SHABAZZ v. HASTINGS et al
Filing
3
OPINION. Signed by Judge Dennis M. Cavanaugh on 11/14/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
OMARI SHABAZZ,
Civil Action No,
l23487
(DMC)
Petitioner,
OPINION
V.
BEVERLY HASTINGS,
et al.,
Respondents.
APPEARANCES:
OMARI SHABAZZ, Petitioner pro se
270622 / 970732A
East Jersey State Prison
Lock Bag R
Rahway, N.J. 07065
CAVANAUGH,
District Judge
Petitioner Oman
Shabazz
(“Petitioner”),
a prisoner
currently confined at East Jersey State Prison in Rahway,
Jersey,
has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C.
robbery.
New
§ 2254 challenging his convictions for
The Respondents are Beverly Hastings and the Attorney
General of the State of New Jersey.
Because it appears from a review of the Petition and its
attachments that the Petition is time-barred,
Petitioner will be
ordered to show cause why the Petition should not be dismissed
with prejudice.
I.
28 U.S.C.
§ 2243.
BACKGROUND
The relevant facts underlying Petitioners conviction are
set forth in the opinion of the Superior Court of New Jersey,
Appellate Division.’
An armed assailant robbed four retail stores at gunpoint
between December 27, 1993 and January 6, 1994.
The
stores were within a three block area, and the same modus
operandi was employed in each case.
Defendant was apprehended immediately after the last
robbery, apparently while he was attempting to flee the
scene of the crime.
State of New Jersey v.
Div.
Oct.
5,
Shabazz,
A-0203-10T2
(N.J.
Super.
Ct. App.
2011)
At the conclusion of a jury trial,
Petitioner was convicted
of three counts of first degree robbery,
N.J.S.A.
2C:lS-l;
three
counts of second degree possession of a weapon for an unlawful
purpose,
N.J.S.A.
2C:39-4a; and three counts of third degree
unlawful possession of a weapon,
N.J.S.A.
2C:
59-Sb.
Id.
The
trial court sentenced Petitioner to consecutive fifteen year
terms in prison with five years parole ineligibility for the
robbery convictions and concurrent terms of five years in prison
for the weapons convictions,
On direct appeal,
Appellate Division,
the Superior Court of New Jersey,
affirmed the conviction and sentence.
State
Pursuant to 28 U.S.C. § 2254 (e) (1), “In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.”
v.
Shabazz,
No. A-5761-94
(App.
Div.
June 13,
1997),
The Supreme
Court of New Jersey denied certification on September 9,
State v.
Shabazz,
151 N.J.
468
(1997)
.
1997.
Petitioner did not seek a
writ of certiorari from the United States Supreme Court.
Petitioner filed his first state petition for
post-conviction relief
11(a) (3)
.)
(“PCR”)
on April 21,
According to the Petition,
1999.
(Pet.
¶
Petitioner’s PCR petition
was dismissed without prejudice on that same day for failure to
file a brief,
(Id,
at
¶
11(a) (8)
,)
Petitioner filed his second state petition for
post-conviction relief on January 3,
2000.
His petition was denied on December 16,
11(b) (8).)
(Id.
2009.
at
(.
¶
at
11(b) (3)
¶
The Appellate Division affirmed the denial and the
New Jersey Supreme Court denied certification on March 20,
(Pet,
Att.
A.
2012.
5.)
On June 3,
II.
.)
2012,
Petitioner filed the instant petition.
2
DISCUSSION
Legal Standard
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
”[AJ
2 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))
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,
United States Code Title 28,
Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to show
cause why the writ should not be granted, unless it
appears from the application that the applicant or
person detained is not entitled thereto.
Thus,
“[fiederal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its
face,”
McFarland v.
Scott,
512 U.S.
849,
856
(1994>
also
.
Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts
(“If it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief in the district court,
petition.
.
the judge must dismiss the
.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
U.S.
97,
106
(1976)
;
Haines v.
Kerner,
Estelle v.
404 U.S.
519,
Gamble,
520
429
(1972>
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
v.
Hahn,
151 F.3d 116,
118
General,
878 F.2d 714,
721—22
Brierley,
414 F.2d 552,
555
(3d Cir.
1998)
(3d Cir.
(3d Cir.
Lewis v. Attorney
;
1989);
1969)
Royce
.
United States v.
Nevertheless,
a
federal district court can dismiss a habeas corpus petition if it
appears from the face of the petition that the petitioner is not
entitled to relief.
(1996) ;
See Lonchar v.
Siers v, Ryan,
773 F,2d 37,
Thomas,
45
517 U.S.
(3d Cir.
314,
320
1985)
Because it appears from the Petition and its attachments
that the Petition is time-barred,
this Court will order
Petitioner to show cause why the Petition should not be
dismissed.
B. Analysis
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
(U) 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 alleges no facts or arguments suggesting a
later starting date than the date that the challenged judgment
became final,
under 28 U.S.C.
§ 2244 Cd) (1) (A).
Thus,
evaluation
of the timeliness of this § 2254 petition requires determination
of,
first,
second,
when the pertinent judgment became “final,” and,
the period of time during 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 Cd) (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.
419
(3d Cir.
Cir.
2000) ;
1999); U.S.
Here,
Swartz v. Meyers,
Morris v.
Sup.Ct.
R.
Horn,
187 F.3d 333,
204 F.3d 417,
337 n.
1
(3d
13.
the challenged judgment became “final,” and the
federal habeas limitations period began to run on December 9,
1997,
which is ninety days after September 9,
1997,
the date the
Supreme Court of New Jersey denied certification in Petitioners
direct appeal.
Thus,
Petitioner had until December 9,
file his federal habeas petition,
1998 to
unless there were grounds for
tolling.
To statutorily toll the limitations period,
a state petition
for post-conviction relief must be “properly filed,”
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 “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,
omitted)
(finding that a petition was not “[imiproperly filed”
531 U.S.
4,
8—9
(2000)
(citations and footnote
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)
Where a state court has rejected a petition for
post-conviction relief as untimely,
however,
it was not “properly
filed” and the petitioner is not entitled to statutory tolling
under § 2244(d) (2).
Pace v. DiGuglielmo,
This is so even where,
in the alternative,
544 U.S.
408
(2005).
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)
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 courts
decision and the filing of a notice of appeal to a higher court,
Carey v.
Saffold,
536 U.S.
214
(2002),
which an appeal could be filed,
filed,
Swartz
V..
Meyers,
and through the time in
even if the appeal is never
204 F.3d at 420-24,
More specifically,
“[tjhe time that an application for state post conviction review
is
‘pending’
includes the period between
adverse determination,
of appeal,
and
the prisoner’s filing of a notice
provided that the filing of the notice of appeal is
timely under state law,”
(2006)
(2)
a lower court’s
(1)
Evans v.
Chavis,
546 U.S.
189,
191
(finding that time between denial of post-conviction
relief and filing of appeal was not tolled where appeal was
untimely,
even where state considered untimely appeal on its
merits)
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 post-conviction
petition does not toll the one year statute of limitations under
28 U.S.C.
Cnty.
§ 2244(d) (2)
of Philadelphia,
Here,
.“
Stokes v. District Attorney of the
247 F.3d 539,
542
(3d Cir.
2001)
to permit tolling of the one-year limitations period
under 28 U.S.C.
§ 2244(d) (2),
Petitioner would have had to file
his state PCR petition before the one-year period had expired,
before December 9,
1998.
Otherwise,
or
the state PCR petition would
not serve to toll the statute of limitations,
file his first PCR petition until April 21,
statute of limitations had already expired.
Petitioner did not
1999,
well after the
As such,
it does not
appear that Petitioner is entitled to statutory tolling.
The limitations period of § 2244(d)
equitable tolling.
“Generally,
also is subject to
a litigant seeking equitable
tolling bears the burden of establishing two elements:
he has been pursuing his rights diligently,
and
extraordinary circumstance stood in his way.”
DiGuglielmo,
544 U.S.
408,
416—17
(2005)
(2)
(1)
that
that some
Pace v.
The Third Circuit
.
instructs that equitable tolling is appropriate when “principles
of equity would make the rigid application of a limitation period
unfair,
such as when a state prisoner faces extraordinary
circumstances that prevent him from filing a timely habeas
petition and the prisoner has exercised reasonable diligence in
attempting to investigate and bring his claims,”
Kyler,
398 F.3d 271,
275-76
neglect is not sufficient.
Jones,
(3d Cir,
L;
2005)
Miller,
LaCava v.
Mere excusable
.
145 F.3d at 618—19;
195 F.3d at 159.
Extraordinary circumstances permitting equitable tolling
have been found where:
misled;
(2)
(1)
the petitioner has been actively
the petitioner has been prevented from asserting his
rights in some extraordinary way;
(3)
the petitioner timely
asserted his rights in the wrong forum,
159,
or
(4)
see Jones,
195 F.3d at
the court has misled a party regarding the steps that
the party needs to take to preserve a claim,
398 F.3d 225,
230
(3d Cir.
extraordinary circumstances exist,
2005)
.
however,
see Brinson v.
Even where
“[i]f the person
seeking equitable tolling has not exercised reasonable diligence
in attempting to file after the extraordinary circumstances
began,
the link of causation between the extraordinary
circumstances and the failure to file is broken,
and the
extraordinary circumstances therefore did not prevent timely
filing,”
Brown v.
Shannon,
(quoting Valverde v.
322 F.3d 768,
Stinson,
773
224 F.3d 129,
(3d Cir.
134
2003)
(2d Cir,
2000))
Petitioner has alleged no facts that would suggest a basis
for equitable tolling of the federal habeas limitations period.
Therefore,
since it appears that this Petition was filed well
after the statute of limitations expired on December 9,
1998,
an
Order will be issued directing Petitioner to show cause why his
petition should not be dismissed as time-barred,
III.
CONCLUSION
For the reasons set forth above,
Petitioner will be ordered
to show cause why the Petition should not be dismissed as
time-barred. An appropriate order follows,
Dated:
United States D
ict Judge
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