PRYOR v. YATAURO et al
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 3/27/2012. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DENNIS PRYOR,
Petitioner,
v.
MEG YATAURO, et al.,
Respondents.
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Hon. Jerome B. Simandle
Civil Action No. 12-1427 (JBS)
OPINION
APPEARANCES:
DENNIS PRYOR, #10127A
Adult Diagnostic and Treatment Center
8 Production Way - 2 Wing
Avenel, New Jersey 07001
Petitioner Pro Se
SIMANDLE, District Judge:
Dennis Pryor filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254(a) challenging a judgment of
conviction entered in the Superior Court of New Jersey, Salem
County, on May 3, 1984.
For the reasons expressed below, and
because the Petition, as drafted and read in light of the state
court decisions which are available electronically, shows that
the claims are time barred, this Court will dismiss the Petition
as untimely and deny a certificate of appealability.
However, because this Court cannot rule out the possibility
that Petitioner might have valid grounds for statutory and/or
equitable tolling of the instant Petition (which are not set
forth in Petitioner’s submissions), and he might wish to raise
these grounds to show timeliness of his Petition, this Court will
grant Petitioner 30 days to file a written statement which sets
forth detailed tolling arguments not considered in this Opinion,
or otherwise presents an argument that the Petition is not
untimely.
This Court will administratively terminate the case at
this time for statistical purposes, but will retain jurisdiction
over the Petition during this 30-day period and reopen the file
to consider Petitioner’s arguments in the event that he raises
them within this period.
I.
BACKGROUND
Petitioner challenges a judgment of conviction entered in
the Superior Court of New Jersey, Law Division, Salem County, on
May 3, 1984, after a jury found him guilty of second-degree
burglary, third-degree possession of a weapon for an unlawful
purpose, and first-degree aggravated sexual assault.
The Law
Division imposed an aggregate sentence of life imprisonment with
25 years of parole ineligibility.
See State v. Pryor, 2010 WL
5173811 *1 (N.J. Super., App. Div., Dec. 22, 2010).
Petitioner
appealed, and on November 19, 1986, the New Jersey Superior
Court, Appellate Division, affirmed the conviction and the terms
of the sentences, except directed the trial court to re-sentence
Petitioner to the ADTC, pending the special classification
committee determining that he could no longer benefit from sex
offender treatment, in which case, he should be returned to state
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prison.
Id.
The New Jersey Supreme Court denied certification
on February 6, 1987.
State v. Pryor, 107 N.J. 96 (1987) (table).
In September 1990, Pryor filed a pro se PCR petition
challenging his extended term sentence.
5173811 at *1.
See Pryor, 2010 WL
The Law Division denied relief, and on May 25,
1993, the Appellate Division affirmed.
Id.
The New Jersey
Supreme Court denied certification on September 10, 1993.
See
State v. Pryor, 134 N.J. 483 (1993) (table).
On September 9, 2008, Pryor filed a second pro se PCR,
seeking again to vacate the extended term.
5173811 at *1.
See Pryor, 2010 WL
By order filed June 24, 2009, the Law Division
denied relief without an evidentiary hearing.
Id.
Pryor
appealed, and on December 22, 2010, the Appellate Division
affirmed.
Id. at *2.
Petitioner executed the § 2254 Petition, which is presently
before this Court, on March 1, 2012.
filing on March 2, 2012.
The Clerk accepted it for
The Petition raises four grounds:
Ground One: SIXTH AMENDMENT (RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL.)
Supporting Facts: Ineffective assistance of
Counsel, both trial and appellate.
Petitioner established a prima facie case
when he proved that the judge considered
cases from a too remote period, under and old
law, to be used during trial; counsel failed
to object to using persistent offender
statute when the alleged aberrant behavior
was due to what is now considered a mental
abnormality, and cannot be held against him
in a court of law.
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Ground Two: SUBSTANTIVE DUE PROCESS, (14TH
AMENDMENT, U.S. CONSTITUTION); CRUEL AND
UNUSUAL PUNISHMENT, (8th AMENDMENT, U.S.
CONSTITUTION)
Supporting Facts: Defendant received an
illegal sentence contrary to both the prior
Administration of Civil and Criminal Justice,
N.J.S.A. 2A, and the Code of Criminal
Justice, passed by the State Legislature in
1979, known as N.J.S.A. 2C. The sentence
does not conform to either code due to the
fact that factors were used to determine a
sentence that were already inherent in the
charging of the crime itself, thereby doublecounting many of the factors.
Ground Three: PROCEDURAL DUE PROCESS: (14th
AMENDMENT TO THE U.S. CONSTITUTION)
Supporting Facts: Defendant/Petitioner was
not given an evidentiary hearing after
establishing a prima facie case of
ineffective assistance of counsel on both the
parts of trial counsel and appellate counsel.
It is established that an attorney must fully
investigate any claims a defendant makes in
order to protect his rights against
constitutional violations, and effective
counsel should conduct a full investigation
of all facts relating to the crime(s) charged
against him. This was not done, and is borne
out by the trial transcripts.
Ground Four: PROCEDURAL DUE PROCESS:
AMENDMENT TO THE U.S. CONSTITUTION)
(14th
Supporting Facts: The trial court failed to
recognize or acknowledge the mitigating
factors inherent in its own presentence
report as submitted by the probation
department and did not take into account
these mitigating factors or the impact they
had on petitioner’s case and sentence.
(Dkt. 1 at 5, 6, 8, 9.)
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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).
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.
Thus, “Federal courts are authorized to
dismiss summarily any habeas petition that appears legally
insufficient on its face.”
McFarland, 512 U.S. at 856.
Dismissal without the filing of an answer or the State court
record has been found warranted when “it appears on the face of
the petition that petitioner is not entitled to relief.”
Siers
v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.
1025 (1989); see also McFarland, 512 U.S. at 856; United States
v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas petition may
be dismissed where “none of the grounds alleged in the petition
would entitle [the petitioner] to relief”).
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B.
Statute of Limitations
Prior to substantively examining the Petition or ordering an
answer, this Court will determine whether the Petition and
relevant state court decisions, show that the Petition is time
barred.
See Day v. McDonough, 547 U.S. 198, 209 (2006) (“we hold
that district courts are permitted, but not obliged, to consider,
sua sponte, the timeliness of a state prisoner’s habeas
petition”); Kilgore v. Attorney General of Colorado, 519 F. 3d
1084, 1089 (10th Cir. 2008) (court may not sua sponte dismiss a §
2254 petition as time barred on the ground that it lacks
sufficient information to establish timeliness, but may do so
where untimeliness is clear from the face of the petition); Long
v. Wilson, 393 F. 3d 390, 402-03 (3d Cir. 2004) (court may
examine timeliness of petition for a writ of habeas corpus sua
sponte).
In 1996, Congress enacted the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), which 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;
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(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;
(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).
Section
2244(d)(2) requires statutory tolling under the following
circumstances:
“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
subsection.”
28 U.S.C. § 2244(d)(2).
An application is “filed”
when “it is delivered to, and accepted by, the appropriate court
officer for placement into the official record.”
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Artuz v.
Bennett, 531 U.S. 4, 8 (2000) (citations omitted).
As the
Supreme Court explained,
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, 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).
The AEDPA statute of limitations is also subject to
equitable tolling.
See Holland, 130 S. Ct. at 2560; Urcinoli v.
Cathel, 546 F. 3d 269, 272 (3d Cir. 2008); Miller, 145 F.3d at
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618.
“A statute of limitations ‘can be tolled when principles of
equity would make [its] rigid application unfair.’”
Urcinoli,
546 F. 3d at 272 (quoting Shendock v. Dir., Office of Workers’
Comp. Programs, 893 F. 2d 1458, 1462 (3d Cir. 1990)).
“Generally, a litigant seeking equitable tolling bears the burden
of establishing two elements:
(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way.”
Holland, 130 S. Ct. at 2562 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); see also LaCava v. Kyler,
398 F.3d 271, 275-276 (3d Cir. 2005).
“There are no bright lines
in determining whether equitable tolling is warranted in a given
case.
Rather, the particular circumstances of each petitioner
must be taken into account.”
Pabon v. Mahanoy, 654 F.3d 385, 399
(3d Cir. 2011).
Extraordinary circumstances have been found where “(1) the
defendant has actively misled the plaintiff; (2) if the plaintiff
has in some extraordinary way been prevented from asserting his
rights; or (3) if the plaintiff has timely asserted his rights
mistakenly in the wrong forum.”
Urcinoli, 546 F. 3d at 272
(quoting Satterfield v. Johnson, 434 F. 3d 185, 195 (3d Cir.
2006) (internal quotation marks omitted).1
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“[A] garden variety
For example, “inability to read or understand English,
combined with denial of access to translation or legal
assistance, can constitute extraordinary circumstances that
trigger equitable tolling.” Pabon at *13. In Brinson v. Vaughn,
(continued...)
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claim of excusable neglect, such as a simple miscalculation that
leads a lawyer to miss a filing deadline does not warrant
equitable tolling,”
Holland, 130 S. Ct. at 2564 (citations and
internal quotation marks omitted), but “an attorney’s failure to
satisfy professional standards of care” can warrant equitable
tolling where the behavior is egregious.
Id. at 2562, 2564; see
also Nara v. Frank, 264 F. 3d 310, 320 (3d Cir. 2001) (ordering
evidentiary hearing as to whether petitioner who was “effectively
abandoned” by lawyer merited tolling).
“The diligence required for equitable tolling purposes is
‘reasonable diligence,’ . . . not ‘maximum feasible diligence.’”
Holland, 130 S. Ct. at 2565 (internal citations omitted).
However, even where extraordinary circumstances exist, “[i]f the
person seeking equitable tolling has not exercised reasonable
diligence in attempting to file after the extraordinary
circumstances began, the link of causation between the
extraordinary circumstances and the failure to file is broken,
and the extraordinary circumstances therefore did not prevent
timely filing.”
Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.
2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.
2000)).
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(...continued)
398 F. 3d 225, 230 (3d Cir. 2005), the Court of Appeals held that
an extraordinary circumstance exists “where a court has misled a
party regarding the steps that the party needs to take to
preserve a claim.”
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In this case, the applicable limitations provision is §
2244(d)(1)(A).
Pryor’s judgment of conviction became final on
May 8, 1987, when the time to file a petition for certiorari
expired.
See 28 U.S.C. § 2244(d)(1)(A); Wali v. Kholi, 131 S.
Ct. 1278, 1282 (2011).
Because Pryor’s conviction became final
prior to the effective date of the AEDPA on April 24, 1996, his
one-year limitations period began on April 24, 1996.
See Merritt
v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003); Nara v. Frank, 264
F.3d 310, 315 (3d Cir. 2001); Burns v. Morton, 134 F.3d 109, 111
(3d Cir. 1998).
Absent statutory or equitable tolling, the
limitations period expired 365 days later on April 23, 1997.
Id.
There was no statutory tolling during the 365-day period
ending April 23, 1997, because the New Jersey Supreme Court
denied certification on Pryor’s first PCR petition on September
10, 1993 (before the year started), and Pryor did not file his
second PCR petition until September 9, 2008 (after the year
ended).
As to equitable tolling, the Petition itself asks the
petitioner to explain why the Petition is not time barred under
28 U.S.C. § 2244(d), and includes the text of § 2244(d); Pryor
provided no explanation for the late filing, except the words
“NOT BARRED.”
(Dkt. 1 at 11.)
As the Supreme Court observed in
Pace v. DiGuglielmo,
[P]etitioner waited years, without any valid
justification, to assert these claims in his
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. . . petition. Had petitioner advanced his
claims within a reasonable time of their
availability, he would not now be facing any
time problem, state or federal. And not only
did petitioner sit on his rights for years
before he filed his PCRA petition, but he
also sat on them for five more months after
his PCRA proceedings became final before
deciding to seek relief in federal court.
Under long-established principles,
petitioner’s lack of diligence precludes
equity’s operation.
Pace, 544 U.S. at 419 (citations and footnotes omitted).
In this case, nothing in Petitioner’s submissions insinuates
that the statute of limitations is governed by a provision other
than § 2244(d)(1)(A), that Pryor was prevented from asserting his
claims by extraordinary circumstances, or that he exercised
reasonable diligence in pursuing his rights.
Under these
circumstances, equitable tolling of the statute of limitations
does not appear to be warranted.
And because nothing indicates
that the interests of justice would be better served by
addressing the merits of the Petition, see Day, 547 U.S. at 210,
this Court will dismiss the Petition as time barred.
This Court, however, cannot rule out the possibility that
Petitioner might have valid grounds for statutory and/or
equitable tolling of the instant Petition, or that he may be able
to argue that the limitations period is governed by §
2244(d)(1)(B), (C) or (D).
See Day, 547 U.S. at 210 (before
acting on timeliness of petition, court must accord Petitioner
fair notice and an opportunity to present his position).
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This
Court will accordingly grant Petitioner 30 days to file a written
statement which sets forth detailed tolling arguments, or
otherwise presents an argument that the Petition is not
untimely.2
This Court will administratively terminate the case
at this time for statistical purposes, but will retain
jurisdiction over the Petition during this 30-day period and
reopen the file to consider Petitioner’s arguments in the event
that he raises them within this period.
See Wanger v. Hayman,
Docket No. 09-6307 (SRC) order dismissing pet. (D.N.J. Jan. 3,
2011), COA denied, C.A. No. 11-1375 (3d Cir. May 26, 2011); Tozer
v. Powers, Docket No. 08-2432 (RMB) order dismissing pet.
(D.N.J., June 30, 2008), COA denied, C.A. No. 08-3259 (3d Cir.
Dec. 11, 2008).
C.
Certificate of Appealability
The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding unless
a judge issues a certificate of appealability on the ground that
“the applicant has made a substantial showing of the denial of a
2
Petitioner’s tolling argument must account for the time
between April 24, 1997 (when the 365-day grace period expired),
and September 9, 2008 (when Petitioner filed his second state PCR
petition and statutory tolling presumably came into play, if the
PCR was “properly filed”). Moreover, because Petitioner did not
execute his § 2254 Petition until March 1, 2012, which is 435
days after the Appellate Division affirmed the order denying his
second PCR petition (on December 22, 2010), and statutory tolling
presumably ended, Petitioner must also account for this 435-day
period.
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constitutional right.”
28 U.S.C. § 2253(c)(2).
In Slack v.
McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme
Court held:
“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.”
Id.
This Court denies a certificate of
appealability because jurists of reason would not find it
debatable that dismissal of the Petition as untimely is correct.
III.
CONCLUSION
Based on the foregoing, the Court dismisses the Petition as
untimely and denies a certificate of appealability.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief Judge
DATED:
March 27
, 2012
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