United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge.
or about October 17, 2018, Petitioner Altowan Nixon, filed a
petition for a writ of habeas corpus challenging his 1995
state court conviction which resulted in a life sentence with
a thirty-year parole disqualifier. (ECF No. 1).
Because Petitioner had not paid the applicable filing fee,
this Court administratively terminated this matter on
November 5, 2018. (ECF No. 2).
Following Petitioner's payment of the filing fee, this
Court screened his petition and dismissed it without
prejudice as Petitioner had failed to clearly identify the
grounds for relief which he desired to raise. (ECF No. 3; ECF
Docket Sheet; ECF No. 4).
Although this Court provided Petitioner with leave to file an
amended petition in that Order, this Court specifically
brought to Petitioner's attention another issue - that
his petition appeared to be time barred. (ECF No. 4 at 2-3).
As this Court explained,
Petitions for a writ of habeas corpus brought pursuant to 28
U.S.C. § 2254 are subject to a one-year statute of
limitations, which in most case begins to run with the
conclusion of direct review or the time for seeking such
review, including the 90-day period for the filing of a
certiorari petition to the United States Supreme Court.
See Ross v. Varano, 712 F.3d 784, 798 (3d
Cir. 2013); Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 84 (3d Cir. 2013); see
also 28 U.S.C. § 2244(d)(1)(A).
Here, Petitioner's direct appeal concluded with the
denial of certification on June 17, 1998. (ECF No. 1 at 4).
His conviction became final ninety days later on September
15, 1998. (Id.). Petitioner thereafter filed his PCR
petition on June 10, 1999. (Id.). Petitioner's
one year statute of limitations was thereafter tolled
pursuant to statutory tolling until that petition ceased to
be pending in the state courts, see Jenkins, 705
F.3d at 85 (habeas limitations period statutorily tolled
while properly filed state court PCR petition is pending in
the state courts), with the denial of certification on that
petition on June 6, 2002. (Id. at 5). Petitioner did
not file another PCR petition until March 28, 2004, nearly
two years later. Based on this time line, nine months of
Petitioner's one-year limitations period expired prior to
Petitioner's filing of his first PCR petition, and the
remaining three months expired between the conclusion of
Petitioner's first PCR petition and his filing of a
second almost two years later. Petitioner's habeas
petition thus appears to be time barred absent some basis for
(Id.). Based on these facts, as well as the
intervening years which passed after
Petitioner's three attempts at filing PCR petitions had
run their course in the state courts, this Court specifically
directed Petitioner to address the time bar issue should he
choose to file an amended petition. (Id.).
or about December 21, 2018, Petitioner filed an amended
petition. (ECF No. 5). Although Petitioner provided more
information in his amended petition as to what claims he
wishes to raise before this Court, he failed to comply with
this Court's order directing him to address the time bar
January 7, 2019, this Court entered an order to show cause
which again directed Petitioner to explain why his petition
should not be dismissed as time barred within forty-five
days. (ECF No. 6). Although more than forty-five days have
passed, Petitioner has not filed a response.(ECF Docket
this Court explained above and has previously brought to
Petitioner's attention on two occasions, Petitioner's
current habeas petition is clearly time barred absent some
basis for equitable tolling or a later start date for the
limitations period than the date on which his conviction
became final. Despite being given the opportunity to do so,
Petitioner has failed to provide any basis for equitable
tolling, nor does this Court perceive any such basis from
to a later starting date for the habeas limitations period,
Petitioner has presented no clear argument to that effect,
but his claims appear to suggest that Petitioner believes he
should be considered timely because his claims arise out of
the Supreme Court's decision in Miller v.
Alabama, 567 U.S. 460 (2012), which was applied
retroactively to cases on collateral review by the
Court's later decision in Montgomery v.
Louisiana, ___U.S.___, 136 S.Ct. 718 (2016).
Pursuant to 28 U.S.C. § 2244(d)(1)(C), a
petitioner's habeas limitations period will run from the
date “on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized and made retroactively applicable to
cases on collateral review, ” where that date is later
than the date on which his conviction became final.
Miller and Montgomery, however, did not
recognize the right Petitioner appears to be claiming - that
his life sentence with a thirty-year period of parole
ineligibility violates the Eighth Amendment. In
Miller, the Court determined only that a sentencing
scheme that imposed “mandatory life without parole for
those under the age of 18 at the time of their crimes”
violated the Eighth Amendment. 567 U.S. at 465. The right the
Court recognized was thus expressly limited to statutory
schemes requiring that a juvenile offender receive life
without parole without any consideration of factors including
his age and maturity. Id. at 468-69. The Court left
completely untouched those schemes which only imposed such a
sentence after consideration of such factors, and likewise in
no way invalidated sentences for juveniles of less than life
without parole. Id. Indeed, in making
Miller retroactive, the Court in Montgomery
specifically explained that any Miller error would
be remedied where a state adopts a sentencing scheme which
provides for eventual parole ineligibility.
Montgomery, 136 S.Ct. at 736 (citing with approval
Wyoming's statute which provides for parole eligibility
for juvenile homicide convicts after 25 years). As the
Appellate Division explained to Petitioner in denying him
relief under Miller, Montgomery, and their
state court progeny, Petitioner was not sentenced under a
scheme requiring life without parole for juvenile offenders
and did not himself receive a sentence of life without parole
- instead he ...