United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge
or about August 28, 2017, pro se Petitioner Abbijial
Lamont Sloan, filed his initial petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his
state court murder conviction in this matter. (ECF No. 1). In
that initial filing, Petitioner neither paid the five dollar
filing fee nor used the form required for pro se
§ 2254 petitions pursuant to the local rules.
Following several orders directing him to properly refile his
petition, Petitioner eventually both paid the applicable
filing fee and refiled his petition on the correct form
(see ECF No. 10), and has certified that he is aware
that he is required to present all of his claims in one,
all-inclusive habeas petition and has therefore received the
notice required by Mason v. Meyers, 208 F.3d 414 (3d
February 26, 2018, this Court screened Petitioner's
habeas petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases and directed Petitioner to show cause why
his petition should not be dismissed as untimely filed. (ECF
April 2, 2018, Petitioner filed a response to that order, in
which he argues that he does not believe that his petition is
time barred. (ECF No. 12).
this Court explained in the order directing Petitioner to
Petitions for a writ of habeas corpus brought pursuant to 28
U.S.C. § 2254 are subject to a one year statute of
limitations. See See Ross v. Varano, 712 F.3d 784,
798 (3d Cir. 2013); see also Jenkins v. Superintendent of
Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013). In
most instances, including this matter, that one year
limitations period begins to run on the date that the
petitioner's judgment of conviction became final by the
conclusion of direct review or the expiration of the time for
seeking such review, including the 90-day period for filing a
petition for a writ of certiorari in the United States
Supreme Court. Ross, 712 F.3d at 798;
Jenkins, 705 F.3d 84; see also 28 U.S.C.
In this matter, Petitioner was convicted and sentenced in
January 2011. (ECF No. 10 at 1). He appealed his sentence,
and the Superior Court of New Jersey - Appellate Division
affirmed his conviction and sentence by way of an opinion
issued on December 12, 2012. See State v. Sloan,
2012 WL 6571097 (N.J. Sup. Ct. App. Div. Dec. 12, 2012).
Petitioner then filed a petition for certification, which the
New Jersey Supreme Court denied on June 28, 2013. See
State v. Sloan, 214 N.J. 118 (2013). As Petitioner did
not file a petition for certiorari,  his conviction thus
became final ninety days later on September 26, 2013.
Petitioner's one year limitations period thus started to
run as of that date, and ordinarily would have expired one
year later on September 26, 2014.
The one year statute of limitations applicable to § 2254
petitions, however, is subject to statutory tolling which
automatically arrests the running of the limitations while
the petitioner has a properly filed petition for
post-conviction relief (PCR) pending in the state courts.
Jenkins, 705 F.3d at 85 (quoting 28 U.S.C. §
22254(d)(2)). According to Petitioner, he filed his PCR
petition on December 4, 2013, after only sixty-nine days of
his one year limitations period had elapsed. (ECF No. 10 at
4). That petition was denied by the trial-level PCR court on
June 20, 2014. (Id. at 13). Petitioner appealed, and
the Appellate Division affirmed the denial of his PCR
petition on April 15, 2016. See State v. Sloan, 2016
WL 1466606 (N.J. Sup. Ct. App. Div. Apr. 15, 2016).
Petitioner did not file a petition for certification as to
his PCR petition. Petitioner's PCR petition thus ceased
to be pending before the state courts, at the latest, when he
failed to file a petition for certification within twenty
days of the Appellate Divisions' decision. See
N.J. Court R. 2:12-3 (requiring that an appellant seeking
review of a final decision of the Appellate Division file
notice of petition for certification within twenty days).
Thus, the remaining two hundred and ninety six days of
Petitioner's one year limitations period resumed running
by May 5, 2016, and Petitioner's limitation period had
thus expired as of February 25, 2017. Because Petitioner did
not file his current habeas petition until August 28, 2017
(see ECF No. 1), more than six months later, his
current habeas petition would be time barred absent some
basis for the equitable tolling of the statute of
Equitable tolling “is a remedy which should be invoked
‘only sparingly.'” United States v.
Bass, 268 Fed.Appx. 196, 199 (3d Cir. 2008) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d Cir.
1998)). To receive the benefit of equitable tolling, a
petitioner must show “(1) that he faced
‘extraordinary circumstances that stood in the way of
timely filing, ' and (2) that he exercised reasonable
diligence.” United States v. Johnson, 590
Fed.Appx. 176, 179 (3d Cir. 2014) (quoting Pabon v.
Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)).
(ECF No. 11 at 1-4, paragraph numbers omitted).
his response to this Court's order, Petitioner argues
that he has limited knowledge of the law, that he has had to
rely on twenty inmates for help in preparing his petition,
that he did file appeals to the Appellate Division, that he
does not believe that he should be time barred, and he
believes he should receive equitable and statutory tolling.
(ECF No. 12 at 1-7). It also appears that Petitioner believes
that the reason the Court found his petition time barred on
its face is because of his failure to file on the proper
form, and that had the Court accepted his original filing in
August of 2017, he would be timely.
Petitioner is mistaken. This Court gave him the benefit of
the date on which he filed his original petition in this
matter in finding his petition time barred. As explained
above, absent equitable tolling, his one year limitations
period expired in February 2017, six months before he filed
his first petition. This Court did not find his petition time
barred based on his inability to initially properly file his
petition, but instead found that it was time barred long
before that first attempt was filed. Likewise, this Court
acknowledged that Petitioner appealed to the Appellate
Division both on direct review and during his PCR process,
what the Court concluded that Petitioner failed to do was
petition the New Jersey Supreme Court for certification on
PCR review, which he does not now deny. Petitioner to show
that the procedural history laid out above is incorrect, and
thus has failed to show that his petition is not time barred
on its face. This Court has ...