United States District Court, D. New Jersey
Bey Petitioner Pro Se
Murphy Sullivan Counsel for Respondent
L. HILLMAN, U.S.D.J.
Alamin Bey files this Amended Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2254, challenging his 2003 New
Jersey state court conviction. (ECF No. 5.) For the reasons
discussed below, Petitioner will be ordered to show cause why
the Amended Petition should not be dismissed as time-barred.
13, 2003, Petitioner entered a guilty plea to a charge of
third degree endangering the welfare of a child, in violation
of N.J.S.A. § 2C:24-4(a). (Am. Pet., Ex. B. Judgment of
Conviction.) He was sentenced to three years of probation,
community service, Megan's Law requirements and community
supervision for life. (Id.) Petitioner did not file
a direct appeal or a petition for post-conviction relief.
(Am. Pet. ¶¶ 8, 10.)
September 12, 2016, Petitioner filed his initial Petition.
(ECF No. 1.) In response to an Order from this Court,
Petitioner thereafter filed an Amended Petition which
complies with all local rules. (ECF No. 5.)
1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), which provides 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). Relevant for purposes of this case,
the limitations period begins to run when the judgment
becomes “final.” A state-court criminal judgment
becomes “final” within the meaning of §
2244(d)(1) by the conclusion of direct review or by the
expiration of time for seeking such review, including the
90-day period for filing a petition for writ of certiorari in
the Supreme Court of the United States. 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); U.S.
Sup.Ct. R. 13; 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
applicable, the 1-year limitation period is tolled during the
time that a valid state post-conviction review is pending.
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.”). An application for state post-conviction
relief is considered “pending” within the meaning
of § 2244(d)(2), and the limitations period is
statutorily tolled, from the time it is “properly
filed, ” during the period between a lower state
court's decision and the filing of a notice of appeal to
a higher court, Carey v. Saffold, 536 U.S. 214
(2002), and through the time in which an appeal could be
filed, even if the appeal is never filed. Swartz,
204 F.3d at 420-24. 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)).
petitioner may be able to overcome the time bar if he can
show a basis for equitable tolling. The Supreme Court has
stated that, “[g]enerally, a litigant seeking equitable
tolling [of the AEDPA statute of limitations] 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
v. DiGuglielmo, 544 U.S. 408, 418 (2005); 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, but that a court should be sparing in its use of the
doctrine.” Ross v. Varano, 712 F.3d 784 (3d
Cir. 2013) (citing Pabon, 654 F.3d at 399; Jones
v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)).
respect to the diligence that is necessary for equitable
tolling, the Third Circuit has stated that:
The diligence required for equitable tolling purposes is
reasonable diligence, not maximum, extreme, or exceptional
diligence. Holland, 130 S.Ct. at 2565. “This
obligation does not pertain solely to the filing of the
federal habeas petition, rather it is an obligation that
exists during the period appellant is exhausting state court
remedies as well.” LaCava v. Kyler, 398 F.3d
271, 277 (3d Cir. 2005).... The fact that a petitioner is
proceeding pro se does not insulate him from the
“reasonable diligence” inquiry and his lack of
legal knowledge or legal training does not alone justify
equitable tolling. See Brown v. Shannon, 322 F.3d
768, 774 (3d Cir. 2003).
Ross, 712 F.3d 784. Extraordinary circumstances may
be found where: (1) the petitioner has been actively misled;
(2) the petitioner has in some extraordinary way been
prevented from asserting his rights; or (3) where the
petitioner has timely asserted his rights in the wrong forum.
See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)
(citing Jones, 195 F.3d at 159). However,
“[i]n non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have
not been found to ...