SMITH v. STATE OF NEW JERSEY et al
Filing
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OPINION. Signed by Judge Jerome B. Simandle on 2/6/2018. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JERMAINE SMITH,
HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 14-5997 (JBS)
v.
STEPHEN D’ILIO, et al.,
OPINION
Respondents.
APPEARANCES:
JERMAINE SMITH
557093
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner Pro Se
LINDA A. SHASHOUA, ESQ.
Camden County Prosecutor’s Office
Appeals Unit
25 North Fifth Street
Camden, NJ 08102
Attorney for Respondents
SIMANDLE, Judge:
INTRODUCTION
Before the Court is Petitioner Jermaine Smith’s
(“Petitioner”) amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Amended Petition, Docket Entry
8). Petitioner challenges the August 1, 2006, judgment of
conviction sentencing him to twenty-eight years with an eightyfive percent period of parole ineligibility. Respondents filed a
Response to the Amended Petition, denying Petitioner’s claims
for relief and raising certain affirmative defenses. For the
reasons stated herein, the Court will dismiss the petition as
time-barred, and no certificate of appealability will issue.
BACKGROUND
On May 25, 2006, a Camden County jury convicted Petitioner
of carjacking, N.J. STAT. ANN. § 2C:15-2, and robbery, N.J. STAT.
ANN. § 2C:15-1. (Docket Entry 19-4 at p. 1). The trial court
merged the robbery count into the carjacking count for
sentencing purposes and sentenced Petitioner to a term of
twenty-eight years with an eighty-five percent period of parole
ineligibility. (Id. at 4.). Petitioner filed a timely appeal
with the New Jersey Superior Court Appellate Division. (Docket
Entry 19-5); State v. Smith, No. A-5972-05T4, (N.J. Super. Ct.
App. Div. Dec. 18, 2007) (See Docket Entry 19-9). The Appellate
Division affirmed Petitioner’s conviction and sentence. Id. The
Supreme Court of New Jersey denied Petitioner’s petition for
certification on April 3, 2008. State v. Smith, 949 A.2d 847
(N.J. 2008).
Petitioner filed a petition for post-conviction relief
(“PCR”) on May 29, 2009. (Docket Entry 19-16). The trial court
denied the petition on October 19, 2011. (Docket Entry 19-19).
Petitioner appealed and the Appellate Division affirmed the
trial court’s denial on December 6, 2013. (Docket Entry 19-14);
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State v. Smith, No. A-2851-11T4, 2013 WL 6331708 (N.J. Super.
Ct. App. Div. Dec. 6, 2013). The New Jersey Supreme Court denied
certification on June 23, 2014. State v. Smith, 94 A.3d 910
(N.J. 2014).
Petitioner filed his original habeas petition on September
24, 2014. On October 10, 2014, the Court administratively
terminated this action because Petitioner failed to file his
petition on the proper form and because Petitioner had not paid
the filing fee or submitted an application to proceed in forma
pauperis. (Docket Entry 2). Petitioner filed an amended petition
on November 7, 2014. (Docket Entry 8). In his Amended Petition,
Petitioner argues he was deprived of his rights to effective
assistance of counsel and due process of law. After screening
the Petition, the Court ordered respondents to file an answer.
(Docket Entry 10). Respondents answered the Petition on July 6,
2015. Respondents asserted, among other things, that the
Petition was time-barred pursuant to 28 U.S.C. § 2244.
On August 4, 2015, Petitioner moved for an extension of
time to file a traverse. (Docket Entry 21). On August 10, 2015,
this Court granted the motion and ordered Petitioner to file his
reply no later than September 14, 2015. (Docket Entry 22).
Despite having been granted the extension, Petitioner did not
file a traverse and did not make any further requests for
additional time to do so.
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III. DISCUSSION
Petitioner’s habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA imposes a one-year period of limitation on a petitioner
seeking to challenge his state conviction and sentence through a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
See 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1), the limitation
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;
(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.
28 U.S.C. § 2244(d)(1). However, “[t]he 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 . . . .” 28 U.S.C. § 2244(d)(2).
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Respondents argue that Petitioner’s habeas petition is
untimely because it was filed after the expiration of the
statute of limitations. The Supreme Court of New Jersey denied
certification of Petitioner’s direct appeal on April 3, 2008. 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). Petitioner’s judgment therefore became final
on July 2, 2008, ninety days after the New Jersey Supreme Court
denied certification.
Though the statute of limitations is tolled during the time
in which a properly filed petition for post-conviction relief is
pending, the filing of such a petition does not reset the
limitations time period. Johnson v. Hendricks, 314 F.3d 159,
161–62 (3d Cir. 2002). Petitioner filed his PCR petition on May
29, 2009, 331 days after his conviction became final. The
limitations period began to run again on June 23, 2014, when the
Supreme Court of New Jersey denied certification of Petitioner’s
PCR appeal.1 At that time, Petitioner had thirty-four days
1
Unlike direct appeals, the ninety-day period in which a
petitioner may seek certiorari from the United States Supreme
Court regarding a state court PCR decision does not toll the
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remaining in which to timely file a petition for habeas relief,
or, until July 28, 2014.2 Petitioner filed his original petition
on September 24, 2014, fifty-eight days after the statute of
limitations had expired.3
Thus, the petition must be dismissed as untimely unless
there is a basis for the application of equitable tolling. See
Holland v. Florida, 560 U.S. 631, 645 (2010) (holding AEDPA’s
statute of limitations is subject to equitable tolling in
appropriate cases). “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). “Generally, a litigant seeking equitable tolling bears
AEDPA statute of limitations. See Stokes v. District Attorney of
Cnty. Of Phila., 247 F.3d 539, 542 (3d Cir. 2001).
2 The thirty-fourth day after June 23, 2014, was Sunday, July 27,
2014. The limitations period therefore ended on Monday, July 28,
2014.
3 Petitioner signed his original petition on September 18, 2014.
Even giving Petitioner the benefit of the “prisoner mailbox
rule” and deeming his petition as having been filed on that
date, see Houston v. Lack, 487 U.S. 266, 276 (1988), the
petition is still untimely.
Petitioner also stated in his original filing that he attempted
to file his petition on time but that the prison returned it to
him because he had insufficient funds in his prison account.
(See Docket Entry 1 at 1). According to the documentation
Petitioner submitted as evidence of this attempt, Petitioner
first sought to send his petition on August 21, 2014. (See id.
at 3-5). Even if the Court were to deem this attempt as the
filing date, Petitioner’s attempted filing at that time also
would have occurred after the statute of limitations expired.
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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.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). In analyzing whether the circumstances faced by
Petitioner were extraordinary, “‘the proper inquiry is not how
unusual the circumstance alleged to warrant tolling is among the
universe of prisoners, . . . but rather how severe an obstacle
it is for the prisoner endeavoring to comply with AEDPA's
limitations period.’” Ross v. Varano, 712 F.3d 784, 802-03 (3d
Cir. 2013) (quoting Pabon, 654 F.3d at 400) (emphasis in
original). There must also be a “causal connection, or nexus,
between the extraordinary circumstances he faced and the
petitioner's failure to file a timely federal petition.” Id.
Petitioner has not demonstrated that he pursued his rights
diligently or that extraordinary circumstances prevented him
from filing a timely habeas petition. Respondents fully briefed
the issue of timeliness in their response to the Petition.
Petitioner acknowledged receipt of the Response in his Motion
for an Extension of Time to file a traverse and specifically
referenced Respondents’ arguments regarding “procedural bars.”
(Docket Entry 21 at 3). The Court granted Petitioner’s motion
and afforded him additional time to file his traverse on August
10, 2015. (Docket Entry 22). However, Petitioner did not file a
traverse and has made no further requests to do so in order to
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respond to and address Respondents’ timeliness arguments.
Because Petitioner has made no arguments and no showing that
there was an obstacle beyond Petitioner’s control that
necessarily prevented him from filing a timely petition, there
is no basis for equitable tolling. See LaCava v. Kyler, 398 F.3d
271, 275 (3d Cir. 2005) (noting district courts “should be
sparing in their use of this doctrine, applying equitable
tolling only in the rare situation where [it] is demanded by
sound legal principles as well as the interests of justice.”
(internal citations and quotation marks omitted) (alteration in
original)). The petition must therefore be dismissed as
untimely.
C. Certificate of Appealability
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
constitutional right.” 28 U.S.C. § 2253(c)(2). The United States
Supreme Court held in Slack v. McDaniel that “[w]hen 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
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that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” 529 U.S.
473, 484 (2000). 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.
V. CONCLUSION
For the reasons state above, the habeas petition is
dismissed as untimely under 28 U.S.C. § 2244. No certificate of
appealability shall issue.
An accompanying Order will be entered.
February 6, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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