DAVIES v. STATE OF NEW JERSEY
Filing
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OPINION. Signed by Judge Robert B. Kugler on 02/01/2012. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT ADAM DAVIES,
Petitioner,
v.
ATTORNEY GENERAL
OF NEW JERSEY,
Respondent.
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Civil Action No. 10-3052 (RBK)
OPINION
APPEARANCES:
Petitioner pro se
Robert Adam Davies
South Woods State Prison
Bridgeton, NJ 08302
Counsel for Respondent
J. Vincent Molitor
Cape May County Prosecutor
Cape May County Courthouse, NJ
08210
KUGLER, District Judge
Petitioner Robert Adam Davies, a prisoner currently confined
at South Woods State Prison in Bridgeton, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
The respondent is the Attorney General of New
Jersey.
For the reasons stated herein, the Petition must be
dismissed as untimely.
I.
A.
BACKGROUND
Factual Background
The relevant facts and preliminary procedural history are
set forth in the opinion of the Superior Court of New Jersey,
Appellate Division.1
Defendant was charged on June 24, 1997 in Cape May
County indictment No. 97-06-366 with two counts of
fourth degree criminal sexual contact with himself in
April 1997 in the presence of M.M. and J.H., two
individuals at least age thirteen but less than age
sixteen, while defendant was at least four years older
than M.M. and J.H., for the purpose of sexually
arousing or sexually gratifying himself and/or to
degrade or humiliate M.M. and J.H., N.J.S.A. 2C:14-3b
(counts one and two); fourth degree distribution of
marijuana in April 1997, N.J.S.A. 2C:35-5a(1) (count
three); and third degree endangering the welfare of a
child in April 1997, N.J.S.A. 2C:24-4a (count four).
In Cape May County “Superceding” Indictment No.
00-05-210 [fn1] filed on May 15, 2000, defendant was
charged with fourth degree criminal contempt occurring
on February 22, 1995, alleging that defendant disobeyed
the condition of his bail on the charges contained in
Indictment No. 97-06-366. Those conditions required
defendant to reside in Pennsylvania with his mother and
attend an outpatient community mental health center
there, and not return to reside in Wildwood, N.J.S.A.
2C:29-9.
[fn1] This indictment was erroneously
denominated as a “superceding” indictment.
1
Pursuant to 28 U.S.C. § 2254(e)(1), “In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.”
2
On December 14, 1999, a pretrial competency
hearing was held. ... During the hearing, defendant
made a pro se motion to represent himself ... . ...
Thereafter, the judge conducted a two-day hearing to
determine defendant’s competency to stand trial
pursuant to N.J.S.A. 2C:4-4, and, if found competent,
his ability to represent himself at trial. ...
Judge Alvarez determined that defendant was
competent to stand trial but concluded that defendant
lacked the capacity to make a knowing and intelligent
waiver of his right to counsel. The judge further
found that defendant would be unable to control himself
in the courtroom if he represented himself and
therefore denied defendant’s motion to disqualify his
attorney. ...
On March 27, 2000, the judge dismissed the
marijuana distribution charge contained in count three
of Indictment No. 97-06-366 on the State’s motion. The
remaining charges in counts one, two and four were
tried to a jury, and defendant was found guilty. On
May 22, and 23, 2000, the contempt charge contained in
Indictment No. 00-05-210 was tried to a jury, and
defendant was also found guilty of that charge.
Sentencing took place on May 26, 2000 on the
convictions in both indictments. On the third degree
endangering conviction, defendant was sentenced to a
five-year term of imprisonment with a two and one-half
year period of parole ineligibility. On the fourth
degree criminal sexual contact convictions, the court
imposed separate terms of eighteen months imprisonment,
with nine months of parole ineligibility on each, to be
served concurrently with each other and concurrent with
the sentence imposed on the endangering conviction. On
the contempt conviction, the judge imposed a
consecutive term of eighteen months with a nine-month
parole disqualifier. ...
(Opinion, Superior Court of New Jersey, Appellate Division, 1-5
(Jan. 17, 2003).)
Petitioner timely appealed.
The Appellate
Division affirmed Petitioner’s conviction and sentence in an
opinion entered January 17, 2003.
3
The Supreme Court of New
Jersey denied certification on April 28, 2003.
State v. Davies,
176 N.J. 281 (2003).
On February 8, 2001, Petitioner filed a premature petition
for post-conviction relief that he later withdrew.
On June 1,
2003, Petitioner re-filed his state petition for post-conviction
relief.
On August 30, 2006, Petitioner and his counsel appeared
before the trial court for a hearing after which, on September
19, 2006, the trial court entered its order denying relief.
Petitioner timely appealed and, on April 23, 2008, the Appellate
Division affirmed the denial of PCR relief.
See State v. Davies,
2008 WL 1848283 (N.J.Super. App.Div. Aprl 23, 2008).
The Supreme
Court of New Jersey denied certification on September 9, 2008.
See State v. Davies, 196 N.J. 464 (2008).
This Petition, dated June 1, 2010, followed.
Petitioner asserts four claims for relief:
Here,
(1) that the State of
New Jersey denied him his Sixth and Fourteenth Amendment rights
to act as his own counsel; (2) that defendant was convicted based
upon an “improper” theory of criminal responsibility, that is,
that he was convicted under a statute which presumes consent, but
that consent is ineffective due to the age of the victim, whereas
the State argued that the sexual contact was done against the
will of the victim, consistent with aggravated criminal sexual
contact; (3) that the jury instruction on the “endangering”
charge was tantamount to a directed verdict of guilty; and
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(4) that the Court prevented Petitioner from presenting a
“consent” defense.
Respondent concedes that all claims were
exhausted in state court and asserts, as a defense, that the
Petition is time-barred.2
Petitioner has not replied to the
defense that the Petition is time-barred.
This matter is now ready for decision.
II.
28 U.S.C. § 2254
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States.
(b)(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears
that–
(A) the applicant has exhausted the remedies
available in the courts of the State; ...
(2) An application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of
2
On the date he filed this Petition, Petitioner was
confined at Atlantic County Jail. Based upon the sentences
imposed in this matter, it is not clear to this Court that
Petitioner was then in custody under the challenged convictions.
As Respondent did not raise this defense, however, and as the
Petition is otherwise barred, this Court need not delve further
into the custody issue.
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the applicant to exhaust the remedies available in the
courts of the State.
...
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
III.
ANALYSIS
In addition to the provisions of § 2254 set forth above,
such petitions are subject to a limitation period.
The
limitation period for a § 2254 habeas petition is set forth in 28
U.S.C. § 2244(d),3 which provides in pertinent part:
(1) A 1-year period of limitations 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 for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
3
The limitations period is applied on a claim-by-claim
basis. See Fielder v. Verner, 379 F.3d 113 (3d Cir. 2004), cert.
denied, 543 U.S. 1067 (2005); Sweger v. Chesney, 294 F.3d 506 (3d
Cir. 2002).
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if the applicant was prevented from filing by such
State action;
(c) the date on which the constitutional right
asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(d) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(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 any period of
limitation under this section.
Here, all of Petitioner’s claims were known to him at the
time his conviction became final; the timeliness of this
Petition, therefore, is governed by § 2244(d)(1)(A).
Thus,
evaluation of the timeliness of this § 2254 petition requires a
determination of, first, when the pertinent judgment became
“final,” and, second, the period of time during which any
application for state post-conviction relief was “properly filed”
and “pending.”
A state-court criminal judgment becomes “final” within the
meaning of § 2244(d)(1) by the conclusion of direct review or by
the expiration of time for seeking such review, including the 90day period for filing a petition for writ of certiorari in the
United States Supreme Court.
See Swartz v. Meyers, 204 F.3d 417,
419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d
Cir. 1999); U.S. Sup. Ct. R. 13.
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Here, Petitioner’s direct appeals concluded with the Supreme
Court of New Jersey denying certification on April 28, 2003.
The
conviction became final 90 days later, on July 27, 2003, when the
time expired for filing a petition for writ of certiorari with
the United States Supreme Court.
Accordingly, Petitioner had
until July 27, 2004, to file his federal habeas petition, unless
some ground for tolling applied.
To statutorily toll the limitations period, a state petition
for post-conviction relief must be “properly filed.”
An application is “filed,” as that term is
commonly understood, when it is delivered to, and
accepted by the appropriate court officer for placement
into the official record. And an application is
“properly filed” when its delivery and acceptance are
in compliance with the applicable laws and rules
governing filings. These usually prescribe, for
example, the form of the document, the time limits upon
its delivery, the court and office in which it must be
lodged, and the requisite filing fee. In some
jurisdictions the filing requirements also include, for
example, preconditions imposed on particular abusive
filers, or on all filers generally. But in common
usage, the question whether an application has been
“properly filed” is quite separate from the question
whether the claims contained in the application are
meritorious and free of procedural bar.
Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (citations and footnote
omitted) (finding that a petition was not “[im]properly filed”
merely because it presented claims that were procedurally barred
under New York law on the grounds that they were previously
determined on the merits upon an appeal from the judgment of
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conviction or that they could have been raised on direct appeal
but were not).
Where a state court has rejected a petition for postconviction relief as untimely, however, it was not “properly
filed” and the petitioner is not entitled to statutory tolling
under § 2244(d)(2).
Pace v. Diguglielmo, 544 U.S. 408 (2005).
This is so even where, in the alternative, the state court
addresses the merits of the petition in addition to finding it
untimely.
Carey v. Saffold, 536 U.S. 214, 225-26 (2002).
An application for state post-conviction relief is
considered “pending” within the meaning of § 2244(d)(2), and the
limitations period is statutorily tolled from the time it is
“properly filed,” during the period between a lower state court’s
decision and the filing of a notice of appeal to a higher court,
Carey v. Saffold, 536 U.S. 214 (2002), and through the time in
which an appeal could be filed, even if the appeal is never
filed, Swartz v. Meyers, 204 F.3d at 420-24.
More specifically,
“The time that an application for state post conviction review is
‘pending’ includes the period between (1) a lower court’s adverse
determination, and (2) the prisoner’s filing of a notice of
appeal, provided that the filing of the notice of appeal is
timely under state law.”
Evans v. Chavis, 546 U.S. 189, 191
(2006) (finding that time between denial of post-conviction
relief and filing of appeal was not tolled where appeal was
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untimely, even where state considered untimely appeal on its
merits).
However, “the time during which a state prisoner may
file a petition for writ of certiorari in the United States
Supreme Court from the denial of his state post-conviction
petition does not toll the one year statute of limitations under
28 U.S.C. § 2244(d)(2).”
Stokes v. District Attorney of the
County of Philadelphia, 247 F.3d 539, 542 (3d Cir.), cert.
denied, 534 U.S. 959 (2001).
The limitations period of § 2244(d) also is subject to
equitable tolling.
Fahy v. Horn, 240 F.3d 239, 244 (3d Cir.),
cert. denied, 534 U.S. 944 (2001); Jones v. Morton, 195 F.3d 153,
159 (3d Cir. 1999); Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998).
Equitable tolling
applies
only when the principles of equity would make the rigid
application of a limitation period unfair. Generally,
this will occur when the petitioner has in some
extraordinary way been prevented from asserting his or
her rights. The petitioner must show that he or she
exercised reasonable diligence in investigating and
bringing the claims. Mere excusable neglect is not
sufficient.
Miller, 145 F.3d at 618-19 (citations and punctuation marks
omitted).
Among other circumstances, the Court of Appeals for
the Third Circuit has held that equitable tolling may be
appropriate “if the plaintiff has timely asserted his rights
mistakenly in the wrong forum,” i.e., if a petitioner has filed a
timely but unexhausted federal habeas petition.
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Jones, 195 F.3d
at 159.
See also Duncan v. Walker, 533 U.S. 167, 183 (2001)
(Stevens, J., joined by Souter, J., concurring in part) (“neither
the Court’s narrow holding [that the limitations period is not
statutorily tolled during the pendency of a premature federal
habeas petition], nor anything in the text or legislative history
of AEDPA, precludes a federal court from deeming the limitations
period tolled for such a petition as a matter of equity”); 533
U.S. at 192 (Breyer, J., dissenting, joined by Ginsburg, J.)
(characterizing Justice Stevens’s suggestion as “sound”).
Finally, “a pro se prisoner’s habeas petition is deemed
filed at the moment he delivers it to prison officials for
mailing to the district court.”
Burns v. Morton, 134 F.3d 109,
113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)).
Here, Petitioner filed his state petition for postconviction relief on June 1, 2003, before his conviction became
“final” for purposes of the federal limitations period, so none
of the one-year limitations period lapsed between the time his
conviction became final and the time he properly filed a state
petition for post-conviction relief.
The limitations period was
tolled until the Supreme Court of New Jersey denied certification
on September 9, 2008.
Petitioner had until September 9, 2009, to file this federal
Petition, unless some other grounds for statutory or equitable
tolling applies.
Here, there are no facts suggesting any further
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grounds for statutory or equitable tolling.
Accordingly, this
Petition, dated June 1, 2010, is untimely and will be dismissed
on that basis.
IV.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability, an appeal may not be
taken from a final order in a proceeding under 28 U.S.C. § 2254.
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.”
Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, jurists of reason would not find debatable this
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Court’s procedural ruling.
No certificate of appealability will
issue.
V.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed with prejudice as untimely.
appealability will issue.
No certificate of
An appropriate order follows.
s/Robert B. Kugler
Robert B. Kugler
United States District Judge
Dated: February 1, 2012
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