United States District Court, D. New Jersey
Richard Barge, New Jersey State Prison Petitioner Pro Se.
L. HILLMAN UNITED STATES DISTRICT JUDGE.
Richard Barge, a prisoner presently confined at New Jersey
State Prison in Trenton, New Jersey, filed a Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254,
challenging his 2010 New Jersey state court conviction. ECF
time, the Court must screen the Petition in accordance with
Rule 4 of the Rules Governing Section 2254 Cases to determine
if the Petition should be dismissed because Petitioner is not
entitled to relief. For the reasons expressed below and
because the Petition as drafted shows that the claims are
time-barred, the Court will dismiss the Petition as untimely
and deny a certificate of appealability.
2010, Petitioner was convicted and sentenced in New Jersey
state court of murder and related firearms offenses. See ECF
No. 1, Pet. at 3. Petitioner filed a timely direct appeal,
which became final on December 30, 2013, ninety (90) days
after the New Jersey Supreme Court denied his petition for
certification on October 1, 2013. See Id. at 14.
March 14, 2014, Petitioner filed a state court PCR petition.
Id. at 14. The PCR petition was denied on May 8,
2015. Id. Petitioner's time for filing a timely
appeal to the Appellate Division of the New Jersey Superior
Court expired on June 22, 2015, forty-five days after the
entry of the order denying the PRC Petition. More than three
months after the expiration of the time for filing an appeal,
Petitioner filed the appeal of his PCR denial on September
24, 2015. ECF No. 1 at 14. The Appellate Division affirmed
the denial of the PCR petition on July 31, 2017. Id.
Petitioner next filed a timely petition for certification
with the Supreme Court of New Jersey on August 1, 2017, which
was denied on October 23, 2017. Id.
effectively filed this Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on July 25, 2018, the date
on which he placed the Petition into the prison's mailing
system, although it was not electronically filed until July
26, 2018. See Id. at 28. Petitioner's sole
ground for relief in the Petition is that he “was
denied the right to a fair trial when the court allowed
state's witness Steven Goldsboro to identify the
defendant as the shooter despite the impermissible
suggestiveness of a prior photo identification lineup and the
irreparable probability of misidentification.”
Id. at 7.
STANDARD OF REVIEW
corpus petitions must meet heightened pleading
requirements.” McFarland v. Scott, 512 U.S.
849, 856 (1994). Habeas Rule 2(c) requires a § 2254
petition to “specify all the grounds for relief
available to the petitioner, ” “state the facts
supporting each ground, ” “state the relief
requested, ” be printed, typewritten, or legibly
handwritten, and be signed under penalty of perjury. 28
U.S.C. § 2254 Rule 2(c).
Rule 4 requires the Court to sua sponte dismiss a § 2254
petition without ordering a responsive pleading “[i]f
it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.” 28 U.S.C. § 2254 Rule 4. Thus,
“[f]ederal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its
face.” McFarland, 512 U.S. at 856. Dismissal without
the filing of an answer or the production of the state court
record is warranted when “it appears on the face of the
petition that petitioner is not entitled to relief.”
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985). See
also McFarland, 512 U.S. at 856; United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas
petition may be dismissed where “none of the grounds
alleged in the petition would entitle [the petitioner] to
governing statute of limitations under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) is found at
28 U.S.C. § 2244(d), which provides in relevant part:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to a judgment of a State court. The
limitation period shall run from the latest of-(A) the date
on which the judgment became final by the conclusion of