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Erin Ford v. Charles Warren

September 25, 2012

ERIN FORD, PETITIONER,
v.
CHARLES WARREN, ET AL., RESPONDENTS.



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

OPINION

This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner Erin Ford, on or about October 18, 2011. Petitioner submitted an incomplete application to proceed in forma pauperis ("IFP"). In particular, he failed to provide a certification of Petitioner's institutional account, as required by Local Civil Rule 81.2(b). Accordingly, his IFP application is denied and Petitioner will be allowed thirty (30) days to submit the requisite certification, or pay the $5.00 filing fee.

Petitioner also submitted with his habeas petition a request for a stay and abeyance. (Docket entry no. 1-5). Respondents filed an opposition to the request for a stay and abeyance on the ground that the habeas petition is untimely. (Docket entry no. 2). Petitioner filed a reply on or about March 23, 2012. (Docket entry no. 3). Having reviewed Petitioner's request for a stay and abeyance of his habeas petition, together with all opposition and reply papers filed by the parties, pursuant to Fed.R.Civ.P. 78, this Court finds that the habeas petition is time-barred, and that the request for a stay and abeyance should be denied as moot.

I. PROCEDURAL BACKGROUND

On March 23, 2001,*fn1 Petitioner was sentenced to an aggregate prison term of 40 years with a 32 year parole disqualifier, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, pursuant to a judgment of conviction before the Superior Court of New Jersey, Law Division, Essex County, on a nine-count indictment that included charges of first degree attempted murder, first degree robbery, second degree aggravated assault and several weapons offenses. Petitioner filed a direct appeal from his conviction and sentence before the Superior Court of New Jersey, Appellate Division, and the Appellate Division affirmed Petitioner's conviction and sentence in State v. Ford, No. A-5867-00 (App. Div. Jan. 14, 2003). See March 11, 2011 Appellate Division Opinion on appeal from denial Petitioner's state post-conviction relief ("PCR") motion, attached to Respondent's opposition at Docket entry no. 2-1. Petitioner did not file a petition for certification with the New Jersey Supreme Court. (Petitioner's Reply, Docket entry no. 3 at pg. 1).

Petitioner filed his first petition for post-conviction relief ("PCR") in state court on February 10, 2006. The state PCR court denied the petition on August 28, 2006. Petitioner appealed and, on March 11, 2011, the Appellate Division affirmed the trial court's decision denying the PCR petition. Petitioner filed a petition for certification before the New Jersey Supreme Court, which was denied on September 7, 2011.

Petitioner then filed this habeas petition on or about October 18, 2011, raising fifteen claims for habeas relief. Petitioner also filed a motion for a stay or abeyance of the petition because four of the claims (Grounds Twelve, Thirteen, Fourteen and Fifteen) were unexhausted and currently pending review in state court on Petitioner's second state PCR petition.

In opposition to Petitioner's request for a stay, the State filed a response on November 7, 2011, arguing that a stay was inappropriate because the entire petition was time-barred. (Docket entry no. 2). Petitioner replied on or about March 23, 2012, claiming that equitable estoppel should be applied because the delay in filing his first state PCR petition was occasioned by attorney misconduct and misrepresentation. (Docket entry no. 3).

III. ANALYSIS

A. Pro Se Pleading

Petitioner brings his habeas petition as a pro se litigant.

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).

IV. 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 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 ...


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