LEE v. JOHNSON et al

Filing 20

MEMORANDUM AND ORDER reserving ruling on Petitioners motion for a stay and abeyance of his amended habeas petition; ORDERED that, within 45 days of the date of this Order, Petitioner and Respondents shall each file a supplemental brief on the issues identified in the Order; ORDERED that Respondent shall file an answer to the amended petition within 45 days, etc.; ORDERED that Petitioner may file and serve a reply to the answer within 45 days after the answer is filed. Signed by Judge Renee Marie Bumb on 9/21/2017. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

:
:
:
Petitioner,
:
:
v.
:
:
STEVEN JOHNSON, Administrator :
of New Jersey State Prison,
:
and THE ATTORNEY GENERAL OF
:
THE STATE OF NEW JERSEY
:
:
Respondents.
:
:
DEAN LEE,

Civ. Action No. 16-477 (RMB)

MEMORANDUM AND ORDER

This matter comes before the Court upon Petitioner’s motion
for a stay and abeyance of his amended habeas petition. (Mot.
for Stay and Abeyance, ECF No. 4); and Respondents’ motion to
dismiss with prejudice the [amended] petition for writ of habeas
corpus as untimely, and deny Petitioner’s motion for stay and
abeyance. (Mot. to Dismiss Pet. for Writ of Habeas Corpus and
Deny Petr’s Mot. for Stay and Abeyance, ECF No. 17; Brief in
Supp. of Mot. to Dismiss Pet. for Writ of Habeas Corpus and Deny
Petr’s Mot. for Stay and Abeyance, (“Respondents’ Brief”), ECF
No. 17-2.)
I.

BACKGROUND
Petitioner filed his habeas petition under 28 U.S.C. § 2254

on January 20, 2016, and the petition was terminated without
prejudice for failure to use the proper form. (Pet., ECF No. 1;
Order, ECF No. 2.) On February 17, 2016, Petitioner filed an
amended petition. (Am. Pet., ECF No. 3.) On March 28, 2016, the
Court ordered Petitioner to show cause why his habeas petition
should

not

be

dismissed

as

untimely

under

28

U.S.C.

§

2244(d)(1). (Mem. and Order, ECF No. 5.) Petitioner responded to
the Court’s Order on June 16, 2016.

(Brief in Response to Order

to Show Cause (“Petr’s Brief”), ECF No. 8.)

Petitioner argued

that his sentencing remand proceeding was pending in the Law
Division between July 16, 2007 (filing date of order denying
certification), and May 22, 2008 (filing date of PCR petition),
and

when

that

period

is

excluded

from

the

“habeas

clock,”

Petitioner was in compliance with the one-year filing deadline.
(Petr’s Brief, ECF No. 8 at 3.) In the alternative, Petitioner
requests an opportunity to present an equitable tolling argument
based on attorney abandonment.

(Id. at 3-4.)

Several weeks later, on March 3, 2016, Petitioner filed a
motion for stay and abeyance. (Mot. for Stay and Abeyance, ECF
No. 4.) Petitioner asserts that:
the unexhausted issues were not raised by
any of petitioner's counsels throughout all
his
proceedings.
With
the
help
of
a
paralegal here at the prison and petitioner
pouring over the trial transcripts, only
then was petitioner able to discover these
unexhausted issues. Petitioner also submits
2

that assigned PCR counsel failed to raise
these issues and did not provide adequate
consultation or effectively communicate with
petitioner
concerning
the
unexhausted
issues.
(Id. at 5-6.)
In opposition to the habeas petition and the motion to
stay, Respondents submit that Petitioner’s habeas petition was
not timely filed and should be dismissed with prejudice; and
Petitioner’s motion for a stay and abeyance should be denied
because he cannot amend his untimely habeas petition to add new
claims after exhaustion.

(Respondents’ Brief, ECF No. 17-2 at

2.)
II.

STATUTE OF LIMITATIONS
A.

The Parties’ Arguments

In

support

Respondents

state

of
that

the

statute

Petitioner

of
was

limitations
sentenced

on

defense,
April

8,

2004, to an aggregate custodial sentence of 64 years with a 33year term of parole ineligibility. (Ex. 3, JOC, ECF No. 17-7.)
Petitioner filed an out-of-time notice of appeal on March 31,
2005.

(Ex. 4, Notice of Appeal, ECF No. 17-8.)

The New Jersey

Appellate Division permitted Petitioner to proceed with his outof-time appeal.

State v. Lee, 2007 WL 1362618, at *1 (N.J.

Super. Ct. App. Div. May 10, 2007.))
affirmed

the

convictions

but

remanded

The Appellate Division
for

the

purpose

of

amending the judgment of conviction to merge Counts 1 and 2, and
3

to resentence Petitioner on Count V, certain persons not to have
weapons.

Id. at *7-8.

judgment

of

Respondents could not locate an amended

conviction

or

related

proceeding.

(Respondents’

Brief, ECF No. 17-2 at 20.)
The New Jersey Supreme Court denied Petitioner’s petition
for certification on July 16, 2007.
(2007).

State v. Lee, 192 N.J. 294

Petitioner filed a petition for post-conviction relief

on May 22, 2008. (Ex. 6, PCR Pet., ECF No. 17-10.)
Court denied his petition on August 31, 2010.
Opinion

filed

8/31/10,

ECF

No.

17-12.)

The PCR

(Ex. 8, Order and

Petitioner

did

not

timely appeal, but on December 20, 2011, the Appellate Division
granted Petitioner’s motion to file a notice of appeal as within
time.

(Exhibits

Appellate

9-14,

Division

ECF

Nos.

17-13

the

denial

affirmed

motion on July 25, 2014.

through
of

17-18.)

Petitioner’s

7,

Petitioner’s

2014,
motion

the
for

certification within time.
ECF No. 17-22.)

PCR

State v. Lee, No. A-1728-11T1, 2014 WL

3672123, at *1 (N.J. Super. Ct. App. Div. July 25, 2014).
November

The

New

Jersey

leave

to

Supreme
file

a

Court

On

granted

petition

for

(Ex. 18, N.J. Supreme Court Order,

On March 18, 2015, the New Jersey Supreme Court

denied the petition for certification.

State v. Lee, 221 N.J.

219 (2015).
Respondents

contend

that

because

Petitioner

failed

to

timely appeal the denial of his PCR petition, his statute of
4

limitations began to run and expired before he filed his habeas
petition.

(Respondents’

Brief,

ECF

No.

17-2

at

13.)

Even

forgiving all of the time that elapsed prior to Petitioner’s
filing

of

his

pro

se

PCR

petition,

Respondents

assert

the

petition is untimely because Petitioner failed to file a timely
appeal from denial of his PCR petition.

(Respondents’ Brief,

ECF No. 17-2 at 21.)
Respondents note that Petitioner’s timely notice of appeal
of

the

PCR

decision

was

due

on

October

15,

2010,

and

Petitioner’s failure to file on that date caused the statute of
limitations to begin to run. (Id. at 21-22.) Thus, the habeas
clock expired on October 15, 2011, and Petitioner did not file
his original habeas petition until January 12, 2016.
22.)

(Id. at

Finally, Respondents maintain that “even if the filing of

the Public Defender’s December 7, 2011 notice of motion to file
an appeal as within time statutorily tolled Petitioner’s habeas
clock, that filing was 418 days after the time expired to file
an appeal from the denial of his PCR petition.”

(Id. at 23; Ex.

13, Mot. for leave to appeal as within time, ECF No. 17-17.)

As

to equitable tolling, Respondents assert that Petitioner is not
entitled

to

equitable

tolling

based

on

attorney

abandonment

because the record does not support Petitioner’s due diligence
or that extraordinary circumstances existed. (Id. at 25.)
B.

Legal Standard
5

28 U.S.C. § 2244(d) provides:
(d)(1) A 1-year period
apply to an application
corpus by a person in
the
judgment
of
a
limitation period shall
of—

of limitation shall
for a writ of habeas
custody pursuant to
State
court.
The
run from the latest

(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.
(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 subsection.
After a petitioner seeks review from the State’s highest
court,

the

judgment

of

conviction

becomes

final,

and

the

limitations period begins to run after expiration of the 90-day
period

for

filing

a

petition

for
6

writ

of

certiorari

in

the

United States Supreme Court.
419 (3d Cir. 2000).
to

find

a

Swartz v. Meyers, 204 F.3d 417,

In this case, the parties have been unable

copy

the

amended

judgment

of

conviction.

Additionally, Respondents acknowledge that the issue of whether
the time period of October 16, 2010 through December 7, 2011 was
tolled

pursuant

Circuit.

to

§

2244(d)(2)

is

unsettled

in

the

Third

(Respondents’ Brief, ECF No. 17-2 at 16.)

Therefore,

the

Court

reserves

ruling

on

the

motion

to

dismiss and the motion for stay and abeyance and will terminate
those motions until a full answer to the amended petition and
supplemental briefing on the statute of limitations is provided
to the Court.

In their supplemental briefs, the Petitioner and

the Respondents shall include what actions they have taken to
determine when direct appeal remand proceedings concluded, and
the date when the amended judgment of conviction was filed.
Petitioner may also supplement his equitable tolling argument
based

on

attorney

abandonment.

Respondents

may

present

any

additional arguments on the unsettled issue in the Third Circuit
of whether Petitioner’s PCR Appeal was pending from October 16,
2010 through December 7, 2011.
IT IS therefore on this 21st day of September 2017,
ORDERED

that

the

Court

reserves

ruling

on

Petitioner’s

motion for a stay and abeyance of his amended habeas petition
(Mot. for Stay and Abeyance, ECF No. 4); and Respondents’ motion
7

to dismiss with prejudice the [amended] petition for writ of
habeas corpus as untimely, and deny Petitioner’s motion for stay
and abeyance. (Mot. to Dismiss Pet. for Writ of Habeas Corpus
and Deny Petr’s Mot. for Stay and Abeyance, ECF No. 17; and the
Clerk

of

the

reopening

Court

upon

shall

terminate

Respondents’

filing

such
of

a

motions
full

subject

answer

to

to
the

amended petition; and it is further
ORDERED that, within 45 days of the date of this Order,
Petitioner and Respondents shall each file a supplemental brief
on the issues identified above; and it is further
ORDERED that Respondents shall file a full and complete
answer to all claims asserted in the amended petition (ECF No.
3) within forty-five (45) days of the entry of this Order; and
it is further
ORDERED
factual

and

that

Respondents’

legal

answer

allegation

of

shall

the

respond

amended

to

each

petition,

in

accordance with Habeas Rule 5(b); and it is further
ORDERED that Respondents’ answer shall address the merits
of

each

claim

raised

in

the

amended

petition

by

citing

to

relevant federal law; and it is further
ORDERED that, in addition to addressing the merits of each
claim,

Respondents

shall

raise

by

way

of

its

answer

any

appropriate defenses which they wish to have the Court consider,
including,

but

not

limited

to,
8

exhaustion

and

procedural

default,

and

also

including,

with

respect

to

the

asserted

defenses, relevant legal arguments with citations to appropriate
federal

legal

authority;

all

non-jurisdictional

affirmative

defenses subject to waiver not raised in Respondents’ answer or
at

the

earliest

practicable

time

thereafter

may

be

deemed

waived; and it is further
ORDERED
requirements

that
of

Respondents’

Habeas

Rule

answer

5(c)

and

shall
(d)

adhere

in

to

the

providing

the

relevant state court record of proceedings, including any pro se
filings; and it is further
ORDERED that the answer shall contain an index of exhibits
identifying

each

document

from

the

relevant

state

court

proceedings that is filed with the answer; and it is further
ORDERED
answer,

the

that

Respondents

exhibits,

and

shall

the

list

electronically
of

file

exhibits;

and

it

the
is

further
ORDERED that all exhibits to the Answer must be identified
by

a

descriptive

name

in

the

electronic

filing

entry,

for

example:
“Exhibit

#1

Transcript

of

[type

of

proceeding]

held

on

XX/XX/XXXX” or
“Exhibit #2 Opinion entered on XX/XX/XXXX by Judge YYYY”; and it
is further

9

ORDERED that Petitioner may file and serve a reply to the
answer within forty-five (45) days after Respondents file the
answer, see Habeas Rule 5(e); it is further
ORDERED that, within seven (7) days after any change in
Petitioner’s

custody

status,

be

it

release

or

otherwise,

Respondents shall electronically file a written notice of the
same with the Clerk of the Court.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

10