jerome B. Simandle
Joseph Abbott filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254(a) challenging a judgment of conviction entered in the Superior Court of New Jersey, Cape May County, on December 14, 2000. By Order entered July 28, 2011, this Court dismissed the Petition as untimely, denied a certificate of appealability, permitted Petitioner to file a statement showing that the Petition is not time barred, and administratively terminated the case, subject to reopening. On August 23, 2011, Petitioner filed a statement with various attachments in which he argues that the Petition should not be considered untimely. For the reasons expressed below, this Court will reconsider whether the Petition is time barred, dismiss the Petition as untimely after reconsideration, and deny a certificate of appealability.
Petitioner challenges a judgment of conviction entered in the Superior Court of New Jersey, Law Division, Cape May County, on December 14, 2000, after a jury found him guilty of attempted aggravated sexual assault, attempted burglary, possession of a razor knife with the purpose to use it unlawfully, and unlawful possession of a knife. The Law Division imposed an aggregate sentence of 20 years, with a parole ineligibility period of 10 years. See State v. Abbott, Docket No. A-3331-00T4 sl. opinion (N.J. Super., App. Div., Nov. 21, 2002) (Dkt. 1 at 18.). Petitioner appealed, and on November 21, 2002, the New Jersey Superior Court, Appellate Division, affirmed the conviction and sentence. Id. The New Jersey Supreme Court denied certification on March 28, 2003. State v. Abbott, 176 N.J. 74 (2003) (table).
Petitioner filed his first state petition for post-conviction relief ("PCR") on December 1, 2003. (Dkt. 1 at 4.) By order filed March 23, 2004, the Law Division denied the petition. (Dkt. 1 at 39.) Petitioner did not appeal.
Abbott states that he handed his second PCR to prison officials for mailing to the Law Division on November 7, 2005.*fn1
(Dkt. 4-1 at 5, 18, 20) (Dkt. 1 at 45). He resent the second petition for post-conviction relief on May 31, 2006. The Law Division denied relief, and Abbott appealed. On February 23, 2010, the Appellate Division affirmed the order denying post-conviction relief but remanded for correction of the judgment of conviction to show that attempt is a second-degree, not a first-degree, crime. See State v. Abbott, Docket No. A-5370-07T4 sl. opinion (N.J. Super. Ct., App. Div., Feb. 23, 2010) (Dkt. 1 at 48.) The corrected judgment of conviction was filed in the Law Division on March 8, 2010. (Dkt. 1 at 50.) The New Jersey Supreme Court denied certification on July 12, 2010. See State v. Abbott, 03 N.J. 95 (2010) (table).
Petitioner executed the § 2254 Petition, and presumably handed it to prison officials for mailing to this Court, on April 15, 2011. The Petition raises five grounds:
Ground One: THE VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE.
Ground Two: THE EVIDENCE OF OTHER CRIMES WAS IMPROPERLY ADMITTED.
Ground Three: THE JUDGE[']S CHARGE TO THE JURY WAS IMPROPER.
Ground Four: UNDER THE TEST DEVELOPED IN STRICKLAND/FRITZ THE DEFENDANT, WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
Ground Five: THE SENTENCE WAS MANIFESTLY EXCESSIVE. (Dkt. 1 at 6, 7, 8, 10, 11.)
By Order and accompanying Opinion filed July 27, 2011, this Court dismissed the Petition as untimely and denied a certificate of appealability. This Court reasoned that Abbott's judgment of conviction became final on June 26, 2003, when the time to file a petition for certiorari expired. See 28 U.S.C. § 2244(d)(1)(A); Wali v. Kholi, 131 S. Ct. 1278, 1282 (2011). The 365-day limitations period began the next day on June 27, 2003, and ran for 157 days until it was statutorily tolled when Abbott filed his first state PCR on December 1, 2003. This Court found that the limitations period picked up on March 24, 2004, the day after the Law Division denied Petitioner's first PCR and, in the absence of equitable tolling, it ran for 208 days until it expired at day 365 on October 18, 2004. This Court explained that, in the absence of equitable tolling, the second state PCR did not statutorily toll the limitations period because the second petition was filed after the limitations period expired. See Long, 393 F.3d at 394-95 (state post conviction review petition had no effect on tolling because the limitations period had already run when it was filed); Schlueter v. Varner, 384 F.3d 69, 78-79 (3d Cir. 2004) (same). This Court noted that, although the Petition asked Abbott to explain why the Petition was not time barred under 28 U.S.C. § 2244(d), and included the text of § 2244(d), Abbott provided no explanation for the late filing. Since nothing in Petitioner's submissions insinuated that he was either prevented from asserting his claims by extraordinary circumstances, or that he exercised reasonable diligence in pursuing his rights, this Court found no basis for equitable tolling. This Court ruled that the interests of justice would not be better served by addressing the merits of the grounds raised in the § 2254 Petition, and dismissed the Petition as untimely. See Day, 457 U.S. at 210.
However, this Court permitted Abbott to submit a statement showing that the Petition is not time barred. On August 23, 2011, the Clerk docketed Petitioner's response. At this time, this Court will reopen the file, vacate the ...