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Tykot v. Johnson

United States District Court, D. New Jersey

December 28, 2018

BRIAN J. TYKOT, Petitioner,
v.
STEVEN JOHNSON, et al., Respondents.

          Brian J. Tykot, No. 453577/305899C New Jersey State Prison Petitioner Pro Se

          Jennifer L. Bentzel, Esq. Burlington Prosecutor's Office Counsel for Respondents

          NOEL L. HILLMAN UNITED STATES DISTRICT JUDGE

         Petitioner Brian J. Tykot, a prisoner presently confined at the 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 2003 New Jersey state court convictions. ECF No. 1. Respondent filed an Answer raising as an affirmative defense the statute of limitations, arguing that the Petition is untimely. ECF No. 5. Petitioner filed a reply. ECF No. 6.

         For the reasons discussed below, the Court will deny the Petition as time-barred under 28 U.S.C. § 2244(d).

         I. BACKGROUND

         In 2003, Petitioner pled guilty to and was convicted of three counts of murder in violation of N.J. Stat. 2C:11-32(3) in New Jersey state court. ECF No. 5-7 (judgment of conviction). He was sentenced on May 29, 2003 to life imprisonment with an 85% period of parole ineligibility consecutive to each count.[1]Id. Pursuant to Petitioner's guilty plea agreement, Petitioner agreed to waive his right to file an appeal. ECF No. 5 at 7.

         Four years later, Plaintiff filed a direct appeal to the Appellate Division of the New Jersey Superior Court on July 31, 2007, see ECF Nos. 5 at 9, 5-13 at 5, [2] which appeal was denied on April 29, 2008. ECF No. 5-8 (order denying appeal). The order denying the appeal was not filed until May 7, 2008. Id. Petitioner then filed a petition for writ of certification with the New Jersey Supreme Court. That petition was denied on October 22, 2008. ECF No. 5-9 (table opinion denying certification). Petitioner did not file a petition for writ of certiorari with the Supreme Court of the United States, and his time for doing so expired on January 20, 2009.

         While his petition for certification was pending, Petitioner filed a motion for post-conviction relief on November 19, 2008. See ECF No. 5-10 (PCR brief identifying date of filing of PCR petition). The PCR petition was denied by the Superior Court of New Jersey on July 29, 2010. ECF No. 5-11 (letter opinion denying PCR petition). Petitioner then appealed the denial of his PCR petition on August 20, 2010. ECF No. 5-12 (PCR appeal brief identifying date of appeal). His PCR petition denial was affirmed on appeal by the Appellate Division on July 24, 2013. ECF No. 5-14 (opinion denying appeal). Petitioner filed a petition for certification regarding the affirmance of the denial of his PCR petition with the Supreme Court of New Jersey, which was denied on April 14, 2014. ECF No. 5-15 (table opinion denying petition for certification). Petitioner did not file a petition for writ of certiorari with the Supreme Court of the United States regarding his PCR petition.

         Petition filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on December 22, 2016. ECF No. 1 at 11 (Petitioner's certification that the Petition was placed in the prison's mailing system on that date). In it, he argues that his convictions should be vacated because his confession was obtained in violation of his Fifth Amendment right to remain silent. See ECF No. 1-1 (brief in support of Petition). On the issue of timeliness, Petitioner states that his post-conviction relief became final on April 14, 2014, and thus his habeas petition would have been due by April 14, 2015. ECF No. 1 at 9. He argues, however, that “[d]ue to a clerical error at the Office of the Public Defender, petitioner did not receive the final state court decision until November 23, 2016, ” and he requests “equitable tolling from April 14, 2015 to November 23, 2016 due to attorney neglect.” Id.

         II. DISCUSSION

         The governing statute of limitations under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) is found at 28 U.S.C. § 2244(d), which states 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 direct review or the expiration of the time ...

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