United States District Court, D. New Jersey
L. LINARES, Chief Judge, United States District Court
before the Court is the petition for a writ of habeas corpus
of Mark Aquilina ("Petitioner") brought pursuant to
28 U.S.C. § 2254 challenging his state court murder
conviction. (ECF No. 1). On February 1, 2018, this Court
entered an order directing Petitioner to show cause why his
petition should not be dismissed as time barred. (ECF No. 3).
Petitioner thereafter filed a response. (ECF No. 4). For the
following reasons, the Court will dismiss the petition with
prejudice as time barred and no certificate of appealability
order directing Petitioner to show cause, this Court provided
the following summary of the procedural history of
Petitioner's criminal matter:
Petitioner was convicted [of the murder of his step-father]
after a jury trial and was sentenced on November 16, 2007.
(ECF No. 1 at 1). Petitioner appealed, and the Superior Court
of New Jersey -Appellate Division affirmed his conviction by
way of an opinion issued on March 31, 2011. See State v.
Aquilina, 2011 WL 1161303 ( N.J.Super. App. Div. Mar.
31, 2011). Petitioner thereafter filed a petition for
certification, which was denied by the New Jersey Supreme
Court on September 22, 2011. State v. Aquilina, 208
N.J. 338 (2011). As Petitioner did not file a petition for
certiorari, his conviction became final 90 days later on
December 21, 2011 ....
According to Petitioner he [thereafter] filed his
[post-conviction relief (PCR)] petition on March 7, 2012.
(ECF No. 1 at 3). The state PCR trial court denied that
petition in August 2014, and Petitioner appealed.
(Id. at 4). The Appellate Division affirmed the
denial of Petitioner's PCR petition on October 4, 2016.
State v. Aquilina, 2016 WL 5746623, at *1 (
N.J.Super. App. Div. October 4, 2016). Petitioner thereafter
sought certification, which was denied by the Supreme Court
on January 20, 2017[.] State v. Aquilina, 228 N.J.
(ECF No. 3 at 2-3).
28 U.S.C. § 2254(a), the district court "shall
entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States." The petitioner has the burden of
establishing his entitlement to relief for each claim
presented in his petition based upon the record that was
before the state court. See Eley v. Erickson, 712
F.3d 837, 846 (3d Cir. 2013); see also Parker v.
Matthews, 567 U.S. 37, 40-41 (2012). Under the statute,
as amended by the Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2244 ("AEDPA"), district
courts are required to give great deference to the
determinations of the state trial and appellate courts.
See Renico v. Lett, 559 U.S. 766, 772-73 (2010).
claim has been adjudicated on the merits by the state courts,
the district court shall not grant an application for a writ
of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Federal law is clearly
established for the purposes of the statute where it is
clearly expressed in "only the holdings, as opposed to
the dicta" of the opinions of the United States Supreme
Court. See Woods v. Donald, __ U.S. __, __, 135
S.Ct. 1372, 1376 (2015). "When reviewing state criminal
convictions on collateral review, federal judges are required
to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that
they were wrong." Id. Where a petitioner
challenges an allegedly erroneous factual determination of
the state courts, "a determination of a factual issue
made by a State court shall be presumed to be ...