SWINT v. HASTINGS et al
Filing
12
OPINION AND ORDER. Signed by Judge Stanley R. Chesler on 9/30/14. (gmd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
TROY SWINT,
:
Petitioner,
:
v.
:
BEVERLY HASTINGS, et al.,
:
Civil Action No. 12-3753 (SRC)
OPINION AND ORDER
Respondents.
:
_________________________________
CHESLER, District Judge
Petitioner was sentenced by the Superior Court of New Jersey, Law Division, in the late
1990s, for his role in a violent kidnapping. He appealed his conviction and, on February 15,
2000, his conviction was affirmed, but the sentence was vacated and the matter was remanded
for resentencing. See State v. Swint, 328 N.J. Super. 236 (N.J. Super. Ct. App. Div.), certif.
denied, 165 N.J. 492 (2000). A remark made by the Appellate Division in subsequent
proceedings indicates that Petitioner was resentenced on December 3, 2000. State v. Smith,
2008 N.J. Super. Unpub. LEXIS 495, at *1 (N.J. Super. Ct. App. Div. Dec. 8, 2008). Thereafter,
on February 23, 2002, Petitioner filed a post-conviction relief (“PCR”) application in state court.
See ECF No. 11, at 5. It was denied by the Law Division, and the Appellate Division affirmed.
See State v. Swint, 2008 N.J. Super. Unpub. LEXIS 1080 (N.J. Super. Ct. App. Div. July 30,
2008). His application for certification was denied by the Supreme Court of New Jersey on
November 14, 2008. See State v. Swint, 197 N.J. 14 (2008). Petitioner then filed a second PCR
application. That application was denied by the Law Division, and the Appellate Division
affirmed on July 25, 2013. See State v. Swint, 2013 N.J. Super. Unpub. LEXIS 1870 (N.J. Super.
Ct. App. Div. July 25, 2013).
The instant Petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 was filed on
June 19, 2012, while Petitioner’s appeal of his second PCR application was still pending before
the Appellate Division. Respondents argue, among other things, that Petitioner’s § 2254 Petition
is untimely because it was filed more than one year after the judgment became final. 28 U.S.C. §
2244(d)(1). 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. 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). Respondents contend that the challenged judgment became final on October 28,
2000, the expiration date for filing an application for writ of certiorari to the Supreme Court
following the New Jersey Supreme Court’s denial of certification on Petitioner’s direct appeal of
his conviction. As such, they take the position that the last date on which Petitioner could have
filed a timely federal habeas petition was on or about October 28, 2001. Respondents
acknowledge that the one-year limitations period may be tolled for “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.” 28 U.S.C. § 2244(d)(2). However, they argue that
statutory tolling does not salvage this Petition because both the first and second PCR applications
filed by Petitioner were filed after the limitations period applicable to § 2254 petitions had
expired.
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On the record before the Court, Respondents’ demonstration of untimeliness is deficient
for two main reasons. First, it is based on an incorrect determination of the finality of the
challenged sentence. Though Petitioner proceeded to apply to the New Jersey Supreme Court
for certification on his direct appeal of the initially imposed sentence, and the application was
denied, Respondents erroneously follow this timeline to assert that the judgment became final on
October 28, 2000. The judgment initially imposed by the trial court, however, had been vacated
by the Appellate Division, which remanded the action for resentencing. Petitioner was not
resentenced until, it appears, December 3, 2000. It is the judgment imposed at resentencing
which is at issue in Petitioner’s collateral attack. Second, Respondents have not provided this
Court with a copy of the judgment of conviction entered upon remand to the trial court.
Apparently, Petitioner did not appeal that judgment, and thus the challenged judgment would
have become final 45 days after the resentencing date. See N.J. Ct. R. 2:4-1(a) (providing that
the time for filing a notice of appeal is 45 days). Statutory tolling pursuant to § 2244 may very
well not apply if Petitioner’s first PCR application, filed February 23, 2002, was filed over one
year after Petitioner’s judgment became final. The Court, however, cannot make that
determination without evidence of the judgment of conviction entered upon resentencing.
Because the untimeliness of the instant Petition may obviate the need to address other
matters raised in the Petition and in Respondent’s Answer, the Court will entertain supplemental
submissions from the parties to clarify this issue. Respondents are specifically directed to submit
evidence of the judgment of conviction entered upon Petitioner’s resentencing, and the Court
will accept a supplemental brief of no more than five pages on the discrete issue of the
limitations period. Such submission must be filed with the Court and served on Petitioner no
later than 30 days from the date of this Order. Petitioner will be given the opportunity to
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respond, in a written submission of no more than five pages, limited to the issue of the timeliness
of the instant § 2254 Petition and any statutory and/or equitable tolling thereof in light of the two
state PCR applications filed by Petitioner. This submission must be mailed to the Court and to
Respondents no later than 30 days from the date of service of Respondents’ supplemental
briefing.
SO ORDERED.
s/Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
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