SHARRIEFF v. D'ILIO et al

Filing 8

MEMORANDUM AND ORDER REOPENING CASE and dismissing petition (DE#5) as time barred. Petitioner is permitted to file an amended petition w/in 30 days raising any basis for equitable tolling which may apply. Petitioner's application to proceed in forma pauperis (DE#7) is denied. The Clerk shall serve a copy of this Order on Plaintiff by regular U.S. mail and shall close the file. Signed by Judge Jose L. Linares on 5/11/15. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JIHAD SHARRIEFF,
Civil Action No. 14-3840 (JLL)

Petitioner,
v.

:

MEMORANDUM ORDER

STEPHEN D’ILlO, et al.,
Respondents.
The Court having reviewed Petitioner’s petition for a writ of habeas corpus
pursuant to 28
U.S.C.

§ 2254 (ECF No. 3), and it appearing that:
I. On June 16, 2014, Petitioner filed the instant petition for a writ
of habeas corpus.

(ECF No. 1).
2. On October 16, 2014, this Court administratively terminated the petitio
n for failure to
file on the correct form. (ECF No. 4).
3. On April 14, 2015, Petitioner refiled his petition on the correct
form, and both paid

the filing fee and applied for informa pauperis status. (ECF No. 5-7).
4. This Court is required to preliminarily review the petition under
Rule 4 of the Rules
Governing Section 2254 Cases and determine whether it “plainly
appears from the petition and
any attached exhibits that the petitioner is not entitled to relief.”
Under this Rule, this Court is
“authorized to dismiss summarily any habeas petition that appears legally
insufficient on its face.”
McFarlandv. Scott, 512 U.S. 849, 856 (1994).
5.

In most cases, including this one, the one year statute of limitat
ions applicable to

petitions brought under

§ 2254 begins to run on the “date on which the judgment became final by
1

the conclusion of direct review or the expiration of the time for seekin
g such review including the
90-day period for filing a petition for writ of certiorari in the United
States Supreme Court.” See
Figueroa v. Buechele, No. 15-1200, 2015 WL 1403829, at *2 (D.N.J
. Mar. 25, 2015).
6.

Petitioner was resentenced on December 7, 2009.

(ECF No. 1 at 2).

Petitioner

appealed his resentencing to the New Jersey Appellate Division, which
affirmed the sentence on
September 9, 2011.1

(ECF No. 5 at 3, 14). Petitioner did not file for certification to the
New

Jersey Supreme Court, and his conviction therefore became final for
the purposes of the statute of
limitations when the time for filing for certification ran on Septem
ber 29, 2011. See N.J. Court
R. 2:12-3 (notice of petition for certification must be filed within
20 days of appellate division
entry ofjudgment).
7. The statute of limitations period can be tolled by the filing of
a valid state court post-

conviction relief (“PCR”) application.

Figueroa, 2015 WL 1403829 at *2.

The statute of

limitations is not tolled, however, by a PCR application which
has been filed untimely. See 28
U.S.C.

§ 2244(d)(l)-(2) (only a “properly filed” PCR application tolls the statute of limitations);

Pace v. DiGuglielmo, 544 U.S. 408,413 (2005) (“an untimely {PCR]
petition would not be deemed
‘properly filed”); Merritt v. Blame, 326 F.3d 157, 165-66 (3d
Cir. 2003) (untimely filed PCR
petition does not toll AEDPA statute of limitations).
8. Here, Petitioner argues that his petition is timely as he filed
a PCR

application on March

10, 2010, for which certification was not denied by the New Jersey
Supreme Court until February
4, 2014. See State v. Sharrieff 2013 WL 2172764 (App. Div.
May 21, 2013), certzf denied, 217
Petitioner provides the date of the affirmance as both September
2, 2011, and September 9,
2011. (ECF No. 5 at 3, 14). For the sake of this Order, the
Court gives Petitioner the benefit of
the later date. The result would not change if the September
2 date were correct, however.
2

N.J. 285 (2014). (ECF No. 5 at 14-16). Both the state trial court and
the New Jersey Appellate

Division, however, found that Petitioner’s PCR application had been untime
ly filed and was thus
procedurally barred.

Id. at

*

1, *3 (Petitioner’s “PCR petition

.

.

.

is well out of time

[Petitioner’s] argument that his late filing is excusable is without merit”
). As Petitioner’s PCR
application was untimely filed, it did not toll the running of the statute of limitat

ions, and Petitioner

therefore filed his current petition approximately eighteen months after the
statute had run. Pace,
544 U.S. at 413; Merritt, 326 F.3d at 165-66. As the statute of limitat
ions was not statutorily

tolled, and this Court perceives no basis for equitable tolling, the petitio
n must be dismissed as
time barred.
IT IS THEREFORE on this

1/

day of May, 2015,

ORDERED that the Clerk of the Court shall RE-OPEN this case; and it
is further
ORDERED that the petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 (ECF

No. 5) is DiSMISSED as time barred, Petitioner is permitted, however, to
file an amended petition
within thirty (30) days of this Order raising any basis for equitable tolling
which may apply; and
it is further
ORDERED that Petitioner’s application to proceed in forma pauper
is (ECF No. 7) is
DENIED as moot; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this
Order on Plaintiff by
regular U.S. mail and shall CLOSE the file.

Jy’WL. Linares, U.S.D.J.
3