DELEON v. JOHNSON
OPINION. Signed by Judge Renee Marie Bumb on 11/17/2017. (rtm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NELSON A. DELEON,
STEVEN S. JOHNSON,
Civil Action No. 16-8950 (RMB)
BUMB, United States District Judge
This matter comes before the Court upon Respondent’s motion
to dismiss the petition for writ of habeas corpus under 28 U.S.C.
§ 2254, as barred by the statute of limitations.
(ECF No. 7.)
Petitioner, Nelson A. Deleon (“Deleon”) did not file a response to
the motion to dismiss.
On June 18, 2001, a judgment of conviction (“JOC”) was entered
against Deleon in New Jersey Superior Court, Camden County upon
his conviction on charges of robbery, assault, criminal restraint,
manslaughter, and felony murder.
(JOC, ECF No. 7-5.)
sentenced to an aggregate term of imprisonment for 53 years, and
five years of parole supervision.
(Id. at 11.)
The JOC was
amended on January 8, 2002, to reflect gap time and jail credits.
(Am. JOC, ECF No. 7-6.)
Deleon appealed his conviction and sentence on August 28,
(Notice of Appeal, ECF No. 7-7.)
The Appellate Division
affirmed the conviction but remanded to amend the JOC to merge the
counts of aggravated manslaughter and felony murder.
Opinion, ECF No. 7-8.)
(Am. JOC, ECF No. 7-9.)
The JOC was amended on October 2, 2003.
The New Jersey Supreme Court denied
Deleon’s petition for certification on May 21, 2004.
Order, ECF No. 7-10.)
The PCR Court received Deleon’s petition on July 6, 2004, and
denied the petition on April 20, 2007.
(Pet. for PCR, ECF No. 7-
11; First PCR Opinion, ECF No. 7-12.)
Deleon appealed on June 8,
(Notice of Appeal, ECF No. 7-13.)
The Appellate Division
affirmed the PCR Court on February 23, 2009.
(App. Div. Order,
ECF No. 7-14.) The New Jersey Supreme Court denied Deleon’s
petition for certification on October 8, 2009.
(N.J. S.Ct. Order,
ECF No. 7-15.)
Deleon filed a second PCR petition on August 11, 2010.
(Second PCR Opinion, ECF No. 7-16 at 3.)
The PCR Court denied the
petition on August 31, 2011, finding each of Deleon’s claims were
on October 4, 2011.
(Id. at 5.)
Deleon filed a notice of appeal
(Notice of Appeal, ECF No. 7-17.)
27, 2014, the Appellate Division found that the claims were not
procedurally barred under N.J. Ct. R. 3:22-5, but the petition was
untimely under Rule 3:22-12(a)(2).
18 at 2.)
(App. Div. Order, ECF No. 7-
The Appellate Division affirmed the PCR Court’s denial
of Deleon’s second PCR petition.
Deleon filed a motion for reconsideration and a motion to
file as within time, both of which motions were denied by the
Appellate Division on April 3, 2014.
(App. Div. Order, ECF No. 7-
Deleon filed a motion to file a petition for certification
in the New Jersey Supreme Court as within time, and the motion was
dismissed on August 28, 2014.
(N.J. S.Ct. Order, ECF No. 7-20.)
On February 11, 2016, however, the New Jersey Supreme Court
granted Deleon’s motion to vacate its August 28, 2014 order, and
Order, ECF No. 7-21.)
The New Jersey Supreme Court then denied
Deleon’s petition for certification on Sept. 23, 2016. (N.J. S.Ct.
Order, ECF No. 7-22.)
The Parties’ Arguments
Respondent submits that the habeas petition is untimely under
28 U.S.C. § 2244(d)(1).
Grounds, ECF No. 7.)
(Mot. to Dismiss Pet. on Timeliness
The statute of limitations for petitions
under § 2254 is one-year. 28 U.S.C. § 2244(d). Respondent asserts
the one-year period began to run on August 19, 2004.
Supp. of Mot. to Dismiss, ECF No. 7-3 at 12.)
filed his first post-conviction relief (“PCR”) petition on July 6,
(ECF No. 7-3 at 12.)
The statute of limitations was tolled
on that date.
Deleon’s first PCR proceeding ended on October 8, 2009, and
the one-year limitations period began to run.
a second PCR petition on August 11, 2010.
(Id. at 13.)
contends this did not toll the statute of limitations period
because the petition was not properly-filed within the meaning of
§ 2244(d)(2), because it was untimely.
(Id.) Deleon did not file
his habeas petition until Dec 6, 2016, years after the statute of
28 U.S.C. § 2244(d) provides:
(d)(1) 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. 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
(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
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
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 writ of certiorari in the United States
Supreme Court. Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000).
The statute of limitations began to run on
October 9, 2009
Direct review of Deleon’s conviction and sentence became
final on August 19, 2004. However, he filed his first PCR petition
before that date; therefore, the limitations period was tolled
when the first PCR proceeding was pending. 28 U.S.C. § 2244(d)(2).
The first PCR proceeding ended on October 8, 2009, and the statute
of limitations began to run the next day.1
(N.J. S.Ct. Order, ECF
No. 7-15 at 2.)
This Court applied Federal Rule of Civil Procedure 6 in computing
The second PCR proceeding did not toll the
When a post-conviction petition is untimely under state law,
it is not “properly-filed” for purposes of tolling the habeas
statute of limitations under § 2244(d)(2).
Pace v. DiGuglielmo,
544 U.S. 408, 417 (2005). Therefore, Deleon’s second PCR petition,
found untimely by the Appellate Division (App. Div. Order, ECF No.
7-18 at 2.), did not toll the limitations period.
A habeas petition is deemed filed on the date the prisoner
hands the petition to prison authorities for mailing to the
district court. Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998).
According to the petition, Deleon gave the petition to prison
authorities for mailing on November 24, 2016.
(Pet., ECF No. 1 at
The petition was filed long after the statute of limitations
expired on Monday, October 11, 2010.
Deleon did not make any
arguments in support of equitable tolling the limitations period.
dismiss is granted, and the habeas petition is dismissed as timebarred.
CERTIFICATE OF APPEALABILITY
the expiration of the statute of limitations. See Rule 12, Rules
Governing Section 2254 Cases (“[t]he Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with any
statutory provisions or these rules, may be applied to a proceeding
under these rules.”)
This Court must determine whether Deleon is entitled to a
certificate of appealability in this matter.
Local Appellate Rule 22.2.
See Third Circuit
The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing of
the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
Based on the discussion in this Opinion, Deleon has not made a
substantial showing of denial of a constitutional right, and this
Court will not issue a certificate of appealability.
An appropriate order follows.
Dated: November 17, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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