KAKEMBO v. STATE OF NEW JERSEY
Filing
17
OPINION FILED. Signed by Judge Renee Marie Bumb on 9/8/16. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
TIMOTHY KAKEMBO,
Petitioner,
v.
STATE OF NEW JERSEY, et al.,
Respondents.
:
:
:
:
:
:
:
:
:
Civil Action No. 15-6556(RMB)
OPINION
BUMB, District Judge.
This matter is before the Court upon Petitioner’s Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 1);
Respondent’s Limited Answer on Statute of Limitations; (ECF No.
13); Petitioner’s Motion for Appointment of Pro Bono Counsel
(ECF No. 14); and Respondent’s response to Petitioner’s motion
(ECF No. 16). For the reasons discussed below, the Court will
deny Petitioner’s motion for appointment of pro bono counsel and
dismiss the petition as barred by the statute of limitations.
I.
BACKGROUND
On
March
9,
2006,
in
Cape
May
County
Superior
Court,
Petitioner was found guilty of first-degree aggravated sexual
assault
degree
in
violation
endangering
the
of
N.J.S.A.
welfare
of
2C:14-2(a)(1),
a
child,
in
and
second-
violation
of
N.J.S.A. 2C:24-4(a). (ECF Nos. 13-1, Indictment; 13-2, Verdict
Sheet.) Petitioner was sentenced on May 12, 2006 to an eleven1
year term of imprisonment on aggravated assault, with a six-year
concurrent
sentence
for
endangering
the
welfare
of
a
child,
subject to the No Early Release Act for 85% of the term. (ECF
No. 13-3, Judgment of Conviction and Order of Commitment.)
Petitioner
filed
a
direct
appeal
of
his
conviction
and
sentence, and the Appellate Division affirmed on July 26, 2010.
(ECF No. 13-5, State v. Kakembo, No. A-6362-06T4, N.J. Super.
Ct. App. Div. July 26, 2010.) Petitioner did not file a petition
for certification to the Supreme Court of New Jersey. Therefore,
his direct appeal became final on August 15, 2015, when the 20day period of time to file a petition for certification expired.
N.J. Court Rule 2:12-3; see Gonzalez v. Thaler, 132 S.Ct. 641,
654
(2012)(where
highest
court,
petitioner
his
judgment
did
not
became
appeal
final
to
when
the
his
State's
time
for
seeking review with the State's highest court expired.) Pursuant
to 28 U.S.C. § 2244(d)(1)(A), the time for Petitioner to file an
application for habeas corpus relief began to run on August 16,
2010.
Petitioner filed a state petition for post-conviction
relief on January 18, 2011. (ECF No. 13-6, PCR Pet.) At this
point, 155 days of the one-year habeas statute of limitations
had run. The PCR petition tolled the statute of limitations with
210 days remaining. See Johnson v. Hendricks, 314 F.3d 159, 16162 (3d Cir. 2002)(filing PCR petition does not reset one-year
statute of limitations period).
2
The PCR Court denied Petitioner’s PCR petition on February
7,
2012,
and
Petitioner
appealed.
(ECF
No.
13-8,
State
v.
Kakembo, N.J. Super. Ct. Feb. 7, 2012; ECF No. 13-9, Notice of
Appeal.) On March 28, 2014, the Appellate Division affirmed the
denial of post-conviction relief. (ECF No. 13-12, State v. T.K.,
No. A-4853-11T2, N.J. Super. Ct App. Div.) Petitioner appealed
to the New Jersey Supreme Court, which denied his petition for
certification on September 22, 2014. (ECF Nos. 13-13, 13-14,
State v. T.K., N.J. Sept. 22, 2014.) Thus, Petitioner’s PCR
proceedings
became
final
on
September
22,
2014.
Lawrence
v.
Florida, 549 U.S. 327, 332 (2007). Petitioner’s time remaining
to file his federal habeas petition, 210 days, began to run
again on September 23, 2014. The one-year period expired on
April
21,
2015.
Petitioner
did
not
file
his
petition
until
August 31, 2015.
II.
MOTION FOR APPOINTMENT OF PRO BONO COUNSEL
Petitioner
because
he
responding
requested
cannot
to
afford
appointment
counsel
Respondent’s
and
limited
of
pro
he
feels
answer
bono
counsel
incapable
or
of
otherwise
proceeding without counsel in this matter. (ECF No. 14.) A court
must appoint counsel if an evidentiary hearing is necessary in a
§ 2254 proceeding. Rule 8(c), Rules Governing Section 2254 Cases
in the United States District Courts. The statute of limitations
issue before the Court does not require an evidentiary hearing;
3
the issue can be determined on the record before the Court.
Therefore,
the
Court
considers
Plaintiff’s
request
for
appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1).
When determining whether to appoint pro bono counsel under
28 U.S.C. § 1915(e)(1), the Court must first make a threshold
determination of whether the Petitioner’s case has merit. Tabron
v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). In this case, there is
nothing in the record to suggest that Petitioner has a basis for
equitable tolling of the one-year habeas statute of limitations,
which expired before he filed his habeas petition. The Court
notes
Petitioner’s
detailed
habeas
petition,
filed
pro
se,
belies his contention that he is not capable of responding to
the
fairly
straightforward
issue
of
whether
there
was
some
extraordinary circumstance that warranted equitable tolling of
the
statute
of
limitations.
Because
the
habeas
petition
was
filed after the statute of limitations expired, as discussed
below,
merit,
the
and
Court
the
determines
Court
will
that
deny
the
habeas
petition
Petitioner’s
motion
lacks
for
appointment of counsel.
III. STATUTE OF LIMITATIONS
There is a one-year statute of limitations for filing a
habeas petition under 28 U.S.C. § 2254. 28 U.S.C. § 2244(d)(1).
The limitations period begins to run from the latest of the
following:
4
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of 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 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)(A-D).
The statute of limitations period is tolled during the time
in which a properly filed application for post-conviction relief
or other collateral review is pending. 28 U.S.C. § 2244(d)(2).
This tolling provision does not reset the date from which the
one-year limitations period begins to run. See Johnson, 314 F.3d
at 161-62 (citing Smith v. McGinnis, 208 F.3d 13, 17 (2d. Cir.
2000)).
28
U.S.C.
§
2244(d)
is
subject
to
equitable
tolling.
Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] ‘petitioner’
is ‘entitled to equitable tolling’ only if he shows ‘(1) that he
has
been
pursuing
his
rights
diligently,
5
and
(2)
that
some
extraordinary
circumstance
stood
in
his
way’
and
prevented
timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005).
Petitioner
filed
his
habeas
petition
using
the
Court’s
form. Paragraph 18 of the form asks the petitioner to explain
why the statute of limitations does not bar the petition, if
filed
more
than
a
year
after
judgment
of
conviction
became
final. Petitioner wrote in “N/A.” (Pet., ECF No. 1, ¶18.) This
suggests Petitioner was unaware that the statute of limitations
had expired when he filed the petition. Miscalculation of the
one-year time period or erroneous advice of counsel does not
provide
grounds
for
equitable
tolling
of
a
habeas
petition.
Schlueter v. Varner, 384 F.3d 69, 76-79 (3d Cir. 2004). There
appearing no basis for equitable tolling in the record, the
Court will dismiss the habeas petition as time-barred.
IV.
CONCLUSION
For the reasons discussed above, in the accompanying Order
filed
herewith,
the
Court
will
deny
Petitioner’s
motion
for
appointment of pro bono counsel and dismiss the habeas petition
with prejudice.
V.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
6
§ 2254. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional
right.”
28
U.S.C.
§
2253(c)(2).
“A
petitioner
satisfies this standard by demonstrating that jurists of reason
could
disagree
with
the
district
court’s
resolution
of
his
constitutional claims or that jurists could conclude the issues
presented
are
adequate
to
deserve
encouragement
to
proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For
the
reasons
standard,
discussed
and
this
above,
Court
Petitioner
will
not
issue
has
a
not
met
certificate
this
of
appealability.
s/RENÉE MARIE BUMB
RENÉE MARIE BUMB
United States District Judge
Dated September 8, 2016
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?