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Warren King v. Greg Bartkowski

October 16, 2012

WARREN KING, PETITIONER,
v.
GREG BARTKOWSKI, ET AL., RESPONDENTS.



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

OPINION

Petitioner Warren King, a convicted state prisoner presently confined at the New Jersey State Prison in Trenton, New Jersey, submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1978 New Jersey state court conviction and sentence. For the reasons stated herein, the Petition will be dismissed as time-barred.

I. PROCEDURAL BACKGROUND

Petitioner, Warren King ("King"), filed a petition for habeas corpus relief on or about July 18, 2011.*fn1 According to the allegations contained in his petition, King was convicted by jury trial on or about August 9, 1978, in the Superior Court of New Jersey, Law Division, Burlington County on charges of kidnapping, robbery, robbery while armed, and bringing a stolen vehicle into the state.*fn2 King was sentenced to a term of 30 to 31 years consecutive term in prison. (Petition at ¶¶ 1-6).

King filed a direct appeal from his conviction and sentence to the Superior Court of New Jersey, Appellate Division. On March 24, 1981, the Appellate Division affirmed the conviction and sentence. (Petition at ¶¶ 8, 9). The Supreme Court of New Jersey denied certification on or about June 10, 1981. State v. Warren King, 87 N.J. 393 (1981). It does not appear that King filed a petition for a writ of certiorari with the Supreme Court of the United States.

King states that after he was sentenced in state court, he was sent back to federal prison to serve the remainder of his federal sentence. He was returned to New Jersey in 2004. (Petition at ¶ 9(c)). In fact, King was released from federal custody on April 21, 2004, at which time he was transferred to a New Jersey state correctional facility to serve his consecutive state sentence. He filed a petition for post-conviction relief ("PCR"), pro se, in the Superior Court of New Jersey, Law Division, Burlington County, on October 14, 2004. See State v. King, 2010 WL 4108488 at *2 (N.J. Super. A.D. May 3, 2010). The PCR petition was denied on May 3, 2010. (Petition at ¶ 11(b)(6)). The New Jersey Supreme Court denied certification on July 19, 2010.

As stated above, King filed this habeas petition on or about July 18, 2011. Upon initial screening of the petition, it appeared from the face of the petition that it may be have been untimely filed. Specifically, this Court observed that King filed his state PCR petition more than seven years after his one-year statute of limitations for filing a federal habeas petition had expired, and thus, statutory tolling under 28 U.S.C. § 2244(d)(2) was not available to King. Accordingly, in an Opinion and Order entered on April 19, 2012, this Court issued an Order directing King to show cause in writing why his petition should not be dismissed as time-barred under 28 U.S.C. § 2244(d). (Docket entry nos. 2 and 3).

On or about May 14, 2012, King responded to the Court's Order to Show Cause. He also filed a motion for appointment of counsel. (Docket entry nos. 4 and 5). In his response, King provides no excuse to allow equitable tolling of his statutory deadline for filing a federal habeas petition, other than to say that he had been confined in federal prison until April 2004, when he arrived at the New Jersey State Prison and counsel was appointed for him to file his state PCR petition. King offers no explanation as to why he was unable to file his state PCR petition for the period of 1996 through October 2004, when it was eventually filed.

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 King 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),*fn3 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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