United States District Court, D. New Jersey
RICHARD A. SCOTT, Petitioner,
PATRICK NOGAN, Respondent.
Richard A. Scott Petitioner pro se
Patrick Daniel Isbill Camden County Prosecutor's Office
Counsel for Respondent
L. HILLMAN, U.S.D.J.
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
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.)
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).
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).
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.)
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.)
STATUTE OF LIMITATIONS ANALYSIS
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 ...