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Wilson v. The Attorney General of The State of New Jersey

United States District Court, D. New Jersey

November 19, 2018

DWAYNE WILSON, Petitioner,




         Presently before the Court is Respondents' motion to dismiss pro se Petitioner Dwayne Wilson's § 2254 habeas petition as untimely-filed. (ECF No. 8.) For the reasons stated herein, Respondents' motion will be granted, Petitioner's § 2254 petition will be dismissed with prejudice, and no certificate of appealability shall issue.


         Petitioner is currently incarcerated at New Jersey State Prison in Trenton, New Jersey, where he is serving a 40-year sentence after pleading guilty in New Jersey Superior Court to three separate counts of first-degree aggravated manslaughter and one count of second-degree aggravated assault. See State v. Wilson, No. A-0475-15T2, 2017 WL 3317919, at *1 ( N.J.Super.Ct.App.Div. Aug. 4, 2017). Petitioner entered his plea on September 26, 2010. (See Pet'r's Am. J. of Conviction, ECF No. 8-5 at PageID: 70.) Petitioner's relevant judgment of conviction was entered on December 21, 2010. (Id. at PageID: 72.)

         The Appellate Division of the New Jersey Superior Court (the “Appellate Division”) affirmed Petitioner's sentence on via a one-page order filed on November 21, 2011. (ECF No. 8-7.) That order makes clear that “the issues [raised by Petitioner on direct appeal] relate[d] solely to the sentence imposed[.]” (Id.) By letter dated December 7, 2011, the Office of the Public Defender (“OPD”) informed Petitioner that OPD would not be filing a petition for certification in the New Jersey Supreme Court on Petitioner's behalf. (ECF No. 8-8.) OPD advised Petitioner that he could nonetheless petition the New Jersey Supreme Court for certification, pro se, and provided him with sample forms to do so. (Id.) Petitioner never petitioned the New Jersey Supreme Court and did not otherwise pursue his direct appeal further. See Wilson, 2017 WL 33179719, at *1 (making no reference to further direct appeal proceedings beyond the Appellate Division's November 21, 2011 affirmance when summarizing the procedural history of Petitioner's state court proceedings).

         On or about September 2, 2014, Petitioner filed an application for post-conviction relief (“PCR”) in the New Jersey Superior Court's Law Division (hereinafter, the “PCR court”). (See ECF No. 8-9 at PageID: 78.) On July 23, 2015, the PCR court denied Petitioner's PCR application. (ECF No. 8-10.) On August 4, 2017, the Appellate Division affirmed the PCR court's denial of post-conviction relief to Petitioner. Wilson, 2017 WL 3317919, at *4. On February 28, 2018, the New Jersey Supreme Court denied Petitioner's petition for certification of his PCR appeal. State v. Wilson, 179 A.3d 1055 (N.J. 2018).

         Petitioner initiated this § 2254 habeas action on April 11, 2018.[1] (See ECF No. 1 at PageID: 11.) Petitioner's relevant habeas pleading was filed on or about July 13, 2018 (the “§ 2254 Petition”). (ECF No. 5.) On August 30, 2018, Respondents filed the present motion to dismiss the § 2254 Petition on timeliness grounds. (ECF No. 8.) Petitioner filed opposition to Respondents' motion on or about September 26, 2018. (ECF No. 9.)


         A. AEDPA's One-Year Filing Deadline

         “The Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA'), Pub. L. No. 104-132, 110 Stat. 1218, generally mandates that petitions for writ of habeas corpus be filed within one year after the conclusion of direct appellate review[.]” Engel v. Hendricks, 153 Fed.Appx. 111, 112 (3d Cir. 2005); accord Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013); see also 28 U.S.C. § 2244(d)(1)(A) (“A [one-year] period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a [State court]. The limitation period shall run from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”). Importantly, “if a state prisoner does not appeal a state court judgment, the judgment of conviction becomes final, and the one-year period begins to run [under 28 U.S.C. § 2244(d)(1)(A)], upon expiration of the time period allowed for pursuing an appeal.” Oduche v. U.S. Dep't of Homeland Sec., 607 F.Supp.2d 676, 680 (D. Del. 2009) (citing Kapral v. United States, 166 F.3d 565, 575, 578 (3d Cir. 1999); Jones v. Morton, 195 F.3d 153, 158 (3d Cir. 1999)).

         The record in this matter conclusively demonstrates (1) that the Appellate Division affirmed Petitioner's sentence on direct appeal on November 21, 2011 (see ECF No. 8-7); and (2) that Petitioner did not thereafter further pursue his direct appeal, e.g., Petitioner did not file a petition for certification in the New Jersey Supreme Court nor did he file a certiorari petition in the United States Supreme Court. Under the New Jersey Rules of Court, Petitioner was required to file his petition for certification on or before December 12, 2012, i.e., within twenty days of the Appellate Division's November 21st order[2] affirming Petitioner's sentence on direct appeal. See N.J. Ct. R. 2:13-2(a) (“If certification is sought to review a final judgment of the Appellate Division, the petitioner shall, within 20 days after its entry, serve a copy of a notice of petition for certification upon all parties who may be affected by the proceeding and shall file the original notice with the clerk of the Supreme Court.”). Petitioner's conviction therefore became final on December 12, 2012, when Petitioner's time to petition the New Jersey Supreme Court for certification on direct appeal expired. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (“because Gonzalez did not appeal to the State's highest court, his judgment became final [under § 2244(d)(1)(A)] when his time for seeking review with the State's highest court expired.”); accord Oduche, 607 F.Supp.2d at 680; Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012).

         In the absence of equitable or statutory tolling, Petitioner was required to file his § 2254 Petition by December 12, 2013. See 28 U.S.C. § 2244(d)(1)(A). Petitioner, however, filed his original habeas petition on April 11, 2018, more than four years “after the conclusion of direct appellate review[.]” Engel, 153 Fed.Appx. at 112. Petitioner's § 2254 Petition is therefore per se untimely under AEDPA.

         B. Statutory ...

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