Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Myrtle v. State

United States District Court, D. New Jersey

June 6, 2018

JOEL MYRTLE, Petitioner,
v.
STATE OF NEW JERSEY, Respondent.

          MEMORANDUM AND ORDER TO SHOW

          HON. BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE

         THIS MATTER has been opened to the Court by Petitioner Joel Myrtle (“Petitioner”), upon the filing of his Amended Petition for a Writ of Habeas Corpus (“Amended Petition”) (ECF No. 6) brought pursuant to 28 U.S.C. § 2254, and an application to proceed in forma pauperis (“IFP Application”).[1] (ECF No. 4.) For good cause appearing, Petitioner's IFP Application is GRANTED, and the Court will screen the Amended Petition for summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”) and determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” For the reasons explained in this Memorandum and Order, the Court will direct Petitioner to SHOW CAUSE why his Amended Petition should not be dismissed as untimely and as a mixed petition under the Antiterrorism Effective Death Penalty Act (“AEDPA”).

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         This Court recounts only the facts necessary to this Memorandum and Order.[2] Petitioner's Judgment of Conviction (“JOC”) is dated May 20, 2005. (ECF No. 12-1 at 28-29). Petitioner's Notice of Appeal was stamped “Received” on June 17, 2005. (Notice of Appeal (ECF No. 12-1) at 30.) On April 2, 2008, the Appellate Division affirmed Petitioner's conviction and sentence in an unpublished decision. See State v. Myrtle, No. A-5540-04T4, 2008 WL 860956, at *14 ( N.J.Super.Ct.App.Div. Apr. 2, 2008). The Supreme Court denied certification on June 12, 2008. State v. Myrtle, 196 N.J. 85 (Jun. 12, 2008).

         Petitioner subsequently filed a pro se petition for post-conviction relief (“First PCR”), which is dated March 15, 2010, and is stamped “Received” on May 19, 2010. (Pro-Se Petition for Post Conviction Relief (ECF No. 12-1) at 53-60.) It appears the First PCR was subsequently dismissed without prejudice by Order dated February 24, 2012, and Petitioner's original filing date was explicitly preserved in the Order. (Order dismissing First PCR (ECF No. 12-1) at 61.)

         On September 16, 2014, Petitioner reinstated his PCR (“Second PCR”), which was stamped “Received” on September 23, 2014. (ECF No. 12-1 at 63-123; see also Brief in Support of Motion for PCR (“Counseled PCR Brief”) (ECF No. 12-1) at 1-26.) Among other claims, Petitioner's Second PCR requests a new trial based on newly discovered evidence from a Department of Justice Investigation of the Newark Police Department. (ECF No. 12-1 at 15-23, Counseled PCR Brief, at 10-18; see also 12-1 at 73-123, Investigation of the Newark Police Department, United States Department of Justice Civil Rights Division, dated July 22, 2014.) It is not clear whether Petitioner has exhausted the claims raised in his PCRs, most notably the claim for newly discovered evidence, by raising the claims therein to every level of the state court. In a letter to this Court dated July 12, 2016, Petitioner appears to state his Second PCR was dismissed with prejudice by the Essex County Superior Court, but he has not attached the notice of dismissal or informed the Court as to whether he appealed the dismissal of his second PCR to the Appellate Division and New Jersey Supreme Court. (ECF No. 12.)

         Petitioner's initial habeas Petition is dated November 16, 2014, and was docketed on November 18, 2014. (ECF No. 1.) The Court administratively terminated the matter because Petitioner did not pay the filing fee or use the correct form. Petitioner subsequently submitted an application to proceed in forma pauperis and an Amended Petition on the correct form. (ECF Nos. 4, 6.) The Amended Petition raises seven grounds for relief (ECF No. 6 at 6-17), and contains the required notice pursuant to Mason v. Myers, 208 F.3d 414 (3d Cir. 2000). (ECF No. 6 at 17.)

         II. STANDARD OF REVIEW

         “Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994); United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000). Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” 28 U.S.C. § 2254; Rule 4. Dismissal without the filing of an answer is warranted “if it appears on the face of the petition that petitioner is not entitled to relief.” Id.; see also McFarland, 512 U.S. at 856; Thomas, 221 F.3d at 437 (noting that a habeas petition may be dismissed where “none of the grounds alleged in the petition would entitle [the petitioner] to relief”). As explained below, Plaintiff's Amended Petition appears to be subject to dismissal as certain claims are untimely and others are unexhausted.

         III. DECISION

         a. Timeliness

         Under AEDPA, Congress prescribed a one-year period of limitation for the filing of federal habeas corpus petitions by state prisoners. See Douglas v. Horn, 359 F.3d 257, 261 (2004); 28 U.S.C. § 2241(d)(1). Pursuant to 28 U.S.C. § 2241(d)(1), the limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.