United States District Court, D. New Jersey
MCNULTY United States District Judge.
petitioner, George King, is a state prisoner currently
incarcerated at the New Jersey State Prison in Trenton, New
Jersey. He is proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Presently pending before this Court is respondents'
motion to dismiss the habeas petition as untimely. For the
following reasons, the motion to dismiss will be granted.
King pled guilty in 2004 to aggravated manslaughter,
possession of a weapon for an unlawful purpose, and resisting
arrest. On the aggravated manslaughter conviction, he was
sentenced to a twenty-five year prison term subject to an
eighty-five percent period of parole ineligibility. He also
received a concurrent five-year sentence for resisting
arrest. The weapons possession conviction merged into the
others for sentencing purposes.
King moved for resentencing. On April 28, 2006, Mr. King
received the same sentence. He did not file a direct appeal.
December 22, 2009, Mr. King filed a petition for
post-conviction relief ("PCR"). The Superior Court
of New Jersey, Law Division, Essex County, denied that PCR
petition on June 24, 2010. Mr. King appealed that decision to
the New Jersey Superior Court, Appellate Division.
(See Dkt. No. 9-1 at p.31) On March 23, 2012, the
Appellate Division affirmed the denial of the PCR petition in
a written decision. (See Id. at p.35-39) The New
Jersey Supreme Court denied certification on October 5, 2012.
See State v. King, 212 N.J. 287 (2012).
August 23, 2013, Mr. King filed a second PCR petition. That
petition was denied on November 27, 2013. On January 28,
2015, the Appellate Division affirmed. (See Dkt. No.
9-1 at p.43-44) Thereafter, on July 10, 2015, the New Jersey
Supreme Court denied certification. (See Id. at
King's federal habeas petition is deemed filed as of
January 21, 2016. On October 7, 2016, Respondents filed a
motion to dismiss the habeas petition as untimely.
(See Dkt. No. 9) Thereafter, Mr. King filed a motion
for extension of time to file his response to the motion to
dismiss. (See Dkt. No. 10) Good cause being shown,
the motion for an extension of time is granted and his
response to the motion to dismiss, filed November 9, 2016,
will be accepted. Respondents did not file a reply in support
of their motion to dismiss.
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. If direct review is not sought, the judgment becomes
final 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.l (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).
King was resentenced on April 28, 2006. New Jersey Court
Rule 2:4-1(a) gave Mr. King forty-five days from that date to
file an appeal to the New Jersey Superior Court, Appellate
Division. However, Mr. King did not file a direct appeal. His
judgment of conviction therefore became final on July 12,
2006. The one-year limitations period, unless tolled, would
therefore have expired on July 12, 2007. Mr. King did not
file his federal habeas petition until January 21, 2016.
Therefore, unless the one-year limitations period is tolled,
Mr. King's habeas petition is untimely.
filing of a 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 ...