United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
The petitioner, Markeich Johnson, is a state prisoner at the East Jersey State Prison in Rahway, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2003, Mr. Johnson was convicted by a jury of several counts, including weapons possession, robbery and kidnapping. After an appeal and remand, he received a revised sentence of fifty years' imprisonment with an eighty-five percent parole ineligibility. In this federal habeas petition, Mr. Johnson raises claims of ineffective assistance of counsel. For the following reasons, the habeas petition will be denied as untimely.
Mr. Johnson was convicted after a jury trial in 2003 and sentenced in 2004. On July 27, 2005, the New Jersey Superior Court, Appellate Division, affirmed the judgment of conviction on direct appeal. (See Dkt. No. 4-10.) Mr. Johnson filed a petition for certification with the New Jersey Supreme Court. On August 6, 2006, that Court granted certification on the issue of sentence only. ( See Dkt. No. 4-14.) The matter was remanded for resentencing.
On January 4, 2007, the trial court resentenced Mr. Johnson to a term of fifty years' imprisonment with an eighty-five percent parole ineligibility. Mr. Johnson did not appeal from that judgment and resentencing.
On October 6, 2008, Mr. Johnson, through his then-counsel, Nina Rossi, Esq., filed an application for post-conviction relief ("PCR") in the Superior Court of New Jersey, Hudson County. That PCR petition raised two issues of ineffective assistance of counsel: (1) defense counsel's failure to object when the trial court erred in instructing the jury that they had to agree on all five counts; and (2) defense counsel's failure to object when an imitation handgun was repeatedly referred to as a "handgun" or a "semi-automatic." (See Dkt. Nos. 4-17 & 4-18.) On December 1, 2008, the Superior Court denied Mr. Johnson's PCR petition in a written opinion and order. ( See Dkt. No. 4-21.)
Mr. Johnson appealed that denial of PCR to the Appellate Division. The Office of the Public Defender entered an appearance on his behalf. He filed a motion for a temporary remand to supplement the record, which the Appellate Division granted on November 6, 2009. (Dkt No. 4-26) On remand, Mr. Johnson amended his PCR to raise several additional claims of ineffective assistance of counsel. On September 15, 2010, the Superior Court denied the PCR petition. (Dkt. Nos. 4-35 & 4-36.) Mr. Johnson again appealed. On July 19, 2011, the Appellate Division affirmed the denial of PCR. (Dkt. No. 4-48.) On January 19, 2012, the Supreme Court of New Jersey denied certification. (Dkt. No. 4-53.)
On January 3, 2013, Mr. Johnson filed his § 2254 habeas petition in this Court. I ordered respondent to file a limited answer on the issue of the timeliness. Johnson filed a reply.
CHART OF MAJOR CASE EVENTS
Date of event Description 2003 to Original conviction, direct appeal, and remand for resentencing 1/4/2007 1/4/2007 Resentencing 2/19/2007 Time to appeal from resentencing expires without appeal being taken. Conviction final, triggering one-year AEDPA limitations period. 2/19/2007 to 11 month period of non-communication with attorney Rossi 1/19/2008 (assumed arguendo to fall entirely within AEDPA period) 1/19/2008 to Additional 8 ½ A months elapsed until Rossi files PCR 10/6/2008 10/6/2008 PCR filed 11/6/2009 Superior Court, Appellate Division, grants limited remand to supplement record on PCR. 9/15/2010 Trial court, on remand, denies PCR as supplemented 7/19/2011 Appellate Division affirms denial of PCR 1/19/2012 Supreme Court of N.J. denies certification petition 1/3/2013 This federal habeas petition filed
A. Statute of Limitations
Mr. Johnson's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA imposes a one-year time limit for a prisoner to challenge his state conviction and sentence through a petition for writ of habeas corpus under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). That one-year limitation period runs from the latest of the following dates:
(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 ...