ROBINSON v. LAGANA et al
Filing
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OPINION. Signed by Judge Faith S. Hochberg on 12/12/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WILFRED ROBINSON,
Petitioner,
v.
MR. PAUL K. LAGANA, et al.,
Respondents.
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Civil Action No. 12-3321 (FSH)
OPINION
APPEARANCES:
Petitioner pro se
Wilfred Robinson
Northern State Prison
Trenton, NJ 08625
HOCHBERG, District Judge
Petitioner Wilfred Robinson, a prisoner currently confined
at Northern State Prison in Trenton, New Jersey, has submitted a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254.
The respondents are administrator Paul K. Lagana and the
Attorney General of New Jersey.
Petitioner has applied for leave to proceed in forma
pauperis.
Based upon Petitioner’s affidavit of indigence and
certified institutional account statements, this Court will grant
Petitioner leave to proceed in forma pauperis.
For the reasons stated herein, Petitioner will be ordered to
show cause why the Petition should not be dismissed as untimely.
I.
BACKGROUND
The following factual and procedural allegations are taken
from the Petition and its attachments, and are accepted as true
for purposes of this Opinion and the accompanying Order.
On October 22, 1999, Petitioner was sentenced in the
Superior Court of New Jersey, Law Division, Essex County,
pursuant to a guilty plea on seven indictments and one
accusation, charging him with several armed robberies and
multiple related offenses.
The operative indictment for purposes
of this Petition is Indictment No. 1339-3-98, which charged
Petitioner with carjacking, in violation of N.J.S.A. 2C:15-2
(Count 1); robbery, in violation of N.J.S.A. 2C:15-1 (Count 2);
unlawful possession of a weapon, in violation of N.J.S.A. 2C:395d (Count 3); and possession of a weapon for an unlawful purpose,
in violation of N.J.S.A. 2C:39-4d (Count 4).
The court dismissed
Count 3 and sentenced Petitioner to a term of 25 years’
imprisonment for the carjacking, with an 85% parole ineligibility
term under New Jersey’s No Early Release Act, N.J.S.A. 2C:43-7.2.
The court also sentenced Petitioner to a concurrent term of 20
years’ imprisonment for the robbery (which was merged with the
weapons count), also subject to an 85% parole ineligibility term.
Petitioner appealed the sentence only, which the Appellate
Division of the Superior Court of New Jersey affirmed by order
dated June 14, 2000.
State v. Robinson, No. A-2267-99, slip op.
2
(N.J. Super. App.Div. June 14, 2000).
On January 24, 2001, the
Supreme Court of New Jersey denied certification.
See State v.
Robinson, 167 N.J. 89 (2001) (table).
In September 2003, Petitioner filed his first state petition
for post-conviction relief (“PCR”), which the trial court denied.
See Robinson v. MacFarland, No. 06-5093, 2007 WL 4232948, *2
(D.N.J. Nov. 28, 2007).
The Appellate Division affirmed the
denial of relief, see State v. Robinson, No. A-1828-03 (N.J.
Super. App.Div. Apr. 13, 2006), and the Supreme Court of New
Jersey denied certification on June 23, 2006, see State v.
Robinson, 187 N.J. 492 (2006).
On September 28, 2006, Petitioner executed his first federal
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
which this Court received on October 23, 2006.
By Opinion and
Order entered November 28, 2007, this Court dismissed the first
§ 2254 petition as time-barred and denied a certificate of
appealability.
Robinson v. MacFarland, Civil No. 06-5093, 2007
WL 4232948 (D.N.J. 2007).
Petitioner’s several motions for
reconsideration were denied; Petitioner did not seek a
certificate of appealability from the Court of Appeals.
On September 24, 2008, Petitioner filed his second state
petition for post-conviction relief.
Agreeing with Petitioner
that no factual basis for the robbery conviction had been
developed in 1999, the trial court vacated the conviction on the
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Count 2 charge of robbery, but granted no other relief.
The
trial court found no need to disturb Petitioner’s sentence, as it
had sentenced Petitioner to a longer sentence -- 25 years -- on
the carjacking count.
Petitioner appealed.
The Appellate
Division found Petitioner’s claims procedurally barred under New
Jersey Court Rules 3:22-5 and 3:22-4, as they either were, or
could have been, raised and decided on direct appeal and in the
first petition for post-conviction relief.
See State v.
Robinson, 2011 WL 5922381 (N.J. Super. App.Div. Nov. 29, 2011).
Additionally, the Appellate Division found Petitioner’s second
petition for post-conviction relief time-barred under the 5-year
limitations period of New Jersey Court Rule 3:22-12(a).
Finally,
the Appellate Division denied, on the merits, Petitioner’s claim
that the 25-year sentence for carjacking was illegal.
On May 15,
2012, the Supreme Court of New Jersey denied certification.
This second federal habeas Petition, dated May 20, 2012,
followed.1
illegal.
Here, Petitioner asserts that his 25-year sentence is
Petitioner argues that when the trial court granted
relief with respect to the robbery conviction, it was required to
reduce Petitioner’s sentence as to the remaining counts, on the
1
As noted above, this is Petitioner’s second Petition for
writ of habeas corpus with respect to the challenged convictions.
Because Petitioner has previously received the notice required by
Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), it is not necessary
to send a new notice with respect to this second Petition.
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theory that the trial court had used the robbery conviction to
“enhance” the sentence on the carjacking conviction.
The Court
construes this as an Eighth Amendment challenge to the length of
Petitioner’s sentence.2
Because it appears that this Petition is time-barred,
Petitioner will be ordered to show cause why the Petition should
not be dismissed.
II.
ANALYSIS
As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254 now provides that 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 violation of the Constitution or laws or treaties of
the United States.
The limitation period for a § 2254 habeas petition is set
forth in 28 U.S.C. § 2244(d),3 which provides in pertinent part:
2
Although Petitioner’s language is inexact, the Court does
not construe the Petition as asserting that Petitioner is
“actually innocent” of carjacking in the absence of a
contemporaneous robbery conviction. In any event, that claim
clearly would not merit relief. In State v. Drury, 190 N.J. 197
(2007), the Supreme Court of New Jersey held that robbery and
carjacking are separate offenses and that carjacking is not a
form of robbery.
3
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).
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(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.
Here, Petitioner knew the factual and legal basis for his
claim on October 22, 1999, the date the trial court sentenced him
for a crime, robbery, in the absence of a factual predicate for
the conviction.
Thus, the timeliness of this Petition is
determined by § 2244(d)(1)(A).
Accordingly, 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
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which any application for state post-conviction relief was
“properly filed” and “pending.”
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 90day 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.
Here, as this Court has previously found, Petitioner’s
conviction became final on April 25, 2001, ninety days after the
Supreme Court of New Jersey denied certification on direct review
on January 24, 2001.
at *4.
See Robinson v. MacFarland, 2007 WL 4232948
Petitioner’s first state petition for post-conviction
relief, filed more than two years later in September 2003, did
not act to statutorily toll the limitations period, as it was not
filed until after the federal limitations period had expired.
See Long v. Wilson, 393 F.3d 390, 394-95 (3d Cir. 2004).4
Certainly, the second state petition for post-conviction relief,
filed September 24, 2008, more than seven years after the
4
There was some evidence submitted in connection with
Petitioner’s first federal habeas petition that he may have filed
his first state petition for post-conviction relief on July 15,
2002. The result is the same in either scenario.
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conviction became final, cannot act to statutorily toll the
federal limitations period.5
The limitations period of § 2244(d) also is subject to
equitable tolling.
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.
5
Jones, 195 F.3d
In addition, the Appellate Division found that the second
state petition for post-conviction relief was untimely under
state law. Where a state court has rejected a petition for postconviction relief as untimely, it was not “properly filed,” and
the petitioner is not entitled to statutory tolling under
§ 2244(d)(2). See Pace v. Diguglielmo, 544 U.S. 408 (2005).
This is so even where, in the alternative, the state court
addresses the merits of the petition in addition to finding it
untimely. Carey v. Saffold, 536 U.S. 214, 225-26 (2002).
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at 159.
Here, Petitioner has alleged no facts that would suggest
a basis for equitable tolling.
III.
CONCLUSION
For the reasons set forth above, the Petition appears to be
time-barred.
Petitioner will be ordered to show cause why the
Petition should not be dismissed.
An appropriate order follows.
s/ Faith S. Hochberg
Faith S. Hochberg
United States District Judge
Dated: December 12, 2012
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