FORD v. ROBINSON et al
Filing
8
OPINION. Signed by Judge Renee Marie Bumb on 10/25/2018. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
LEONARD FORD,
Petitioner
v.
GEORGE O’ROBINSON and
ATTORNEY GENERAL
OF THE STATE OF NEW JERSEY,
Respondents
:
:
:
:
:
:
:
:
:
:
:
:
Civil Action No. 18-3137 (RMB)
OPINION
BUMB, United States District Judge
On February 27, 2018,1
Petitioner Leonard Ford, a state
prisoner incarcerated in Northern State Prison in Newark, New,
Jersey, filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person In State Custody, challenging his May 2009
conviction
and
sentence
in
Atlantic
County,
New
Jersey
for
aggravated manslaughter. (Pet., ECF No. 1, ¶¶1-5.) This Court
ordered
Respondents
to
file
either
a
motion
to
dismiss
on
timeliness grounds or a full answer to the merits of the petition.
(Order, ECF No. 2.)
1
Under the prisoner mailbox rule, a pro se prisoner’s habeas
petition is deemed filed at the moment it is delivered to prison
officials for mailing. Burns v. Morton, 134 F.3d 109, 113 (3rd
Cir. 1998); see (Pet. at 16, ECF No. 1.)
This matter comes before the Court upon Respondents’ motion
to dismiss the petition as barred by the statute of limitations,
(Mot. to Dismiss, ECF No. 5), and Petitioner’s brief in opposition
to the motion to dismiss. (“Petr’s Opp. Brief,” ECF No. 7.)
I.
PROCEDURAL HISTORY
Petitioner pled guilty to aggravated manslaughter on March
30, 2009. (Mot. to Dismiss, Ex. 1, ECF No. 5-2.) A Judgement of
Conviction
was
entered
against
Petitioner
in
the
New
Jersey
Superior Court Law Division in Atlantic County on May 8, 2009, at
which time he was sentenced to a 22-year term of imprisonment,
subject to an 85% parole disqualifier. (Pet. ¶¶1-5, ECF No. 1.)
Plaintiff filed a direct appeal on July 21, 2009, arguing his
sentence was manifestly excessive. (Mot. to Dismiss, Ex. 2, ECF
No. 5-3.) The appeal was denied by the New Jersey Superior Court,
Appellate Division on June 28, 2011. (Mot. to Dismiss, Ex. 3, ECF
No. 5-4.) Petitioner filed a petition for certification with the
New Jersey Supreme Court, and the New Jersey Supreme Court denied
review on January 10, 2012. (Mot. to Dismiss, Ex. 4, ECF No. 55.)
Petitioner
filed
a
petition
for
post-conviction
relief
(“PCR”) in the Superior Court of New Jersey, Law Division on
January 10, 2013. (Mot. to Dismiss, Ex. 5, ECF No. 5-6.) The PCR
Court denied the petition on October 6, 2014. (Mot. to Dismiss,
Ex. 6, ECF No. 5-7.) Petitioner filed an appeal on December 19,
2
2014. (Mot. to Dismiss, Ex. 7, ECF No. 5-8.) The New Jersey
Superior Court, Appellate Division denied the appeal on April 11,
2016. (Mot. to Dismiss, Ex. 8, ECF No. 5-9.) Petitioner sought
review by the New Jersey Supreme Court; and the New Jersey Supreme
Court denied his petition for certification on September 11, 2017.
(Mot. to Dismiss, Ex. 9, ECF No. 5-10.) Petitioner filed the
instant petition on February 27, 2018. (Pet. at 16, ECF No. 1.)
II.
DISCUSSION
A.
The Parties’ Arguments
Respondents submit that the habeas petition is time-barred
under 28 U.S.C. § 2244(d)(1). (Mot. to Dismiss at 1, ECF No. 5.)
The statute of limitations for petitions under § 2254 is one year.
28 U.S.C. § 2244(d). Respondents assert that direct review became
final and the one-year limitations period began on April 12, 2012,
90 days after the New Jersey Supreme Court denied certification on
direct review. (Id. at 5.)
Petitioner filed a PCR petition on January 10, 2013, after
274 days of the limitations period lapsed. (Id.) PCR review became
final when the New Jersey Supreme Court denied the petition for
certification on September 11, 2017. (Id. at 6.) Respondent asserts
Petitioner filed his habeas petition on February 22, 2018, after
164 days lapsed since his PCR review became final. (Id.) By adding
the 274 days that lapsed after direct review but before Petitioner
filed his PCR petition and the 168 days that lapsed after PCR
3
review became final before Petitioner filed his habeas petition,
Respondents allege 438 days lapsed, and Plaintiff did not timely
file his habeas petition. (Id.)
In opposition to Respondent’s motion to dismiss, Petitioner
admits his petition was submitted beyond the one-year statute of
limitations
period.
(Petr’s
Opp.
Brief,
ECF
No.
7
at
1-2.)
Petitioner contends it would be a serious injustice to allow him
to serve a sentence for aggravated manslaughter where he was
coerced into pleading guilty and “he is innocent, according to the
evidence compared to the case law.” (Id. at 3.)
B.
Legal Standard
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
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
4
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 writ of certiorari in the United
States Supreme Court. Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir.
2000). A properly-filed application for post-conviction relief
tolls
the
habeas
statute
of
limitations
under
28
U.S.C.
§
2244(d)(2). Pace v. Diguglielmo, 544 U.S. 408, 410 (2005).
Equitable
tolling
applies
to
the
one-year
statute
of
limitations under 28 U.S.C. § 2244(d) in appropriate cases. Holland
v. Florida, 560 U.S. 631, 645 (2010). Convincing evidence of actual
innocence, under the same
miscarriage of justice exception that
excuses procedurally defaulted habeas claims, may also excuse the
failure to timely file a habeas petition. McQuiggin v. Perkins,
569 U.S. 383, 396-98 (2013). “[A] petitioner ‘must show that it is
more likely than not that no reasonable juror would have convicted
5
him in the light of the new evidence.” Id. at 399 (quoting Schlup
v. Delo, 513 U.S. 298, 327 (1995)). The Supreme Court has stated
that “‘[w]ithout any new evidence of innocence, even the existence
of a concededly meritorious constitutional violation is not in
itself sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred claim.’”
Coleman v. Greene, 845 F.3d 73, 76 (3d Cir. 2017) (quoting Schlup,
513 U.S. at 316.))
C.
Analysis
1.
The petition was untimely filed.
Direct review of Petitioner’s conviction and sentence became
final on April 12, 2012, 90 days after the New Jersey Supreme Court
denied his petition for certification on direct appeal on January
10, 2012.2
2
The statute of limitations began to run on April 13,
Federal Rule of Civil Procedure 6(a)(1)(A) provides that:
(a) Computing Time. The following rules apply
in computing any time period specified in
these rules, in any local rule or court order,
or in any statute that does not specify a
method of computing time.
(1) Period Stated in Days or a Longer
Unit. When the period is stated in days
or a longer unit of time:
(A) exclude the day of the event
that triggers the period[.]
6
2012. Petitioner filed his PCR petition on January 10, 2013, at
which time 272 days of the one-year habeas statute of limitations
period had lapsed. The statute of limitations was tolled during
the pending PCR proceedings, which became final on September 11,
2017. When Petitioner filed his habeas petition on February 27,
2018, 168 days had lapsed since his PCR proceedings became final.
The statute of limitations ran for 440 days, more than one-year
before Petitioner filed his habeas petition.
2.
Equitable tolling
Petitioner has not submitted new evidence showing his actual
innocence of aggravated manslaughter, a charge to which he pled
guilty. Instead, he alleges
[t]hroughout the discovery of evidence in this
case, no malice was shown towards the victim
or the witnesses; therefore "purposely or
knowingly causing death under circumstances
manifesting extreme indifference to human
life" is not present; is not true; and does
not apply to this case. The Petitioner is
definitely not guilty of the charge of
Aggravated
Manslaughter.
Private
counsel
James Leonard Jr. Esq. admitted to advising
the Petitioner to plea guilty to that chargea charge of which the evidence does not
support. The type of "reckless conduct"
displayed on the part of the Petitioner is
that of which is described in Reckless
Manslaughter in terms of "honest belief" along
with "reasonable belief or unreasonable
belief" that his life was in danger and he was
forced to protect himself from serious bodily
harm. Also "self-defense" due to the witnesses
admitting that, along with the victim, they
planned to scare the Petitioner.
7
(Petr’s Opp. Brief, ECF No. 7 at 3.)
Petitioner alleged ineffective assistance of counsel in his
PCR petition in state court, and the court denied relief. See State
v. Ford, 2016 WL 1396296 (N.J. Super. Ct. App. Div. April 11,
2016). On PCR appeal, the Appellate Division made the following
factual determinations:
Defendant was indicted for first-degree
murder, N.J.S.A. 2C:11–3(a)(1),(2); seconddegree possession of a handgun for an unlawful
purpose, N.J.S.A. 2C:39–4(a); third-degree
possession of a handgun, N.J.S.A. 2C:39–5(b);
and two counts of fourth-degree aggravated
assault, N.J.S.A. 2C:12–1(b)(4).
He entered a guilty plea to first-degree
aggravated manslaughter, N.J .S.A. 2C:11–
4(a), admitting that on May 13, 2008, he shot
the victim, Mr. Cottman, in the “neck and head
area” killing him. The remaining charges were
dismissed, and defendant was sentenced to
twenty-two years in prison subject to an
eighty-five
percent
parole
disqualifier
pursuant to the No Early Release Act. N.J.S.A.
2C:43–7.2. Defendant appealed only the length
of his sentence, and we affirmed in an order.
State v. Ford, No. A–5733–08 (App. Div. June
29, 2011), cert. denied, 209 N.J. 97 (2012).
At the PCR hearing, the State called defense
counsel, who testified he went over the proofs
with defendant and ruled out both seconddegree reckless manslaughter and self-defense
as viable options. Defendant shot the unarmed
victim when the victim told him he wanted to
fight him in a fair fight. The victim was
taking his shirt off when defendant shot him
in the head. The two other men present in the
basement of the housing complex where the
killing took place were also unarmed. Judge
Connor found defense counsel to be credible
and found defendant's contrary testimony not
credible.
8
At the PCR hearing defendant did not deny that
he gave a factual basis for aggravated
manslaughter, nor did he raise that issue on
direct appeal.
Id. at *1.
Petitioner raised the following issues on PCR appeal: (1)
Petitioner’s
plea
to
aggravated
manslaughter
lacked
a
proper
factual basis; (2) Petitioner killing Cottman was in self-defense,
therefore, his defense counsel was ineffective for failing to
advise Petitioner to plead guilty to aggravated manslaughter; (3)
defense counsel was ineffective for failing to advise Petitioner
that the lesser-included offense of manslaughter carried a maximum
sentence
of
ten
years;
ineffective
assistance
evidentiary
hearing;
(4)
of
and
Petitioner
counsel
(5)
met
under
Petitioner
his
burden
Strickland
was
denied
at
for
the
effective
assistance of counsel because his attorney failed to provide
essential services. Ford, 2016 WL 1396296, at *1.
The Appellate Division denied all but one of Petitioner’s
claims for the same reasons given by the PCR Court in its Opinion.3
Id. at *2. The Appellate Division found the factual basis for
Petitioner’s plea was sufficient. Id. The Court held, “[s]hooting
an unarmed man in the head or neck area point-blank satisfies the
definition of aggravated manslaughter: ‘The fact that defendant
3
The PCR Court’s Opinion is not in the record in this matter.
9
did not explicitly admit to his extreme indifference to human life
is of no moment.’ The facts he described in his plea allocution
manifested such an indifference.” Ford, 2016 WL 1396296, at *2.
Petitioner has not alleged new evidence of actual innocence
of aggravated manslaughter. Instead, he seeks habeas review based
on the same allegations of ineffective assistance of counsel he
made in his PCR proceedings, which were denied after an evidentiary
hearing, and the denial was affirmed on appeal. Petitioner has
failed to meet the McQuiggin standard for actual innocence based
on new evidence to excuse his untimely habeas petition.
III. CERTIFICATE OF APPEALABILITY
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. § 2254. 28 U.S.C. § 2253(c)(1)(A). 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 discussed above, jurists of reason could not
disagree that Petitioner’s habeas petition is barred by the one10
year
statute
sufficiently
filing
of
of
limitations,
alleged
his
actual
petition.
and
that
innocence
Therefore,
Petitioner
has
not
to
excuse
the
untimely
the
Court
will
deny
a
certificate of appealability.
IV.
CONCLUSION
For
the
reasons
discussed
above,
Respondents’
motion
to
dismiss will be granted
An appropriate order follows.
Dated: October 25, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
11
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?