RULLAN v. BALICKI et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 12/7/2011. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANTHONY RULLAN,
Petitioner,
v.
ROBERT M. BALICKI,
Respondents.
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Hon. Noel L. Hillman
Civil Action No. 11-4497 (NLH)
O P I N I O N
APPEARANCES:
ANTHONY RULLAN, #41734
Cumberland County Jail
54 W. Broad Street
Bridgeton, New Jersey 08302
Petitioner Pro Se
HILLMAN, District Judge
Anthony Rullan, who is presently incarcerated at Cumberland
County Jail, filed a Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2254 challenging a judgment of conviction entered on
March 28, 2008, in the Superior Court of New Jersey, Cumberland
County.
For the reasons expressed below, and because the
Petition, as drafted and read in light of the available state
court decisions, shows that the claims are not exhausted, this
Court will dismiss the Petition without prejudice for failure to
exhaust available state court remedies and deny a certificate of
appealability.
I.
BACKGROUND
On March 28, 2008, the Superior Court of New Jersey, Law
Division, Cumberland County, sentenced Rullan to an eight-year
term of imprisonment after a jury found him guilty of seconddegree endangering the welfare of a child who was less than 16
years of age and fourth-degree lewdness.
Rullan appealed,
raising the following grounds:
I. THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL
RIGHT TO A FAIR TRIAL BY FAILING TO GIVE THE JURY ANY
LIMITING INSTRUCTION ON THE FRESH[-]COMPLAINT DOCTRINE.
II. THE TRIAL COURT DENIED DEFENDANT HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT EXCLUDING
TESTIMONIES WHICH WERE INADMISSIBLE UNDER THE FRESH[]COMPLAINT DOCTRINE.
A. ANGELA STANLEY'S TESTIMONY.
III. THE TRIAL COURT DENIED DEFENDANT HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY NOT GRANTING
DEFENDANT'S MOTION TO SUPPRESS STATEMENTS MADE TO
DETECTIVE O'NEILL IN VIOLATION OF MIRANDA.
A. VINELAND POLICE OFFICER, DETECTIVE O'NEILL,
VIOLATED THE MIRANDA REQUIREMENT.
B. TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S
MOTION TO SUPPRESS STATEMENTS MADE TO DETECTIVE
O'NEILL IN VIOLATION OF MIRANDA WARNINGS.
IV. THE PROSECUTOR'S SUMMATION AND DIRECT EXAMINATION
EXCEEDED THE BOUNDS OF PROPRIETY AND THEREBY VIOLATED
DEFENDANT'S RIGHT TO A FAIR TRIAL WARRANTING A
REVERSAL.
A. PROSECUTOR'S SUMMATION.
B. PROSECUTOR'S DIRECT EXAMINATION OF [ANDREW].
2
V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S R.
3:20-1 MOTION TO SET ASIDE THE VERDICT.
VI. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S
R. 3:20-2 MOTION FOR A NEW TRIAL.
VII. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO
AN EIGHT (8) YEAR TERM OF IMPRISONMENT ON THE SECOND
DEGREE N.J.S.A. 2C:24-4a ENDANGERING THE WELFARE OF A
CHILD CHARGE AND HENCE SUBJECT TO THE REGISTRATION
REQUIREMENTS OF MEGAN'S LAW IN VIOLATION OF DEFENDANT'S
CONSTITUTIONAL RIGHTS AND THE SENTENCE IMPOSED BY THE
TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING
N.J.S.A. 2C:14-[4]b(1) WAS MANIFESTLY EXCESSIVE.
A. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT
TO AN EIGHT (8) YEAR TERM OF IMPRISONMENT ON THE
SECOND DEGREE N.J.S.A. 2C:24-4a ENDANGERING THE
WELFARE OF A CHILD CHARGE.
B. THE TRIAL COURT ERRED IN IMPOSING THE MEGAN'S
LAW REGISTRATION REQUIREMENTS ON DEFENDANT.
C. THE SENTENCE IMPOSED BY THE TRIAL COURT ON THE
DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A.
2C:14-[4]b(1) WAS MANIFESTLY EXCESSIVE.
State v. A.R., 2011 WL 6569, *2-3 (N.J. Super. Ct., App. Div.,
July 14, 2010).
On July 14, 2010, the Appellate Division affirmed.
See
State v. A.R., 2011 WL 6569 (N.J. Super. Ct., App. Div., July 14,
2010) (Dkt. 3 at 2).
On November 4, 2010, the New Jersey Supreme
Court denied certification.
See State v. A.R., 205 N.J. 14
(2010) (table).
On July 14, 2011, Rullan executed (and presumably handed to
prison officials for mailing) a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254 challenging the judgment of
conviction entered in the Superior Court of New Jersey,
3
Cumberland County, dated March 28, 2008.
grounds.
The Petition raised 12
The Clerk received it on August 9, 2011.
entered August 26, 2011, this Court:
By Order
(1) notified Rullan of the
consequences of filing a § 2254 petition, see Mason v. Myers, 208
F. 3d 414 (3d Cir. 2000); (2) explained that a District Court may
not grant a writ of habeas corpus under 28 U.S.C. § 2254 unless
the applicant has exhausted the remedies available in the courts
of the State or exhaustion is excused under 28 U.S.C. §
2254(b)(1)(B) because there is an absence of available State
corrective process or circumstances exist that render such
process ineffective to protect the rights of the applicant, see
Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998); (3)
administratively terminated the case because the Petition was not
on the current form supplied by the Clerk, see Loc. Civ. R.
81.2(a); and (4) gave Rullan 30 days to file a petition on the
form provided by the Clerk.1
(Dkt. 2.)
1
The online Inmate Locator of the New Jersey Department of
Corrections indicates that on September 13, 2010, Rullan was
released by state officials from Mid State Correctional Facility.
For the purposes of the Opinion, this Court presumes that he was
released on parole. But if Rullan was released on September 13,
2010, because his sentence expired, then this Court may not have
subject matter jurisdiction, since he may not have been “in
custody” within the meaning of 28 U.S.C. § 2254(a) when this §
2254 Petition was filed on July 14, 2011. Compare Maleng v.
Cook, 490 U.S. 488, 492 (1989) (habeas petitioner does not remain
“in custody” under a conviction after the sentence imposed for it
has fully expired), with Garlotte v. Fordice, 515 U.S. 39 (1995)
(habeas petitioner who is serving consecutive sentences is “in
custody” to attack sentence scheduled to run first, even after it
(continued...)
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On September 13, 2011, Rullan filed a § 2254 Petition (on
the current form provided by the Clerk) challenging the March 28,
2008, judgment of conviction.
The Petition raises 12 grounds:
Ground One: TRIAL COUNSEL HAD BEEN INEFFECTIVE,
DENYING DEFENDANT-PETITIONER CORROBORATING AND
EXCULPATORY EVIDENCE AND TESTIMONY, THAT SUCH
ALLEGATION[S] AS RELATED TO ALLEGED VICTIM, [V.C.], HAS
BEEN ADDRESSED PRIOR TO THE CURRENT MATTER AND
SUBSEQUENTLY DISMISSED SINCE NO SUPPORT OF ANY SUCH
VIOLATIONS OCCURRING HAD BEEN DETERMINED.
Ground Two: JURY CHARGE/INSTRUCTIONS WERE NOT PROPERLY
GIVEN, THAT JURY HAD GONE AGAINST SUCH INSTRUCTIONS,
AND HAD INTERPRETED THE LAW THEMSELVES.
Ground Three: THAT EVIDENCE TO BE PRESENTED AND PRIOR
TESTIMONIES GIVES, SUPPORT TOWARDS DEFENDANTPETITIONER’S INNOCENCE AND REFLECTS THAT REASONABLE
DOUBT STILL REMAINS WHICH OUTWEIGHS THE JURY’S VERDICT
THAT DEFENDANT-PETITIONER IS GUILTY.
Ground Four: THAT JURY’S VERDICT WAS ARBITRARY AND
INCONSISTENT WITH FACTS OF MATTER.
Ground Five: THAT EVIDENCE TO BE PRESENTED AND PRIOR
TESTIMONY GIVEN SUPPORTS HIS INNOCENCE AND REFLECTS A
LACK OF CREDIBILITY BY ALLEGED VICTIM.
Ground Six: THAT STATE’S WITNESS’ TESTIMONY THAT
DEFENDANT DID NOT ASSAULT ALLEGED VICTIM, BUT HAD
ASSAULT[ED] ANOTHER UNIDENTIFIED UNDERAGE VICTIM HAD
PREJUDICED HIM, TAINTED JURY, DENYING DEFENDANT A FAIR
AND IMPARTIAL TRIAL.
Ground Seven: THAT STATE’S WITNESS HAD BEEN DENIED
OPPORTUNITY TO FINISH HIS TESTIMONY WHICH WAS
EXCULPATORY IN NATURE TOWARDS DEFENDANT.
Ground Eight: THAT THERE WERE THREE CRITICAL WITNESSES
THAT WERE NOT CALLED BY EITHER PARTY: DEFENDANT’S
WIFE; A COUNSELOR ONLY REFERRED TO AS “KIM;” AND A
“MCCABE.”
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(...continued)
has expired, until all consecutive sentences have been served).
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Ground Nine: THAT ASSISTANT PROSECUTOR’S COMMENT
CONTRIBUTE[D] TO DEFENDANT’S BEING FOUND GUILTY BY
BOLSTERING ALLEGED VICTIM’S TESTIMONY GREATER
CREDIBILITY.
Ground Ten: THAT ASSISTANT PROSECUTOR’S ACT OF
INSTRUCTING DEFENSE COUNSEL WAS IMPROPER AND LIMITED
DEFENSE TO PURSUE AREAS WITHIN THEIR DEFENSE.
Ground Eleven: THAT DEFENDANT WAS DENIED OPPORTUNITY
TO IMPEACH ALLEGED VICTIM.
Ground Twelve: THAT STATE’S WITNESS’ TESTIMONY ABOUT
ALLEGED PRIOR BAD ACTS OR WRONGDOING BY DEFENDANT,
VIOLATED DEFENDANT’S STATE AND FEDERAL CONSTITUTIONAL
RIGHTS TO A FAIR AND IMPARTIAL TRIAL, DUE PROCESS,
EQUAL PROTECTION OF THE LAW, AND FUNDAMENTAL FAIRNESS.
(Dkt. 3 at 5, 7, 8, 10, 17, 18, 19.)
Rullan asserts in this § 2254 Petition that on July 15,
2011, he filed a petition for post-conviction relief in the Law
Division, which raises the 12 issues presented in this § 2254
Petition, and that this state petition is pending before the New
Jersey courts.
(Dkt. 3 at 3, 5, 7, 8, 10, 17, 18, 19.)
II.
A.
DISCUSSION
Standard of Review
“Habeas corpus petitions must meet heightened pleading
requirements.”
McFarland v. Scott, 512 U.S. 849, 856 (1994).
Habeas Rule 2(c) requires a § 2254 petition to “specify all the
grounds for relief available to the petitioner,” “state the facts
supporting each ground,” “state the relief requested,” be
printed, typewritten, or legibly handwritten, and be signed under
penalty of perjury.
28 U.S.C. § 2254 Rule 2(c).
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Habeas Rule 4
requires a judge to sua sponte dismiss a § 2254 petition without
ordering a responsive pleading “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.”
28 U.S.C. § 2254 Rule
4; see Mayle v. Felix, 545 U.S. 644, 655 (2005).
Thus, “Federal
courts are authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face.”
McFarland, 512
U.S. at 856; see also United States v. Thomas, 221 F.3d 430, 437
(3d Cir. 2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985),
cert. denied, 490 U.S. 1025 (1989).
B.
Exhaustion
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
prohibits a District Court from granting habeas relief under §
2254 unless the petitioner has fairly presented each federal
ground in the § 2254 petition to each level of the state courts
or shown that exhaustion is excused under 28 U.S.C. §
2254(b)(1)(B).
See Henderson v. Frank, 155 F.3d 159, 164 (3d
Cir. 1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.
1997); Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993).
Specifically, the AEDPA provides:
(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; or
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(B)(i) there is an absence of available State
corrective process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the
courts of the State.
(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel,
expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State,
within the meaning of this section, if he has the right
under the law of the State to raise, by any available
procedure, the question presented.
28 U.S.C. § 2254(b) & (c).
To satisfy the exhaustion requirement, “state prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State’s established appellate review process.”
Boerckel, 526 U.S. 838, 845 (1999).
petitioner to prove exhaustion.”
439, 442 (3d Cir. 2005).
O’Sullivan v.
“The burden is on the habeas
DeFoy v. McCullough, 393 F. 3d
The exhaustion doctrine mandates that
the claim “must have been ‘fairly presented’ to the state
courts.”
Bronshtein v. Horn, 404 F. 3d 700, 725 (3d Cir. 2005)
(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
“Fair
presentation means that a petitioner must present a federal
claim’s factual and legal substance to the state courts in a
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manner that puts them on notice that a federal claim is being
asserted.”
Rainey v. Varner, 603 F. 3d 189, 198 (3d Cir. 2010)
(citations and internal quotation marks omitted).
In summary,
the exhaustion doctrine requires the petitioner to afford the
state courts “the opportunity to resolve the federal
constitutional issues before he goes to the federal court for
habeas relief.”
Id. (quoting Zicarelli v. Gray, 543 F. 2d 466,
472 (3d Cir. 1976)).
Here, Rullan repeatedly concedes on the face of the Petition
that he has not exhausted any of the 12 claims raised in this
Petition.
After each ground, the § 2254 form asks Rullan to
specify whether he raised this ground on direct appeal from the
judgment of conviction, or in a post-conviction motion or
petition in the state trial court.
With respect to each ground
raised in the Petition, Rullan asserts that the ground was not
raised on direct appeal, but was raised in the pending state
petition for post-conviction relief filed in the Law Division on
July 15, 2011.
(Dkt. 3 at 3, 6, 7, 9, 10, 11, 20.)
In addition,
Rullan answered “yes” in response to the question asking if he
has any petition or appeal now pending in any court, for the
challenged judgment, adding the following:
“Superior Court of
NJ, PCR Division, Cumberland County, Docket No.:
04-05-556I
04000332-1, Post-Conviction-Relief, Grounds One through Twelve.”
(Dkt. 3 at 12.)
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Thus, Petitioner concedes on the face of the Petition that
none of the grounds have been exhausted and that his state
petition for post-conviction relief raising these same grounds is
pending before the Law Division of the New Jersey Superior Court.
Where a § 2254 petition contains one or more unexhausted grounds
and a stay is not warranted, a District Court must either dismiss
the § 2254 petition without prejudice as unexhausted, pursuant to
28 U.S.C. § 2254(b)(1), or deny all claims in the petition on the
merits, pursuant to 28 U.S.C. § 2254(b)(2) (“An application for a
writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State”).
See Carrascosa
v. McGuire, 520 F. 3d 249 255 (3d Cir. 2008).
C.
Stay
“Where the timeliness of a habeas corpus petition is at
issue, 28 U.S.C. § 2244(d)(1), a District Court has the
discretion to stay a . . . habeas petition to allow complete
exhaustion in state court.”
Williams v. Walsh, 411 Fed. App’x
459, 461 (3d Cir. 2011) (citing Rhines v. Weber, 544 U.S. 269,
277 (2005)); see also Heleva v. Brooks, 581 F. 3d 187 (3d Cir.
2009) (holding that stay-and-abeyance under Rhines standard also
applies to a request to stay a § 2254 petition which contains
only unexhausted claims); Benchoff v. Colleran, 404 F. 3d 812,
820 n.6 (3d Cir. 2005) (observing that Rhines “approved, but
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limited, the availability” of a stay).
The Rhines Court
explained the rationale for a stay:
If a petitioner files a timely but mixed
petition in federal district court, and the
district court dismisses it under Lundy after
the limitations period has expired, this will
likely mean the termination of any federal
review. For example, if the District Court
in this case had dismissed the petition
because it contained unexhausted claims,
AEDPA’s 1-year statute of limitations would
have barred Rhines from returning to federal
court after exhausting the previously
unexhausted claims in state court.
Rhines at 275.
In determining whether to grant a stay, this Court must
initially consider whether timeliness is at issue, such that any
§ 2254 petition filed after exhausting state court remedies would
be time barred.
Id.
The AEDPA provides that “[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.”
28 U.S.C. § 2244(d)(1).
The limitations period runs
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, if the
applicant was prevented from filing by such
State action;
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(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
of the claim or
been discovered
diligence . . .
which the factual predicate
claims presented could have
through the exercise of due
.
28 U.S.C. § 2244(d)(1).
The statute of limitations under § 2244(d) is subject to two
tolling exceptions:
statutory tolling and equitable tolling.
See Holland v. Florida, 130 S. Ct. 2549 (2010); Merritt v.
Blaine, 326 F.3d 157, 161 (3d Cir. 2003); Miller v. N.J. State
Dep’t of Corr., 145 F.3d 616, 617-18 (3d Cir. 1998).
Statutory
tolling is governed by § 2244(d)(2), which provides that “[t]he
time during which a properly filed application for State postconviction 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 subsection.”
U.S.C. § 2244(d)(2).
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An application is “filed” within the
meaning of § 2244(d)(2) when “it is delivered to, and accepted
by, the appropriate court officer for placement into the official
record.”
Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations
omitted).
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
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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, 531 U.S. at 8-9 (citations omitted); see also Allen v.
Siebert, 552 U.S. 3 (2007) (petition for state post-conviction
relief that was rejected by the state courts as untimely is not
“properly filed” under § 2244(d)(2)).
A post-conviction relief
application remains pending in state court until “the state
courts have finally resolved an application for state post[]conviction relief [but] § 2244(d)(2) does not toll the 1-year
limitations period during the pendency of a petition for
certiorari.”
Lawrence v. Florida, 549 U.S. 327, 332 (2007).
In Pace v. DeGuglielmo, 544 U.S. 408, 416 (2005), the
Supreme Court ruled that a state petition for post-conviction
relief that is dismissed by the state court as untimely does not
toll the federal statute of limitations because an untimely state
petition for post-conviction relief is not “properly filed”
within the meaning of 28 U.S.C. § 2244(d)(2).
In rejecting the
prisoner’s arguments, the Supreme Court observed that, in the
event that a state prisoner who is pursuing state post-conviction
13
relief is “reasonably confused” as to whether the state petition
was timely or otherwise “properly filed,” then that prisoner
could file a protective § 2254 petition.
The Court explained:
Finally, petitioner challenges the fairness of our
interpretation. He claims that a “petitioner trying in
good faith to exhaust state remedies may litigate in
state court for years only to find out at the end that
he was never ‘properly filed,’” and thus that his
federal habeas petition is time barred. A prisoner
seeking state postconviction relief might avoid this
predicament, however, by filing a “protective” petition
in federal court and asking the federal court to stay
and abey the federal habeas proceedings until state
remedies are exhausted. See Rhines v. Weber, ante, 544
U.S., at 278 . . . (2005). A petitioner's reasonable
confusion about whether a state filing would be timely
will ordinarily constitute “good cause” for him to file
in federal court. Ibid. (“[I]f the petitioner had good
cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory tactics,” then the district court likely
“should stay, rather than dismiss, the mixed
petition”).
Pace, 544 U.S. at 416-417 (some citations omitted).
In this case, Rullan’s conviction became final on February
3, 2011, when the time to file a petition for certiorari
expired.2
See 28 U.S.C. § 2244(d)(1)(A).
The statute of
limitations ran for 162 days until July 15, 2011, when it was
statutorily tolled upon the filing of the state petition for
2
Rullan states that he attempted to file a petition for
certiorari in the United States Supreme Court. (Dkt. 3 at 3.)
However, this Court’s electronic research reveals no such filing.
This Court will, for the purposes of this Opinion, use the
earliest possible date for calculating the one-year statute of
limitations.
14
post-conviction relief (presuming the state petition for postconviction relief was “properly filed”).
Under these
circumstances, the 365-day federal limitations period will be
statutorily tolled until “the state courts have finally resolved
[Rullan’s] application for state post[-]conviction relief.”
Lawrence, 549 U.S. at 332.
At that point, the 365-day
limitations period will pick up at day 163.
Accordingly, if
Rullan’s state petition for post-conviction relief was “properly
filed,” then Rullan will have 203 days remaining on the 365-day
statute of limitations at the time the New Jersey courts finally
resolve his petition for post-conviction relief (and statutory
tolling stops).
And since nothing in Rullan’s submissions
indicates that his state petition for post-conviction relief was
not “properly filed,” this Court sees no basis to stay the § 2254
Petition.3
This Court will accordingly dismiss the Petition
without prejudice for failure to exhaust available state court
remedies.4
See 28 U.S.C. §§2254(b)(1)(A), 2254(c).
3
New Jersey Court Rules provide that a first petition for
post-conviction relief must generally be filed within five years
after the date of entry of the judgment of conviction. See N.J.
Ct. R. 3:22-12(a)(1).
4
If the Law Division has determined that Rullan’s petition
for post-conviction relief was untimely or Rullan is “reasonably
confused” as to whether it was “properly filed,” then Rullan may
file a motion asking this Court to reconsider the dismissal of
this § 2254 Petition as unexhausted and to grant a stay; the
motion must specify facts showing the basis for Rullan’s
reasonable confusion as to the proper filing of the petition for
(continued...)
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D.
Certificate of Appealability
Because Petitioner has not made a substantial showing of the
denial of a constitutional right, no Certificate of Appealability
will issue pursuant to 28 U.S.C. § 2253(c).
See Fed. R. App. P.
22(b)(1).
III.
CONCLUSION
For the foregoing reasons, this Court will dismiss the
Petition without prejudice as unexhausted and decline to issue a
Certificate of Appealability.
/s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
DATED: December 7, 2011
At Camden, New Jersey
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(...continued)
post-conviction relief.
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