United States District Court, D. New Jersey
Woods State Prison Petitioner Pro Se
Jennifer Webb-McRae Cumberland County Prosecutor Counsel for
L. HILLMAN, UNITED STATES DISTRICT JUDGE.
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
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.
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
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.
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.
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
(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 ...