LASSITER v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 13

OPINION. Signed by Judge Jose L. Linares on 9/7/16. N/M(DD, )

*NOT FOR PUBLICATION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

:

JALONN LASSITER,

Civil Action No.: 15-5674 (JLL)

Petitioner,
OPINION

v.
THE ATTORNEY GENERAL OF THE
STATE OF NEW JERSEY, et al.,
Respondents.

LINARES, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Jalonn Lassiter
(“Petitioner”) brought pursuant to 28 U.S.C.

§ 2254 challenging Petitioner’s state court conviction

(ECF No. 1). The State has filed a response to the petition (ECF No. 9), to which Petitioner has
replied (ECF Nos. 10, 11, 12). For the following reasons, this Court will dismiss the petition with
prejudice as time barred and will deny Petitioner a certificate of appealability.

I. BACKGROUND
In its opinion affirming Petitioner’s conviction, the Superior Court of New Jersey
Appellate Division provided the following summary of the facts underlying this case:
In October 2004, a Union County grand jury indicted Jeremy
Franklin, Boris Franklin, and [Petitioner], Jalonn Lassiter, charging
them as follows: first-degree robbery, N.J.S.A. 2C:15-1 (counts one
and four); first-degree felony murder, N.J.S.A. 2C:1 1-3a(3) (count
two); and second-degree kidnapping, N.J.S.A. 2C:13-lb (count

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five); the grand jury indicted [Petitioner] individually on a charge of
first-degree murder, N.J.$.A. 2C:1 l-2a(1) and/or (2) (count three).

After the trial judge denied [Petitioner]’s motion to suppress
a statement [Petitioner] gave to the police, he was tried to a jury from
September 26, 2006 through October 6, 2006. The jury convicted
him of first-degree robbery (count one); first-degree felony murder
(count two); and first-degree aggravated manslaughter, amended
from murder (count three); and acquitted him of counts four and
five. After merging counts one and three with count two, the court
sentenced [Petitioner] to life without parole.

We begin with the trial evidence. Ricardo McLeod testified
that Alicia Stewart introduced him to Boris and Jeremy Franklin so
he could sell them drugs. Prior to March 13, 2004, McLeod met
with the Franklins three times and sold them cocaine. McLeod
provided the drugs for the first transaction, but because he did not
have the drugs when the brothers requested the next two exchanges,
he obtained them from Tyshon Davis. Boris Franklin subsequently
contacted McLeod to purchase additional cocaine and the two
agreed to meet on March 13, 2004, at the Burger King on Route 1
and 9 in Elizabeth.
At approximately 9:00 p.m. or 10:00 p.m. on that day,
McLeod and Tyshon Orr met the Franklins in the Burger King
parking lot. The brothers arrived in one car and McLeod and Orr
arrived in another. They then left the parking lot in their respective
cars and drove to Van Buren Street, approximately one block from
the Burger King. There, Boris Franklin moved from his car into the
back seat of McLeod’s car. The men had agreed on a sale price of
$10,000, but Franklin told McLeod that he did not have the money.
According to McLeod, at that point, Franklin returned to his
car and asked McLeod to meet him at the Burger King parking lot.
McLeod told him that he did not have the drugs with him.
Consequently, McLeod remained on Van Buren Street and waited
for Davis to arrive with the drugs. When Davis arrived, he was
accompanied by Abelardo Astorga. Astorga remained on Van
Buren Street while McLeod and Davis walked to the Burger King
parking lot and got into the back seat of the Franklin& car.
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Jeremy Franklin got out of the car to go into the Burger King
restaurant. As the remaining three men were getting out of the car,
[Petitioner] arrived in a car, got out of the passenger side, and
pointed a gun in Davis’s direction. McLeod heard one gunshot.
Then, as [Petitioner] pointed a gun at McLeod, the men stole his
jacket, $80, and a phone.
Boris Franklin testified that he was not comfortable with the
drug transaction of March 13, 2004. He remained with McLeod,
however, because Stewart had assured him that McLeod was not
trying to harm him and that the transaction would go smoothly.
Franklin spoke to [Petitioner] several times during the night and
informed him that he would be at the Burger King parking lot. He
did not remember whether he told [Petitioner] that he was in trouble
or felt nervous about the drug transaction. He also indicated that
Davis “did not pull a gun on” him; nor were the two fighting.
According to Boris Franklin, he was outside of the car having a
conversation with Davis when [Petitioner] arrived at the parking lot,
got out of his car with a gun in his hand, and shot Davis as Davis
began to run.
McLeod denied that he or Davis had intended to rob the
Franklin brothers that night; neither he nor Orr were armed, nor were
Astorga or Davis.
At trial, Detective Dean Marcantonio of the Union County
Prosecutor’s office read into evidence a statement that [Petitioner]
gave to the police after he was taken into custody. In his statement,
[Petitioner] admitted that Boris Franklin contacted him on the night
in question because he wanted [Petitioner] to accompany him to the
drug purchase to ensure that “nothing went wrong.” [Petitioner]
said that he arrived at the Burger King with Leon Gandy.
[Petitioner] described what occurred:
Fah [Boris Franklin] told us to come over, and Buck
[Leon Gandy] drove on the opposite way of the
drive-thru behind the Burger King. We pulled up
and Fah was outside the car talking to the dude that
got shot. All I remember was the guy saying to Fah,
“What do you mean you don’t know me,” and then
Buck reached for the gun that was in the middle. I
told him give it to me, I’m closer. Buck said, “No,
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that’s my man. I got him.” We were struggling with
the gun, it was pointed towards the building, and
before you know it by me pulling it forward and him
bullying it back the gun went off. Buck pulled out
leaving me out in the parking lot with the gun. So I
got in the car with Fah, and Rah [Jeremy Franklin],
and the other kid that was in the back seat. We were
pulling out and I seen the Spanish guy that was
coming across the highway with a white bag in his
hand. The kid sitting next to me said, “That’s the
guy that was with the other guy and he’s got the
drugs.”. Faheem tried telling the guy to come over
I
to the car. The guy got scared and took off.
saw the guy on the ground. We then took off and
jumped on the Turnpike.
.

.

.

.

.

[Petitioner]’s videotaped statement was also shown to the jury.
(Document 4 attached to ECF No. 9 at 1-6, footnotes and citations omitted).
Following his conviction, Petitioner appealed. (Id.). The New Jersey Superior Court’s
Appellate Division affirmed his conviction on June 19, 2009. (Id.). Petitioner did not file a
petition for certification or petition for certiorari on direct appeal. Instead, Petitioner filed a first
petition for post-conviction relief on July 9, 2009. (Document 5 attached to ECF No. 9). The
PCR court denied that petition on February 25, 2011. (Document 13 attached to ECF No. 9 at 1).
Petitioner appealed, and the Appellate Division affirmed the denial of his PCR petition by way of
an opinion dated April 19, 2013. (Id.). Petitioner thereafler filed a petition for certification with
the New Jersey Supreme Court, which was denied on October 25, 2013. (Document 16 attached
to ECF No. 9). Petitioner then filed a petition for certiorari to the United States Supreme Court,
but that petition was denied on April 28, 2014.

(Document 19 attached to ECF No. 9).

On

September 17, 2014, Petitioner filed a motion for a new trial based on allegedly newly discovered
evidence in the trial court. (Document 20 attached to ECF No. 9 at 2). The trial court denied
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that motion on January 6, 2015 (Id. at 1-2), and Petitioner did not appeal. Petitioner ultimately
filed his current habeas petition on July 4, 2015. (ECF No. 1 at 16).

II.

DISCUSSION

A.

Legal Standard

Under 2$ U.S.C.

§ 2254(a), the district court “shall entertain an application for a writ of

habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States.” A habeas petitioner has the burden of establishing his entitlement to relief for each claim
presented in his petition based upon the record that was before the state court.
Erickson, 712 F.3d 837, 846 (3d Cir. 2013); see also Parker v. Matthews,

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U.S.

See Eley v.
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---,132 S.

Ct. 2148, 2151 (2012). Under the statute, as amended by the Anti-Terrorism and Effective Death
Penalty Act, 2$ U.S.C.

§ 2244 (“AEDPA”), district courts are required to give great deference to

the determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 77273 (2010).
Where a claim has been adjudicated on the merits by the state courts, the district court shall
not grant an application for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C.

§ 2254(d)(1)-(2). Federal law is clearly established for these purposes where it is
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clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United
States Supreme Court. See Woods

Donald,

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U.S.

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---,

125 S. Ct. 1372, 1376 (2015).

“When reviewing state criminal convictions on collateral review, federal judges are required to
afford state courts due respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Id.

Where a petitioner challenges an allegedly

erroneous factual determination of the state courts, “a determination of a factual issue made by a
State court shall be presumed to be correct [and the] applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

B. Analysis
1.

Petitioner’s petition for a writ of habeas corpus is time barred

In its answer to Petitioner’s petition for a writ of habeas corpus, the State argues that the
petition should be dismissed because it was filed afier the expiration of the one year statute of
limitations. Petitions for a writ of habeas corpus brought pursuant to

§ 2254 are subject to a one

year statute of limitations. Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013). In most cases,
including this one, the statute of limitation for a

§ 2254 petition runs from “the date on which the

judgment became final by the conclusion of direct review or the expiration of the time for seeking
such review” including the ninety day period for the filing of a petition for certiorari before the
Supreme Court. Id. This statute of limitations, however, is statutorily tolled while a petitioner
has a properly filed petition for post-conviction relief pending before the state courts. See, e.g.,
figueroa

V.

Bitechele, No. 15-1200, 2015 WL 1403829, at *2 (D.N.J. Mar. 25, 2015). Although

a petitioner may file a petition for certiorari as to the denial of his post-conviction relief petitions,
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statutory tolling only applies to the time his properly filed PCR petitions are pending in the state
courts, and thus the time for filing a petition for certiorari and any time during which such a petition
is pending are not tolled. See Lawrence v. Florida, 549 U.S. 327, 332-3 7 (2007).

In this case, Petitioner was tried and convicted in the fall of 2006, and was sentenced to
life without parole shortly thereafter. (See Document 4 attached to ECF No. 9 at 2). Petitioner
timely filed a direct appeal. (Id. at 1). The Appellate Division affirmed Petitioner’s conviction
on June 19, 2009. Petitioner filed neither an application for certification with the New Jersey
Supreme Court nor a petition for certiorari to the Supreme Court, and Petitioner’s conviction
therefore became final when the time for seeking a petition for certification expired, see Kapral v.
United States, 166 F.3d 565, 577 (3d Cir. 1999); see also Smith v. Holmes, No. 13-1876, 2016 WL
1464649, at *1 (D.N.J. Apr. 14, 2016) (conviction of state prisoner becomes final twenty days
after entry of judgment in Appellate Division where petitioner does not file petition for
certification in the New Jersey Supreme Court), which occurred twenty days after the Appellate
Division affirmed Petitioner’s sentence.1

See N.J. Court Rule 2:12-3 (notice of petition for

certification must be filed within twenty days of the entry of a final judgment of the Appellate

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The State argues that Petitioner’s conviction did not become final until after the time for filing a
petition of certiorari ran following an additional 90 days. Although Kapral and its progeny stand
for the proposition that a prisoner’s conviction does not become final until the time for filing a
certiorari petition expires even where no such petition is sought, this additional time only arises
where the prisoner exhausts all of his appeals in the lower courts. See Kapral, 166 F.3d at 577.
Because Petitioner did not file a petition for certification, and therefore did not make use of all of
his state appeal levels, he is only entitled to the time period for filing the last available appeal
which was not filed, and not the additional time for filing a petition for certiorari after that time
expired. Id. This distinction does not change the result here, however, because Petitioner filed
his first PCR petition on July 9, 2009, and thus his statutory limitations period was tolled in any
event during the 90 day certiorari period.
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Division). Thus, Petitioner’s petition became final on July 9, 2009.
Although Petitioner’s one year limitations period would have begun to run on July 9, 2009,
the one year period was statutorily tolled as of July 9, 2009, because Petitioner filed his first
petition for post-conviction relief (PCR) on that date. (Document 5 attached to ECF No. 9). The
PCR court denied Petitioner’s petition on February 25, 2011. (Document 13 attached to ECF No.
9 at 1). Petitioner appealed, and the Appellate Division affirmed the denial of his PCR petition
on April 19, 2013.

(Id.). Petitioner thereafter filed a petition for certification with the New

Jersey Supreme Court, which was denied on October 25, 2013. (Document 16 attached to ECF
No. 9). Petitioner also filed a petition for certiorari to the United States Supreme Court, but that
petition was denied on April 28, 2014. (Document 19 attached to ECF No. 9).
Because the New Jersey Supreme Court denied certification on Petitioner’s PCR petition
on October 25, 2013, his one year limitations period began to nm on that date. That Petitioner
filed a petition for certiorari does not affect that fact. Lawrence, 549 U.S. at 332-37. Three
hundred and twenty seven days of that one year period ran before Petitioner filed a motion for a
new trial based on allegedly newly discovered evidence on September 17, 2014.

Assuming

arguendo that statutory tolling applies while such a motion is pending in the state courts,
Petitioner’s one year limitations period would have resumed, at the latest, on February 20, 2015,
45 days after the trial court denied Petitioner’s motion on January 6, 2015 (Document 20 attached
to ECF No. 9), and the time for filing an appeal of that denial expired. See N.J. Court Rule 2:4-1
(appeals from final orders of trial courts must be taken within 45 days of entry). The thirty eight
days which remained on Petitioner’s one year limitations period thus expired, at the latest, on
March 30, 2015.
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Although the one year limitations period had expired, at the latest, on March 30, 2015,
Petitioner did not file his instant habeas petition until July 4, 2015, when Petition certifies that he
placed his petition into the prison mailing system. (ECF No. I at 16); see also Jones v. Morton,
195 F.3d 153, 157-58 (3d Cir. 1999) (pro se habeas petition is “deemed filed at the moment he
delivers it to prison officials for mailing to the district court”). Thus, when Petitioner filed his
current habeas petition, that petition was already untimely by more than three months. As such,
Petitioner’s current habeas petition would be well and truly time barred absent some form of
equitable tolling.
The question, then, is whether Petitioner is entitled to equitable tolling. Equitable tolling
“is a remedy which should be invoked ‘only sparingly.” United States v Bass, 268 F. App’x
196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 f.3d 174, 179 (3d Cir. 1998)). To
be entitled to equitable tolling, a habeas petitioner must show “(1) that he faced ‘extraordinary
circumstances that stood in the way of timely filing,’ and (2) that he exercised reasonable
diligence” in pursuing his rights throughout the period to be tolled.

United States v. Johnson, 590

F. App’x 176, 179 (3d Cir. 2014) (quoting Fabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)).
“There are no bright lines in determining whether equitable tolling is warranted in a given case.”
Fabon, 654 F.3d at 399. The courts should only permit tolling, however, “in the rare situation
where it is demanded by sound legal principles as well as the interest ofjustice.” LaCava v. Kyler,
398 F.3d 271, 275 (3d Cir. 2005).
To establish extraordinary circumstances sufficient to warrant tolling, a petitioner must
show either that he has been actively misled, that he was prevented from asserting his rights in
some extraordinary way, that he timely asserted his rights in the wrong forum, or that the court
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misled him regarding the steps he needed to take to preserve his claim. See Jones, 195 f.3d at
159; see also Brinson v. Vattghn, 398 F.3d 225, 230 (3d Cir.), ccii. denied, 546 U.S. 957 (2005).
That Petitioner or his attorney miscalculated the time remaining on his limitations period without
more does not constitute an extraordinary circumstance. See Joimson v. Hendricks, 314 F.3d 159,
163 (3d Cir. 2002). Ignorance of the law, including as to the limitations period, is also insufficient
to excuse a late filing in the absence of further pertinent facts, even where the petitioner is
incarcerated and acting pro Se. See United States v. Johnson, 544 U.S. 295, 311(2005); see also
fishery. Johnson, 174 F.3d 710, 714 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001).
In his replies, the only argument2 Petitioner presents to excuse his tardy filing is that he
was unaware of the steps he needed to take to make his case. Petitioner is therefore arguing a
combination of ignorance of the law and excusable neglect

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neither of which are sufficient to

warrant equitable tolling. Johnson, 544 U.S. at 311; fisher, 174 F.3d at 714; see also United

2

Although Petitioner does take issue with the jury’s conclusion that his helping his friends “get
their money or the[ir] drugs” back (see ECF No. 11 at 1-2) amounts to robbery, Petitioner does not
appear to be attempting to assert actual innocence. See generally In McQtdggan v. Perkins,
U.S.
133 5. Ct. 1924 (2013) (actual innocence claim can serve as a gateway to pennit time
barred claims to be raised). Even had Petitioner attempted to raise such a claim, establishing a
gateway actual innocence claim requires that a petitioner show his innocence through “new reliable
evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence that was not presented at trial.” Hubbard v. Pinchak, 378 F.3d 333,
339-40 (3d Cir. 2004) (quoting Schlttp v. Delo, 513 U.S. 298, 324 (1995)). Petitioner has
presented no such new evidence, providing only his own bald assertions that the crime scene may
have been tampered with by persons unknown. Petitioner has certainly failed to provide any
“evidence of innocence
so strong that a court cannot have confidence in the outcome of the
trial,” as is required to make out a gateway innocence claim. McQuiggin, 133 S. Ct. at 1936.
Indeed, even to the extent he asserts that there may have been some tampering, Petitioner still
appears to admit, to one extent or another, his part in the shooting. (See ECF No. 11 at 1). Thus,
Petitioner has failed to make out actual innocence to the extent he wished to raise such a claim,
and his petition remains time barred.
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.

.

.

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States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013) (mere excusable neglect insufficient to warrant

tolling). As such, Petitioner has presented no basis for the equitable tolling of his statute of
limitations, and, as the Court perceives no basis for tolling not presented to it by Petitioner, his
This matter must therefore be dismissed with

petition remains well and truly time barred.
prejudice.

III.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
ofhis constitutional claims or that jurists could conclude that the issues presented here are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
“When 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 ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because
jurists of reason could not disagree with this Court’s conclusion that Petitioner’s habeas petition
is time barred, nor with this Court’s conclusion that Petitioner is not entitled to equitable tolling,
Petitioner’s habeas petition is inadequate to deserve encouragement to proceed further. As such,
this Court will deny Petitioner a certificate of appealability.
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IV. CONCLUSION
For the reasons stated above, Petitioner’s petition for a writ of habeas corpus is
DISMISSED WITH PREJUDICE as time barred and Petitioner is DENIED a certificate of
appealability. An appropriate order follows.

‘nited States District Judge

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