United States District Court, D. New Jersey
FREDA L. WOLFSON, District Judge.
Petitioner Courtney Clement (hereafter "Clement" or "Petitioner"), confined at Edna Mahan Correctional Facility for Women, Clinton, New Jersey, filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"), challenging her conviction for aggravated manslaughter, N.J.S.A. 2C:11-4. For the reasons stated below, the Court dismisses the Petition as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court recounts only the facts relevant to this Opinion. After Clement's first trial ended in a mistrial, she accepted the State's plea offer of twenty-five years imprisonment, subject to an eighty-five percent parole ineligibility term as required by the No Early Release Act (NERA), on a charge of first-degree aggravated manslaughter. Prior to sentencing, Clement sought to withdrawal her guilty plea; the state trial court, however, denied her motion to withdraw her plea on May 20, 2004. (ECF No. 7 at Ex. 20.) Clement was sentenced on May 27, 2004 (ECF No. 7, at Ex. 21.) The Appellate Division affirmed Petitioner's sentence on April 28, 2005. (ECF No. 7 at Ex. 23.) On October 26, 2005, the Supreme Court of New Jersey granted Clement's petition for certification, limited solely to the sentencing issue raised by Clement, and summarily remanded the matter to the trial court for resentencing in light of State v. Natale, 184 N.J. 458, 878 A.2d 724 (2005). See State v. Clement, 185 N.J. 292 (2005). Petitioner was resentenced on November 18, 2005. (No. 7-18, Tr. 4:20-25.)
On March 15, 2006, Petitioner filed her first petition for post-conviction relief ("PCR"), pursuant to New Jersey Court Rule 3:22-1. (ECF No. 7-29, Ex. 27.) On February 16, 2007, the PCR court denied Clement's PCR without an evidentiary hearing. (ECF No. 7-37, Ex. 35.) On May 21, 2007, Clement appealed the denial of her PCR to the New Jersey Appellate Division. (ECF No. 7-38, Ex. 36 to Resp. Ans.) On May 15, 2008, the Appellate Division affirmed the denial of Clement's first PCR. See State v. Clement, No. A-4829-06T4, 2008 WL 2050824 (N.J.Super. May 15, 2008). On February 26, 2009, the Supreme Court of New Jersey denied Clement's petition for certification. See State v. Clement, 198 N.J. 315 (2009).
Clement then filed a second PCR petition, dated May 6, 2009. By order dated September 15, 2009, Judge Kreizman's signed an order dismissing Clement's second PCR petition. The order stated as follows: "PCR Application is hereby dismissed for failure to file a timely brief." (ECF No. 7-47, Ex. 45 to Resp. Ans.) More than four months after that dismissal, on January 21, 2010, Clement filed an untimely motion for reconsideration of Judge Kreizman's order dismissing her second PCR. (No. 7-48, Ex. 46 to Resp. Ans.) On June 18, 2010, Judge Kreizman denied her motion for reconsideration finding that (1) Clement's motion was untimely, (2) that her second PCR was barred under N.J. Ct. R. 3:22-4 and 3:22-5 (issues that were raised or could have been raised on direct appeal or in a prior PCR petition), and (3) that none of her arguments would justify allowing her to withdraw her plea. (7-18, Ex. 16 to Resp. Ans.) On August 9, 2010, Clement filed an appeal of the June 28, 2010 order denying her motion for reconsideration, but did not file an appeal of the September 15, 2009 order dismissing her second PCR petition. ( Id. at Ex. 50.) On November 20, 2012, the Appellate Division denied her appeal. State v. Clement, 2012 WL 5845641, at *2 (App. Div. Nov. 20, 2012) (citing N.J. Ct. R. 3:22-8.)
The Appellate Division held the Judge Kreizman did not abuse his discretion when he dismissed Clement's motion for reconsideration as untimely, noting that Clement "waited more than four months, until January 21, 2010 to file her reconsideration motion" when such motions must be filed within twenty days. See id. at *2 (citing N.J. Ct. R. 1:7-4 and 4:49-2.) Although the Appellate Division noted that the order denying reconsideration was the only issue properly before the Court, it nevertheless made additional rulings. With respect to Judge Kreizman's dismissal of Clement's second PCR, the Appellate Court held that Clement "failed to perfect her [second] PCR petition because she did not file a brief in support of the petition." Id. at *2 (citing N.J. Ct. R. 3:22-8.). In reaching the merits of Clement's second PCR petition, the Court rejected her arguments for relief. ( Id. )
The instant habeas petition appears to have been executed by Petitioner on May 2, 2012, and was filed on August 16, 2012, prior to the Appellate Division's denial of her appeal of the order denying reconsideration. (ECF No. 1 at 10.) On August 28, 2012, the Court advised Petitioner of her rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). (ECF No. 3.) The Court's Mason Order further noted that "the Court makes no finding as to the timeliness of the Petition as filed." ( Id. ) Petitioner did not respond to the Mason Order. The government filed its answer on January 11, 2013, addressing the merits of Petitioner's claims and raising the issue of timeliness as a defense. (ECF No. 7, Res. Br. at 28-30.) Petitioner was given the opportunity to file a reply but did not file one. This matter is now ready for determination.
The State argues that Petitioner's habeas petition is untimely. The State contends that Petitioner is not entitled to statutory tolling for the period in which her second PCR was pending because the second PCR was not "properly filed" pursuant to state law and was ultimately dismissed due to its insufficiency. (ECF No. 7-1, Res. Br. at 30.) The State further argues that Petitioner did not file a timely appeal of the dismissal of her second PCR, and her untimely motions for reconsideration and her appeal of the reconsideration order to the Appellate Division did not toll her time to file her habeas petition because these applications related to the procedurally defective second PCR petition. ( Id. ) As such, the State argues that Petitioner's time ran uninterrupted from February 26, 2009, the date on which the New Jersey Supreme Court denied certification on Petitioner's first PCR petition, until she filed the instant petition in 2012. Because Petitioner chose not to file a reply, she has not addressed the State's timeliness arguments.
In the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") Congress prescribed a one-year period of limitation for the filing of federal habeas corpus petitions by state prisoners. See Douglas v. Horn, 359 F.3d 257, 261 (2004); 28 U.S.C. § 2241(d)(1). Pursuant to 28 U.S.C. § 2241(d)(1), [t]he 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 ...