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Leary v. Lanigan

United States District Court, D. New Jersey

May 3, 2018

DARNELL LEARY, Petitioner,
GARY LANIGAN, et al., Respondents.


          JOSE L. LINARES, Chief Judge, United States District Court


         1. On 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).

         2. On 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).

         3. Following Petitioner's filing of an amended petition on the appropriate form (ECF No. 3), this Court entered an order[1] 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).

         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).

         5. As 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 barred.
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 ...

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