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Banks v. Pierce

United States District Court, D. New Jersey

March 23, 2018

BRYANT BANKS, Petitioner,
v.
DAVID PIERCE, et al., Respondents.

          OPINION

          ROBERT B. KUGLER United States District Judge.

         I. INTRODUCTION

         Petitioner 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 limitations period.

         II. BACKGROUND

         On 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).

         Petitioner 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 On March 27, 2001, the appeal was withdrawn by Petitioner and dismissed by the Appellate Division.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).

         On 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).

         Petitioner 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).

         On 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, Ex. 21).

         Petitioner 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. 25).

         Petitioner filed a petition for writ of habeas corpus on April 14, 2017.[1] (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).

         III. DISCUSSION

         Respondents 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.”[2] “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”).

         Petitioner 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. ยง 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 ...


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