SCARBOROUGH v. MEE

Filing 9

OPINION. Signed by Judge William J. Martini on 1/27/2012. (nr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
RANDY SCARBOROUGH,
:
:
Petitioner,
:
:
v.
:
:
DONALD MEE,
:
:
Respondent.
:
________________________________:

Civil Action No. 09-3658 (WJM)
O P I N I O N

APPEARANCES:
Randy Scarborough, Pro Se
438931
4-Down 2 Tier 41 Cell
East Jersey State Prison
Lock Bag R
Rahway, NJ 07065
Luanh Liu Lloyd, Esq.
Essex County Prosecutor’s Office
50 West Market Street
Newark, NJ 07102
Attorney for Respondent
MARTINI, District Judge
Petitioner, Randy Scarborough, a prisoner confined at the
East Jersey State Prison in Rahway, New Jersey, submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254.

The respondent is Administrator Donald Mee.

For the reasons stated herein, the petition must be denied.

BACKGROUND
On October 28, 2002, after a trial by jury, Petitioner was
sentenced in the Superior Court of New Jersey, Law Division,
Essex County, to a 30-year term of imprisonment for robbery,
terroristic threats, and assault convictions (Respondent’s
Exhibit “RE” G).
Petitioner appealed his conviction and sentence to the
Superior Court of New Jersey, Appellate Division (“Appellate
Division”), which affirmed on November 25, 2003 (RE J).
Petitioner’s petition for certification to the New Jersey Supreme
Court was denied on February 10, 2004 (RE M).
Petitioner filed a petition for post-conviction relief in
the trial court on January 8, 2006 (RE N).

The petition was

denied on December 13, 2006 (RE R), with the denial affirmed by
the Appellate Division on May 22, 2008 (RE U).

On January 16,

2009, the New Jersey Supreme Court denied certification (RE V).
Petitioner filed this petition for habeas relief, pursuant
to 28 U.S.C. § 2254, on or about July 23, 2009.

He was advised

of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir.
2000), on January 12, 2010.
petition.

Respondent was ordered to answer the

On April 14, 2010, Respondent filed an answer and the

relevant state court record.

Petitioner has not filed a

reply/traverse to the answer.

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In his petition, Petitioner asserts ineffective assistance
of counsel and unconstitutional sentencing as his grounds for
habeas relief (Petition, ¶ 12).
In the answer, Respondent argues as an affirmative defense
that the petition is time-barred.

Respondent also asserts that

the claims have no merit.
DISCUSSION
A.

Pleading Standards
A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers.

See Estelle v. Gamble,

429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).

A pro se habeas petition and any supporting submissions

must be construed liberally and with a measure of tolerance.

See

Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.
Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United
States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert.
denied, 399 U.S. 912 (1970).
B.

The Petition is Time-Barred
As amended by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of
the United States.
28 U.S.C. § 2254(a).

A petitioner's ability to pursue the writ

of habeas corpus is subject to various affirmative defenses,
including the defense, asserted here, that this petition is
time-barred.
The limitation period for a § 2254 habeas petition is set
forth in 28 U.S.C. § 2244(d), which provides in pertinent part:
(1) A 1-year period of limitations 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 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 section.

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The limitations period is applied on a claim-by-claim basis.
See Fielder v. Verner, 379 F.3d 113 (3d Cir. 2004), cert. denied,
543 U.S. 1067 (2005); Sweger v. Chesney, 294 F.3d 506 (3d Cir.
2002).

Here, the facts alleged indicate that the timeliness of

the entire petition must be measured by Section 2244(d)(1)(A).
Thus, evaluation of the timeliness of this § 2254 petition
requires a determination of, first, when the pertinent judgment
became “final,” and, second, the period of time during which an
application for state post-conviction relief was “properly filed”
and “pending” for tolling purposes.
A state-court criminal judgment 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
United States Supreme Court.

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.

A state court's grant of leave

to file an out-of-time direct appeal resets the date when the
conviction becomes final under § 2244(d)(1).

See Jimenez v.

Quartermain, 129 S. Ct. 681 (2009).
To statutorily toll the limitations period, a state petition
for post-conviction relief must be “properly filed.”

As such:

An application is “filed,” as that term is
commonly understood, when it is delivered to, and
accepted by the appropriate court officer for placement
into the official record. And an application is
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“properly filed” when its delivery and acceptance are
in compliance with the applicable laws and rules
governing filings. These usually prescribe, for
example, the form of the document, the time limits upon
its delivery, the court and office in which it must be
lodged, and the requisite filing fee. In some
jurisdictions the filing requirements also include, for
example, preconditions imposed on particular abusive
filers, or on all filers generally. But in common
usage, the question whether an application has been
“properly filed” is quite separate from the question
whether the claims contained in the application are
meritorious and free of procedural bar.
Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (citations and footnote
omitted) (finding that a petition was not “[im]properly filed”
merely because it presented claims that were procedurally barred
under New York law on the grounds that they were previously
determined on the merits upon an appeal from the judgment of
conviction or that they could have been raised on direct appeal
but were not).
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 at 420-24.

However, “the time during

which a state prisoner may file a petition for writ of certiorari
in the United States Supreme Court from the denial of his state

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post-conviction petition does not toll the one year statute of
limitations under 28 U.S.C. § 2244(d)(2).”

Stokes v. District

Attorney of the County of Philadelphia, 247 F.3d 539, 542 (3d
Cir.), cert. denied, 534 U.S. 959 (2001).
The limitations period of § 2244(d) also is subject to
equitable tolling.

See Fahy v. Horn, 240 F.3d 239, 244 (3d

Cir.), cert. denied, 534 U.S. 944 (2001); Jones v. Morton, 195
F.3d 153, 159 (3d Cir. 1999); Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998).

Equitable tolling

applies:
only when the principles of equity would make the rigid
application of a limitation period unfair. Generally,
this will occur when the petitioner has in some
extraordinary way been prevented from asserting his or
her rights. The petitioner must show that he or she
exercised reasonable diligence in investigating and
bringing the claims. Mere excusable neglect is not
sufficient.
Miller, 145 F.3d at 618-19 (citations and punctuation marks
omitted).

Among other circumstances, the Court of Appeals for

the Third Circuit has held that equitable tolling may be
appropriate “if the plaintiff has timely asserted his rights
mistakenly in the wrong forum,” i.e., if a petitioner has filed a
timely but unexhausted federal habeas petition.

See Jones, 195

F.3d at 159; see also Duncan v. Walker, 533 U.S. 167, 183 (2001)
(Stevens, J., joined by Souter, J., concurring in part) (“neither
the Court's narrow holding [that the limitations period is not
statutorily tolled during the pendency of a premature federal
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habeas petition], nor anything in the text or legislative history
of AEDPA, precludes a federal court from deeming the limitations
period tolled for such a petition as a matter of equity”); 533
U.S. at 192 (Breyer, J., dissenting, joined by Ginsburg, J.)
(characterizing Justice Stevens's suggestion as “sound”).
Finally, “a pro se prisoner's habeas petition is deemed
filed at the moment he delivers it to prison officials for
mailing to the district court.”

Burns v. Morton, 134 F.3d 109,

113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)).
Here, the judgment against Petitioner was entered on October
28, 2002.

Petitioner’s direct appeal concluded on February 25,

2004, with the denial of certification by the New Jersey Supreme
Court.

Petitioner did not file for certiorari with the United

States Supreme Court; however, for purposes of calculating the
time for filing his habeas petition, the time in which he could
have filed for certiorari is considered.

Thus, Petitioner had

until May 25, 2004 to file for certiorari in the United States
Supreme Court, and the conviction became “final” on that date,
for purposes of calculating the federal limitations period.
Thus, absent some other basis for tolling, the one-year
limitations period for filing this federal habeas petition
expired on May 26, 2005 (which is one year from the date that
Petitioner could have filed for certiorari to the United States
Supreme Court).

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Petitioner did not file his state petition for
post-conviction relief until January 8, 2006, after the federal
habeas limitations period had already expired.

Thus, that filing

would have been too late to statutorily toll the federal
limitations period, which had already expired.
Accordingly, this petition is time-barred, and must be
denied.
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. § 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).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, reasonable jurists would not find this Court's procedural
ruling debatable.

Accordingly, no certificate of appealability

shall issue.
CONCLUSION
For the reasons set forth above, the petition must be
denied.

An appropriate order follows.
s/William J. Martini

WILLIAM J. MARTINI
United States District Judge
Dated: 1/27/12

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