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Sloan v. Johnson

United States District Court, D. New Jersey

May 10, 2018

ABBIJIAL LAMONT SLOAN, Petitioner,
v.
STEVEN JOHNSON, Respondent.

          MEMORANDUM OPINION

          SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE.

         IT APPEARING THAT:

         1. On 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.

         2. 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.3d414(3dCir. 2000).

         3. On 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 No. 11).

         4. On 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).

         5. As this Court explained in the order directing Petitioner 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 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. § 2244(d)(1)(A).
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 limitations. []
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).

         6. Petitioner thereafter filed a response to the order to show cause. (ECF No. 12). In his response, Petitioner did not assert that he had filed a petition for certification on appeal from the denial of his PCR petition. (Id.).

         7. On April 23, 2018, this Court entered a final memorandum order and opinion dismissing Petitioner's habeas petition with prejudice as time barred. (ECF Nos. 13-14). As this Court explained at that time, Petitioner had failed to dispute the above quoted procedural history, and had failed to show any basis for ...


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