United States District Court, D. New Jersey
MEMORANDUM AND ORDER
FREDA
L. WOLFSON, UNITED STATES DISTRICT JUDGE
Petitioner,
Julius Davis (“Davis” or
“Petitioner”), is a state prisoner incarcerated
at Northern State Prison, in Newark, New Jersey. He is
proceeding pro se with this petition for writ of
habeas corpus under 28 U.S.C. § 2254. (ECF No.
1.) In screening the Petition under Rule 4 of the Rules
Governing § 2254 Cases, the Court observed that
Davis's Petition appeared to be untimely under the
one-year limitations period set by the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), and
ordered Davis to show cause why the proceeding should not be
dismissed on this basis. (ECF No. 5.) In his response, Davis
concedes that the Petition is untimely, but asserts that his
petition should nonetheless be considered, as he can
establish his actual innocence of the crimes for which he was
convicted. (See ECF No. 6.) Specifically, Davis
contends that two witnesses, discovered after trial, can
provide exonerating testimony, including one who can
purportedly “identify the perpetrator(s) of the
underlying offense(s)” and “state with certainty
that Davis did not commit the offense(s).” (ECF No. 6
& Ex. A.)
Based
on these new pleadings, the Court finds that a dismissal of
the Petition upon preliminary screening is not warranted.
Thus, the Court orders Respondents to file an answer to the
Petition or, alternatively, a motion to dismiss on timeliness
grounds. If respondents move to dismiss the Petition on
timeliness grounds, they shall specifically address
Davis's actual-innocence arguments raised in his response
to the Order to Show Cause.
Accordingly,
IT IS, on this 15th day of January 2019, ORDERED that the
Clerk of the Court shall serve, pursuant to Rule 4 of the
Rules Governing § 2254 Cases, a Notice of Electronic
Filing of this Order on the State of New Jersey, Department
of Law & Public Safety, Division of Criminal Justice,
Appellate Bureau (“the Bureau”), in accordance
with the Memorandum of Understanding between this Court and
the Bureau; and it is further
ORDERED
also in accordance with the Memorandum of Understanding, that
if the Bureau intends to refer the action to a county
prosecutor's office, the Bureau will use its best efforts
to upload to CM/ECF a “referral letter”
indicating the name of that office within fourteen (14)
calendar days from the date of this Order; and it is further
ORDERED
that where the Petition (ECF No. 1) appears to be untimely
under the Antiterrorism and Effective Death Penalty Act of
1996, within forty-five (45) days of the date this Order is
filed, Respondents may file a motion to dismiss the Petition
on timeliness grounds only, provided that the motion (1)
attaches exhibits that evince all relevant state-court filing
dates, (2) contains legal argument discussing pertinent
timeliness law, including argument concerning
Petitioner's actual-innocence claim, and (3)
demonstrates that an answer to the merits of the Petition is
unnecessary; and it is further
ORDERED
that if a motion to dismiss is filed, Petitioner shall have
thirty (30) days to file an opposition brief, in which
Petitioner may argue any bases for statutory and/or equitable
tolling, and to which Petitioner may attach any relevant
exhibits; and it is further
ORDERED
that if Petitioner files an opposition, Respondents shall
have ten (10) days to file a reply brief; and it is further
ORDERED
that if the motion to dismiss is subsequently denied, the
Court will then direct Respondents to file a full and
complete answer to all claims; and it is further
ORDERED
that if Respondents do not file a motion to dismiss the
Petition, Respondents shall file a full and complete answer
to all claims asserted in the Petition within forty-five (45)
days of the entry of this Order; and it is further
ORDERED
that Respondents' answer shall respond to each factual
and legal allegation of the Petition, in accordance with Rule
5(b) of the Rules Governing § 2254 Cases; and it is
further
ORDERED
that Respondents' answer shall address the merits of each
claim raised in the Petition by citing to relevant federal
law; and it is further
ORDERED
that, in addition to addressing the merits of each claim,
Respondents shall raise by way of the answer any appropriate
defenses that Respondents wish to have the Court consider,
including, but not limited to, exhaustion and procedural
default, and also including, with respect to the asserted
defenses, relevant legal arguments with citations to
appropriate federal legal authority; all non-jurisdictional
affirmative defenses subject to waiver not raised in
Respondents' answer or at the earliest practicable moment
thereafter may be deemed waived; and it is further
ORDERED
that Respondents' answer shall adhere to the requirements
of Rule 5(c) and (d) of the Rules Governing § 2254 Cases
in providing the relevant state-court record of ...