HESTER v. STATE OF NEW JERSEY et al

Filing 8

MEMORANDUM AND ORDER directing Petitioner to SHOW CAUSE w/in 30 days RE: Why the petition should not be denied as time-barred. Signed by Judge Claire C. Cecchi on 10/24/16. (sr, ) (N/M)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MELViN HESTER,
Civil Action No. 14-424 1 (CCC)
Petitioner,
v.

:

MEMORANDUM AND ORDER

STATE OF NEW JERSEY, et al.,
Respondents.

This matter has come before the Court on the Petition for Writ of Habeas Corpus of
Petitioner Melvin Hester, for relief under 2$ U.S.C.

§ 2254. Petitioner has declared that this

Petition sets forth all grounds for relief and is his one, all-inclusive habeas petition. At this time,
the Court must screen the Petition for summary dismissal pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts, and it appearing:
1. The Petition states that on May 5, 2005, Petitioner was convicted in a jury trial of sexual
assault, endangering the welfare of a child, and other related crimes. (ECF No. 1 at 2.) Petitioner
was sentenced on June 29, 2005. (Id.) The Petition contains very little information concerning
the procedural history of the case after conviction, other than the date that the New Jersey Supreme
Court denied a petition for certification, (Id. at 3), but the Court is unclear what the denial was for.
2. After some research, the Court was able to unearth the state appellate court’s opinion in
affirming the denial of Petitioner’s post-conviction relief (“PCR”) application. See State v. Hester,
Indictment No. 04-05-0518, 2013 WL 5853367 (N.J. Super. Ct. App. Div. Nov. 1, 2013).
According to the appellate court, Petitioner did not file a direct appeal after the conviction, and
filed apro se PCR notice on March 26, 2007. Id. at *1.

3. Title 2$, Section 2244 of the U.S. Code requires that “[a] 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment
of a State court.” 2$ 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.” 2$ 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 AEDPA one-year limitations
period starts to run when the time for seeking such review expires. Gonzalez v. Thaler, 132 S. Ct.
641, 653-54 (2012); Clay v. United States, 537 U.S. 522, 532 (2003); Swartz v. Meyers, 204 F.3d
417, 419 (3d Cir. 2000); Gibbs v. Goodwin, No. 09-1046, 2009 WL 1307449, at *2 (D.N.J. May
1, 2009) (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”).
4. 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 limitations period 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 of Laurel

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
$5.

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5. $o, even if the statutory time bar has passed, Petitioner may overcome that limitation if he
can show a basis for equitable tolling. Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001); Gibbs,
2009 WL 1307449 at *3 “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).
6. “The diligence required for equitable tolling purposes is reasonable diligence.” Ross, 712
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 799-800.
7. Here, because Petitioner did not file a direct appeal, his judgment became final at the
expiration of time to seek an appeal. See 28 U.S.C.

§

2244(d)(1)(A); Gonzalez v. Thater, 132 S.

Ct. 641, 653 (2012). State rules require that an appeal be filed within 45 days, see N.J. Ct. R. 2:44(a), Lombardi v. Masso, 207 N.J. 517, 540-41(2011). Since Petitioner was sentenced on June

29, 2005, his judgment became final on August 13, 2005, when his one-year limitations period for
a federal habeas petition began to run. While Petitioner would be entitled to statutory tolling for
any pending PCR application filed before the limitations period expired, he did not file his PCR

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application until March 26, 2007, afler the one-year limitations period expired. As such, he is
entitled to no statutory tolling. furthermore, Petitioner makes no equitable tolling arguments in
the Petition itself, so the Petition appears to be time-barred.
8. In the interest of justice, the Court will allow Petitioner an opportunity to show why the
Petition should not be time-barred.

Particularly, Petitioner may submit to this Court any

arguments, supported by evidence, why Petitioner is entitled to equitable tolling. Petitioner may
also raise any other argument as appropriate with regard to the timeliness of the Petition.
ITlSthereforeonthis

dayof

OrO-i/

,2016,

ORDERED that Petitioner shall, within thirty (30) days of the date of entry of this Order,

show cause in writing, in the manner directed above, as to why the Petition should not be denied
as time-barred, see Day v. McDonough, 547 U.S. 198, 209 (2006) (holding that a show cause order
is an appropriate method for the court to give notice to a petitioner for the sua sponte raising of a
timeliness issue); failure to timely respond to this Order will result in the dismissal of the Petition
with prejudice as time-barred; and it is further
ORDERED that the Clerk shall serve a copy of this Order upon Petitioner by regular mail.

Claire C. Cecchi
United States District Judge

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