Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

King v. Johnson

United States District Court, D. New Jersey

May 1, 2017

GEORGE KING, Petitioner,
v.
STEPHEN JOHNSON, et al., Respondents.

          OPINION

          KEVIN MCNULTY United States District Judge.

         I. INTRODUCTION

         The 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.

         II. BACKGROUND

         Mr. 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.

         Mr. King moved for resentencing. On April 28, 2006, Mr. King received the same sentence. He did not file a direct appeal.

         On 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).

         On 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 p.46)

         Mr. King's federal habeas petition is deemed filed as of January 21, 2016.[1] 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.

         HI. DISCUSSION

         "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). 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).

         Mr. King was resentenced on April 28, 2006.[2] 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.

         A. Statutory Tolling

         The 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. ยง 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.