KNIGHT v. WARREN et al

Filing 6

OPINION. Signed by Judge Renee Marie Bumb on 4/10/2013. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES KNIGHT,

:
Civil Action No. 12-7670 (RMB)
Petitioner,

:

v.

:

CHARLES WARREN, et al.,

OPINION

:

Respondents.

:

APPEARANCES:
JAMES KNIGHT, Petitioner Pro Se
#434763/172057C
N.J.S.P.
P.O. Box 861
Trenton, NJ 08625

BUMB, District Judge
This matter is before the Court on Petitioner James Knight’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, in which he is challenging his 2002 New Jersey state court
conviction and sentence.

For reasons discussed below, it appears

from review of the petition papers provided by petitioner that
his § 2254 habeas petition may be subject to dismissal as timebarred under 28 U.S.C. §2244(d).1

1

Although the statute of limitations is an affirmative defense,
Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002), cert. denied, 124
S.Ct. 48 (2003), it is appropriate for a district court to raise the issue sua
sponte prior to ordering an answer. The Supreme Court held that district
courts are permitted to consider sua sponte the timeliness of a state inmate’s

1

I.

PROCEDURAL BACKGROUND
Petitioner, James Knight (“Petitioner”), filed a petition

for

habeas

According

corpus
to

the

relief

on

or

allegations

about

contained

November
in

his

30,

2012.2

petition,

Petitioner was convicted in the Superior Court of New Jersey, Law
Division,

Burlington

County

for

“murder

and

tampering

with

evidence” on July 26, 2002 and was sentenced on that same day to
a term of life imprisonment subject to a 30 year period of parole
ineligibility.

(Petition, docket entry no. 1, ¶1-5.)

Petitioner

filed a direct appeal from his conviction and sentence to the
Superior Court of New Jersey, Appellate Division and that court
affirmed the conviction and sentence on March 21, 2005.
¶9.)

(Id.,

The Supreme Court of New Jersey denied certification on

habeas petition; however, the district court must accord the parties fair
notice and an opportunity to present their positions on the issue of time bar
if the record shows that the petition is untimely. Day v. McDonough, 547 U.S.
198, 209(2006).
2

Pursuant to the “prison mailbox rule,” a habeas petition is deemed
filed on the date the prisoner delivers it to prison officials for mailing,
not on the date the petition is ultimately filed with the court. See Houston
v. Lack, 487 U.S. 266, 270-71 (1988); see also Burns v. Morton, 134 F.3d 109,
112-13 (3d Cir. 1988) (applying prison mailbox rule set forth in Houston,
which dealt with filing of an appeal, to a pro se prisoner’s filing of a
habeas petition). Often times, when the Court is unable to determine the
exact date that a petitioner handed his petition to prison officials for
mailing, it will look to the signed and dated certification of the petition.
See Henderson v. Frank, 155 F.3d 159, 163-64 (3d Cir. 1988) (using date
prisoner signed petition as date he handed it to prison officials for purposes
of calculating timeliness of habeas petition). Here, Petitioner signed his
petition on November 30, 2012. Therefore, the Court will use the date
November 30, 2012, for statute of limitation purposes, as the date this habeas
action was filed, rather than the date the petition was received by the Court,
which was December 11, 2012.

2

July 14, 2005.

(Id.)

Petitioner did not file a petition for

writ of certiorari with the Supreme Court of the United States.
Petitioner states that he then filed his Petition for PostConviction Relief (“PCR”) in the Burlington County Law Division
on November 16, 2005 and that PCR was denied on May 8, 2009.3
(Id., ¶11.)

Thereafter he appealed the denial of PCR to the

Appellate Division and that appeal was denied on July 20, 2011.
(Id., ¶12.)

The Supreme Court of New Jersey denied certification

on January 13, 2012.

(Id., ¶18.)

Petitioner

the

recites

timeliness

of

his

Petition

as

follows:
The Supreme Court of New Jersey denied petitioner’s direct
appeal petition for certification on July 14, 2005.
No
petition for a writ of certiorari was filed and petitioner’s
judgment became final on October 17, 2005. On November 16,
2005, petitioner filed a state petition for postconviction
relief. The PCR petition was denied on May 15, 2009. On
July 20, 2011, the Appellate Division affirmed the
conviction and sentence. A petition for certification from
the Appellate Division’s judgment affirming the denial of
postconviction relief was denied on January 13, 2012.
(Id., ¶18.)
II.

STANDARD OF REVIEW
A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers.

3

Estelle v. Gamble, 429

The Court notes that Petitioner cites this date as May 15,
2009 throughout the body of his Petition.
3

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.

See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).
III.

STATUTE OF LIMITATIONS ANALYSIS
The limitation period for a § 2254 habeas petition is set

forth in 28 U.S.C. § 2244(d), 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 ...
(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; ...
(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.
Pursuant to § 2244(d), evaluation of the timeliness of a §
2254

petition

requires

a

determination

of,

first,

when

the

pertinent judgment became “final,” and, second, the period of
time during which an application for state post-conviction relief
was “properly filed” and “pending.”

4

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
90-day 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.
The limitations period is tolled during the time a properly
filed application for state post-conviction relief is pending.
28 U.S.C. § 2244(d)(2).

An application for state post-conviction

relief

“pending”

is

considered

within

the

meaning

of

§

2244(d)(2), and the limitations period is statutorily tolled,
from the time it is “properly filed,”4 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,

4

204

F.3d

at

420-24.

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) (footnotes and
citations omitted).

5

Nevertheless, “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.

Dist.

Attorney

of

the

County

of

Philadelphia, 247 F.3d 539, 542 (3d Cir. 2001).
Here,

Petitioner’s

state-court

criminal

judgment

became

“final” within the meaning of § 2244(d)(1) on or about October
17,

2005,

ninety

days

after

the

state

certification on his direct appeal.

supreme

court

denied

He allowed one month to

elapse before filing for Post-Conviction relief until November
16, 2005.
recitation.

Petitioner has left certain gaps in his timeliness
Particularly, he has neglected to inform the Court

of dates of filing of an appeal to the denial of Post-Conviction
relief at both the state court appellate and supreme court level.
Accordingly, there are gaps of time left unanswered for in the
timeliness calculation.

If those gaps total more than two months

time, it appears that the Petition would be time-barred.

Given

the initial passage of one month before filing PCR and further
that he allowed over nine months to pass between the denial of
his last petition for certification on January 13, 2012 and
November 30, 2012, the date that he signed the instant Petition
for filing, it appears that Petitioner exceeded the one-year time
6

period in which he was statutorily required to have filed a
petition with this Court.
Before the Court can dismiss this action as time-barred, it
is appropriate that the parties be given the opportunity to
address the issue of timeliness.

See Day v. McDonough, 547 U.S.

198 (2006)(district courts are permitted to consider sua sponte
the timeliness of a state inmate’s habeas petition, but must
accord the parties fair notice and an opportunity to present
their positions).
Petitioner may be able to overcome this statutory time bar
if he can show that the limitations period did not expire as
determined by this Court, or if he can show a basis for equitable
tolling.

See Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 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).

“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.”
408, 416-17 (2005).

Pace v. DiGuglielmo, 544 U.S.

The Third Circuit instructs that equitable

tolling is appropriate when “principles of equity would make the
rigid application of a limitation period unfair, such as when a
state prisoner faces extraordinary circumstances that prevent him
7

from

filing

a

timely

habeas

petition

and

the

prisoner

has

exercised reasonable diligence in attempting to investigate and
bring his claims.”
Cir. 2005).

LaCava v. Kyler, 398 F.3d 271, 275-76 (3d

Mere excusable neglect is not sufficient.

Id.;

Miller, 145 F.3d at 618-19; Jones, 195 F.3d at 159.
Extraordinary

circumstances

have been found where:

permitting

equitable

tolling

(1) the petitioner has been actively

misled; (2) the petitioner has been prevented from asserting his
rights

in

some

extraordinary

way;

(3)

the

petitioner

timely

asserted his rights in the wrong forum, see Jones, 195 F.3d at
159, or (4) the court has misled a party regarding the steps that
the party needs to take to preserve a claim, see Brinson v.
Vaughn,

398

extraordinary

F.3d

225,

230

circumstances

(3d
exist,

Cir.

2005).5

however,

Even

“[i]f

where

the

person

seeking equitable tolling has not exercised reasonable diligence
in

attempting

began,

the

to

file

after

link

of

circumstances

and

the

extraordinary

circumstances

the

causation
failure

to

extraordinary

circumstances

between

extraordinary

file

therefore

5

did

the
is

broken,

not

and

prevent

the

timely

The Third Circuit has expressly held that, in non-capital
cases, attorney error, miscalculation, inadequate research, or
other mistakes are not the extraordinary circumstances necessary
to establish equitable tolling. Johnson v. Hendricks, 314 F.3d
159, 163 (3d Cir. 2002), cert. denied 538 U.S. 1022 (2003); Fahy,
240 F.3d at 244.
8

filing.”

Brown v. Shannon, 322 F.3d 768, 773 (3d Cir.)(quoting

Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)), cert.
denied, 539 U.S. 948 (2003).
Therefore, before this Court can dismiss this petition, an
Order will be issued directing Petitioner to show cause why his
petition should not be dismissed as time-barred.
IV.

CONCLUSION
For the foregoing reasons, because this Court finds that the

petition for a writ of habeas corpus under 28 U.S.C. § 2254 may
be subject to dismissal as time-barred under 28 U.S.C. § 2244(d),
the Court will order Petitioner to show cause in writing why his
petition should not be dismissed as untimely.

An appropriate

order follows.

s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge

Dated: April 10, 2013

9