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Harris v. Nogan

United States District Court, D. New Jersey

April 1, 2019

FAYYAADH HARRIS, Petitioner,
v.
PATRICK NOGAN, et al., Respondents.

          OPINION

          JOHN MICHAEL VAZQUEZ UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Presently before the Court is Petitioner Fayyaadh Harris's pro se motion seeking relief, pursuant to Federal Rule of Civil Procedure 60(b), from the Court's November 28, 2017 Order dismissing his § 2254 habeas petition as untimely. (DE 12.) For the reasons stated herein, Mr. Harris's Rule 60(b) motion is denied.

         II. BACKGROUND

         On January 4, 2017, Harris filed his § 2254 petition (the “Petition”) in this Court. (DE 1; see also DE 11 at 7.) On May 3, 2017, Respondents filed a motion to dismiss the Petition as untimely, i.e., because it was filed by Harris “after the running of the one-year statute of limitations imposed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (‘AEDPA'), 28 U.S.C. § 2241 et seq.” (DE 7-1 at ¶ 29.) The Court, agreeing with Respondents, dismissed the Petition with prejudice on November 28, 2017. (DE 12.)

         In so doing, the Court noted that that the New Jersey Supreme Court denied Harris's petition for certification on direct appeal on September 11, 2007. (DE 11 at 2.) Accordingly, there was no dispute that Harris's state court conviction became “final” under AEDPA ninety days later, on December 10, 2007. (Id. at 6.) In addition, the New Jersey Supreme Court denied certification on Harris's post-conviction relief (“PCR”) appeal on April 1, 2016. (Id. at 2-3.) In addition, between September 11, 2007 and April 1, 2016, there were a total of 219 days in which AEDPA's one-year clock ran.[1] (Id. at 6-7.) The Court calculated those days as follows:

There is no dispute that [AEDPA's one-year] statute of limitations began to run on December 10, 2007, when Harris' direct review became final. The statute of limitations ran for two days before Harris timely filed a PCR petition. The PCR Court denied the petition on January 27, 2009. Harris had 45 days to file a notice of appeal, and he missed the March 14, 2009 deadline. See N.J. R.A.R. 2:4-1(a). Therefore, the first PCR proceeding was no longer pending on March 14, 2009, and the statute of limitations began to run again. Thompson [v. Adm'r New Jersey State Prison, 701 Fed.Appx. 118, 2017 WL 2712966, at *3 (3d. Cir. 2017)].
Harris filed a late-notice of appeal on July 22, 2009, after 131 days of the limitations period had run. The late-filed notice of appeal was accepted by the state court as within time, and therefore tolled the statute of limitations on July 22, 2009. Thompson, 2017 WL 2712966, at *5 (state court's acceptance of a motion as within time is important indication of whether it was properly-filed.) Following remand, the PCR court denied Harris relief on January 10, 2014. Harris had forty-five days to appeal, until February 24, 2014, but he did not file a timely notice of appeal. Thus, the statute of limitations began to run again on February 25, 2014. Harris filed notice of appeal on March 21, 2014, which was once again accepted by the state court as within time. Therefore, the notice of appeal was properly filed and tolled the statute of limitations on March 21, 2014. In the meantime, another 25 days of the limitations period had run.
The Appellate Division then affirmed the PCR Court on June 15, 2015. Harris had 10 days to file a motion for reconsideration pursuant to New Jersey Court Rule 2:11-6(a), unless extended by the court. He did not file his motion for reconsideration until July 28, 2015. The state court, however, treated the motion for reconsideration as within time, thereby tolling the limitation period starting on July 28, 2015. As a result, the statute of limitations ran from June 25, 2017 through July 28, 2015, totaling 33 days. The motion for reconsideration was denied on September 2, 2015.
Harris then had 45 days, to October 19, 2017, to file a petition for certification in the New Jersey Supreme Court. See N.J. R.A.R. 2:4-1(a). The petition, filed on November 16, 2015, was filed 28 days late. The New Jersey Supreme Court accepted Harris's petition for certification as within time, thereby tolling the statute of limitations again on November 16, 2015. The New Jersey Supreme Court denied relief on April 1, 2016, restarting the limitations period.

(Id.)

         Thus, as of April 1, 2016, Harris had “approximately 136 days to timely file the [Petition].” (Id. at 9.) This Court found that because Harris did not file his Petition until January 4, 2017, i.e., 278 days after the New Jersey Supreme Court denied certification on his PCR appeal, his Petition was filed 142 days past AEDPA's one-year filing deadline. (Id.)

         The Court also found that equitable tolling could not save Harris's otherwise untimely Petition from prejudicial dismissal. (Id. at 8-10.) In so doing, the Court expressly considered - and rejected - Harris's contention that “the doctrine of equitable tolling should toll the statute of limitations for the period in which the [Office of the Public Defender] filed late appeals on his behalf, which were then accepted by the New Jersey courts as within time.” (Id. at 8.) The Court summarized the underlying facts which Harris alleged in support of that claim as follows:

Harris was declared indigent and was represented by the Office of the Public Defender (“OPD”) in his PCR proceedings. [(DE 10 at 4.)] The state has a procedure where a petitioner and his PCR attorney sign a Notice of Appeal Form prior to the PCR judge ruling on the petition. (Id.) A petitioner is then notified on the record by his PCR Court of his right to appeal, and is asked whether he/she has signed the Notice of Appeal Form. (Id.) The Notice of Appeal Form must be forwarded to the Post Conviction Unit and filed with the Appellate Division, which on average takes the OPD three to six months. (Id.) An indigent petitioner is dependent on the OPD to file the Notice of Appeal. (Id.) OPD attorneys regularly file affidavits with late Notices of Appeal, explaining their lack of resources and overwhelming case ...

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