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Smith v. D'Ilio

United States District Court, D. New Jersey

February 6, 2018

JERMAINE SMITH, Petitioner,
v.
STEPHEN D'ILIO, et al., Respondents.

          JERMAINE SMITH Petitioner Pro Se

          LINDA A. SHASHOUA, ESQ. Attorney for Respondents

          OPINION

          JEROME B. SIMANDLE U.S. District Judge

         I. INTRODUCTION

         Before the Court is Petitioner Jermaine Smith's (“Petitioner”) amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Amended Petition, Docket Entry 8). Petitioner challenges the August 1, 2006, judgment of conviction sentencing him to twenty-eight years with an eighty-five percent period of parole ineligibility. Respondents filed a Response to the Amended Petition, denying Petitioner's claims for relief and raising certain affirmative defenses. For the reasons stated herein, the Court will dismiss the petition as time-barred, and no certificate of appealability will issue.

         II. BACKGROUND

         On May 25, 2006, a Camden County jury convicted Petitioner of carjacking, N.J. Stat. Ann. § 2C:15-2, and robbery, N.J. Stat. Ann. § 2C:15-1. (Docket Entry 19-4 at p. 1). The trial court merged the robbery count into the carjacking count for sentencing purposes and sentenced Petitioner to a term of twenty-eight years with an eighty-five percent period of parole ineligibility. (Id. at 4.). Petitioner filed a timely appeal with the New Jersey Superior Court Appellate Division. (Docket Entry 19-5); State v. Smith, No. A-5972-05T4, ( N.J.Super.Ct.App.Div. Dec. 18, 2007) (See Docket Entry 19-9). The Appellate Division affirmed Petitioner's conviction and sentence. Id. The Supreme Court of New Jersey denied Petitioner's petition for certification on April 3, 2008. State v. Smith, 949 A.2d 847 (N.J. 2008).

         Petitioner filed a petition for post-conviction relief (“PCR”) on May 29, 2009. (Docket Entry 19-16). The trial court denied the petition on October 19, 2011. (Docket Entry 19-19). Petitioner appealed and the Appellate Division affirmed the trial court's denial on December 6, 2013. (Docket Entry 19-14); State v. Smith, No. A-2851-11T4, 2013 WL 6331708 ( N.J.Super.Ct.App.Div. Dec. 6, 2013). The New Jersey Supreme Court denied certification on June 23, 2014. State v. Smith, 94 A.3d 910 (N.J. 2014).

         Petitioner filed his original habeas petition on September 24, 2014. On October 10, 2014, the Court administratively terminated this action because Petitioner failed to file his petition on the proper form and because Petitioner had not paid the filing fee or submitted an application to proceed in forma pauperis. (Docket Entry 2). Petitioner filed an amended petition on November 7, 2014. (Docket Entry 8). In his Amended Petition, Petitioner argues he was deprived of his rights to effective assistance of counsel and due process of law. After screening the Petition, the Court ordered respondents to file an answer. (Docket Entry 10). Respondents answered the Petition on July 6, 2015. Respondents asserted, among other things, that the Petition was time-barred pursuant to 28 U.S.C. § 2244.

         On August 4, 2015, Petitioner moved for an extension of time to file a traverse. (Docket Entry 21). On August 10, 2015, this Court granted the motion and ordered Petitioner to file his reply no later than September 14, 2015. (Docket Entry 22). Despite having been granted the extension, Petitioner did not file a traverse and did not make any further requests for additional time to do so.

         III. DISCUSSION

         Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA imposes a one-year period of limitation on a petitioner seeking to challenge his state conviction and sentence through a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the limitation period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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