EVANS v. JOHNSON et al

Filing 2

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/26/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ZAIRE EVANS,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 15-5279 (JBS)

v.
STEVEN JOHNSON, et al.,

MEMORANDUM OPINION
Respondents.

SIMANDLE, Chief Judge:
Before the Court is Petitioner Zaire Evans’ (“Petitioner”)
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
1.

Petitioner challenges the February 3, 2006 judgment of

conviction sentencing him to forty-five years with a thirty-twoand-a-half-year period of parole ineligibility.
2.

On September 30, 2003, a Camden County jury convicted

Petitioner of aggravated manslaughter, N.J. STAT. ANN. § 2C:114(a)(1); felony murder, N.J. STAT. ANN. § 2C:11-3(a)(3); burglary,
N.J. STAT. ANN. § 2C:18-2; possession of a weapon for an unlawful
purpose, N.J. STAT. ANN. § 2C:39-4(a); unlawful possession of a
weapon, N.J. STAT. ANN. § 2C:39-5(b); endangering an injured
victim, N.J. STAT. ANN. § 2C:12-1.2; and certain persons not to
have weapons, N.J. STAT. ANN. § 2C:39-7(b). (Docket Entry 1-1 at
47).

3.

On November 20, 2003, the Honorable William J. Cook,

J.S.C., sentenced Petitioner to fifty years with a thirty-fiveyear parole disqualifier. (Docket Entry 1-1 at 48).
4.

Petitioner filed a timely appeal with the New Jersey

Superior Court Appellate Division. (Docket Entry 1-1 at 50).
5.

The Appellate Division affirmed Petitioner’s

convictions, but remanded to the trial court for resentencing on
the endangering and certain persons convictions. State v. Evans,
No. A-3398-03, 2005 WL 3500583 (N.J. Super. Ct. App. Div. Dec.
23, 2005), certif. denied, 899 A.2d 302 (N.J. 2006).
6.

On February 3, 2006, the trial court resentenced

Petitioner to 45-years imprisonment with a forty-five years with
a thirty-two-and-a-half-year period of parole ineligibility.
(Docket Entry 1-2 at 56).
7.

Petitioner filed a notice of appeal challenging the

new sentence on September 26, 2006. (Docket Entry 1-2 at 59).
8.

Petitioner also filed a pro se motion for post-

conviction relief in 2006. This motion was dismissed without
prejudice, however, due to the pending appeal. See State v.
Evans, No. A-1702-11, 2013 WL 4502752, at *1 (N.J. Super. Ct.
App. Div. Aug. 26, 2013).
9.

On May 13, 2008, Petitioner moved to withdrawal his

direct appeal from the Appellate Division. (Docket Entry 1-2 at

61). The appeal was officially dismissed by the court on July 3,
2008. (Docket Entry 1-2 at 62).
10.

Plaintiff filed another petition for post-conviction

relief on November 5, 2008. (Docket Entry 1-2 at 68). After
conducting an evidentiary hearing on April 1, 2011, the trial
court denied Petitioner’s application on April 13, 2011. (Docket
Entry 1-2 at 64).
11.

The Appellate Division affirmed the denial of

Petitioner’s application on August 26, 2013, State v. Evans, No.
A-1702-11, 2013 WL 4502752 (N.J. Super. Ct. App. Div. Aug. 26,
2013), and the New Jersey Supreme Court denied certification on
July 3, 2014, State v. Evans, 94 A.2d 912 (N.J. 2014).
12.

Petitioner filed this habeas petition on July 6, 2015.

(Docket Entry 1).
13.

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).
14.

The Third Circuit Court of Appeals offers differing

views on when a conviction becomes final after a defendant
voluntarily discontinues his direct appeal. Compare United
States v. Parker, 416 F. App'x 132 (3d Cir. 2011) (noting that
time period for direct appeal includes time during which a
defendant could appeal a voluntary dismissal), with United
States v. Sylvester, 258 F. App'x 411, 412 (3d Cir. 2007)
(“[T]he limitations period began to run when [defendant’s]
appeal was voluntarily dismissed. When an appeal is voluntarily
dismissed, further direct review is no longer possible.”).
15.

When two Third Circuit panels conflict, and the Court

of Appeals has not spoken en banc on the conflict, “the earlier
decision is generally the controlling authority.” United States
v. Tann, 577 F.3d 533, 541 (3d Cir. 2009). In an abundance of
caution, and because the end result does not change by including

the additional time, the Court will give Petitioner the benefit
of the twenty days he had to petition the New Jersey Supreme
Court for review of the Appellate Division’s dismissal of his
appeal. See N.J. CT. R. 2:12-3(a). Petitioner’s direct review
therefore concluded, and AEDPA’s statute of limitations began to
run, on July 23, 2008 at the latest.
16.

Petitioner filed his application for post-conviction

relief on November 5, 2008, (Docket Entry 1-2 at 68), 105 days
later. The AEDPA one-year statute of limitations was statutorily
tolled until the conclusion of the state courts’ review of the
application on July 3, 2014. 28 U.S.C. § 2244(d)(2).
17.

“[T]he time during which a state prisoner may file a

petition for a writ of certiorari in the United States Supreme
Court from the denial of his state post-conviction petition does
not toll” AEDPA’s statute of limitations. Stokes v. Dist.
Attorney of the Cnty. of Phila., 247 F.3d 539, 542 (3d Cir.
2001), cert. denied, 534 U.S. 959 (2001). Petitioner therefore
had 260 days from July 3, 2014 to file his federal habeas
petition, for an end date of March 21, 2015. Petitioner did not
file this petition until July 6, 2015. (Docket Entry 1).
18.

“[T]he AEDPA statute of limitations is an important

issue, the raising of which may not necessarily be left
completely to the state.” Long v. Wilson, 393 F.3d 390, 402 (3d
Cir. 2004). “[D]istrict courts are permitted . . . to consider,

sua sponte, the timeliness of a state prisoner's habeas
petition.” Day v. McDonough, 547 U.S. 198, 209 (2006).
19.

AEDPA’s statute of limitations is subject to equitable

tolling in appropriate cases. See Holland v. Florida, 560 U.S.
631, 645 (2010). Because the Court is raising the issue of
timeliness sua sponte, the Court will give Petitioner a chance
to argue for equitable tolling. See Day, 547 U.S. at 210.
(“[B]efore acting on its own initiative, a court must accord the
parties fair notice and an opportunity to present their
positions.”).
20.

“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.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). “The diligence required
for equitable tolling purposes is reasonable diligence, not
maximum, extreme, or exceptional diligence. . . . A
determination of whether a petitioner has exercised reasonable
diligence is made under a subjective test: it must be considered
in light of the particular circumstances of the case.” Ross v.
Varano, 712 F.3d 784, 799 (3d Cir. 2013).
21.

In the interests of justice, Petitioner shall be

ordered to show cause within 30 days of this Order why his
Petition should not be dismissed as untimely under 28 U.S.C. §

2244(d)(1). See Day, 547 U.S. at 209 (holding that a show cause
order is an appropriate method for the court to give notice to a
petitioner for the sua sponte raising of a timeliness issue).

August 26, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge