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Rullan v. State

United States District Court, D. New Jersey

March 19, 2018

ANTHONY RULLAN, Petitioner,
v.
STATE OF NEW JERSEY, Respondent.

          South Woods State Prison Petitioner Pro Se

          Jennifer Webb-McRae Cumberland County Prosecutor Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, UNITED STATES DISTRICT JUDGE.

         Petitioner Anthony Rullan, a prisoner presently confined at South Woods State Prison in Bridgeton, New Jersey, filed an Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his 2008 New Jersey state court conviction. ECF No. 17. For the reasons discussed below, Respondent's Motion to Dismiss the Amended Petition as time-barred under 28 U.S.C. § 2244(d), ECF No. 30, will be granted and the Petition dismissed.

         I. BACKGROUND

         In 2008, Petitioner was convicted in New Jersey state court of the offenses of endangering the welfare of a child and lewdness observed by children under the age of thirteen. ECF No. 17, Am. Pet. at 2. Petitioner filed a timely direct appeal, which became final on January 30, 2011, ninety (90) days after the New Jersey Supreme Court denied his Petition for Certification on November 1, 2010. Id. at 3.

         Petitioner did not file his state court petition for post-conviction relief under July 25, 2011 - 175 days after his conviction became final. Id. at 4. His PCR petition was denied on July 2, 2012. Id. Petitioner did not appeal the denial of his PCR petition until December 19, 2012, which is 124 days after Petitioner's forty-five day period for an appeal to the Appellate Division of the Superior Court expired on August 16, 2012. Id. at 5. See N.J. Ct. R. 2:4-1(a) (providing forty-five days to appeal to the Appellate Division). On April 22, 2014, the Appellate Division affirmed the denial of his PCR petition. ECF No. 30, Answer, at 2. Petitioner filed a petition for certification with the New Jersey Supreme Court on June 11, 2014, which was denied on October 9, 2014. Id. at 3. The time between when Petitioner's time for filing a timely petition for certification to when he actually filed it is twenty-nine (29) days. See N.J. Ct. R. 2:12-3(a) (providing twenty (20) days in which to file a petition for certification).

         Petitioner effectively filed the Petition on January 2, 2015, and it was docketed on January 8, 2015. See ECF No. 1. The Petition was thus filed eighty-four (84) days after the denial of the New Jersey petition for certification. Petitioner subsequently amended his petition. See ECF No. 17.

         After a Motion to Dismiss was denied without prejudice, see ECF No. 23, Respondent filed a Second Motion to Dismiss on August 10, 2017, in which Respondent asserts the Petition should be dismissed as untimely under § 2244(d). ECF No. 30, at 1. Petitioner filed a response on the issue of timeliness raised in the motion to dismiss. ECF No. 31. Relevant to the instant Motion, Petitioner alleges that the time-stamped date on his PCR petition, which the Respondent alleges is July 25, 2011, is in fact July 14, 2011. See ECF No. 31. Petitioner includes time stamped copies of his filed PCR documents which purport to show a time-stamped date of July 15, 2011. Id. at 15-22. Petitioner signed his PCR petition on July 14, 2011, and also had his affidavit of indigency for his PCR petition notarized on July 14, 2011. See id. at 17, 19.

         II. DISCUSSION

         The governing statute of limitations under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) is found at 28 U.S.C. § 2244(d), which states in relevant part:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court. The limitation period shall run 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;
(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 ...

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