United States District Court, D. New Jersey
ANTHONY A. BROOKS, Petitioner,
STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, et al., Respondents.
KEVIN McNULTY, District Judge.
The petitioner, Anthony Brooks, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In 2000, Mr. Brooks was convicted by a jury of several counts, including robbery, aggravated assault, and weapons charges. He received a sentence of sixteen years' imprisonment with an eighty-five percent parole ineligibility. Mr. Brooks's claims include erroneous jury instructions at his state trial and ineffective assistance of counsel. For the following reasons, the habeas petition will be denied as untimely.
II. FACTUAL AND PROCEDURAL BACKGROUND
The record in this matter indicates that at midnight on February 17, 1999, after Kabir Nunnally had purchased take-out food from Lincoln Chicken on Bergen Street in Newark, defendant approached Nunnally asking for cocaine and reaching into Nunnally's right front pocket. A struggle ensued, during which defendant struck Nunnally several times on the temple with his handgun and demanded money. Nunnally threw money on the ground, which angered defendant, who struck Nunnally again and ordered him to pick up the money and give him all the cash that he had. Nunnally complied, giving defendant $127, which he claimed was the proceeds of his paycheck. Following defendant's order to do so, Nunnally then started running. Defendant shot at him once, but Nunnally ducked behind a parked car.
Thereafter, Nunnally observed defendant entering the back seat of a light colored Honda, which was then driven off. Police, flagged down by Nunnally, gave chase and soon stopped the vehicle, finding defendant in the back seat with a loaded handgun lying next to him. Nunnally identified defendant at the scene.
At trial, defendant testified on his own behalf. He stated that he had been approached by Nunnally, who sought drugs. When defendant thought Nunnally was reaching for a gun, a struggle ensued, a shot was fired, and defendant thought that he had been struck. Defendant then wrestled the gun from Nunnally and, spying a car in the parking lot occupied by a woman that he knew, defendant jumped in and ordered the driver to drive off. The car was subsequently stopped by the police and Nunnally's gun was found in defendant's possession. Defendant denied owning the gun, committing the robbery, and firing the gun at Nunnally. The jury did not credit defendant's version of the events and returned a verdict against him on all counts of the indictment.
(Dkt. No. 12-3 at p. 9-10.) The New Jersey Superior Court Appellate Division affirmed on direct appeal on January 21, 2003. (See Dkt. No. 11-8.) The New Jersey Superior Court denied certification on May 22, 2003. (See Dkt. No. 11-11.)
On September 3, 2004, Mr. Brooks filed a pro se PCR petition in state court. (See Dkt. No. 11-12.) On March 17, 2007, Mr. Brooks also had a counseled PCR petition filed on his behalf. (See Dkt. No. 11-14.) On May 17, 2007, the New Jersey Superior Court, Law Division, denied the PCR petition. (See Dkt. No. 11-18) The Appellate Division affirmed that denial on June 9, 2010. (See Dkt. No. 12-3.) The New Jersey Supreme Court denied certification on October 28, 2010. (See Dkt. No. 12-6.)
On November 1, 2011, at the earliest, Mr. Brooks filed this federal habeas petition. On August 27, 2013, respondent filed its answer in response to the habeas petition. Respondent argues, inter alia, that the habeas petition is untimely. Mr. Brooks did not file a reply.
Based on his notice of change of address, it appears that that Mr. Brooks was released from state incarceration sometime after respondent filed its answer. (See Dkt. No. 15.) On April 21, 2014, Chief Judge Simandle reassigned this case to me in light of Judge Cavanaugh's retirement.
A. Mr. Brooks' Release from State Incarceration
Although Mr. Brooks was incarcerated when he filed his habeas petition, it appears that he no longer is. "After a petitioner's release from custody, [a court] consider[s] his habeas case moot unless he can demonstrate he will suffer some collateral consequences if his conviction is allowed to stand.' Leyva v. Williams, 504 F.3d 357, 363 (3d Cir. 2007) (quoting DeFoy v. McCullough, 393 F.3d 441-42, 442 n.3 (3d Cir. 2005)). However, a court presumes "collateral consequences when a litigant challenges a criminal conviction." Id. (citations omitted). Such collateral consequences may include, for ...