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Nicoloudakis v. Bocchin

United States District Court, D. New Jersey

July 15, 2015

JOE BOCCHIN I, et al. Respondents.



Petitioner Franklin Nicoloudakis ("Petitioner") files the instant Petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, challenging a sentence imposed by the State of New Jersey for stalking. For reasons stated below, the Court orders Petitioner to show cause as to why the Petition should not be denied as time-barred or dismissed for failure to exhaust.


The Court recites only those facts relevant to this Opinion. Petitioner was sentenced, after a guilty plea, to a non-custodial term of five years supervised probation on March 31, 2008 for criminal stalking in the fourth degree. (ECF No. 8 at 1.) Petitioner appealed the conviction, and it was affirmed on August 16, 2010. Id. at 2. Petitioner did not seek certification with the New Jersey Supreme Court. Id.

Petitioner filed the instant Petition on March 29, 2013. After the Court provided a Mason notice to Petitioner, advising him that he must bring all of his federal habeas claims in one all-inclusive petition, (ECF No. 3), Petitioner filed an Amended Petition on July 29, 2013. (ECF No. 8.) In the Amended Petition, Petitioner asserts that he has a pending application for postconviction relief ("PCR") in the state court. Id. at 6. However, Petitioner does not state when that PCR application was filed, or what claims were raised in said application. The Court ordered Respondents to answer, (ECF No. 9), and an Answer was filed on January 10, 2014. (ECF No. 24.)


Petitioner asserts that the Court should proceed with the instant Petition, because "to satisfy exhaustion requirement, it is only necessary to present issues to one level of appeals court." (ECF No. 8 at 12.) Therefore, the Court construes the Petition as only raising claims that have been litigated in the state court on direct appeal, without asserting any claims that have been brought for PCR.

A. "In Custody" and Mootness

Respondents argue that the case should be dismissed because Petitioner is no longer "in custody" as required by 28 U.S.C. § 2254(a) and, as such, the case is now moot. The Court rejects both arguments. Whether a petitioner is "in custody" for the purposes of a § 2254 petition is determined at the time the petition was filed. Spencer v. Kemna, 523 U.S. 1, 7 (1998) ("Spencer was incarcerated ... at the time the petition was filed, which is all the 'in custody' provision of 28 U.S.C. § 2254 requires"); Kumarasamy v. Att'y. Gen. of U.S., 453 F.3d 169, 173 n.7 (3d Cir. 2006) ("[W]hat matters for the 'in custody' requirement is whether the petitioner was in custody at the time his habeas petition was filed") (citation omitted) (emphasis in original). Here, Petitioner was sentenced to five years of supervised probation on March 31, 2008, so his sentence expired on March 31, 2013. The instant Petition was filed on March 29, 2013, two days prior to the expiration of Petitioner's sentence. Therefore, Petitioner satisfies the "in custody" requirement of § 2254.

With regard to Respondents' contention that the case is now moot, the Supreme Court has recognized that a wrongful criminal conviction almost always has continuing collateral consequences even after a petitioner's sentence has expired. See Spencer, 523 U.S. at 8. Indeed, given the sheer breadth of collateral consequences recognized by the Supreme Court, "we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur)." Id; see Carafas v. LaVallee, 391 U.S. 234, 237 (1968) ("It is clear that petitioner's cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror. Because of these 'disabilities or burdens (which) may flow from' petitioner's conviction, he has 'a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him'") (quoting Fishwick v. United States, 329 U.S. 211, 222 (1946)). As such, the Court finds that the Petition is not moot.

B. Statute of Limitations

Title 28, Section 2244 of the U.S. Code requires 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). In most cases and in this particular case, the one-year period begins on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Based on the statutory language, the Supreme Court held that even when a defendant does not file a petition for certiorari with the United States Supreme Court on direct review, the AEDPA one-year limitations period starts to run when the time for seeking such review expires. Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. United Stales, 537U.S. 522, 532 (2003); Gibbs v. Goodwin, No. 09-1046, 2009 WL 1307449, at *2 (D.N.J. May 1, 2009) (citing Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n, 1 (3d Cir. 1999)) (holding that the period of direct review "include[s] the 90-day period for filing a petition for writ of certiorari in the United States Supreme Court").

However, "[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 any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). In other words, while a valid state post-conviction review is pending, the one-year limitation is tolled. This tolling does not include any petition for writ of certiorari in the United States Supreme Court for review of a denial of post-conviction relief. Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 85 n.5 (3d Cir. 2013) (citing Lawrence v. Florida, 549 U.S. 327, 332 (2007)). Overall, "AEDPA's limitation period 'does not set forth an inflexible rule requiring dismissal whenever its clock has run."' Id. at 84-85 (quoting Holland v. Florida, 560 U.S. 631, 645 (2010)). Rather, the limitations period is subject to both statutory and equitable tolling. Id. at 85.

So, even if the statutory time bar has passed, Petitioner may overcome that limitation if he can show a basis for equitable tolling. Gibbs, 2009 WL 1307449 at *3; Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013) (citations omitted). "Extraordinary circumstances permitting equitable tolling have been found where: (1) the petitioner has been actively misled; (2) the petitioner has been prevented from asserting his rights in some extraordinary way; (3) the petitioner timely asserted his ...

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