LEE v. HASTINGS et al
OPINION. Signed by Judge Claire C. Cecchi on 9/3/15. (DD, )
*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 13-2 190 (CCC)
BEVERLY HASTiNGS, et al.,
CECCHIg District Judge:
Petitioner Kevin Lee (“Petitioner”), confined at East Jersey State Prison in Rahway, New
Jersey, files the instant Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C.
2254, challenging a sentence imposed by the State of New Jersey for murder, robbery, and related
offenses. For reasons stated below, the Court denies the Petition as time-barred.
The Court recites only those facts relevant to this Opinion. Petitioner was convicted and
sentenced by the State of New Jersey for murder, robbery, and firearm offenses on January 14,
1999, after a jury trial. (ECF No. 6-2 at 3.) The conviction and sentence was affirmed, and
certification was denied by the New Jersey Supreme Court on April 22, 2004. Id. at 3-4.
On September 20, 2004, Petitioner filed for post-conviction relief (“PCR”). (ECF No. 1413 at 5.) On April 1, 2008, that PCR application was dismissed for failure to submit the brief on
time. Id. at 5-6. Petitioner filed a second PCR application on September 14, 2009, Id. at 6, which
was denied and affirmed on appeal. Certification was denied on January 16, 2013. (ECF No. 1421.) The instant Petition, dated February 18, 2013 and filed on April 5, 2013, followed.
A. Statutory Tolling
Title 28, Section 2244 of the U.S. Code requires that “[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.” 28 U.S.C.
§ 2244(d)(1). Inmost cases and in this particular case, the one-year
period begins on “the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). Based on the
statutory language, the Supreme Court held that even when a defendant does not file a petition for
certiorari with the United States Supreme Court on direct review, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) one-year limitations period starts to run when the time for seeking
such review expires. Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012); Clay v. US., 537 U.S. 522,
532 (2003); Gibbs v. Goodwin, No. 09-1046,2009 WI 1307449, at *2 (D.N.J. May 1,2009) (citing
Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d
Cir. 1999)) (holding that the period of direct review “include[s] the 90-day period for filing a
petition for writ of certiorari in the United States Supreme Court”).
However, “[t]he 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.” 28 U.S.C.
§ 2244(d)(2). In other
words, while a valid state post-conviction review is pending, the one-year limitation is tolled. This
tolling does not include any petition for writ of certiorari in the United States Supreme Court for
review of a denial of post-conviction relief. Jenkins v. Superintendent ofLaurel Highlands, 705
f.3d 80, 85 n.5 (3d Cir. 2013) (citing Lawrence v. Florida, 549 U.S. 327, 332 (2007)). Overall,
“AEDPA’s limitation period ‘does not set forth an inflexible rule requiring dismissal whenever its
clock has run.” Id. at 84-85 (quoting Holland v. Florida, 560 U.S. 631, 645 (2010)). Rather, the
limitations period is subject to both statutory and equitable tolling. Id. at 85.
So, even if the statutory time bar has passed, Petitioner may overcome that limitation if he
can show a basis for equitable tolling. Gibbs, 2009 WL 1307449 at *3; Fahy v. Horn, 240 F.3d
239, 244 (3d Cir. 2001). “Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way.” Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013)
(citations omitted). “Extraordinary circumstances permitting equitable tolling have been found
where: (1) the petitioner has been actively misled; (2) the petitioner has been prevented from
asserting his rights in some extraordinary way; (3) the petitioner timely asserted his rights in the
wrong forum, or (4) the court has misled a party regarding the steps that the party needs to take to
preserve a claim.” Gibbs, 2009 WL 1307449, at *3 (internal citations omitted).
“The diligence required for equitable tolling purposes is reasonable diligence.”
F.3d at 799. “This obligation does not pertain solely to the filing of the federal habeas petition,
rather it is an obligation that exists during the period appellant is exhausting state court remedies
as well.” Id. “The fact that a petitioner is proceeding pro se does not insulate him from the
‘reasonable diligence’ inquiry and his lack of legal knowledge or legal training does not alone
justify equitable tolling.” Id. at 800.
Here, Respondents assert that the Petition is time-barred by AEDPA’s statute of
limitations. Respondents raise two arguments in support oftheir defense. first, Respondents argue
that Petitioner is not entitled to statutory tolling for his first PCR application because it was filed
afier the deadline under state court rules to seek PCR review. Petitioner refutes this argument,
stating that because Petitioner’s direct appeal did not conclude until April 22, 2004, only a few
months before Petitioner’s first PCR application, state court rules allow the filing of a PCR
application after the five-year period. The Court need not reach a finding with regard to this
argument because the Petition is time-barred for the reasons stated in connection with
Respondents’ second argument.
After Petitioner’s first PCR application was dismissed on April 1, 2008 for failure to submit
a brief, Petitioner did not file his second PCR application until September 14, 2009. Respondents
argue that because more than a year has passed between the dismissal of the first PCR application
and the filing of the second PCR application, Petitioner’s AEDPA limitations period expired
during that time. The Court agrees.
Section 2244(d)(2) states that statutory tolling is only
appropriate for “[t]he 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.” 2$ U.S.C.
2244(d)(2). As Respondents correctly pointed out, between April 1,2008 and September 14, 2009,
there was no pending application for PCR or any other collateral review in the state court with
respect to Petitioner’s conviction or sentence. This period, therefore, is not entitled to statutory
In Petitioner’s Reply, Petitioner did not appear to address this argument, stating only that
“[Petitioner’s] second request for post-conviction relief, was filed on September 14, 2009.” (ECF
No. 18 at 27.) It does not matter whether New Jersey rules would have permitted Petitioner’s
second PCR application; on federal habeas review, this Court is governed by federal rules, case
law, and statutes regarding the timeliness of federal habeas petitions. Petitioner cites to no federal
authority stating that Petitioner is entitled to statutory totting for the period between his first and
second PCR application. See Jean-Louis v. Bartowski, No. 11-1922 (CCC), 2011 WL 5869598,
at *3 (D.N.J. Nov. 22, 2011) (“Notably, the fact that Petitioner eventually filed his second PCR
application is wholly irrelevant to this Court’s analysis of statutory tolling. This is so because
Petitioner’s one-year AEDPA-based limitations period had already long run by the [time] that
second application was filed”). As Petitioner raises no grounds for equitable tolling in his Reply,
the Court denies the Petition as time-barred.
B. Certificate of Appealability
Finally, the Court denies a certificate of appealability (“COA”). AEDPA provides that an
appeal may not be taken to the court of appeals from a final order in a
§ 2254 proceeding unless a
judge issues a certificate of appealability on the ground that “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In Slack v. McDaniel, 529
U.S. 473, 484 (2000), the United States Supreme Court held that “[w]hen 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 constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
Here, the Court denies a certificate of appealability pursuant to 28 U.S.C.
because jurists of reason would not find it debatable that dismissal of the Petition is correct.
For the reasons set forth above, the Petition is DENIED as time-barred.
Claire C. Cecchi, U.S.D.J.
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?