FIGUEROA v. BUECHELE et al

Filing 5

OPINION fld. Signed by Judge Claire C. Cecchi on 6/30/15. (sr, )

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ROBERT FIGUEROA,
Civil Action No. 15-1200 (CCC)
Petitioner,
v.

:

OPINION

ROBERT BUECHELE, et a!.,
Respondents.

CECCHI, District Judge:

Petitioner Robert Figueroa, confined at South Wood State Prison in Bridgeton, New Jersey,
filed a Petition for a Writ of Habeas Corpus pursuant to 2$ U.S.C.

§ 2254 (“Petition”), challenging

two sentences imposed by the State of New Jersey on January 21, 2005 and December 10, 2010.
The Court previously dismissed the Petition, finding that the claims against the 2005 sentence were
time-barred, and that the Petition impermissibly challenged two separate sentences in violation of
the separate-petition rule. (ECF No. 3.) The Court directed Petitioner to file a separate petition
for the 2010 sentence. Id. Presently before the Court is Petitioner’s Motion to Amend the Petition,
addressing only the 2005 sentence (“Motion”). For reasons stated below, the Court denies the
Motion.
I.

FACTUAL BACKGROUND

The Court only recites relevant facts for the purposes of this Opinion, and will only address
the 2005 sentence. Petitioner pled guilty to one count of possession with intent to distribute heroin
in New Jersey state court. State v. Figueroa, No. A-5732- 10, 2013 WE 3835343, at * 1 (N.J. Super.

Ct. App. Div. July 26, 2013).

On January 21, 2005, Petitioner was sentenced to 16 years

imprisonment. (ECF No. 4 at 1.) There was no direct appeal filed.
On January 18, 2010, Petitioner filed an application for post-conviction relief (“PCR”). Id.
at 3. On August 31, 2010, Petitioner’s PCR application was denied. Id. Petitioner appealed, and
the Appellate Division affirmed the denial. Figueroa, 2013 WL 3835343, at *1. Petitioner filed
a petition with the Supreme Court of New Jersey, but it was denied on February 14, 2014. State
v. figueroa, 217 N.J. 287 (2014).
Petitioner filed the Petition in this Court on February 14, 2015. On March 25, 2015, the
Court dismissed the Petition, finding that Petitioner is time-barred under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) from challenging his 2005 sentence. (ECF No.
3.) The Court permitted Petitioner to move to reopen the case and amend the Petition, but only if
Petitioner provided valid reasons for equitable tolling. Id. at 1. Petitioner then filed the instant
Motion.
II.

DISCUSSION

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.” 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), “including the

90-day period for filing a petition for writ of certiorari in the United States Supreme Court.” Gibbs
v. Goodwin, No.09-1046,2009 WL 1307449, at *2 (D.N.J. May 1, 2009) (citingSwartzv. Meyers,
204 F.3d 417, 419 (3d Cir. 2000); Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999)).

2

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. Gibbs, 2009 WL 1307449, at *2.
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.” Gibbs, 2009 WL 1307449 at *3 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 416-17 (2005)).

More specifically, “[e]xtraordinary 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.” Id. (internal citations omitted).
Petitioner states in his Motion that his conviction and sentence became final on March 7,
2005. (ECF No. 4-2 at 10.) As such, his AEDPA statute of limitations period, assuming no tolling,
expired on March 7, 2006. However, Petitioner argues that because some of his claims relate to
the length of his sentence, which relied on a previous conviction that was later overturned on June
23, 2006, he could not have filed the Petition within the AEDPA limitations period. Id. Petitioner
then asserts that, “[a]fter the basis for the Habeas Corpus Petition arose, the Petitioner diligently
pursued his rights by first filing a Petition for Habeas Corpus relief on January 18, 2010.” Id.

3

Based on the Court’s review of the procedural history, the Court notes that Petitioner is apparently
referring to his state PCR application, not his federal habeas petition. As such, Petitioner claims
that his AEDPA statute of limitations was tolled by virtue of filing a state PCR application.
Petitioner’s argument does not support equitable tolling. Even assuming that the factual
predicate of the entire Petition

—

not just those claims relating to the length of his sentence

—

arose

on June 23, 2006, Petitioner’s AEDPA statute of limitations would start running at that point. See
28 U.S.C.

§ 2244(d)(1)(D). Petitioner maintains that he then “diligently pursued his rights by first

filing a [PCR application] on January 18, 2010.” However, filing a PCR application three and half
years after Petitioner discovered the basis of his claims is not “diligent.” Petitioner presents no
additional facts or arguments supporting equitable tolling. Accordingly, the Court finds that
Petitioner has not demonstrated that he is entitled to equitable tolling, and denies the Motion.
III.

CONCLUSION

F or the reasons set forth above, the Motion is DENIED.

Dated:

j.’—

7ö1

S

Claire C. Cecchi, U.S.D.J.

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