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Savage v. Nogan

United States District Court, D. New Jersey

August 22, 2019

ROY SAVAGE also known as TALUB MOHUWA, Petitioner,
v.
PATRICK NOGAN, et al., Respondents.

          OPINION

          JOHN MICHAEL VAZQUEZ, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on pro se Petitioner Roy Savage a/k/a Talub Mohuwa's (“Savage's”) certification/answer (at DE 8) by which Savage requests that the Court equitably toll his otherwise untimely habeas petition seeking relief pursuant to 28 U.S.C. § 2254 (at DE 1). For the reasons set forth below, Savage's certification fails to demonstrate that equitable tolling is appropriate for his case. The Court will therefore dismiss his petition with prejudice and decline to issue a certificate of appealability.

         II. BACKGROUND & RELEVANT LEGAL STANDARD

         Savage “was convicted by a jury in [New Jersey state court in] 1991 . . . for the murders of two women. He was sentenced on November 21, 1991 . . . to two consecutive life sentences[.]” State v. Savage, No. A-4333-13T2, 2016 WL 3389917, at *1 ( N.J.Super.Ct.App.Div. June 21, 2016). Notably, Savage “filed a pro se brief in support of his direct appeal in July 1994.” Id. The New Jersey Superior Court, Appellate Division, affirmed Savage's convictions and sentences on direct appeal shortly thereafter, on July 28, 1994. See Id. (citing State v. Savage, No. A-2282-91 ( N.J.Super.Ct.App.Div. July 28, 1994)). The New Jersey Supreme Court then denied certification on October 19, 1994. State v. Savage, 649 A.2d 1290 (N.J. 1994) (table).

         Nearly three years later, on or about May 13, 1997, Savage filed a pro se petition for post-conviction relief (“PCR”) in the New Jersey Superior Court, Law Division (the “PCR court”). Savage, 2016 WL 3389917, at *1. “That petition was dismissed without prejudice [on an unspecified date] following [Savage's] request for a voluntary dismissal; the reasons for the withdrawal [are unclear].” Id. (alterations in original omitted). Savage filed a second PCR application on May 23, 2011. Id. The PCR court denied Savage's second PCR application on March 4, 2014. Id. The Appellate Division affirmed on June 21, 2016. Id. In so doing, that court, among other things, agreed that Savage's 2011 PCR petition was time-barred under New Jersey Court Rule 3:22-12 because it was filed five years after the entry of Savage's judgment of conviction and Savage failed to establish excusable neglect that could excuse that untimeliness. The Appellate Division noted the following in support of that finding:

[Savage's] mental illness, as alleged generally in his moving papers, and his treatment while in custody, including forced medication, do not equate to excusable neglect. As our Supreme Court said in State v. D.D.M., 140 N.J. 83, 100 (1995), a defendant must allege “specific facts . . . to show that his psychological treatment would have prevented him from pursuing his rights and remedies . . . within the five years[.]” [Savage] has not done so here.
In fact, as the [PCR court] noted in [its] decision, [Savage], despite his mental health, was able to file a pro se brief in July 1994 in support of his direct appeal. That filing was well within the five-year period after sentence. [Savage] asserted, according to the [PCR court], that he was unaware of the existence of PCR until 1995, yet that left unexplained the delay between the dismissal of the 1997 petition and this filing in 2011.
Additionally, [Savage] obtained Veteran's Administration benefits in 2009, a process uniquely challenging for a prisoner who has to marshal records and correspond with Veteran's Administration personnel under the difficult circumstances. [Savage's] ability to make himself heard by the courts and an administrative agency, even while in custody, belies his claim that his mental health status constitutes excusable neglect.

Savage, 2016 WL 3389917, at *2.

         On October 14, 2016, the New Jersey Supreme Court denied certification on Savage's PCR appeal. State v. Savage, 154 A.3d 674 (N.J. 2016) (table). Thereafter, on or about December 6, 2016, Savage filed the present § 2254 petition. (See DE 1 at 17.) On February 7, 2017, the Court, after noting that his petition failed to “assert[] a sufficient basis to grant equitable tolling[, ]” dismissed Savage's habeas pleading without prejudice as “barred by the statute of limitations in 28 U.S.C. § 2244(d).” (DE 2 at 1, 6.) As the Court then explained:

28 U.S.C. § 2244(d) provides:
(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 the 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 ...

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