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Severs v. Attorney General of State of New Jersey

United States District Court, D. New Jersey

March 19, 2018


          William Severs, New Jersey State Prison, Petitioner Pro Se.

          Jennifer Webb-McRae Cumberland County Prosecutor, Counsel for Respondent



         Petitioner William Severs, a prisoner confined at New Jersey State Prison in Trenton, New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his 2005 New Jersey state court conviction. ECF No. 1. For the reasons discussed below, Respondents' Motion to Dismiss the Petition as time-barred under 28 U.S.C. § 2244(d), ECF No. 10, will be granted and the Petition dismissed.

         I. BACKGROUND

         In 2005, Petitioner was convicted in New Jersey state court of the offenses of murder, unlawful possession of a firearm, unlawful possession of a weapon requiring an ID, and obstructing the administration of the law. See ECF No. 1, Pet. at 2. Petitioner filed a timely direct appeal, which became final on December 10, 2009, ninety (90) days after the New Jersey Supreme Court denied his Petition for Certification on September 11, 2009. See Id. at 3-8.

         On November 5, 2009, Petitioner filed a state court PCR petition. Id. at 8. The PCR petition was denied on October 4, 2011. Id. Petitioner notified the Office of the Public Defender by letter dated October 3, 2011 of his intent to appeal his PCR petition denial and requested the copies of the briefing from his direct appeal process so that he might use them in his PCR petition appeal. ECF No. 11, at 6. Petitioner wrote to his PCR attorney by letter dated October 20, 2011, stating as follows:

As you well know, we were denied an evidentiary hearing, on the date, September 22, 2011, and prior to leaving the courtroom, you made Judge Fineman aware of the fact, that your client, William Severs would need a copy of the Judge's decision, also you informed the Judge that we would be appealing the decision of the court. Mr. Paul, you explained to me that you were going to handle the filing of the appeal. As of this date (10-20-11), I have not heard anything from you. In the meantime, I have written to Ms. Jodi Ferguson (on 9-26-11), and to Mr. Raymond Black, (on 10-03-11); I made them aware that I am filing for an appeal, on my Post Conviction Relief petition, in which I was denied the right to an evidentiary hearing.

         ECF No. 11, at 8. Petitioner's time for filing a timely appeal to the Appellate Division of the New Jersey Superior Court expired on November 18, 2011, forty-five days after the entry of the order denying the PRC Petition on October 4, 2011.[1] Over a year later, Petitioner filed the appeal of his PCR denial on October 15, 2012. ECF No. 1, at 12. The Appellate Division affirmed the denial of the PCR petition on March 14, 2014. Petitioner next filed a petition for certification with the Supreme Court of New Jersey on March 19, 2014, which was denied on September 22, 2014. Id., at 15.

         Petitioner effectively filed this Petition on August 21, 2015, the date on which he placed the Petition into the prison's mailing system, although it was not docketed by the clerk until August 26, 2015. See Id. at 28. Respondents filed a Motion to Dismiss on August 10, 2017, in which they assert the Petition should be dismissed as untimely under § 2244(d). ECF No. 10, at 1. Petitioner filed a response on the issue of timeliness raised in the motion to dismiss. ECF No. 11. Relevant to the instant Motion, Petitioner includes a “certification” from his PCR attorney, in which the attorney states that he was involved in a serious car accident and was unable to timely perfect Petitioner's appeal. See Id. at 4. This certification appears to have been executed for the purposes of Petitioner's untimely PCR appeal to the Appellate Division. See Id. (dated February 29, 2012).


         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 ...

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