United States District Court, D. New Jersey
L. LINARES, Chief Judge, United States District Court
or about December 21, 2017, Petitioner, Darnell Leary, filed
his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging his 1995 state court
aggravated sexual assault conviction. (ECF No. 1).
January 3, 2018, this Court entered an order administratively
terminating Petitioner's habeas matter as
Petitioner had not used the form required by the Local Civil
Rules. (See ECF No. 2).
Following Petitioner's filing of an amended petition on
the appropriate form (ECF No. 3), this Court entered an
order screening Petitioner's amended
petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases and directing Petitioner to show cause within
thirty days why his petition should not be dismissed as time
barred. (ECF No. 4).
Despite the passage of nearly two months since the Order to
Show Cause was entered on February 13, 2018, Petitioner has
failed to file a response to the Order. (ECF Docket Sheet).
this Court explained in the Order to Show Cause,
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 cases, that one-year statute of
limitations begins to run on the date on which 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 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.
§ 2244(d)(1)(A). Where a petitioner's conviction
became final prior to the effective date of the AEDPA,
however, the one-year limitations period instead runs from
the effective date of the statute, April 24, 1996. See,
e.g., Bums v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
In this matter, Petitioner pled guilty in September 1994, and
was sentenced on June 2, 1995. (See ECF No. 3 at 1,
20). Because Petitioner did not file a direct appeal, his
conviction became final forty-five days later when his time
for filing an appeal expired. See N.J. Court R.
2:4-l(a) (appeals from final judgments of state courts must
be filed within forty-five days). Because Petitioner's
conviction therefore became final well before April 1996, his
one-year limitations period instead would run from April 24,
1996, and expired one year later in April 1997.
In his petition, however, Petitioner argues that his one-year
limitations period should run from a later date because he
did not become aware of the basis for his claims,
specifically that he was subject to sex offender monitoring,
and in turn civil commitment, when he failed to comply with
that monitoring until his release from prison, which occurred
in 2009, or when he was sentenced in 2013 for failing to
comply with sex offender monitoring. (See ECF No. 3
at 14, 21-22). Even assuming, arguendo, that
Petitioner could show that he is entitled to an earlier start
date because his claims could not have been discovered sooner
with due diligence, see 28 U.S.C. §
2244(d)(1)(D), his one-year limitations period would still
have run a year later in 2010 or 2014, more than three years
before he filed his current petition, and Petitioner's
habeas petition is therefore untimely absent some
basis for tolling of the statute of limitations.
In his habeas petition, Petitioner presents only one
argument for tolling of the one-year limitations period -
that his one-year limitations period should not have begun to
run until he learned of the denial of certification on his
appeal from the denial of his post- conviction relief
petition which he filed in May 2014. (ECF No. 1 at 14, 21).
While it is true that a properly filed petition for state
post-conviction relief will statutorily toll the AEDPA
limitations period while it remains pending in the state
courts, see Jenkins, 705 F.3d at 85 (quoting 28
U.S.C. § 2244(d)(2)), a post-conviction relief petition
will only be "properly filed" and confer such
tolling where "its delivery and acceptance are in
compliance with the applicable laws and rules governing
filings ... including time limits, no matter their
form." Id. (internal quotations omitted).
"Thus, if a state court determines that an application
is untimely, that [is] the end of the matter" and the
petitioner is not entitled to statutory tolling based on his
filing of a post-conviction relief petition. Id.; see
also Pace v. DiGuglielmo, 544 U.S. 408, 414-17 (2005).
Unfortunately for Petitioner, the state courts specifically
found that his state post-conviction relief petition was
untimely filed. (See ECF No. 3 at 20-22). As such,
the filing of his post-conviction relief petition provides no
basis for the tolling of AEDPA's one-year limitations
period, and Petitioner's one-year limitations period
would have expired several years before Petitioner filed his
current petition even if this Court accorded Petitioner a
2013 start date rather than the 1997 date which appears to
apply. Thus, absent some basis for equitable tolling,
Petitioner's habeas petition is clearly time
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)). A petitioner
who shows only excusable neglect is not entitled to the
benefit of equitable tolling. United States v.
Thomas, 713 F.3d 165, 174 (3d Cir. 2013).
In his habeas petition, Petitioner presents, at
best, an argument that his tardy filing should be permitted
because of his own excusable neglect insomuch as he did not
discover that he was subject to civil commitment or sex
offender monitoring until he was released from prison in
2009. Such excusable neglect, however, does not warrant
equitable tolling, and even if it did, that tolling would at
best only toll Petitioner's limitations period until he
was civilly committed, which apparently occurred some time in
late 2013 or early 2014, several years before Petitioner
filed his habeas petition. Petitioner thus does not
appear to be entitled to equitable tolling, and his
habeas petition appears to be well and truly time
barred by many years. Because Petitioner has not fully
addressed the issue of equitable tolling in his ...