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King v. Lanigan

United States District Court, Third Circuit

October 30, 2013

LESLIE R. KING, Petitioner,
v.
GARY M. LANIGAN, et al., Respondents.

LESLIE R. KING, Petitioner pro se, 433416/640460C, New Jersey State Prison, Trenton, N.J.

OPINION

CLAIRE C. CECCHI, District Judge.

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 Leslie R. King ("Petitioner"). The respondents are Gary M. Lanigan, Jeffrey Cheisa and the State of New Jersey. Because it appears from a review of the petition and answer that the petition is time barred, the petition will be dismissed as untimely. Petitioner will be allowed 30 days leave to provide a full recitation of the dates regarding state court exhaustion if he is able to show that the filing of the petition complied with the one year limitations period for the filing of a § 2254 habeas petition as set forth in 28 U.S.C. § 2244(d). Petitioner may also present any valid grounds for equitable tolling within 30 days.

I. BACKGROUND

The petition as filed provides very limited information regarding the filing and disposition dates of the proceedings in state court. A jury trial was conducted on April 18, 2002 and Petitioner was sentenced on May 28, 2002. Petitioner states that he filed direct appeal to that judgment in July 2002 and that the judgment was affirmed "around 2005." See Petition, page 8. Thereafter, the Supreme Court of New Jersey denied certification on a date not specified in the petition. Id . Petitioner states that he then filed for post-conviction relief ("PCR") which was denied, but he did not provide any dates regarding any PCR activity. Id.

Petitioner first filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this Court on or about July 26, 2010, see King v. Ricci, Civil No. 10-3753 (D.N.J.). In his response to the notice provided pursuant to Mason v. Meyers , 208 F.3d 414 (3d Cir. 2000), Petitioner requested that his petition be withdrawn so that he could further pursue his exhaustion of state court remedies. The petition was withdrawn on February 22, 2011 and that file was closed. Petitioner then sought further review from the Supreme Court of New Jersey, which was denied on September 21, 2012. See Petition, page 9. On or about January 2, 2013, after this further pursuit of state court remedies, Petitioner filed the instant petition without providing any dates regarding his continued state court activity. Petitioner was advised of his rights pursuant to Mason v. Meyers , 208 F.3d 414 (3d Cir. 2000) and Petitioner responded that his Petition should be ruled upon as filed.

II. DISCUSSION

The limitations period for a § 2254 habeas petition is set forth in 28 U.S.C. § 2244(d), [1] 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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...

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