BEY v. THE STATE OF NEW JERSEY et al
OPINION FILED. Signed by Judge Noel L. Hillman on 11/8/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STATE OF NEW JERSEY,
Civ. No. 16-5605 (NLH)
2 Duncan Court
Sewell, NJ 08080
Petitioner Pro Se
Maura Murphy Sullivan
Camden County Prosecutor's Office
25 North Fifth Street
Camden, NJ 08102
Counsel for Respondent
HILLMAN, District Judge
Petitioner Alamin Bey files this Amended Petition for a
Writ of Habeas Corpus Under 28 U.S.C. § 2254, challenging his
2003 New Jersey state court conviction. 1
(ECF No. 5.)
The Court presumes, for purposes of this Opinion, that Petitioner
is “in custody” within the meaning of § 2254 because he is under
“community supervision for life.” See Conover v. Cicchi, No. 09827, 2009 WL 1410746, at *1 (D.N.J. May 15, 2009) (“[a]s Petitioner
continues to serve the lifetime parole supervision portion of the
sentence, the Court presumes that Petitioner satisfies the ‘in
custody’ requirement as to challenging that conviction”);
Slaughter v. Christie, No. 15-8327, 2016 WL 6804877, at *2 (D.N.J.
Nov. 16, 2016) (“Plaintiffs who are not currently physically
reasons discussed below, Petitioner will be ordered to show
cause why the Amended Petition should not be dismissed as timebarred.
On June 13, 2003, Petitioner entered a guilty plea to a
charge of third degree endangering the welfare of a child, in
violation of N.J.S.A. § 2C:24-4(a).
(Am. Pet., Ex. B. Judgment
He was sentenced to three years of probation,
community service, Megan’s Law requirements and community
supervision for life.
Petitioner did not file a direct
appeal or a petition for post-conviction relief.
(Am. Pet. ¶¶
On September 12, 2016, Petitioner filed his initial
(ECF No. 1.)
In response to an Order from this
incarcerated, but are under [parole supervision for life], are in
If in fact Petitioner is not considered “in custody” for
purposes of § 2254 relief, and he intended to file a petition for
a writ of error coram nobis, such relief is not available before
this Court. See Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir.
2003) (per curiam) (“coram nobis is not available in a federal
court as a means of attack on a state criminal judgment”); Drake
v. Commonwealth, No. 17-1310, 2017 WL 3444479, at *1 (3d Cir. Apr.
28, 2017) (same). Rather, Petitioner must seek coram nobis relief
in state court. Obado, 328 F.3d at 718; Goodman v. United States,
140 F. App'x 436, 437 (3d Cir. 2005) (“[o]nly the court that handed
down the judgment of conviction for those offenses may entertain
such a petition”).
Court, Petitioner thereafter filed an Amended Petition which
complies with all local rules.
(ECF No. 5.)
In 1996, Congress enacted the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), which provides that “[a] 1–year
period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of
a State court.”
28 U.S.C. § 2244(d)(1).
Relevant for purposes
of this case, the limitations period begins to run when the
judgment becomes “final.” 2
A state-court criminal judgment
The statute states in full that the limitation period shall run
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
(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
(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). There is no indication in the Petition
that any subsection other than (A) is applicable here.
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 Supreme Court of the
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; see also 28 U.S.C. § 2244(d)(1)(A) (the 1year period begins on “the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review”).
Where applicable, the 1-year limitation period is tolled
during the time that a valid state post-conviction review is
See 28 U.S.C. § 2244(d)(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.”).
An application for state
post-conviction relief is considered “pending” within the
meaning of § 2244(d)(2), and the limitations period is
statutorily tolled, from the time it is “properly filed,” 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, 204 F.3d
This tolling does not include any petition for writ
of certiorari in the United States Supreme Court for review of a
denial of post-conviction relief.
Jenkins v. Superintendent of
Laurel Highlands, 705 F.3d 80, 85 n. 5 (3d Cir. 2013) (citing
Lawrence v. Florida, 549 U.S. 327, 332 (2007)).
A petitioner may be able to overcome the time bar if he can
show a basis for equitable tolling.
The Supreme Court has
stated that, “[g]enerally, a litigant seeking equitable tolling
[of the AEDPA statute of limitations] 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); see also Jenkins, 705 F.3d at 89.
“There are no bright
lines in determining whether equitable tolling is warranted in a
See Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir.
The Third Circuit has explained that “equitable tolling
is appropriate when principles of equity would make rigid
application of a limitation period unfair, but that a court
should be sparing in its use of the doctrine.”
Ross v. Varano,
712 F.3d 784 (3d Cir. 2013) (citing Pabon, 654 F.3d at 399;
Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)).
With respect to the diligence that is necessary for
equitable tolling, the Third Circuit has stated that:
The diligence required for equitable tolling
purposes is reasonable diligence, not maximum,
extreme, or exceptional diligence. Holland,
130 S.Ct. at 2565. “This obligation does not
pertain solely to the filing of the federal
habeas petition, rather it is an obligation
that exists during the period appellant is
exhausting state court remedies as well.”
LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir.
2005).... The fact that a petitioner is
proceeding pro se does not insulate him from
the “reasonable diligence” inquiry and his
lack of legal knowledge or legal training does
not alone justify equitable tolling.
Brown v. Shannon, 322 F.3d 768, 774 (3d Cir.
Ross, 712 F.3d 784.
Extraordinary circumstances may be found
where: (1) the petitioner has been actively misled; (2) the
petitioner has in some extraordinary way been prevented from
asserting his rights; or (3) where the petitioner has timely
asserted his rights in the wrong forum.
See Fahy v. Horn, 240
F.3d 239, 244 (3d Cir. 2001) (citing Jones, 195 F.3d at 159).
However, “[i]n non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not
been found to rise to the ‘extraordinary’ circumstances required
for equitable tolling.”
Id. (citations omitted).
Here, Petitioner was sentenced on June 13, 2003.
Jersey state law, Petitioner had 45 days after the imposition of
the sentence in which to file a direct appeal.
N.J. Ct. R. 2:4-
Petitioner concedes that he did not pursue a direct
Thus, Petitioner’s conviction became final for purposes
of § 2244(d) — and the one-year statute of limitations period
began to run — on July 28, 2003, when the 45 day period in which
to file a direct appeal expired.
Because he did not file a
petition for post-conviction relief, statutory tolling is not
Therefore, unless he is entitled to equitable
tolling, the statute of limitations would have expired a year
later, on July 28, 2004, and the instant Amended Petition would
be approximately 12 years late.
In this case, nothing in Petitioner's submissions suggests
that he has been pursuing his rights diligently and some
extraordinary circumstance stood in his way.
He does state that
“throughout the 13 year horrific and terrorizing ordeal, each
time an attorney would raise the issue and attempt to pursue and
investigate, the attorney would disappear.”
(Pet. ¶ 12.)
However, Petitioner does not provide any further facts.
While attorney abandonment can constitute extraordinary
circumstances, see Jenkins v. Superintendent of Laurel
Highlands, 705 F.3d 80, 89 (3d Cir. 2013), Petitioner has failed
to provide sufficient information to justify equitable tolling.
Ross, 712 F.3d at 800 (holding attorney malfeasance may warrant
equitable tolling “when combined with reasonable diligence on
the part of the petitioner in pursuit of his rights”).
generally alleged that attorneys would “disappear,” but provides
no dates; no specifics as to how the attorneys “disappeared”;
and no information as to what actions he took during this 13
year span to pursue his rights.
Under these circumstances,
equitable tolling of the statute of limitations does not appear
to be warranted.
And because nothing indicates that the
interests of justice would be better served by addressing the
merits of the Petition, see Day v. McDonough, 547 U.S. 198, 210,
(2006), the Petition is subject to dismissal as time-barred.
The Court, however, cannot rule out the possibility that
Petitioner might have valid grounds for equitable tolling of the
See Day, 547 U.S. at 210 (before acting on
timeliness of petition, court must accord Petitioner fair notice
and an opportunity to present his position).
This Court will
accordingly grant Petitioner 30 days to show cause why the
Amended Petition should not be dismissed as untimely.
Based upon the foregoing, the Court will require Petitioner
to show cause why the Petition should not be dismissed as
An appropriate Order follows.
Dated: November 8, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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