Scott v. Nogan

          Richard A. Scott Petitioner pro se

          Patrick Daniel Isbill Camden County Prosecutor's Office Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Richard A. Scott (“Petitioner”), a prisoner presently incarcerated at East Jersey State Prison in Rahway, New Jersey has filed a petition for a Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254. (ECF No. 3.) Respondent Patrick Nogan (“Respondent”) previously filed a motion to dismiss the Petition on timeliness grounds, (ECF No. 7), which was denied without prejudice, (ECF No. 8). By order of the Court, (ECF No. 8), Respondent thereafter filed a full and complete answer to the Petition, (ECF No. 11). Petitioner did not file a reply. The Petition is ripe for disposition. For the reasons stated below, the Petition will be dismissed as untimely.

         I. BACKGROUND

         Following a jury trial, Petitioner was convicted of first-degree possession of a controlled dangerous substance with intent to distribute, N.J. Stat. Ann. § 2C:35-5(b)(1); fourth-degree resisting arrest, N.J. Stat. Ann. § 2C:29-2(a)(2); third-degree unlawful possession of a weapon, N.J. Stat. Ann. § 2C:39-5(b); and second-degree possession of a weapon during a controlled dangerous substance offense, N.J. Stat. Ann. § 2C:36-4.1(a). (ECF No. 11-4, at 1.) Petitioner was sentenced to an aggregate 30-year term of imprisonment, subject to the No. Early Release Act, N.J. Stat. Ann. § 2C:43-7.2. (Id.)

         Petitioner filed a direct appeal to the Superior Court, Appellate Division, which affirmed his conviction and sentence. State v. Scott, Indictment No. 07-08-2792, 2011 WL 709700 ( N.J.Super.Ct.App.Div. Mar. 2, 2011). Petitioner filed a petition for certification with the New Jersey Supreme Court, which was denied on July 14, 2011. State v. Scott, 23 A.3d 414 (N.J. 2011).

         Petitioner thereafter filed a petition for post-conviction relief (the “PCR Petition”) in the Superior Court of New Jersey, Law Division. (ECF No. 11-13) Although the PCR Petition was signed by Petitioner on August 18, 2011, it was not marked filed by the Superior Court until January 20, 2012. (See Id. at 1-2.) The trial court denied the PCR Petition on February 22, 2013. (ECF No. 11-17.) Petitioner filed a notice of appeal to the Appellate Division on October 29, 2013. (ECF No. 11-18.) On June 26, 2015, the Appellate Division denied Petitioner's appeal. State v. Scott, A-0998-13T1, 2015 WL 3905016 ( N.J.Super.Ct.App.Div. June 26, 2015). Petitioner filed a timely petition for certification to the New Jersey Supreme Court, which was denied on October 29, 2015. State v. Scott, 124 A.3d 240 (N.J. 2015).

         On August 12, 2016, Petitioner filed the instant petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The Petition was administratively terminated on September 6, 2016, based on Petitioner's failure to sign or date the Petition. (ECF No. 2.) A properly signed and dated Petition was filed on September 26, 2016. (ECF No. 3.) In the Petition, Petitioner claims that his counsel was ineffective by failing to properly advise him during plea negotiations and by failing to object to the admission of a lab report at trial. (ECF No. 3, at 22-25.)

         This Court ordered Respondent to file an answer or move in response to the Petition, (ECF No. 4), and Respondent thereafter filed a motion to dismiss the Petition as untimely, (ECF No. 7). In an Order dated November 27, 2017, this Court denied without prejudice Respondent's motion to dismiss and ordered Respondent to file a full and complete answer to the Petition. (ECF No. 8.) In his full and complete answer, Respondent re-raises his argument in support of dismissal on timeliness grounds and otherwise argues that the claims raised in the Petition lack merit and should be denied. (ECF No. 11.)

         II. STATUTE OF LIMITATIONS ANALYSIS

         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 for seeking such review . . .

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...