PRYOR v. YATAURO et al
Filing
9
OPINION. Signed by Chief Judge Jerome B. Simandle on 5/20/2013. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DENNIS PRYOR,
Civil Action No. 12-1427 (JBS)
Petitioner,
OPINION
v.
MEG YATAURO,
Respondent.
APPEARANCES:
DENNIS PRYOR, #10127A
Adult Diagnostic & Treatment Center
8 Production Way
Avenel, NJ 07001
Petitioner Pro Se
SIMANDLE, Chief 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 on May 3, 1984.
On March
28, 2012, this Court dismissed the Petition as untimely, denied a
certificate of appealability, permitted Petitioner to file a
statement showing that the Petition is not time barred, and
terminated the case, subject to reopening.
Petitioner filed a motion to reopen.
On April 24, 2012,
On July 31, 2012, this Court
reopened the case, vacated the Order dismissing the Petition,
dismissed the Petition after considering Petitioner’s arguments, and
reclosed the case.
Presently before this Court is Pryor’s motion for
reconsideration of the Order of dismissal filed October 31, 2012.
For the reasons expressed below, this Court will deny the motion for
reconsideration.
I.
BACKGROUND
In the Petition, Pryor challenged 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, and 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).
Pryor 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 Pryor to the ADTC, pending
a determination by the special classification committee that he could
no longer benefit from sex offender treatment, in which case, he
should be returned to state 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.
See Pryor, 2010 WL 5173811 at *1.
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The
Law Division denied relief, the Appellate Division affirmed, and 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 to vacate the extended
term.
See Pryor, 2010 WL 5173811 at *1.
The Law Division denied
relief, the Appellate Division affirmed, and in February 2012, the
New Jersey Supreme Court denied certification.
Pryor executed his § 2254 Petition, and presumably handed it
to officials for mailing to the Clerk, on March 1, 2012.
The Petition
raised 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.
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 double-counting many of the
factors.
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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:
THE U.S. CONSTITUTION)
(14th AMENDMENT TO
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.)
On March 27, 2012, this Court dismissed the Petition as
untimely.
This Court reasoned:
[T]he 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
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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).
*
*
*
[N]othing 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.
(ECF No. 3 at 10-11.)
However, this Court granted Pryor 30 days to file a written
statement setting forth tolling arguments, or otherwise arguing that
the Petition is timely.
Pryor filed his response on April 24, 2012.
He argued that the statute of limitations did not apply to him because
his conviction became final prior to the effective date of the AEDPA;
applying § 2244(d) to him would be unconstitutional and unjust; and
he was not aware of the statute of limitations so his failure to comply
was due to excusable neglect.
Relying on Burns v. Morton, 134 F.3d 109 (3d Cir. 1998), this
Court rejected the arguments that the statute of limitations did not
apply to Pryor’s case because his conviction became final prior to
the effective date of the AEDPA and that its application was
unconstitutional.
(ECF No. 5.)
This Court further found that
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neither Pryor’s ignorance of the limitations period nor his excusable
neglect was an extraordinary circumstance warranting equitable
tolling.
See Holland v. Florida, 130 S.Ct. 2549, 2564 (“[A] garden
variety claim of excusable neglect, such as a simple ‘miscalculation’
that leads a lawyer to miss a filing deadline, does not warrant
equitable tolling.”) (citations and internal quotation marks
omitted).
Finally, this Court rejected the notion that failure to
reach the merits would be contrary to the interest of justice.
See
Day v. McDonough, 547 U.S. 198, 210 (2006).
In the motion for reconsideration before this Court, Pryor
asserts that “he believes [this Court’s] decision to be contrary to
the law as stated in numerous U.S. Supreme Court decisions, and
involves Constitutional issues that must be addressed regarding
application and interpretation of, and violations of Amendments Six
(6) and Fourteen (14) to the Constitution of the United States.”
(ECF No. 7 at 3-4.)
II.
STANDARD OF REVIEW
“The scope of a motion for reconsideration . . . is extremely
limited.”
Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011).
“Such
motions are not to be used as an opportunity to relitigate the case;
rather, they may be used only to correct manifest errors of law or
fact or to present newly discovered evidence.”
Id.
A proper
motion for reconsideration “must rely on one of three grounds:
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(1)
an intervening change in controlling law; (2) the availability of
new evidence; or (3) the need to correct clear error of law or prevent
manifest injustice.”
Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir.
2013) (quoting Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)).
III.
DISCUSSION
Pryor raises several arguments in support of his motion for
reconsideration.
First, he maintains that “Constitutional issues,
as asserted by Petitioner are of such a serious nature and violate
the federal constitution in such a manner that review is mandatory.”
(ECF No. 7 at 6.)
Second, he contends that this Court “erred in not
holding an evidentiary hearing [on] the claim of ineffective
assistance of counsel . . .”
Id. at 7.
Third, he argues that,
because there is “no record of petitioner ever being remanded to the
trial court for resentencing . . , the sentence he now serves [is]
an illegal one.”
Id.
Fourth, he contends that this Court’s
“mechanistic application” of law “defeat[s] the true intent of the
law.”
Id. at 8.
Fifth, he asserts that “[t]his Court must consider
the Ex Post Facto considerations of the petitioner’s argument, simply
because allowing the application of A.E.D.P.A., which was passed in
1996, to affect the filing of meritorious issues in 2012, far exceeds
the boundaries placed on these circumstances by case law, precedent,
and common law.”
Id.
Finally, he argues that, in light of the
constitutional prohibition against suspension of the writ, the
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statute of limitations should not bar consideration of his Petition
“unless it is brought before the several states in the form of an
amendment to the United States Constitution . . . .
There is no
record of the A.E.D.P.A. being forwarded to the states for
ratification, and consequently, the A.E.D.P.A. is, on the face of
it, unconstitutional, and cannot be applied to petitioner’s case in
any version.”
Id. at 11.
None of Pryor’s arguments cites an intervening change in
controlling law or new evidence and, after careful consideration,
this Court finds that Pryor has not shown a need to correct a clear
error of law or prevent manifest injustice.
It is well-settled that
Pryor’s claims are time-barred and that Congress had authority to
enact AEDPA in 1996 including its one-year limitations period, which
was applied prospectively to permit a petition to review a pre-1996
final conviction so long as it was filed by April 24, 1997.
This
Court will therefore deny his motion to reconsider the Order
dismissing the Petition as time barred.
IV.
See Wiest, 710 F.3d at 128.
CONCLUSION
Based on the foregoing, this Court denies the motion for
reconsideration.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
DATED:
May 20
, 2013
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