United States District Court, D. New Jersey
B. KUGLER United States District Judge.
is a state prisoner incarcerated at the New Jersey State
Prison. He is proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Previously, this Court ordered petitioner to show cause why
his habeas petition should not be summarily dismissed due to
untimeliness. Having received petitioner's response, this
Court finds that the habeas petition is untimely. It will be
SUA SPONTE SCREENING
Rule 4 requires a judge to sua sponte dismiss a
petition without ordering a responsive pleading “[i]f
it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.” 28 U.S.C. § 2254 Rule 4,
applicable through Rule 1(b). Thus, “Federal courts are
authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
BACKGROUND & DISCUSSION
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). That limitations period begins to run when the
criminal judgment becomes “final.” A state-court
criminal judgment becomes “final” within the
meaning of § 2244(d)(1) at the conclusion of direct
review or at the expiration of time for seeking such review.
See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d
Cir. 1999); see also 28 U.S.C. § 2244(d)(1)(A)
(the 1-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'). In
particular, when a defendant does not file a petition for
certiorari with the United States Supreme Court, the one-year
limitations period starts to run when the ninety-day period
for seeking certiorari expires. See Gonzalez v.
Thaler, 132 S.Ct. 641, 653 (2012); Clay v.
U.S., 537 U.S. 522, 532 (2003); Morris, 187
F.3d at 337 n.1 (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”); U.S. SUP. CT. R. 13 (90-day deadline to
petition for certiorari).
states in his habeas petition that his judgment became final
on July 14, 2011, as he did not file a petition for writ of
certiorari with the United States Supreme Court after the New
Jersey Supreme Court denied certification on his direct
appeal on April 14, 2011. (See Dkt. No. 1-3 at p.8)
Therefore, his statute of limitations began to run on July
filing of a post-conviction relief (“PCR”)
petition may statutorily toll (i.e., suspend) the
running of the one-year habeas limitations period.
See 28 U.S.C. § 2244(d)(2) (“The 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.”). A prisoner's application for state
collateral review is “‘properly filed' when
its delivery and acceptance are in compliance with the
applicable laws and rules governing filings[.]”
Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 85 (3d Cir. 2013) (quoting Artuz v.
Bennett, 531 U.S. 4, 8 (2000)).
states that he filed his PCR petition on December 16, 2011.
(See Dkt. No. 1-3 at p.8; see also Dkt. No.
4 at p.1) Accordingly, by the time that petitioner had filed
his PCR petition, 155 days of his one-year statute of
limitations to file a federal habeas petition had run.
Nevertheless, the filing of this PCR petition tolled his
one-year statute of limitations period.
states in his habeas petition that the New Jersey Supreme
Court denied certification on his PCR petition on March 24,
2016. (See Dkt. No. 1-3 at p.8; see also
Dkt. No. 4 at p.2) Petitioner does not indicate that he filed
a petition for certiorari with the United States Supreme
Court from that denial. Furthermore, in contrast to the rule
on direct appeal, the tolling period does not include the
time during which petitioner could have filed a
petition for writ of certiorari in the United States Supreme
Court from the denial of certification on his PCR petition.
See Stokes v. Dist. Attorney of Cnty. of Phila., 247
F.3d 539, 542 (3d Cir. 2001); see also Ransome v.
Holmes, No. 12-4889, 2013 WL 6253668, at *4 (D.N.J. Dec.
4, 2013) (stating that ninety-day period that petitioner had
to file a petition for writ of certiorari on the denial of
PCR petition does not toll the AEDPA statute of limitations).
Therefore, petitioner's remaining period of 210 days (365
days - 155 days = 210 days) to file his federal habeas
petition began to run again on March 24, 2016.
to the prisoner mailbox rule, petitioner filed his federal
habeas petition on November 22, 2016. See Houston v.
Lack, 487 U.S. 266, 270-71 (1988); see also
Maples v. Warren, No. 12-0993, 2012 WL 1344828, at *1
n.2 (D.N.J. Apr. 16, 2012) (“Often times, when the
court is unable to determine the exact date that a petitioner
handed his petition to prison officials for mailing, it will
look to the signed and dated certification of the
petition.”). The period between when the New Jersey
Supreme Court denied certification on his PCR petition on
March 24, 2016, and when petitioner filed this federal habeas
petition on November 22, 2016, is 243 days. However,
petitioner only had 210 days remaining to file his federal
habeas petition in light of the 155 days that had run between
when his judgment became final and when he filed his PCR
petition. Accordingly, it appears as if petitioner filed his
federal habeas petition approximately one-month after his
one-year statute of limitations expired (155 days 243 days
= 398 days). Therefore, statutory tolling does not make
petitioner's habeas petition timely.
statutory tolling does not make petitioner's federal
habeas petition timely, it is possible that petitioner may be
able to establish equitable tolling. “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
circumstance stood in his way.” Pace, 544 U.S.
at 418; see also Jenkins, 705 F.3d at 89.
“There are no bright lines in determining whether
equitable tolling is warranted in a given case.”
See Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir.
2011). The Third Circuit has explained that “equitable
tolling is appropriate when principles of equity would make
rigid application of a limitation period unfair, ...