United States District Court, D. New Jersey
JERMAINE SMITH Petitioner Pro Se
A. SHASHOUA, ESQ. Attorney for Respondents
B. SIMANDLE U.S. District Judge
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.
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).
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.
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.
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.
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
(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