United States District Court, D. New Jersey
B. KUGLER United States District Judge.
Bryant Banks (“Petitioner”) is a state prisoner
proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his guilty plea for first-degree murder. He is
currently serving a life sentence. Respondents have filed a
motion to dismiss the habeas petition as untimely. For the
reasons set forth below, the motion to dismiss will be
granted and Petitioner's habeas petition will be
dismissed because it was not filed within the one-year
April 25, 2000, Petitioner pled guilty to a charge of
first-degree murder in the Superior Court of New Jersey, Law
Division, Salem County. (ECF No. 7, Ex. 1). On June 1, 2000,
Petitioner was sentenced to life imprisonment with
eighty-five percent of the term to be served prior to parole
eligibility. (ECF No. 7, Ex. 3).
filed a Notice of Appeal with the Superior Court of New
Jersey, Appellate Division on September 25, 2000. (ECF No. 7,
Ex. 4). On March 27, 2001, the appeal was withdrawn by
Petitioner and dismissed by the Appellate Division. (ECF No.
7, Ex. 5).
October 4, 2001, Petitioner filed a motion to correct an
illegal sentence with the Law Division. (ECF No. 7, Ex. 6).
On July 5, 2002, Petitioner's motion was granted and he
was resentenced to life imprisonment with a thirty-year
parole disqualifier. (ECF No. 7, Ex. 7).
filed a pro se petition for post-conviction relief
(“PCR”) on January 31, 2003. (ECF No. 7, Ex. 8).
On October 7, 2003, the PCR court dismissed Petitioner's
pro se PCR petition without prejudice pending
assignment of counsel by the Office of the Public Defender
(“OPD”). (ECF No. 7, Ex. 9). The PCR court order
noted that “when the [OPD] is prepared to proceed
further … this matter shall be reinstated, with all
attendant rights as if it was not dismissed and a noted
filing date of March 4, 2003.” (Id.). The OPD
assigned counsel on June 23, 2004. (ECF No. 7, Ex. 10).
Assigned counsel wrote to the PCR court and Petitioner on
November 2 and November 4, 2005, respectively, indicating his
assignment to the case. (ECF No. 7, Exs. 11-12). On November
24, 2008, counsel notified Petitioner that his PCR petition
had been withdrawn. (ECF No. 7, Ex. 14).
October 15, 2012, Petitioner filed a second pro se
PCR petition. (ECF No. 7, Ex. 15). The PCR court held an
evidentiary hearing on the ineffective assistance of
Petitioner's original PCR counsel on January 10, 2014.
(ECF No. 7, Ex. 19). On March 21, 2014, the PCR court held an
evidentiary hearing with respect to the ineffective
assistance of Petitioner's plea counsel. (ECF No. 7, Ex.
20). On June 12, 2014, the PCR court issued an opinion
denying the second PCR petition on its merits. (ECF No. 7,
filed a Notice of Appeal on July 22, 2014 with the Appellate
Division. (ECF No. 7, Ex. 22). On March 8, 2016, the
Appellate Division denied Petitioner's PCR. (ECF No. 7,
Ex. 23). A notice of petition for certification was filed
with the New Jersey Supreme Court on March 10, 2016. (ECF No.
7, Ex. 24). On June 3, 2016, the Supreme Court issued an
order denying the petition for certification. (ECF No. 7, Ex.
filed a petition for writ of habeas corpus on April 14,
2017. (ECF No. 1). Respondents have filed a
motion to dismiss the habeas petition arguing that it is
untimely. (ECF No. 7). Petitioner filed a response in
opposition to the motion to dismiss arguing that equitable
tolling applies to his state PCR proceedings because of the
inaction of his original PCR counsel. (ECF No. 8).
argue that the habeas petition should be denied because it is
untimely. “A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1). That limitations period begins to
run when the criminal judgment becomes
“final.” “Final judgment in a criminal case
means sentence. The sentence is the judgment.”
Burton v. Stewart, 549 U.S. 147, 156 (2007) (citing
Berman v. United States, 302 U.S. 211, 212 (1937)).
A judgment becomes “final” within the meaning of
§ 2244(d)(1) at the conclusion of direct review or at
the expiration of time for seeking such review. See
Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000);
Morris v. Horn, 187 F.3d 333, 337 n.1 (3d Cir.
1999); see also 28 U.S.C. § 2244(d)(1)(A) (the
one-year period begins on “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review”).
filed a motion to correct an illegal sentence on October 4,
2001. Petitioner was resentenced on July 5, 2002, after
prevailing on his motion. Although Petitioner did not appeal
his resentence, he enjoys the benefit of the 45-day period in
which he could have appealed. See 28 U.S.C. §
2241(d)(1)(A) (one-year filing limitation is triggered at the
conclusion of the direct appeal process or the expiration of
the time for seeking such review). Thus, the one-year habeas
deadline began to run on August 19, 2002. Petitioner,
however, did not file his federal habeas ...