KEVIN McNULTY, District Judge.
Petitioner, Kevin Jones, is a state prisoner currently incarcerated at New Jersey State Prison in Trenton, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jones challenges his 1993 conviction for robbery and possession of a weapon for an unlawful purpose. He was sentenced to life imprisonment with twenty-five years of parole ineligibility. For the following reasons, the petition will be denied as untimely under the applicable one-year statute of limitations. 28 U.S.C. § 2244(d)(1).
The following essential dates appear to be undisputed, except as noted.
Jones was convicted of robbery and weapons charges. On July 9, 1993, he was sentenced. On March 23, 2000, the New Jersey Superior Court, Appellate Division, granted him leave to file his otherwise untimely direct appeal nunc pro tunc. (See Dkt. No. 7-3.) On November 3, 2003, the Appellate Division affirmed Jones's conviction and sentence. State v. Jones, No. A 4070-99. On January 21, 2004, the New Jersey Supreme Court denied certification of that appeal. ( See Dkt. No. 7-6) The 90-day deadline for filing a petition to the U.S. Supreme Court for a writ of certiorari expired on April 20, 2004.
The sole PCR petition in the record is dated November 1, 2006, over 2 ½ years later (the "2006 PCR petition"). On May 20, 2008, that 2006 PCR petition was denied by the Superior Court of New Jersey, Law Division. ( See Dkt. No. 7-12.) On October 5, 2010, the Appellate Division affirmed the denial of Petitioner's 2006 PCR petition. State v. Jones , 2010 WL 3932893 (App. Div. Oct 5, 2010). ( See Dkt. No. 7-15.) On March 22, 2012, the New Jersey Supreme Court denied the petition for certification. State v. Jones , 210 N.J. 27 (2012). ( See Dkt. No. 7-18.)
On June 22, 2012, Jones filed this federal habeas petition. It appeared to the Court that it might not be timely under the applicable one-year statute of limitations, see 28 U.S.C. § 2244(d)(1). The one-year limitations period expired on April 20, 2005, and the PCR petition (which potentially tolled the limitations period) was not filed until November 1, 2006, some eighteen months later. Jones contends, however, that he attempted to file an earlier PCR petition on October 30, 2004 - within the one-year limitations period - by delivering it to New Jersey State prison officials for mailing (the "alleged 2004 PCR petition"). There is no court record of that petition, and respondents have no record of it. ( See Dkt. No. 9 at p. 3.)
On September 12, 2012, I ordered respondents to file an answer confined to the issue of the timeliness of the habeas petition, attaching relevant portions of the state court record. (Dkt. No. 3) That order also authorized Jones to file a traverse, deemed to be a supplement to his petition, on the issue of timeliness, and directed him to attach, or direct the Court to, any evidence in support of his position. On October 25, 2012, respondents filed their limited answer and exhibits. (Dkt. Nos. 6, 7) On December 17, 2012, petitioner filed his traverse, together with an affidavit of counsel. (Dkt. Nos. 9, 10).
The September 12, 2012 Order
For ease of reference, I here reproduce the most pertinent parts of my September 12, 2012 Order (Dkt. No. 3), which sets the legal and procedural context for this opinion:
6. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides that a "1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). That one-year limitations period starts to run from "the date on which the judgment became final." 28 U.S.C. § 2244(d)(1). A state-court criminal judgment becomes "final" within the meaning of § 2244(d)(1) at the conclusion of direct review or by the expiration of time for seeking such review, including the 90-day period for filing a petition for a writ of certiorari in the United States Supreme Court. See Swartz v. Meyers , 204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn , 187 F.3d 333, 337 n.1 (3d Cir. 1999); U.S. Sup.Ct. R. 13.
7. The one-year statute of limitations under § 2244(d) is subject to two tolling doctrines: statutory tolling and equitable tolling. See Merritt v. Blaine , 326 F.3d 157, 161 (3d Cir. 2003); Miller v. N.J. State Dep't of Corr. , 145 F.3d 616, 617-18 (3d Cir. 1998).
8. By statute, under Section 2244(d)(2), "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the AEDPA one-year time limitation. 28 U.S.C. § 2244(d)(2). Such tolling applies, however, only when the application for state post-conviction review was filed before the expiration of the limitations period; filing a new application for post-conviction relief will not revive an AEDPA limitation period that has already expired. Thus, for example, no statutory tolling results if a PCR application is filed more than a year after the litigant's judgment became final. See Long v. Wilson , 393 F.3d 390, 394-95 (3d Cir. 2004); Schlueter v. Varner , 384 F.3d 69, 78-79 (3d Cir. 2004).
9. As noted, the AEDPA statute of limitations is also subject to equitable tolling, for which the standards are different. See Holland v. Florida , 130 S.Ct. 2549 (2010); Miller v. N.J. State Dep't of Corr. , 145 F.3d 616, 618 (3d Cir. 1998). "[A] litigant seeking equitable tolling bears the burden of establishing two elements: (a) that he has been pursuing his rights diligently, and (b) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005); see also Holland , 130 S.Ct. 2549. The Third Circuit instructs that equitable tolling is appropriate only when "the principles of equity would make the rigid application of a limitation period unfair, such as when a state prisoner faces extraordinary circumstances that prevent him from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims." LaCava v. Kyler , 398 F.3d 271, 275-276 (3d Cir. 2005); see also Holland , 130 S.Ct. 2549 (same). Excusable neglect is not sufficient to warrant equitable tolling for purposes of federal habeas review. See id.; see also Merritt v. Blaine , 326 F.3d 157, 168 (3d Cir. 2003); Jones v. Morton , 195 F.3d 153, 159 (3d Cir. 1999). "Extraordinary circumstances" have been found where: (a) the respondent has actively misled the plaintiff; (b) the petitioner has in some extraordinary way been prevented from asserting his rights; (c) the petitioner has timely asserted his rights mistakenly in the wrong forum, see Jones , 195 F.3d at 159; or (d) the court itself has misled a party regarding the steps that the party needs to take to preserve a claim. See Brinson v. Vaughn , 398 F.3d 225, 230 (3d Cir. 2005). In addition to extraordinary circumstances, the Petitioner must demonstrate reasonable diligence in asserting his rights. "If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing." Brown v. Shannon , 322 F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson , 224 F.3d 129, 134 (2d Cir. 2000)).
10. Finally, federal courts "must presume that the factual findings of both state trial and appellate courts are correct, a presumption that can only be overcome on the basis of clear and convincing evidence to the contrary." Stevens v. ...